One of the best-known figures in the Cum-Ex tax scandal, Hanno Berger, admitted to the Bonn Regional Court that he acted with conditional intent.
Berger is charged with three cases of particularly serious tax evasion between 2007 and 2013. In his partial confession, he now admitted that he had acted with conditional intent from 2009. In that year, the Federal Ministry of Finance made it clear in a letter that it had serious concerns about Berger's method of tax planning. Berger knew this letter, but is said to have stuck to the method. His defense attorney stressed that before 2009, however, he saw no intent.
The letter should probably have been "considered 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."
From bank auditor to consultant for "tax savings"
The former lawyer and bank auditor in Hessen Berger is often referred to as "Mr. Cum-Ex" and has to answer for several lawsuits. He is said to have convinced the Hamburg Warburg Bank to get into the cum-ex business and also to have set up the necessary structures. He is also said to have recruited investors. The state suffered financial damage of 278 million euros from the crimes accused in this process, from which Berger is said to have benefited.
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. German tax law is simply too complicated and opens up "huge design options" for tax avoidance, said Berger. As a lawyer, he has to 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," said Berger. As a consultant for wealthy clients, Berger became a multiple millionaire.
method basically illegal
In cum-ex transactions, investors pushed shares back and forth between several participants around the dividend payment date. Some of these shares were entitled to a distribution ("cum"), while others were not ("ex"). The transactions were intended to confuse the tax authorities. In fact, they lost track and refunded investors capital gains taxes that were never actually paid. This cheated the state out of billions. For several years, investigators and courts have been trying to work through the biggest tax scandal in post-war history.
The perpetrators used a tax scheme that was changed in 2012 for their purposes. In addition, the Federal Court of Justice (BGH) ruled in 2021 that the cum-ex deals were illegal. In the specific case, two stock traders had argued that they had only exploited a tax loophole. However, the BGH ruled that Cum-Ex is to be considered tax evasion.