According to the Parillo article, the draft NPA requires the Category 2 banks to :
- cooperate fully with the DOJ, the IRS, and any other domestic or foreign law enforcement agency designated by the DOJ regarding all matters related to the conduct described in the NPA;
- assist the DOJ or any designated domestic or foreign law enforcement agency in any investigation, prosecution, or civil proceeding arising out of or related to the conduct covered by the NPA;
- provide testimony as needed to enable the U.S. to use the information and evidence provided by the bank under the NPA; and
- provide the DOJ, upon its request, all information, documents, records, or other tangible evidence not protected by legal privilege or work product regarding matters arising out of or related to the covered conduct.
The draft NPA also requires the banks to assist the U.S. with the drafting of treaty requests seeking U.S. account information (whether the account is open or closed), and to retain all records relating to its U.S. cross-border business for a period of 10 years from the NPA's termination date. The agreement also describes the circumstances under which the DOJ may determine that a bank has violated the terms of the NPA and may be prosecuted.
The requested changes included limiting what the Justice Department could do with the information it collected and dropping a requirement that banks also agree to disclose similar information to other foreign authorities.
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In the letter, attorneys representing the banks took issue with a number of aspects of the program, including a provision that participants disclose information related to foreign parent companies or affiliates. The banks also panned a stipulation that they also open their books to other, unspecified foreign legal authorities probing hidden accounts.
For prior coverage of the draft NPA Agreement, see Swiss Category 2 Banks Reportedly Get Draft of NPA Agreement (Federal Tax Crimes Blog 10/11/14; 10/14/14), here.
Addendum 10/24/14 4:00pm: