FATCA, Meaning of Paragraph V.A. of the DoJ Program for Non-Prosecution-Agreements
Thread poster: Gerald Maass

Gerald Maass  Identity Verified
Germany
Local time: 03:06
English to German
+ ...
Jul 31, 2014

Dear Colleagues

Paragraph V.A. of the "Programm for Non-Prosecution Agreements or Non-Target Letters", issued by the Tax Division of the US-DoJ reads:
"The Tax Division will not authorize formal criminal investigations of any additional [name of the country] Banks in connection with undeclared U.S. Related Accounts held by the [name of the country] Bank during the Applicable Period before January 1, 2014.

Does this mean, the Tax Division will not engage in criminal investigations before January 1, 2014 or that it will noct engage in such investigations in connection with such undeclared U.S. Related Accounts that are held by the bank before said date during the Applicable Period?

Thanks a lot in advance for your help,

Gerald


 

Orrin Cummins  Identity Verified
Japan
Local time: 10:06
Japanese to English
+ ...
It's horribly ambiguous Jul 31, 2014

The way I read it is:

"The Tax Division will not authorize formal criminal investigations before January 1, 2014."

In other words, the date "January 1, 2014" doesn't seem to be related at all to "Applicable Period."

It really is a terrible sentence, though, from a legal point of view. Cases built on exploiting ambiguities like this are filed all the time, at least in the US. It often comes down to whatever a particular judge interprets it to be.

Since this is issued by a division of the federal government, though, you could probably contact them for clarification.


 

Paweł Hamerski
Poland
Local time: 03:06
English to Polish
+ ...
Exactly Jul 31, 2014

There are two(?) ways of dealing with it: one is to translate it as ambiguously as in the original and make a translator's note about it (if you understand the text of course) and the other is to ask the customer for clarification - however if the answer will be 'just translate and don't bother me with your .... questions-I pay and expect results' then you should make a suitable note in your translation.

 

Gerald Maass  Identity Verified
Germany
Local time: 03:06
English to German
+ ...
TOPIC STARTER
Thanks a lot! Jul 31, 2014

I translated it giving it the meaning of "no investigations before January, 1st". In a translator's note I explained the ambiguity of the ST and said, why I chose the version, I wrote (i.e. that I think that, given the prosecution interest of the US-autorities, they are less likely to offer an amnesty than just granting not to move until everyone had the chance to think it over).

 

Patrick Porter
United States
Local time: 21:06
Spanish to English
+ ...
ambiguous wording, but the background seems to suggest that it's when the amounts were held Jul 31, 2014

I haven't done extensive research into all the particulars and am not an expert on FATCA, so this post only represents my opinion as a translator.

But given the background of this "program", it seems to mean that there will be no legal action brought, at any point in the future, for undeclared amounts that were held before Jan. 1, 2014.

According to this DOJ press release, the agreements were available to some banks, under certain circumstances, which suspected they might have held undeclared funds that could have exposed them to legal action. If they took actions to "resolve" the situation (disclosure, paying penalties, etc.), the DOJ would agree not to prosecute them. The deadline for the program was Dec. 31, 2013.

It seems to me that the date of the deadline suggests the phrase is referring to the time when the amounts were held, not the timeframe of prosecution.


 

Gerald Maass  Identity Verified
Germany
Local time: 03:06
English to German
+ ...
TOPIC STARTER
but Jul 31, 2014

why would the DoJ waive to prosecute other banks, that did not participate in the programm? Oder did I understand the phrase wrongly by assuming that there are two types of banks here: the bank entering into a NPA and the banks were probably related accounts to non-declared US-Related Accounts are held?

 

Orrin Cummins  Identity Verified
Japan
Local time: 10:06
Japanese to English
+ ...
Nice research Jul 31, 2014

Patrick Porter wrote:

I haven't done extensive research into all the particulars and am not an expert on FATCA, so this post only represents my opinion as a translator.

But given the background of this "program", it seems to mean that there will be no legal action brought, at any point in the future, for undeclared amounts that were held before Jan. 1, 2014.

According to this DOJ press release, the agreements were available to some banks, under certain circumstances, which suspected they might have held undeclared funds that could have exposed them to legal action. If they took actions to "resolve" the situation (disclosure, paying penalties, etc.), the DOJ would agree not to prosecute them. The deadline for the program was Dec. 31, 2013.

It seems to me that the date of the deadline suggests the phrase is referring to the time when the amounts were held, not the timeframe of prosecution.


You are probably right. This makes me wonder what was the point of saying "during the Applicable Period," though:

The Tax Division will not authorize formal criminal investigations of any additional [name of the country] Banks in connection with undeclared U.S. Related Accounts held by the [name of the country] Bank before January 1, 2014.


The above version makes more sense, does it not? If the (presumably elsewhere) defined term "Applicable Period" encompassed dates prior to January 1, 2014, then there seems to be no reason to say "during the Applicable Period" at all.


 

Gerald Maass  Identity Verified
Germany
Local time: 03:06
English to German
+ ...
TOPIC STARTER
Def. of "Applicable Period" Jul 31, 2014

The Program defines "Applicable Period" as follows:

"Applicable Period" shall mean the period between August 1, 2008, and either (a) the later of December 31, 2014, or the effective date of an FFI Agreement, or (b) the date of the Non-Prosecution Agreement or Non-Target Letter, if that date is earlier than December 31, 2014, inclusive."


[Bearbeitet am 2014-07-31 15:09 GMT]


 

Orrin Cummins  Identity Verified
Japan
Local time: 10:06
Japanese to English
+ ...
In that case... Jul 31, 2014

Gerald Maass wrote:

The Program defines "Applicable Period" as follows:

"Applicable Period" shall mean the period between August 1, 2008, and either (a) the later of December 31, 2014, or the effective date of an FFI Agreement, or (b) the date of the Non-Prosecution Agreement or Non-Target Letter, if that date is earlier than December 31, 2014, inclusive."


[Bearbeitet am 2014-07-31 14:53 GMT]


This is what they really meant, I think:

The Tax Division will not authorize formal criminal investigations of any additional [name of the country] Banks in connection with undeclared U.S. Related Accounts held by the [name of the country] Bank between the dates of August 1, 2008, and December 31, 2013, inclusive.


Investigations will not be authorized for accounts held from the start of the Applicable Period to the last day of 2013. Why they did not write that more clearly is beyond me, although it is at least understandable now that we know the definition of "Applicable Period."

[Edited at 2014-07-31 15:06 GMT]

[Edited at 2014-07-31 15:07 GMT]


 

Patrick Porter
United States
Local time: 21:06
Spanish to English
+ ...
on second thought... Aug 1, 2014

...your original hunch might have been correct.

Gerald Maass wrote:
why would the DoJ waive to prosecute other banks, that did not participate in the programm?


That's a good point. Since your source text mentions country names, not individual bank names, it seems like some banks are going to be included in the scope that might not have participated.

After having a chance to take a closer look, I noticed that the linked press release also mentions a period ending Dec. 31, 2013 during which no prosecutions will be started, while allowing the banks to come forward to seek to enter into an agreement. So perhaps it doesn't completely clear up the ambiguity after all, as it mentions the significance of Jan 1 in both contexts. However, there seems to be a good chance your text means that the prosecution won't happen before the applicable period.

In any event, as demonstrated, I'm not an expert in this area and have not researched it thoroughly. I would agree with your strategy of including a translator's note.


 


To report site rules violations or get help, contact a site moderator:


You can also contact site staff by submitting a support request »

FATCA, Meaning of Paragraph V.A. of the DoJ Program for Non-Prosecution-Agreements

Advanced search







Déjà Vu X3
Try it, Love it

Find out why Déjà Vu is today the most flexible, customizable and user-friendly tool on the market. See the brand new features in action: *Completely redesigned user interface *Live Preview *Inline spell checking *Inline

More info »
PerfectIt consistency checker
Faster Checking, Greater Accuracy

PerfectIt helps deliver error-free documents. It improves consistency, ensures quality and helps to enforce style guides. It’s a powerful tool for pro users, and comes with the assurance of a 30-day money back guarantee.

More info »



Forums
  • All of ProZ.com
  • Term search
  • Jobs
  • Forums
  • Multiple search