The former tax attorney Hanno Berger made a partial confession in the proceedings for billions in share transactions at the expense of the state treasury. The 71-year-old has been charged with three cases in the Bonn Regional Court on suspicion of particularly serious tax evasion. The Cologne public prosecutor accuses him of playing a key role in plundering the state treasury by a total of 278 million euros between 2007 and 2013. After years of fiercely defending himself against all allegations, Berger declared on Monday that he had acted with “conditional intent” from 2009 onwards. Accordingly, Berger did not intentionally want to evade taxes, but accepted possible tax evasion with approval.
Given the history, this is an amazing turnaround. Berger is considered a key figure in the scandal surrounding tax-driven cum-ex stock deals. Banks, investors and other financial professionals had enriched themselves at the latest from 2006 to the end of 2011 when trading shares with (cum) and without (ex) dividend entitlement at the state treasury by having previously unpaid taxes on capital gains refunded. Tax investigators estimate the damage caused to taxpayers at more than ten billion euros; in the meantime, well over 100 criminal proceedings are pending across Germany.
Berger, once a high-ranking tax official in Hesse and later a top lawyer in tax law, is said to have been the architect and driver of the business models in question in numerous cases. So far, he had always denied ever having made himself a criminal offence.
Sometimes Berger sticks to his line
Now he classifies his actions from 2009 on completely differently. This has to do with a circular from the Federal Ministry of Finance to the tax authorities: In the letter from that year, the Ministry had expressed serious concerns about the method of tax planning marketed by Berger. Berger was aware of the letter early on, and it should probably have been “considered a turning point,” he said in his two-hour statement. “I should have known better.” But instead, he and his staff would have concentrated on the formalities and the remaining gaps.
Berger’s defense attorney, Richard Beyer, emphasized on the sidelines of the proceedings that he did not see any intentional action on the part of his client before 2009 – so it is not a confession within the meaning of the prosecution. In the 142 pages it says, among other things, that Berger placed the cum-ex business idea with the Hamburg private bank Warburg in 2006, laid the foundation for this business and made the market accessible to wealthy private individuals. Berger was always aware that the transactions could be punishable.
On the other hand, the ex-lawyer resisted to the end. In 2012, Berger fled to Switzerland in view of Cum-Ex investigations by the Frankfurt Public Prosecutor’s Office. From there he fought the investigations with harsh legal and rhetorical means. For the time being, he could feel safe from the German judiciary because Switzerland rarely extradites criminal tax matters. But Berger was such a rare case: the Swiss judiciary finally arrested him and handed him over to German investigators in February.
Parallel to the Bonn proceedings, Berger is also being charged at the Wiesbaden district court. The Frankfurt public prosecutor’s office accuses him of relieving the state coffers by 113 million euros from 2006 to 2008 in cooperation with the Hypo-Vereinsbank and a long-dead private investor from Berlin. In this case, Berger continues to deny ever having committed a crime.