Dividend stripping

from Wikipedia, the free encyclopedia

In terms of stock exchange technology, dividend stripping is understood as the combination of selling a share shortly before the dividend payment date and buying back the same share shortly after the dividend date.

Such deals are often motivated by obtaining tax advantages. Cum-ex deals, for example, are a form of trading in stocks around the day of the dividend payment. Investors and banks trade shares in a DAX group with ("cum") dividend entitlement, i.e. before the payment date if the dividend has not yet been paid out, and without ("ex") dividend entitlement after the payment date if the dividend has just been paid out. A capital gains tax of 25 percent is automatically levied on the dividend for private individuals . Institutional investors, such as funds or banks , are exempt from the tax. You can reclaim them from the state.

In the past, these cum-ex transactions (from the Latin cum 'with' and ex 'from, from; according to' dividend payment entitlement) were deliberately reimbursed multiple times for capital gains tax paid only once. From 2001 to 2016, the German state lost at least 10 billion euros in tax revenue through the classic cum-ex business and a further 20 billion euros with the related cum-cum deals. According to the German government , there was no legal basis for this. The transactions carried out are the subject of numerous public prosecutor's investigations and, since September 2019, also of legal proceedings at the Bonn Regional Court. On July 28, 2021, the verdict Federal Court that the induction, a criminal a refund of capital gains tax, which has never paid tax evasion is. Cum-ex deals are therefore considered a criminal offense. In addition, other forms of dividend stripping at the expense of the German taxpayer are known; these are often referred to as cum-cum deals.

Legal basis

If the general meeting of a stock corporation decides the amount of the dividend to be paid , the dividend is usually paid on the day after the general meeting, the so-called ex-day . The stock was then given on the price list the price notation "ex-dividend" (also abbreviated as "xD", "exd" or "exDiv"). In principle, a shareholder is only entitled to a dividend if his share was booked in his custody account up to the last day before the ex-date . This last day before the ex-day is also called the cum day . To ensure this, some stock corporations block the shares a few days before the general meeting. This is relatively easy with registered shares . The introduction of electronic share trading and nameless shares has created a new situation so that trading is also possible during and after the Annual General Meeting. If shares are purchased on the ex-date itself and thereafter, there is no longer any entitlement to a dividend. Ideally, on the ex-day, an arithmetical discount is made from the stock market price in the amount of the gross dividend. With the dividend entitlement and the payment of the dividend - depending on the national tax system - a tax is due.

Tax implications

If a shareholder sells a share shortly before the dividend date and buys the share back shortly after the dividend date, he can convert dividend income into price gain. However, such a transaction only makes sense between a domestic and a foreign investor. Since the foreigner is not subject to German tax law, he cannot easily apply for a tax credit; the certificate for the taxed dividend does not bring him any tax advantages. Therefore, the foreigner sells his German shares to a resident before the respective distribution date. The resident collects the dividend plus tax credit and then sells the shares back to the foreigner at the lower price - minus the dividend. The resident thus paid the foreign shareholders the value of the credit entitlement via the market price of the shares. Instead of a dividend, the foreigner realizes a price gain (higher selling price minus lower repurchase price).

Until the introduction of the final withholding tax, dividend stripping was also beneficial for domestic private investors, as price gains outside the speculation period were not subject to income tax.

Applicability of the abuse regulation of § 42 AO

The Federal Fiscal Court (BFH) was in the late 1990s in a judgment for credit mechanism in the corporation assumed the legality of dividend stripping. However, the tax authorities have limited this case law to the decided case by means of a non-application decree , so that it cannot be extended to comparable future cases. In contrast, the BFH confirmed its case law on dividend stripping in 2007. According to this, when old shares are sold (cum-dividend), the purchaser also gains economic ownership of them if he sells new shares from the same issuer (ex-dividend) to the seller of the old shares on the same day. The same applies to the purchase of shares (cum-dividend) and subsequent timely resale of the same or equivalent shares (ex-dividend). It should be noted here that the facts in the 1999 judgment were based on a so-called owner sale case. This means that the seller of the security package was actually the owner of the security package at the time the contract under the law of obligations was concluded. However, due to the large number of transactions carried out and the common stock market usage, according to which the purchase contract is not fulfilled until two days after the conclusion of the contract under the law of obligations, it can be difficult to distinguish it from short selling. The BFH had rejected the transfer of beneficial ownership in a recent judgment on dividend stripping. However, it must be taken into account that he has not given up his original jurisprudence as a result. Rather, the BFH expressly emphasizes that this was a special case, as a securities loan from the buyer to the seller and a total return swap between the parties were agreed as part of an overall contract concept in the course of the sale. The latter took the market risk of the block of shares from the purchaser.

The BFH had also decided that the general abuse rule of § 42 AO was not applicable to dividend stripping and was overlaid by the more specific, tightened abuse rule of § 50c EStG ("stock exchange clause"). Despite this tightening of the stock exchange clause, dividend stripping remained attractive, especially for foreign shareholders. On the one hand, the ten-day grace period of Section 50c (10) EStG was not an obstacle to a tied transaction, even in the case of volatile stock exchange prices. On the other hand, in the event of a breach, the corporation tax credit was not denied, but only a blocked amount was set up for ten years (Section 50c (1) EStG). At this point at the latest, the price loss in the amount of the dividend entitlement would have an impact on the buyer's balance sheet. Since the stock exchange clause of § 50c EStG has been completely omitted, the general abuse norm of § 42 Paragraph 2 AO comes to the fore again.

Cum-ex deals

If the seller of the share was a short seller who actually only buys the share after the dividend payment date, it could happen that two shareholders - namely the original owner and the buyer of the short seller - received a certificate and thus a right to a tax credit. As a result, the tax offices reimbursed more taxes than they had previously collected.

Example: Short seller “LV” sells shares (cum) at a market value of € 100 to short seller “LK” before the dividend cut-off date. The corporation resolves to pay a gross dividend of € 10 per share. After the dividend cut-off date, LV acquires the shares without dividends (Ex) from X at a reduced purchase price of € 90 and transfers them to LK. In addition, he pays LK a compensation payment in the amount of the net dividend of € 7.50. Like X, LK receives a tax certificate of € 2.50 and is thus presented as if he had acquired the share with a dividend entitlement as agreed. As a result, LK makes a profit in the amount of the double certified capital gains tax. If LK had acquired the shares directly from X, the double certification would have been prevented by a blocking note in X's depot. In the case of the short sale, from the point of view of the certifying custodian banks, the dividend compensation payment could not be distinguished from a net dividend.

Multiple tax certificates

The multiple certification of capital gains tax results from Section 45a (3) sentence 1 EStG on the part of the custodian bank of the original shareholder and from Section 45a (3) sentence 2 EStG on the part of the custodian bank of the purchaser from the short seller. The custodian bank of the short seller should collect the double-certified capital gains tax from 2007 in accordance with the new regulation of Section 44 (1) sentence 3 EStG and forward it to the tax office. The short seller was able to circumvent this rule by using a foreign bank that is not obliged to withhold withholding tax.

Multiple crediting

It is legally unclear whether the buyer of the short seller was allowed to apply to the tax office for a refund of the capital gains tax that was also certified. Pursuant to Section 36 (2) Sentence 2 No. 2 EStG , the withholding tax levied can be offset if it is attributable to income that was recorded in the course of the assessment or that is not recognized in accordance with certain tax exemption regulations (Section 3 No. 40 EStG or Section 8b KStG) . This means that not only a certificate is required for crediting. Another prerequisite is the collection of capital gains tax and the addition to income that is recorded in the assessment. According to the legal situation until 2007, the dividend compensation payment did not constitute income from capital assets within the meaning of Section 20 EStG, but merely a compensation payment. Accordingly, the certified capital gains tax did not apply to income that was taken into account in the assessment. In some cases, the view is that the short-term buyer was also the beneficial owner of the shares (Section 39 AO) at the time of the dividend and therefore, according to the legal situation before 2007, the dividends are to be attributed to him as capital income. As of 2007, the dividend compensation payment is to be added to income from capital assets through the newly inserted sentence 4 in Section 20 (1) No. 1 EStG. As a result, from 2007 capital gains tax was generally applicable to income that was also recorded in the assessment. Whether the additional requirement of Section 36 (2) sentence 2 No. 2 EStG, the collection of capital gains tax, is fulfilled from the point of view of the vacant buyer remains questionable for periods from 2007 onwards.

The decisive factor for the solution and the entitlement to crediting by the empty buyer remains beneficial ownership in accordance with Section 20 (5) sentence 2 EStG, Section 39 (2) no. 1 sentence 1 AO. The cases of dividend stripping decided by the BFH so far concerned almost only owner sales. It remains unclear to what extent this case law should be used for short sales. The crux of the matter should be the simultaneous beneficial ownership of the seller and the buyer, so that both parties could generate income from capital assets at the time of the distribution. In the case of empty buyers, these relate to the dividend compensation claim (today expressly recorded in Section 20 (1) No. 1 sentence 4 EStG). In its latest decision, the BFH has expressly left this question about short selling open.

However, the BFH clarified the following: The BMF (in the proceedings before the BFH) and the tax authorities had so far denied that the legislature itself had assumed in the legislative materials that the purchaser would become the beneficial owner of the short sale in addition to that of the seller. The BFH has now confirmed and stipulated that the legislature has assumed in the legislative materials that an empty buyer can also acquire beneficial ownership of the shares at the time the contract is concluded under the law of obligations. The BFH did not comment on the dual beneficial ownership. In addition, a little noticed and unpublished decision by the BFH in 2007 raises a number of questions. In this decision, he confirmed his previous jurisprudence on dividend stripping and emphasized that the transfer of beneficial ownership took place at the time the contract was concluded under the law of obligations. However, the facts there were based on a short sale, as the facts of the judgment show that "in two other cases the sale took place one day before the purchase [...]". The BFH emphasized that the case was identical to the decision from 1999. The differences (short sale / owner sale) are nevertheless recognized. However, "a difference between the facts to be assessed here and that in the judgment at that time - apart from the fact that in the event of a dispute, some of the shops were not sold on the same day - is not discernible." This decision therefore contradicts the new decision from 2014. In the current case law, only the Hessian Finance Court has so far dealt with the offsetting of capital gains tax on short sales in two proceedings from 2016 and 2017 and rejected one with detailed reasons .

Since 2012, it is no longer the stock corporations themselves, but the custodian banks that have been obliged to pay the capital gains tax, so that a correspondence between the certificate of the capital gains tax and the actual levy is guaranteed.

Situation in Germany

The controversial practice was common for years and has also been secured with the help of expert reports from large law firms. The HypoVereinsbank , German bank , HSH Nordbank , Citi Germany and possibly other credit institutions According to press reports in large volume dividend stripping in proprietary trading operates and in customer business and therefore become the focus of tax authorities since 2011th Due to additional tax claims resulting from cum and ex transactions, the Maple Bank was closed by the BaFin in February 2016; then insolvency proceedings were opened.

In this context, there were isolated references to criminal law risks in the literature.

Since 2013 the public prosecutor's office in Cologne has been investigating cum-ex deals under the direction of chief public prosecutor Anne Brorhilker . It came among other things. to 130 simultaneous house searches at the banks involved. However, this approach was not without criticism, especially with regard to the long-standing toleration on the part of the legislature. These house searches were about business until 2011, since since then the tax advantages in the controversial transactions are no longer so easy to achieve due to the coincidence of the certifying institute and the paying institute.

In 2014, Der Spiegel came to the conclusion that the Ministry of Finance made it possible to use dividend stripping in cum-ex funds through years of inactivity. It was not until May 24, 2013 that the German government ( Merkel II ) madeit clearin an answer to a parliamentary question that there was “generally no entitlement to credit or reimbursement” for dividend stripping and declared: The “models operated are illegal”. The government made it clear that there was no legal loophole. In 2014, Der Spiegel published the names of some German celebrities who made money with Cum-Ex funds.

On February 15, 2016, ARD broadcast a report by WDR author Jan Schmitt that reported on Cum-Ex funds ( billions for millionaires - how the state gives away our money to the rich ). Schmitt was awarded the Ernst Schneider Prize for his documentation .

In the first months of 2017, several insiders testified after research by the research association NDR, WDR and Süddeutsche Zeitung about their knowledge of extensive allegedly criminal cum / ex deals. This success of the investigation by the Cologne Public Prosecutor's Office and a special investigation team from the State Criminal Police Office in Düsseldorf can be regarded as one of the greatest successes in the fight against white-collar crime in Germany. The allegations concern tax evasion in numerous particularly serious cases; the accused faced prison sentences of between five and ten years. In addition to numerous banks, there are around ten to 15 international stock exchange traders at the center of the action. They are said to have enriched themselves at the expense of the tax authorities with several hundred million euros each in the cum / ex deals. The tax damage in Germany is said to amount to a total of 31.8 billion euros. The insiders who testified can count on a reduction in penalties for their help in the investigation ( leniency program ). (For the convictions, see the Consequences section .)

In June 2017, Cum-ex was largely attributed to the influence of lobbyists. LobbyControl activists concluded from the developments that efforts to achieve binding regulations for lobbyists in Germany had come to a standstill under Merkel III's cabinet .

In July 2017, the Federal Financial Supervisory Authority (Bafin) sent questionnaires to all around 1,800 German banks and savings banks, which they had to answer by the end of October at the latest. The Bafin asked what repayments the banks are expecting, whether this could jeopardize their stability and what they intend to do in this case. She apparently feared that smaller banks in particular could get into difficulties and then urgently need fresh capital.

In the meantime - as of July 2021 - Hanno Berger has been arrested in Switzerland, and the Cologne public prosecutor's office and other authorities are investigating around 1,000 suspects.

Situation in other European countries

The CumEx-files.png

In October 2018 it became known that the tax authorities and taxpayers were harmed not only in Germany, Denmark and Austria, but also in Belgium and Norway. The public prosecutor's office in Cologne opened an investigation against the major Spanish bank Santander in June 2018 . She is said to have acted as a so-called short seller in connection with cum-ex deals. The Australian Macquarie Bank is also being investigated. A media cooperation from twelve countries under the direction of the Correctiv research center has published an overview of the CumEx files .

Cum-cum deals

A cum-cum deal is a tax- problematic combination of selling a share shortly before the dividend date and buying back the same share shortly after the dividend date.

Business model

Cum / cum transactions are carried out as follows: When German companies distribute a dividend , foreign investors usually have to pay around 15% capital gains tax on it . To get around this, they temporarily lend their shares ( securities lending ) shortly before the dividend date to a financial service provider based in Germany , who can have the capital gains tax reimbursed by the state. Shortly after the dividend cut-off date, the shares will be returned to the previous foreign owner. The exchange rate risks are hedged while the partners share the tax saved. Only the German tax authorities are circumvented. In its judgment of October 20, 2011, the ECJ ruled that the Federal Republic of Germany has violated EU law by subjecting dividends to companies with their registered offices in other Member States to higher taxation than dividends to companies based in the Federal Republic of Germany.

Discovery and Consequences

As early as 1992, August Schäfer, as the Hessian state commissioner responsible for the supervision of the Frankfurt Stock Exchange ( Deutsche Börse AG ), warned against this practice. The then Hessian Minister of Economics, Ernst Welteke , stated that “in a large number of cases, there was a systematic and individual interaction between brokers and clients, i.e. banks”. The practice remained widespread, however, until an administrative clerk at the German tax office discovered unusually high tax refund claims from a U.S. pension fund.

In May 2011, the Federal Ministry of Finance was informed by the Mayor of Munich, Christian Ude, about DekaBank's cum / cum transactions . However, the ministry saw no need for action at this point in time.

It was not until 2012 that a change in the law came into force that was intended to explicitly prevent classic cum-ex transactions in Germany. And it wasn't until 2016 that there was a change in the law that was also supposed to prevent cum-cum deals.

Research in the financial industry showed that business continued through October 2018.

Reporting 2016

On May 2, 2016, a research network published its research on cum / cum deals with which banks helped their customers avoid capital gains taxes running into the millions. These transactions "have been an open secret in the banking world for years" and were practiced by many German banks. Commerzbank is said to have been involved in cum / cum transactions particularly often .

In 2018, the so-called CumEx files were published after investigative research by 19 European media under the direction of the Correctiv research center . According to this, the damage from cum-cum and cum-ex deals in eleven European countries amounts to at least 55.2 billion euros, of which more than 31 billion euros for Germany alone . The federal government had also failed to warn its European partner countries for years, although the Federal Ministry of Finance had known about the illegal activities at least since 2002. The Europe-wide association of investigative journalists described this as the "largest tax robbery in the history of Europe".

Legal evaluation and legislation

In order to be able to claim the tax credit, the domestic taxpayer must be the owner of the share i. S. d. § 39 AO. The Federal Fiscal noted in a ruling in August 2015 that the decisive securities lending business, the "beneficial ownership" of exception to the borrower passed, but only a "civil property cases".

The ineffectiveness of cum / cum transactions could also be based on Section 42 of the Tax Code (AO). According to this, illegal tax arrangements are not to be recognized for tax purposes. For Christoph Spengel , professor of business taxation at the University of Mannheim and co-editor of the specialist magazine Steuer und Wirtschaft , one thing is clear: “Even if you affirm beneficial ownership in Germany, then you still have to ask what the economic purpose of this business was. And if it was only to save the capital gains tax in Germany, then these transactions will not be recognized for tax purposes. "

In order to prevent this questionable business, the federal government intends, according to a draft law from the end of February 2016, to set a minimum time retroactively to January 1, 2016, that a share must be held so that its dividend can be offset against capital gains tax. In order to have the capital gains tax already paid by the stock corporation reimbursed on the dividend, investors must in future have the papers in possession 45 days before and after the cut-off date. So that investors with small stocks of shares are not affected by the regulation, the federal government wants to introduce a minimum limit. B. only for dividends from domestic stocks with more than 20,000 euros per year.

Experts such as Mannheim tax professor Christoph Spengel assumed in January 2019 that cum-cum designs would still be possible. The Federal Ministry of Finance did not check whether the cum-cum tax fraud was actually prevented.

In March 2021, the Frankfurt Higher Regional Court classified cum-ex transactions as “commercial gang fraud”. In March 2020, the Bonn District Court sentenced two British stock exchange traders to suspended sentences for tax evasion or aiding and abetting. By one of the 14 million euros from the private bank should MMWarburg 176 million euros drawn to. In the course of the subsequent appeal , the decision was confirmed by the Federal Court of Justice in Karlsruhe at the end of July 2021 . So it was finally clear that cum-ex deals are not the legal exploitation of a tax loophole, but criminal tax evasion.

Investigative Committee of the Bundestag

On February 19, 2016, at the instigation of the Greens and Die Linke , the German Bundestag decided to set up a committee of inquiry into cum-ex deals. The members of the SPD and Union abstained from the vote on the establishment . The committee should clarify the responsibilities of government, financial administrations, and regulators for dividend stripping. It should also be clarified whether there was - and if so, by whom - influence with the aim of not or not entirely abolishing the model of dividend stripping. The chairman of the committee was the MP Hans-Ulrich Krüger (SPD). The chairmen of the parliamentary groups were: Christian Hirte (CDU / CSU parliamentary group), Andreas Schwarz (SPD), Richard Pitterle (Die Linke) and Gerhard Schick (Bündnis 90 / Die Grünen). Other full committee members were  Philipp Graf Lerchenfeld (CSU), Fritz Güntzler  (CDU) and  Sabine Sütterlin-Waack  (CDU). Deputy committee members were for the CDU / CSU Matthias Hauer , Anja Karliczek , Bettina Kudla and Hans Michelbach , for the SPD Metin Hakverdi and Sarah Ryglewski , for Die Linke Axel Troost and for the Greens  Lisa Paus .

Arnold Ramackers, a former finance judge from Düsseldorf, testified in the investigative committee. Ramackers is said to have formulated legal texts in line with leading banks. Ramackers was involved, among other things, in the amendment to the law in 2007, which turned out to be unsuitable for preventing cum-ex deals and thus enabled banks and investors to obtain unjustified distributions from the tax volume for a further five years. He had access to documents that parliament and the public were not allowed to receive and passed them on to banks so that they could bypass the new regulations immediately. Even in retirement, Ramackers is said to have had influence in the ministry, participated in the formulation of laws and participated in meetings. Ramackers later accepted a consultancy contract with the Association of German Banks .

The recommendation for a resolution and the final report of the committee of inquiry were presented on June 21, 2017 (BT-Drs. 18/12700).

level of damage

The committee did not answer the question put to it about the total amount of damage to the taxpayer. The MP Schick (The Greens) comes in a minority vote based on well-founded estimates on a volume of 7.2 billion euros in the period from 2005 to 2011 and a low single-digit billion range for cases before 2005, a total of 10 billion euros. This number only applies to Cum-Ex stores. Other estimates assume 12 billion euros.

consequences

So far, HypoVereinsbank , Landesbank Baden-Württemberg and HSH Nordbank have paid back a total of almost 500 million euros (as of September 2016) to the state - partly for the time being because the investigations are still ongoing.

The initiator of the Cum-Ex investigation committee, Gerhard Schick (Bündnis 90 / Die Grünen), described the situation in Germany as a "constructed pseudo-legality through tax reports, which in turn were paid for by the financial industry."

In April 2019, a chamber of the Zurich District Court acquitted the Stuttgart lawyer Eckart Seith of the charge of industrial espionage . Since then it has been regarded as an educator in the cum-ex tax scandal.

Cum-Ex-related court proceedings began in Germany for the first time in September 2019 . In a trial before the Bonn District Court , two British stock traders are charged with defrauding the state of EUR 447.5 million between 2006 and 2011. The arrest of a Frankfurt lawyer from the business law firm Freshfields Bruckhaus Deringer on November 22, 2019, who was in custody until shortly before Christmas because of the risk of flight, and was then charged by the public prosecutor's office in Frankfurt am Main with aiding and abetting tax evasion, caused a shock in the financial sector . He is considered a key figure and is involved in the insolvency of Maple Bank, which, according to the prosecutors, evaded taxes of around 383 million euros with cum-ex deals in Germany. Nationwide, public prosecutors are investigating more than 400 other accused bankers, stock traders, tax experts and appraisers. Since 2019 there has been talk of the "biggest tax scandal in the history of the Federal Republic" in numerous German media. The perpetrators were internationally active; for Germany alone, the total tax damage caused by Cum-Ex is in the double-digit billions.

In November 2019, the Hamburg Senate replied to a request from the Die Linke party that there had been no personal conversations between the Hamburg-based private bank MM Warburg and the Senate in connection with Cum-Ex . For example, Hamburg waived the reclamation of Cum-Ex-Millions from MMWarburg & CO until April 2020, before it raised claims of 160 million euros in a tax assessment. The private bank was involved in cum-ex transactions from 2007 to 2011. While Warburg bankers were being investigated for cum-ex deals, several top SPD politicians met Warburg bankers. The Hamburg authorities remained inactive because they allegedly did not want to take the risk of a legal dispute with Warburg. In 2016, investigators and the Federal Ministry of Finance informed the Hamburg tax authorities that Warburg had illegally pocketed around 47 million euros from the state treasury from cum-ex deals in 2009. The Cologne public prosecutor's office had the premises of the private bank Warburg searched - on suspicion of serious tax evasion. Hamburg's Lord Mayor Olaf Scholz spared Warburg when his city government waived the repayments of over 47 million euros due to Hamburg in 2016. For 2017, the Federal Ministry of Finance intervened and, shortly before the deadline, instructed Hamburg to reclaim 56.4 million euros from Warburg. In 2019, Hamburg and Warburg reached a settlement that increased the damage even further, according to which the private bank only had to repay 68 million euros - although the Bonn process, which had already begun, caused the Warburg Bank itself to damage 169 million euros and a further 109 million euros two cum-ex funds of their daughter Warburg Invest go. In the first major criminal case involving cum-ex deals in Germany, the judge had already stated that tax evasion in a particularly serious case was fundamentally fulfilled.

According to media reports, several criminal chambers would be set up at the Bonn Regional Court specifically for tax evasion cases in connection with cum-ex transactions. "A real flood of litigation" is expected there. In the first criminal trial in mid-March 2020, two British stock traders were sentenced to suspended sentences of one year, ten months and one year for multiple tax evasion or aiding and abetting . One of the convicts also has to repay 14 million euros. Since the private bank MM Warburg profited from the deals, it has to repay almost 156.6 million euros. She appealed on a point of law against this. The case is now with the Federal Court of Justice . On June 1, 2021, the Bonn Regional Court sentenced the former general agent of the private bank MM Warburg (he was the “right-hand man” of long-time bank boss and Warburg co-owner Christian Olearius ) to several in 13 cases for involvement in serious tax evasion Years imprisonment (judgment as of June 1 not yet final).

In connection with the initiated criminal proceedings, the grand coalition decided in December 2020 to increase the limitation period for serious tax evasion from the previous ten to now 15 years, so that the tax crimes committed in connection with Cum-Ex can still be prosecuted; a large part would otherwise be statute-barred at the beginning of 2021.

In March 2021, the Frankfurt Higher Regional Court judged the Cum-Ex share transactions not only as tax evasion, but also as “commercial gang fraud”, which can be followed by imprisonment of up to ten years ( Section 263 (3)). This also applies to the charges brought against tax attorney Hanno Berger in October 2017 , who is considered to be one of the initiators of the Cum Ex deals. The indictment against Berger took place in his absence, since Berger had fled to Switzerland in 2012 (where defendants for capital gains tax offenses are not extradited abroad). However, Switzerland delivers those accused of commercial gang fraud abroad. The process of tax evasion began in March 2021 against two of a total of four previous share dealers at Hypo-Vereinsbank, against whom charges had already been brought in October 2017. The other two were unable to travel from abroad due to the corona pandemic , so their case will be treated separately. The former superior of the four defendants, who is being searched for internationally, has fled to his home in New Zealand - his case is also dealt with separately.

Raid on the banking association

On August 4, 2020, a raid on the Bankers Association (BdB) initiated by the Cologne Public Prosecutor in connection with the Cum-Ex scandal became known. Although the BdB and the investigator told, the method is not directed against managers of the association itself. According to a report by NDR , WDR and Süddeutsche Zeitung , according from which the mirror quoted the investigators studied quite well for clues as to whether defendants have tried to influence legislation through the association . The aim should have been to find new loopholes to continue the illegal business.

See also

literature

Web links

Individual evidence

  1. a b Deutschlandfunk July 28, 2021 "How the confusion with stocks works"
  2. https://www.accountingtoday.com/articles/banco-santander-joins-list-of-banks-in-german-cum-ex-tax-dodge-crackdown
  3. Bundestag printed matter 18/27000. (PDF) p. 326 , accessed on December 26, 2018 .
  4. Attack on Europe's taxpayers , Tagesschau.de, October 18, 2018
  5. Will the public prosecutor be knocking soon? Banks tremble because of Cum-Ex-Deals (SZ) n-tv.de, on December 14, 2015, accessed on November 12, 2018
  6. faz.net , faz.net, September 4, 2019, accessed September 5, 2019
  7. Corinna Budras “criminal tax deals”, Frankfurter Allgemeine Zeitung , July 29, 2021, p. 19
  8. BFH, judgment of December 15, 1999, Az .: IR 29/97
  9. BMF letter of October 6, 2000, Az .: IV C 6 - S 2189 - 11/00
  10. BFH, decision of November 20, 2007, Az .: IR 85/05
  11. Thomas Otto: The taxation of profit-distributing corporations . 2006, p. 51 ff.
  12. BFH, judgment of December 15, 1999, IR 29/97, BStBl. II 2000, 527; This emerges clearly from the statements in the judgment of the lower court: Hessisches FG, judgment of December 2, 1996, 4 K 3180/94, EFG 1997, 825
  13. BFH, judgment of April 16, 2014, IR 2/12, BFH / NV 2014, 1813 Rn. 32 ff.
  14. Praxis Internationale Steuerberatung, issue 05/2000, p. 104
  15. Cum-ex business: The principle of gold donkey das-parlament.de 2016
  16. Business crime cum / ex-business: When the Constitution Overtakes the Tax Legal Tribune Online, April 13, 2017
  17. Hessian Finance Court, decision of October 8, 2012, Az .: 4 V 1661/11
  18. Detailed description in Desens , DStZ 2012, 142 ff., Seer / Krumm DStR 2013, 1757 and Rau , DStZ 2010, 1267 ff., The latter being a member of the financial administration.
  19. BFH, judgment of April 16, 2014, IR 2/12, BFH / NV 2014, 1813 Rn. 31 f.
  20. BFH, judgment of April 16, 2014, IR 2/12, BFH / NV 2014, 1813 Rn. 31; on the legislative materials BT-Drs. 16/2712, p. 46 ff., p. 47
  21. BFH, judgment of April 16, 2014, IR 2/12, BFH / NV 2014, 1813 Rn. 31 aE
  22. BFH, decision of November 20, 2007 - IR 102/05, not published, as a parallel decision to BFH, decision of November 20, 2007 - IR 85/05 -, BStBl. II 2013, 287 ff.
  23. BFH, decision of November 20, 2007 - IR 102/05, not published
  24. FG Hessen, judgment of March 10, 2017 - 4 K 977/14, EFG 2017, 656 and Hessisches FG, judgment of. February 10, 2016 - 4 K 1684/14, EFG 2016, 761
  25. ^ Raid at HypoVereinsbank n-tv.de, on November 29, 2012
  26. HSH Nordbank, HSH Nordbank makes provision for cum-ex transactions in the years 2008–2011 ( memo of February 16, 2016 in the Internet Archive ), December 17, 2013
  27. Cum-Ex-Deals: Citigroup argues with the tax office. In: Wirtschaftswoche . March 22, 2015, accessed March 23, 2016 .
  28. Supervision asks all banks about dividend stripping. In: Frankfurter Allgemeine Zeitung . February 27, 2016, accessed March 23, 2016 .
  29. Felix Podewils: News on "dividend stripping" from financial administration and jurisdiction - tax and criminal law risks on the horizon . In: Finanz-Rundschau Income Tax Law . tape 93 , no. 2 , April 2013, p. 69-75 , doi : 10.9785 / ovs-fr-2011-69 .
  30. The story in the first: The billions robbery. A public prosecutor chases the tax mafia , ARD, June 7, 2021.
  31. ^ Felix Podewils: Cum-ex business ("dividend stripping") - tax and criminal law implications . In: Finanzrundschau . Issue 11, June 2013, p. 481-490 . ; available online (April 25, 2013).
  32. Martin Hesse, Gerald Traufetter: Ex And Hopp . In: Der Spiegel . No. 39 , 2014 ( online ).
  33. Billions for millionaires - How the state gives away our money to the rich - A film by Jan Schmitt from the series "The Story in the First". In: ARD. March 23, 2016, accessed November 6, 2018 .
  34. ^ Ernst Schneider Prize for WDR documentary about cum-ex deals. WDR press lounge, October 10, 2017, accessed on January 17, 2020.
  35. Those who know about it unpack - ring blown up by bankers and stock exchange traders sueddeutsche.de, April 18, 2017
  36. Laura Weigerle: Black-Red sees red. In: The daily newspaper . June 21, 2017.
  37. Cum-cum business Bafin worries about the stability of many banks sueddeutsche.de, on July 18, 2017
  38. Cum / cum transactions: BaFin starts inquiries with all German credit institutions . bafin.de, July 18, 2017
  39. ^ Lawyer Hanno Berger: "Mister Cum-Ex" arrested in Switzerland , Die Tagesschau, July 9, 2021.
  40. On the trail of the Cum-Ex-Mafia: Prosecutor Brorhilker investigates , taz Die Tageszeitung, June 8, 2021.
  41. Austria affected: Cum-ex scandal over tax tricks draws circles derstandard.at, on October 18, 2018
  42. More and more banks in the crosshairs of the investigators FAZ.net, on October 18, 2018
  43. Questionable business of Commerzbank: million deals for tax avoidance? Tagesschau.de , May 2, 2016.
  44. European Court of Justice: judgment of October 20, 2011 - C-284/09
  45. Stock exchange: With dubious tricks, banks and brokers have relieved the tax authorities of huge sums: Late bill for strippers . In: Die Zeit , No. 21/1994
  46. Anne Seith, Martin Hesse: rip-off was already known in 1992 . In: Der Spiegel . No. 48 , 2016, p. 70 ( online ).
  47. Jenny Hill: Germany fears huge losses in massive tax scandal . In: BBC News . June 9, 2017. Retrieved October 29, 2018.
  48. Mario Müller: Mobbing at a high level . In: Die Zeit , No. 36/1994
  49. Cum / cum transactions of Deka-Bank: Tax tricks under state supervision br.de, on April 21, 2017, accessed on April 21, 2017
  50. tagesschau.de Deutsche Bank deeply involved in tax scandal , tagesschau.de, January 17, 2019
  51. Manuel Daubenberger, Karsten Polke-Majewski , Felix Rohrbeck, Christian Salewski, Oliver Schröm : "Cum-Ex-Files" research: Attack on Europe's taxpayers. In: tagesschau.de . ARD , October 18, 2018, accessed on October 19, 2018 .
  52. The coup of the century. In: The time. October 18, 2018, accessed December 27, 2018 .
  53. Publication by the research network of Handelsblatt , Bayerischer Rundfunk , Washington Post and the US non-profit foundation ProPublica
  54. a b Legal or illegal? Controversial deals. This is how cum / cum shops work br.de, on May 2, 2016
  55. Taxes: Commerzbank back in twilight. Deutsche Welle, May 2, 2016, accessed on May 2, 2016 .
  56. Million dollar deals for tax avoidance? tagesschau.de, May 2, 2016
  57. The CumEx files - How bankers, lawyers and the super-rich rob Europe. A cross-border investigation , corrective
  58. Bundesfinanzhof - judgment of August 18, 2015, IR 88/13. Allocation of shares in the case of a securities loan. Federal Fiscal Court, August 18, 2015, accessed on May 9, 2016 : "The beneficial ownership of shares that have been transferred to the borrower as part of a so-called securities loan under civil law, can exceptionally remain with the lender if the overall assessment of the circumstances of the individual case shows that the borrower should only be given a formal legal position under civil law. "
  59. Dr. Rudolf Mikus: Securities lending - BFH again collects tax-driven financial product. Handelsblatt, January 18, 2016, accessed on May 9, 2016 : “With its judgment of August 18, 2015 - IR 88/13 (DB 2016 p. 82), the Federal Fiscal Court decided that a securities loan does not yet mean a transfer of beneficial ownership of shares if it only gives the borrower a formal legal position under civil law. "
  60. a b Cum-cum-deals: Government stops dividend trick. A new law is to retroactively prohibit cum-cum transactions in shares, in which the state is cheated on taxes. Süddeutsche Zeitung , February 24, 2016.
  61. Investment funds: New law to plug tax loopholes. The law also aims to prevent cum / cum deals. Handelsblatt , February 24, 2016.
  62. ^ Cum-cum deals. "Handelsblatt": German banks help with tax avoidance. Der Tagesspiegel , May 2, 2016.
  63. Cum-Ex: Federal government does not monitor stock trading for suspicious transactions. Zeit-online, January 17, 2019.
  64. ↑ The court evaluates cum-ex deals as gang fraud. Spiegel, March 12, 2021, accessed March 14, 2021 .
  65. Cum-ex transactions are criminal tax evasion. In: Der Spiegel , July 28, 2021, accessed on the same day.
  66. Federal Court of Justice confirms judgment in nationwide first cum-ex criminal proceedings. Press release No. 146/2021. Federal Court of Justice, July 28, 2021, accessed on July 28, 2021 . , On BGH, judgment of July 28, 2021, Az. 1 StR 519/20 .
  67. ^ "Proper Criminal Networks". In: Rhein Neckar newspaper. Retrieved November 26, 2016 .
  68. Banks paid “mole” in the Ministry of Finance. In: Berliner Morgenpost. Retrieved November 26, 2016 .
  69. German Bundestag - Witness speaks of cum / ex industry. In: The Bundestag. Retrieved November 26, 2016 .
  70. Bundestag printed matter 18/27000. (PDF) Retrieved December 26, 2018 .
  71. Bundestag printed matter 18/27000. (PDF) p. 472 , accessed on December 26, 2018 .
  72. Cum-ex deals: Bundestag examines dividend trick . In: Spiegel-Online , February 19, 2016, accessed on February 20, 2016.
  73. Handelsblatt , November 1, 2019: "We felt like the greatest" - key witnesses in the cum-ex process are reckoning with an entire industry. In Germany's first cum-ex trial, the main witness on day three tells of greed and megalomania - and lobbyism in its dirtiest form. Downloaded and saved as a memento on December 6, 2019.
  74. correctiv.org
  75. Cum-ex reconnaissance team sentenced to a fine in Switzerland . sueddeutsche.de, April 11, 2019
  76. ↑ Crash landing for Swiss justice . Süddeutsche Zeitung April 12, 2019
  77. Tax scandal worth millions: first trial of cum-ex deals has begun. In: Spiegel Online . September 4, 2019, accessed September 4, 2019 .
  78. Karsten Polke-Majewski, Christian Salewski, Oliver Schröm: The key witness unpacks. In: The time . October 29, 2019, accessed January 17, 2020 .
  79. Cum-Ex scandal - first accused in custody. In: tagesschau.de . November 27, 2019, accessed January 17, 2020 .
  80. René Bender, Sönke Iwersen, Volker Votsmeier: Ex-tax chief of Freshfields is released from custody. In: Handelsblatt . December 18, 2019, accessed January 17, 2020 .
  81. Marcus Jung: Freshfields faces a fine of up to 15.3 million euros. In: Frankfurter Allgemeine Zeitung. January 17, 2020, accessed January 17, 2020 .
  82. Tim Bartz, Simon Hage, Martin Hesse, Thomas Schulz, Jörg Schmitt : The Freshfields files. In: Spiegel Online. January 17, 2020, accessed January 17, 2020 .
  83. Karsten Polke-Majewski, Christian Salewski: Merrill Lynch: Could this tax robbery have been prevented? In: Zeit Online. January 22, 2020, accessed January 26, 2020 .
  84. Olearius diary draws Olaf Scholz into Cum-Ex scandal
  85. [ SPD chancellor candidate testifies in the Cum-Ex committee. The forgetfulness of Olaf Scholz , taz Die Tageszeitung, April 30, 2021.]
  86. Ansgar Siemens, Annette Großbongardt, DER SPIEGEL: Cum-Ex-Scandal: Hamburg asks Warburg-Bank to check out after all - DER SPIEGEL - Economy. Retrieved April 22, 2020 .
  87. https://daserste.ndr.de/panorama/archiv/2020/Hamburg-verzigte-auf-47-Millionen-von-Warburg-Bank,cumex204.html
  88. https://www.n-tv.de/politik/Schonte-Minister-Scholz-eine-Cum-Ex-Bank-article21574161.html
  89. Cum-Ex tax scandal: Accusations “as expected on the assembly line”. In: tagesschau.de. February 16, 2020, accessed February 22, 2020 .
  90. ^ Judgment in Bonn - Cum-Ex transactions are punishable by law. In: Spiegel online . March 18, 2020, accessed March 27, 2020 .
  91. Warburg Bank is appealing against the Cum-Ex ruling. Norddeutscher Rundfunk , March 22, 2020, accessed on March 27, 2020 .
  92. Cum-ex affair: court sentences German bankers to prison for the first time. In: Der Spiegel. Retrieved June 1, 2021 .
  93. sueddeutsche.de: First German banker sentenced to imprisonment for cum-ex
  94. Federal government wants to increase the statute of limitations for suspects. In: Der Spiegel. December 4, 2020, accessed December 4, 2020 .
  95. ^ Cum-Ex scandal: Frankfurt Higher Regional Court evaluates transactions as gang fraud. In: Der Spiegel. Retrieved March 12, 2021 .
  96. a b First criminal case for Germany's largest tax fraud. Retrieved October 1, 2017 .
  97. a b Klaus Ott: Public Prosecutor's Office brings charges of robbery of billions. In: Süddeutsche Zeitung . October 4, 2017. Retrieved December 5, 2017 .
  98. Interview on the Cum-Ex criminal case: “In principle, no extradition should take place in the Berger case”. Retrieved March 26, 2021 .
  99. Oliver Schröm, Oliver Hollenstein: Tax expert and lawyer Hanno Berger: The man behind the cum-ex-scam. In: Der Spiegel. Retrieved March 26, 2021 .
  100. a b c d Cum-Ex scandal: “Entrenched” in Switzerland: The long-awaited Cum-Ex criminal trial begins without the main actor. In: Handelsblatt. Retrieved March 26, 2021 .
  101. Tax evasion: Investigators hunt down Cum-Ex-defendant Paul Mora. In: Handelsblatt. Retrieved March 26, 2021 .
  102. SPON: Can you rule out moles in ministries? 4th August 2020