The federal court partially approved the complaint of a German client of the major bank UBS. The man requested that his 299 ounces of gold be given to him.
The bank refused because the man did not want to confirm the correct taxation of the gold in writing. Now the Aargau High Court as a lower court has to examine whether UBS would be punishable under German law by surrendering the approximately 8.4 kilograms of gold.
The German invested three times in a UBS precious metals account in 2003 and 2007. In January 2014, he wanted to pick up his gold ounces. At that time, they were worth around 330,000 francs.
Because the man did not want to sign the correct tax reporting form, the bank terminated the relationship at the end of March 2014. The customer did not mind. However, he still asked for the gold to be released. He refused a transfer to another financial institution.
In February 2019, the Aargau High Court decided the dispute in the sense of UBS. It came to the conclusion that the bank had to ensure on the basis of the Money Laundering Act that the paper trail was not blurred. This means that it must be traceable based on documents, where the values come from and where they are going.
The higher court also classified the publication as immoral because it would violate regulatory norms that served public order and morality.
German law is a decisive factor
The Federal Supreme Court sees the matter somewhat differently and overturned the decision of the Aargau High Court in a judgment published on Thursday. According to the judges from Lausanne, a doubtful business relationship cannot be assumed in the present case. With the physical delivery of the gold, the money laundering law is not violated. Therefore, there is no obligation to keep track of the transaction.
However, the question for the Federal Court is whether handing over the ounces would violate German law. This could result in a violation of Swiss supervisory standards in accordance with the Banking Act.
Is there a tax offense?
The Aargauer Obergericht must now examine in particular whether the handing over of gold should be qualified as a criminally relevant aid to a tax offense under German law. The Federal Supreme Court wants to avoid that banks can pass on any remote risk of their own sanctioning to a foreign customer, as the judgment shows.
Even in the event of a possible risk of criminal prosecution of the bank abroad, it should not be concluded without a country-specific check that the German customer can be expected to disclose his assets for tax purposes and to carry out any necessary tax adjustments. The interests of the customer and the bank should be weighed up against each other.