Bradley Birkenfeld

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Bradley Charles Birkenfeld (born February 26, 1965 in Brookline , Massachusetts ) is an American bank manager and whistleblower whose revelations with the United States government led to a massive fraud investigation against the Swiss bank UBS and other banks that have enabled tax evasion by US taxpayers. In February 2009, based on its information to the United States authorities, the US Department of Justice announced that it had reached a stay of law enforcement agreement with the Swiss UBS Bank, fined $ 780 million and surrendered agreed to confidential information about possible American tax evaders. In September 2012, Birkenfeld received $ 104 million from the Internal Revenue Service's whistleblower program as a reward for making tax collection easier thanks to his whistleblowing. Birkenfeld received this record amount less than six weeks after his parole from prison, where he was incarcerated for helping one of his clients with tax evasion. Although the prosecutor had recommended a lower sentence for his constant collaboration with federal agencies, Birkenfeld was sentenced to 40 months in prison and a $ 30,000 fine in August 2009. Many stakeholders around the world criticized Birkenfeld's prosecution and conviction on the grounds that it would deter potential whistleblowers in the financial sector. Birkenfeld was transferred from prison to open prison in New Hampshire on August 1, 2012 , and was paroled on November 29, 2012.

Birkenfeld's revelations led to the erosion of the legendary Swiss banking secrecy , which began when Switzerland changed its Bundesbank law in 2009 immediately after the UBS scandal and finally culminated in Switzerland officially entering into an agreement on mutual administrative and legal assistance in tax matters on October 15, 2013 signed. This agreement, an international tax treaty with almost 60 signatories that facilitates the exchange of tax data between countries, means a rollback of the Swiss status as a tax haven for foreign assets.

The Swiss media attribute a fundamental change in Swiss banking to Birkenfeld's act. After Birkenfeld was rewarded, the Swiss newspaper Blick claimed that “Birkenfeld has been a boon to Swiss finance” in that its revelations have helped accelerate the shift away from “dirty” money in this sector by breaking the bank secrecy law that allows tax evasion, was convicted.

Birkenfeld compared the Swiss banking system with gangsterism (“racketeering”) . "Essentially, banking secrecy belongs to the organized crime category - and the Swiss government, along with all Swiss private bankers, are co-conspirators."

Birkenfeld's key role as a financial whistleblower was recognized by Tax Analysts when they named him 2009 Person of the Year. "Tax Analysts", a non-profit organization that provides information and analysis to tax officials and tax advisors, called Birkenfeld "the Benedict Arnold [rebel and defector] of private banking" and added that he had "single-handedly" through his revelations about tax evasion caused major changes in the global tax system that would have led governments to prosecute tax evaders.

Youth and education

Birkenfeld was born on February 26, 1965, in Brookline, Massachusetts , a suburb of Boston . His father was a neurosurgeon. Birkenfeld attended Thayer Academy, a secondary school, and graduated from Norwich University in Vermont in 1988 . Many of Birkenfeld's classmates in Norwich , the oldest military academy in the United States, usually went into the military after graduation, but he chose to pursue a career in finance. He received a Masters from the American Graduate School of Business in La Tour-de-Peilz , Switzerland.

Banking career

Birkenfeld began his banking career in the foreign exchange department of State Street Bank & Trust in Boston. Birkenfeld claims the first time he betrayed illegal activity as a whistleblower was while on State Street and turned to the FBI in 1994. The information did not lead to any charges. He says he turned down an offer to join the FBI following this incident, but the claim is controversial.

In 1996 he was employed as a private banker at Crédit Suisse , and in 1998 he moved to Barclays Bank . In October 2001, Birkenfeld started his activity at UBS in Geneva , Switzerland, again as a private banker for services in asset management . In this role, he was primarily responsible for convincing wealthy Americans to transfer their funds to UBS Bank and enable them to hide their funds using the strict Swiss banking secrecy laws and avoid paying taxes in the US have to. Although UBS was not allowed to provide investment advice in the United States, Birkenfeld and other related employees lied about the purpose of their trips to the United States. Birkenfeld advised American clients on how investigations by the American tax authority, the Internal Revenue Service (IRS), could be avoided, including the storage of cash and jewels in Swiss bank safes. According to Birkenfeld, UBS sponsored events such as art exhibitions and yacht races in the United States to attract wealthy people as potential clients. The events gave their Swiss-based bankers, who essentially acted as salespeople selling the “Swiss Tax Haven ” product , a way to get in touch with the rich to cement business, which was illegal under the US Banking Act.

One of Birkenfeld's wealthiest clients was a California real estate tycoon, Igor Olenicoff, a billionaire whom he met while at Barclays and brought with him as a client when he moved to UBS. In 2001 there was a meeting between Olenicoff and Birkenfeld in Geneva, as a result of which $ 200 million was transferred to UBS, which Olenicoff was able to access using credit cards supplied to him by Birkenfeld. Birkenfeld reportedly introduced Olenicoff to the bankers who helped him set up offshore firms to hide his assets and avoid taxes. Olenicoff later pleaded guilty of tax evasion and paid a $ 52 million fine but avoided jail time. The Justice Department eventually persecuted Birkenfeld for his role as Olenicoff's helper in tax evasion.

Whistleblowing and arrest

Birkenfeld worked at UBS from 2001 to 2005 as a private banker.

According to him, Birkenfeld learned in 2005 that UBS's dealings with American clients violated an agreement between the bank and the IRS. He retired from UBS on October 5, 2005 after reading an internal document prepared by UBS's Legal Department describing prohibited cross-border banking activities in the United States. The bans were in contrast to the job description of asset managers serving American clients in the United States. Birkenfeld believes the memorandum was prepared to give UBS legal backing should illegal activities sanctioned by the bank be exposed. The bank could then put the blame on its employees.

As a result, he complained to the UBS compliance officer about the bank's “unfair and deceptive business practices”. According to his testimony, when Birkenfeld received no response, three months later wrote to Peter Kurer, who was UBS's chief legal counsel at the time, about the illegal practices. After leaving UBS, he became a partner at Union Charter Ltd., where he specialized in asset management.

In 2007, Birkenfeld decided to tell the Justice Department what he knew about UBS's illegal business practices. At the same time, he wanted to use a new federal law for whistleblowers, the Tax Relief and Health Care Act, through which he would be paid up to 30% of any tax income that would be recovered by the tax authority Internal Revenue Service based on his, Birkenfelds, information. Birkenfeld also claimed immunity from prosecution for his involvement in the UBS transactions. In April 2007, Birkenfeld's attorney sent the US Department of Justice a summary of Birkenfeld's information and indicated his desire to become an Internal Revenue Service whistleblower. The US Department of Justice replied that it was not part of the Internal Revenue Service's whistleblower program and that it would not grant Birkenfeld's immunity. Nevertheless, Birkenfeld met with representatives from the US Department of Justice. When communications between Birkenfeld and the US Department of Justice stalled, Birkenfeld contacted the US Securities and Exchange Commission, the Internal Revenue Service, and the US Senate. In April 2008, Birkenfeld's attorneys told the US Department of Justice that he would support the US Department of Justice in exchange for immunity. Birkenfeld was arrested in Boston on May 7, 2008 when he got off the plane at Logan Airport , coming from Switzerland, and was indicted in the US District Court for the Southern District of Florida in Fort Lauderdale on May 13.

The prosecutor in the case, Senior Litigation Counsel for the Justice Department Taxation Department, Kevin M. Downing, justified Birkenfeld's prosecution by claiming he had failed to identify his clients, particularly Igor Olenicoff. Downing said: “With regard to whistleblowers, those who would like to be treated as true whistleblowers should know that they must come forward early and provide full and truthful information ... Mr. Birkenfeld has not come forward and has complete and truthful information made. As a result, he cannot be recognized as a whistleblower. ”Birkenfeld resigned from Union Charter on June 3, 2008 after agreeing to plead guilty. On June 19, Birkenfeld pleaded guilty to a single plot of conspiracy to defraud the United States. At his subsequent sentence, Justice Department prosecutor Kevin M. Downing admitted that the United States could not have put together UBS's “massive fraud plan” without Birkenfeld's support.

Conviction and imprisonment

On August 21, 2009, Birkenfeld was sentenced to 40 months in prison and a fine of $ 30,000 by the US District Judge par le juge du district William Zloch, although the prosecution had recommended 30 months. Downing requested that the judge leave Birkenfeld free for 90 days so that he could continue working with the US Department of Justice, after which the prosecution could request a lesser sentence. The parties who sent letters to the court asking for leniency included U.S. Senator Carl Levin (D-MI), who, as head of the Standing Subcommittee on Investigations of the Senate Homeland Security Committee, conducted hearings on the UBS tax evasion scandal, the Internal Revenue Service and the US Securities and Exchange Commission.

Kevin Downing, the lead prosecutor, stated that Birkenfeld was not a whistleblower, but the Internal Revenue Service eventually granted Birkenfeld whistleblower status. Birkenfeld and his lawyers claim that they had asked the US Department of Justice to formally summon him for a testimony, since otherwise his disclosure of confidential customer data would violate Swiss banking law of 1934 and lead to his arrest on his return to Switzerland, where he is had settled. Banking secrecy is enshrined in Swiss law and disclosing information about customers is a criminal offense. The US Department of Justice refused to do so.

While Downing alleged in court that Birkenfeld had reported nothing about his relationship with his clients, specifically Olenicoff, in reality he had information about Olenicoff to the Internal Revenue Service, the U.S. Securities and Exchange Commission, and the Standing Subcommittee on Investigations Senate Committee on Homeland Security. On October 9, 2007, the Standing Subcommittee formally summoned Birkenfeld, approving legal safeguards in relation to UBS's illegal business practices, which UBS described to the committee in detail, with names and evidence. Even Downing admitted in court that without the information Birkenfeld provided to the US government, there would have been no trial against UBS. What Birkenfeld and his lawyers allege was that Downing's misrepresentation of his collaboration with the government served as a basis for taking legal action to review and reduce his sentence.

Birkenfeld began his 40-month sentence in the Schuylkill County Federal Correctional Facility, Minersville, Pennsylvania on January 8, 2010.

Birkenfeld did not appeal. On January 5, 2010, Birkenfeld officially requested that United States Attorney General Eric Holder investigate alleged prosecution wrongdoing, alleging that Justice Department officials made misleading statements to the judge. On April 15, 2010, his lawyers filed a motion to convert the judgment . Birkenfeld was released from prison in August 2012.

Criticism of law enforcement

Various interest groups around the world demanded that United States Attorney General Eric Holder reassess the Birkenfeld case. A letter from the National Whistleblower Center [in Washington] said that "the devastating impact of Mr Birkenfeld's conviction is radically undermining the prison system's ability to investigate, prosecute and prevent illegal offshore banking."

Stephen M. Kohn, one of Birkenfeld's lawyers, told reporters at a press conference on the day of Birkenfeld's arrest that his arrest would make government efforts to arrest tax evaders much more difficult as it would discourage potential whistleblowers in the banking sector. Kohn argued that "... this has a chilling effect on other bankers' willingness to step forward and do the right thing".

After Birkenfeld uncovered the UBS tax evasion scandal in 2007, the Swiss bank was able to avoid prosecution in the United States based on suspension of prosecution agreements with the US Department of Justice. The subsequent fines in the tax evasion scandal, in the case of market manipulation with ARS auction rate securities bonds in 2008 and in the case of price manipulation with derivatives of municipal bonds in 2011 apparently had little deterrent effect on the bank. US representative Peter Welch (D-VT) told the New York Times in July 2012: It is depressing. The Justice Department must decide: Are the days of settlement judgments and regulations that pay a fine that is passed on to shareholders, those days over? Are the days of jail time here?

In November 2008, an American jury (US Federal Grand Jury) sued Birkenfeld's former boss, Raoul Weil ! on the basis of the investigation of UBS's US cross-border business. Weil was Chief Executive Officer of the Global Wealth Management & Business Banking unit of UBS and a member of the UBS Group Executive Board. UBS finally cut ties with Weil in May 2009. Weil was extradited to the United States and acquitted in 2014.

Whistleblowers have been in short supply in the banking sector since Birkenfeld's arrest and incarceration. Former UBS banker Renzo Gadola, whose name Birkenfeld had passed on to federal authorities, was arrested in 2010. Gadola, who founded RG Investment Partners (Zurich) after leaving UBS, pleaded guilty to aiding and abetting fraud against the United States by allowing American citizens to evade taxes through offshore companies . In November 2011, Gadola was sentenced to five months probation and a $ 100 fine. Unlike Birkenfeld, who volunteered to provide information, Gadola did not work with the American prosecutor before he was arrested.

UBS regulation

Based on the results of an investigation that began in March 2008, the US Department of Justice concluded that UBS's internal investigations into Birkenfeld's claims "did not evaluate or investigate the evidence of bankers' private communications with US clients." The US Department of Justice developed criminal proceedings against UBS that threatened UBS's license to operate in the United States. UBS announced that it would discontinue cross-border private banking services for US residents through its non-US regulated entities from July 2008.

On February 18, 2009, UBS agreed to pay the US government a $ 780 million fine and entered into a Deferred Prosecution Agreement on allegations of conspiracy to hinder the United States' tax collection efforts of the IRS to cheat. Of the $ 780 million UBS paid the US government, $ 380 million came from the skimming of profits from its cross-border operations, while the remainder represented US taxes that UBS had not paid on the accounts. The numbers include interest, penalties, and refunds for unpaid taxes. As part of the deal, UBS also regulated fees of the Securities and Exchange Commission for activities as an unregistered broker / dealers and as investment adviser for Americans. In addition, UBS paid $ 200 million to settle with the US Securities and Exchange Commission (SEC) to avoid litigation for alleged conduct by UBS that the firm had facilitated the ability of certain US clients to open clandestine accounts in Switzerland and elsewhere overseas states that have enabled these clients to avoid paying taxes on the assets in those accounts. To avoid additional fines, in July 2009 UBS announced the names of 4,500 Americans who had offshore accounts with UBS.

IRS reward

In 2010, IRS Commissioner Douglas Shulman estimated that the UBS tax evasion model has generated profits of up to $ 200 million a year from assets of $ 20 billion in undeclared, secret bank accounts of around 20,000 American taxpayers. The Birkenfeld revelations led the Internal Revenue Service to offer amnesty programs to Americans who had their assets hidden in offshore accounts. In September 2012, the IRS whistleblower bureau rewarded Birkenfeld with $ 104 million as a whistleblower. It was the greatest reward ever paid to a whistleblower, be it an individual or a group. Birkenfeld received the reward from the Internal Revenue Service's whistleblower program, which gives informants a percentage of the money that the US government recovers when the fraud is exposed. The reward was calculated based on $ 400 million in tax reclaimed from UBS and represents a 26% premium.

The IRS based its decision on Birkenfeld's "exceptional collaboration" and the "breadth and depth" of the information he provided, resulting in "unprecedented action" against UBS. The IRS used the information to negotiate a $ 780 million settlement with UBS in 2009. Under the agreement, UBS admitted to helping US clients with tax fraud. The bank later revealed the names of nearly 5,000 US clients, suspected tax evaders. IRS amnesty programs have since raised $ 5 billion from individuals who participated in the illegal UBS system based on information provided by Birkenfeld.

Olenicoff trial

In 2008, UBS, Birkenfeld, Union Charter and their owner David Schwedel were accused in a $ 500,000,000 lawsuit by Igor Olenicoff of advising him on tax fraud. The lawsuit was dismissed in April 2012. Birkenfeld then filed a lawsuit against Olenicoff with the federal court to get his defense costs back in the process.

Trial for incorrect legal advice

In November 2012, Birkenfeld sued Schertler & Onorato and the lawyers David Dickieson, Danny Onorato, David Schertler and Peter Taylor because they were unable to secure whistleblower protection for him from the federal government. In his lawsuit, Birkenfeld alleged that Schertler & Onorato and their attorneys falsely presented [him] as experienced and knowledgeable in federal whistleblowing laws and procedures "when in fact they have very limited experience in the field." Complaint under point 14, Birkenfeld against Schertler & Onorato, LLP, civil litigation no. 0008397-12 (DC Super.Ct. Oct. 31, 2012). Birkenfeld also alleged that Schertler & Onorato's attorneys violated his constitutional rights when they did not contradict in a meeting with federal attorneys that he, Birkenfeld, could not meet officials from the United States IRS and Senate.

Schertler & Onorato countered by suing for 12.5% ​​of all funds that Birkenfeld had received from the IRS as a reward, as agreed in the original mandate contract of October 23, 2007. A fee cap of $ 80,000 was agreed in this contract. A second mandate contract was signed on May 9, 2008 with an additional fee of $ 50,000. Kohn, Kohn & Colapinto, who represented Birkenfeld in the fee dispute, claimed that the second mandate contract overrode the first and replaced the original one. Kohn, Kohn u. Colapinto took over the Birkenfeld case after Birkenfeld Schertler u. Onorato had fired, and they represented him when he received his IRS reward.

Birkenfeld also filed his lawsuit with the Columbia County Attorney / Client Arbitration Board to resolve the fee dispute. On October 31, 2013, both sides ended their lawsuit for an undisclosed sum and Birkenfeld withdrew his charges.

probation

Brad Birkenfeld's three-year probationary period lasted until the end of November 2015. In December 2014, Birkenfeld's attorney asked the US district court to end his probationary period or to change it so that he could travel abroad. According to Gerald Greenberg, who submitted the application, Birkenfeld intended to move to Europe as soon as his probationary period ended.

The application mentioned charitable projects in which Birkenfeld had been involved during his probationary period. Birkenfeld allowed underprivileged children to use his luxury suite during the Boston Bruins hockey games and donated six electric bicycles to the Boston Police Department after the Boston Marathon bombings. On January 20, 2015, a second application to end his probationary period and allow him to move to Europe was filed in the same court with the same judge who rejected the first application on the advice of the Justice Department. Birkenfeld's second request referred to the treatment of parole Igor Olenicoff, who had been allowed to leave the United States and go to Greece for a wedding. The request also mentioned the early termination of the probationary period of UBS client John McCarthy, who had been convicted on the basis of the information provided by Birkenfeld for hiding $ 1 million in numbered accounts in Switzerland. The case of Martin Liechti, Birkenfeld's boss, was also cited in the request. Liechti negotiated a no-prosecution agreement with the government and therefore did not go to jail.

Exploration at UBS France

In January 2015, Birkenfeld was summoned by a French examining magistrate to UBS for inciting French citizens to commit tax evasion and tax fraud. The subpoena was recorded in a file before the court established Birkenfeld's suspended sentence. This file was the reason that the US Department of Justice authorized Birkenfeld to travel to France to testify against UBS.

On February 17, 2015, Federal Judge William Zloch gave Birkenfeld permission to appear before Judge Guillaume Daieff in France. Birkenfeld was allowed to travel to France from February 27 to March 1, 2015 to testify in the French court. The French court investigated allegations that UBS issued Swiss numbered accounts to French citizens so that they could hide their assets. According to the Swiss newspaper Le Temps, UBS faces fines of up to five billion euros for its alleged role in the tax evasion affair.

publication

In November 2016, Bradley Birkenfeld published his book Lucifer's Banker with the Greenleaf Book Group. In 2017, the German FinanzBuch Verlag published the book in Germany under the title Des Teufels Banker . The book was discussed in well-known magazines and newspapers such as Die Zeit , Frankfurter Allgemeine , Handelsblatt and Neue Zürcher Zeitung .

Web links

Works

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Individual evidence

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  7. UBS to Pay $ 780 Million Fine in Tax Case Settlement American Lawyer. Extract from September 16, 2013.
  8. UBS Enters into Deferred Prosecution Agreement: Bank Admits to Helping US Taxpayers Hide Accounts from IRS; Agrees to Identify Customers & Pay $ 780 Million US Department of Justice. Extract from September 16, 2013.
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  11. Brown, Tom (October 9, 2009). "Prosecution of UBS informant seen backfiring on US" ( Memento of the original dated September 18, 2013) Info: The archive link was inserted automatically and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. . Washington Post. Extract from October 16, 2013. @1@ 2Template: Webachiv / IABot / articles.washingtonpost.com
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  78. Trott, Bill. "US whistleblower summoned to testify in UBS case in France". Yahoo! Finance. Reuters. Extract from February 24, 2015.
  79. Voreacos, David. "UBS Whistle-Blower Birkenfeld Allowed to Testify in France" . Bloomberg. Extract from February 24, 2015.
  80. Lettzing, John. "Whistleblower Adds to UBS's Tax Woes in France" . Wall Street Journal. Extract from February 24, 2015.
  81. UBS faces fine of up to $ 6.3 billion in French tax probe: paper ". Reuters. Excerpt from February 24, 2015.
  82. Heike Butcher: Der Panzerknacker  ( page no longer available , search in web archivesInfo: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. . Time online. Excerpt from April 6, 2017.@1@ 2Template: Dead Link / www.zeit.de  
  83. Astrid Dörner: A whistleblower distributes . Handelsblatt. Excerpt from April 10, 2017.
  84. Christoph Eisenring: "The Devil's Banker" against the rest of the world . The New Zurich Times. Excerpt from April 10, 2017.