The Frankfurt tax attorney Hanno Berger has been in custody for extradition in Switzerland for five and a half months. The German judiciary wants to get hold of him in order to bring him to court as one of the main suspects in the cum-ex tax scandal. And it looks like Berger will probably not be able to avoid a lawsuit for much longer.
In a decision published on Wednesday, the federal criminal court in Switzerland flatly rejected a complaint by the tax attorney against an extradition. “The complaint turns out to be unfounded in all its points, which is why it must be dismissed in its entirety,” writes the Federal Criminal Court.
The 51-page “decision”, the official title, is considered to be groundbreaking. Berger can still appeal to the Swiss Federal Supreme Court as the last instance, which is to be expected. Experience shows that the tax attorney, who is known as “Mr. Cum-Ex” and who left for Switzerland nine years ago, exhausts all legal means.
Those familiar with the Berger case assume that “Mr. Cum-Ex” has little chance at the federal court and will be transferred to Germany in spring 2022 at the latest. There are two heavy charges against him there, which should lead to trials in Wiesbaden and Bonn. That would be the most spectacular cum-ex processes in Germany to date.
The 71-year-old is considered to be one of the main masterminds in this tax scandal. With the help of tricky lawyers, banks and stock exchange traders have eased the German tax authorities by an estimated ten billion euros. With a simple and at the same time difficult to understand trick: the banks and their helpers had a tax paid once on the dividend income reimbursed several times over many years when trading shares with (cum) and without (ex) dividends.
In Germany, more than 1,000 suspects are now being investigated. Prosecutors refer to Berger as “Spititus Rector”, in other words as the initiator of many such share deals. In the event of extradition and lawsuits, it would have to be proven in court whether this was really the case. Berger has vehemently denied all allegations for years. The presumption of innocence applies to ongoing investigations.
According to the allegations of the prosecutors, Berger is said to have deceived the tax authorities together with numerous business partners and evaded taxes totaling 392 million euros. Exactly 391 893 343 euros and 96 cents. In the event of extradition and conviction, the tax attorney would face a long prison sentence. Berger rejects the allegation of tax evasion.
According to the decision of the Swiss Federal Criminal Court, Berger submitted that the accusation of criminal tax evasion made against him in Germany was “politically motivated”. Various high-ranking members of the executive, i.e. members of the government, would jointly with the media hunt down the alleged “tax robbers” and him in particular.
The Federal Criminal Court stated that the mere fact that the allegations made against Berger and other people and the “possible responsibilities at the administrative and political management level in politics and the media are being discussed controversially” does not per se constitute a political motivation for prosecution. The interest of the German public obviously lies in the spectacular extent of the allegations against Berger and the other defendants against the German state.
“In this situation, there are no reasons to assume that the criminal proceedings against him would have been initiated for political reasons,” writes the Federal Criminal Court. Berger’s complaint therefore turns out to be “unfounded on this point too”.
The German Federal Supreme Court ruled in the middle of the year that the targeted cum-ex deal at the expense of the state treasury should be classified as criminal. In two trials before the Bonn Regional Court, prison sentences have already been imposed, some on probation. Whether someone is guilty, however, has to be re-examined and decided in each individual case.
Berger’s Swiss lawyer could not be reached for a current statement on the decision of the Federal Criminal Court. According to his office, the lawyer is on vacation.
Hanno Berger had already fled to Switzerland at the end of 2012 when investigators searched the offices of his Frankfurt tax office. With his new residence in the Engadine, he was able to evade German justice for years. A good five months ago, however, the Federal Office of Justice in Bern issued an extradition arrest warrant against Berger at the request of the German authorities, at the time based on two German arrest warrants and one application for extradition. Since then, Hanno Berger has been incarcerated in the Cazis Tignez correctional facility in Switzerland.