In the multi-billion dollar “Cum-Ex” tax scandal, Hanno Berger, the best-known advocate of dubious share deals at the expense of the state coffers, made a partial confession. The 71-year-old lawyer, accused of particularly serious tax evasion in three cases, admitted to the district court on Monday that he had acted with conditional intent from 2009 onwards.
In that year, in a letter known to Berger, the Ministry of Finance made clear massive concerns about the method of tax planning advocated by the lawyer. Berger's defense attorney, Richard Beyer, emphasized on the fringes of the proceedings that before 2009 he saw no intentional action on the part of his client.
The letter from the Federal Ministry of Finance in 2009 "should probably have been regarded as a turning point," Berger 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. A former federal prosecutor even warned him at this time: "The time for tax planning is over, he said. That should have given me food for thought."
Profits from tax evasion
In the Bonn criminal trial, Berger is accused of three particularly serious tax evasion cases between 2007 and 2013. The accused is said to have owned the private bank M.M. Warburg to start "cum-ex" deals and helped to set up the necessary structures. He is also said to have attracted bona fide investors. The tax authorities are said to have suffered damage of 278 million euros, from which Berger is said to have benefited (file number 62 KLs 2/20).
In the business model, which had its peak from 2006 to 2012, banks, traders and investors pushed shares with ("cum") and without ("ex") dividend claims back and forth in a district transaction - it was a confusing game around the dividend record date, in which the tax authorities no longer had an overview and refunded capital gains tax, although the investors had not paid it at all. According to estimates, the German state lost an amount in the double-digit billions. Last year, the federal court ruled that "cum-ex" was a criminal offense.
In court, the lawyer described his path from bank auditor for the Hessian tax administration to consultant for tax savings models for banks and wealthy investors, from civil servant with salary level A15 to multiple millionaire. He was not only attracted by the money, but also by the legal challenges as a tax attorney.
Berger: "Morals do play a role for me"
The 71-year-old conceded that tax structuring, as he recommended to his clients as a lawyer, is frowned upon today. But that was different for a long time. He always got the same questions from his clients: How do I get my income tax-free? How do I get my assets transferred to the next generation in a tax-friendly way? "Germany has opened up huge design options here," he said. Simply because the tax law is too complicated. And when one screw is turned, a new gap opens up elsewhere.
The lawyer does not find his actions immoral. "Morals do play a role for me," he said in court. As a lawyer, however, he must draw his clients' attention to gaps in tax law. Whether the client uses this is then his decision. "We have to think of the clients. That was my credo. I did it."
The 71-year-old fled to Switzerland in 2012 and was extradited to Germany in February 2022. Since then he has been in custody.
Berger is not only in court in Cologne, but also in Wiesbaden. There, the Frankfurt Attorney General accuses him of having obtained false certificates for a good 113 million euros in unpaid taxes from 2006 to 2008 (file number 6 KLs - 1111 Js 18753/21). Dax shares with a volume of 15.8 billion euros were traded with other defendants via a complex system.
