Hanno Berger, the German tax attorney who is known as Mr. Cum-Ex and who is in exile in Switzerland for the ninth year, is now 70 years old. But he’s not tired of arguing with his German persecutors who want to bring him to court in one of the biggest tax scandals. When Swiss officials came to him on Wednesday and informed him that he had been arrested, Berger immediately defended himself.
“On the occasion of his interrogation, the person declared that he would oppose extradition to Germany.” This was announced by the Federal Office of Justice in Bern at the request of Süddeutscher Zeitung and WDR with. The person is Berger, who once worked for the tax authorities in Hesse and made it up to government director there. He then changed sides and, as a lawyer, helped many wealthy clients to save taxes in a tricky way. And who is said to have overdone it with the trick. Which has now even brought him an extradition warrant from the Swiss judiciary.
The public prosecutor’s office in Frankfurt accuses Berger of having been “Spiritus Rector”, that is to say, to have been the mastermind of many stock deals at the expense of the tax authorities. The tax attorney was not the inventor of the stock deals, in which banks and stock exchange traders, with the help of shrewd lawyers, had a tax paid only once on dividend proceeds reimbursed several times. Berger, who denies all allegations, is said to have refined the system and supported it with questionable legal opinions.
Overall, Cum-Ex is said to have cost the German state more than ten billion euros
The Cologne public prosecutor has also indicted Berger. There are two German arrest warrants and an extradition request to Switzerland. But whether the ex-government director will actually be brought back to Germany is questionable. There are three reasons that make a quick delivery unlikely. Berger’s age and state of health; the lengthy procedure in Switzerland; and the tricky approach of the German judiciary, which may act too tricky.
In the share deals promoted by Berger, the tax authorities are said to have been damaged by several hundred million euros. Cum-Ex is said to have cost the German state more than ten billion euros in total. Berger has been vehemently resisting all measures taken against him for years.
In Switzerland, Mr. Cum-Ex can take action against extradition in two instances. First at the Federal Criminal Court and then, if there is a particularly important case, at the Federal Court. It takes time, and during this time Berger doesn’t get any younger and maybe not healthier either. He is said to be in hospital because of various complaints in Chur in the canton of Graubünden. Berger has lived in this canton since he fled Germany after a cum-ex raid in autumn 2012, in Zuoz in Upper Engandin. In Graubünden, Berger was also declared his arrest, according to the Bern Federal Office of Justice.
If Switzerland wanted to hand him over to the German judiciary at the end of the day, it would probably amount to another argument, to a medical dispute. A Swiss medical officer is said to have declared Berger unable to custody and travel. His German prosecutors would certainly not accept that, but would insist on further investigations. That too could take a long time. A former companion of Berger speculates that Mr. Cum-Ex will pull out all the stops to save himself legal proceedings and the impending prison in Germany.
Can the allegation of commercial gang fraud hold up?
Before a possible dispute between the doctors, however, a fundamental conflict is emerging at the legal level. A few months ago, the Higher Regional Court (OLG) classified cum-ex deals at the expense of the state treasury as commercial gang fraud and not just tax evasion. They are imprisoned for up to ten years. The reason for the OLG decision was Berger’s complaint against one of the German arrest warrants. The OLG assessed the fact that the tax attorney had fled to Switzerland as a flight.
Gang fraud instead of just tax evasion opens up completely new opportunities for German prosecutors in Switzerland. In an expert report at the end of 2020, the scientific services of the Bundestag came to the conclusion that Switzerland would probably not extradite anyone in the event of tax evasion. However, if one assumes fraud, extradition should be possible.
Whether the allegation of gang fraud is tenable remains to be seen. One of Berger’s lawyers, Kai Schaffelhuber, refers to an article by Andreas Mosbacher, judge at the Federal Court of Justice (BGH) in Karlsruhe. In it, Mosbacher rejects the thesis of the Frankfurt Higher Regional Court of gang tax fraud. This is a “departure from a decade-long established case law” of the Federal Court of Justice and the Federal Fiscal Court, ie two highest courts.
Mosbacher also writes that the purpose of the “creative legal finding” of the Frankfurt Higher Regional Court is apparently to enable Berger’s extradition from Switzerland. But a legal opinion that no one else advocates can not simply be established without any further justification “for the purpose of extradition that would otherwise not be possible”. “It seems as if it is not the law that speaks here, but the power.” Mosbacher even goes one step further. The OLG decision could not last. “Any other result would open the door to judicial arbitrariness and arbitrariness.”
At least that’s what a BGH judge writes. Berger is unlikely to miss the opportunity to present Mosbacher’s essay to the Swiss judiciary. So it is far from certain whether Mr. Cum-Ex will actually be delivered. There is still the possibility that Berger will carry out earlier announcements to face the proceedings against him in Germany. His lawyer Schaffelhuber had announced in the autumn of 2020 on SZ request: “Mr. Berger has repeatedly stated that he will face proceedings. It will stay that way.”
But it doesn’t look like that.