It May Be the Biggest Tax Heist Ever. And Europe Wants Justice.
24 Jan 2020

They made quite a team.

One was an Oxford-educated wunderkind who handled the complicated math behind the transactions. The other was a beefy, 6-foot-2 New Zealander with an apparent fondness for Hawaiian shirts, who brought in clients and money.

Martin Shields and Paul Mora met in 2004, at the London office of Merrill Lynch. Mr. Shields was always the pupil, a little in awe of the older man’s ability to bluff and charm. Once, after Mr. Mora fended off suspicious auditors at a bank where the two worked, Mr. Shields sent an admiring email.

“Remind me never to play poker with you,” he said, according to an internal report later commissioned by the bank.

Today, the men stand accused of participating in what Le Monde has called “the robbery of the century,” and what one academic declared “the biggest tax theft in the history of Europe.” From 2006 to 2011, these two and hundreds of bankers, lawyers and investors made off with a staggering $60 billion, all of it siphoned from the state coffers of European countries.

As one participant would later put it, taxpayer funds were an irresistible mark for a simple reason: They never ran out.

The scheme was built around “cum-ex trading” (from the Latin for “with-without”): a monetary maneuver to avoid double taxation of investment profits that plays out like high finance’s answer to a David Copperfield stage illusion. Through careful timing, and the coordination of a dozen different transactions, cum-ex trades produced two refunds for dividend tax paid on one basket of stocks.

One basket of stocks. Abracadabra. Two refunds.

The process was repeated over and over, as word of cum-ex spread like a quiet contagion. Germany was hardest hit, with an estimated $30 billion in losses, followed by France, taken for about $17 billion. Smaller sums were drained away from Spain, Italy, Belgium, Austria, Norway, Finland, Poland and others.

Outrage in these countries has focused on the City of London, Britain’s answer to Wall Street. Less scrutinized has been the role played by Americans, both individual investors and branches of United States investment banks in London, including Morgan Stanley, JPMorgan Chase and Merrill Lynch Bank of America.

American bankers didn’t try cum-ex at home because they feared domestic regulators. So they moved operations to London and treated the rest of Europe as an anything-goes frontier. Frank Tibo, a former chief tax officer at a bank where Mr. Shields and Mr. Mora worked, said American and British cum-ex traders regarded the Continent as a backwater of old economies ripe for swindling.

”There was this culture in London, and it really came from New York,” he said. “These guys were either from New York or trained in London at New York banks, and they looked at Europe as their playground. People at the highest levels were collaborating to rip off countries.”

Seemingly risk-free profits poured in, and over the years a mini-industry thrived, one that a former participant labeled “the devil’s machine.”

Exactly how that machine operated is a central question in the first cum-ex prosecution, which began in September in Bonn, Germany. In a trial expected to last until February, German prosecutors intend to make an example of Mr. Shields, 41, and a former colleague. (Mr. Mora, 52, was indicted in December and will be tried separately in the coming months.) The men in the Bonn case have been charged with “aggravated tax evasion” that cost the German treasury close to $500 million.

Last month, the presiding judge issued a preliminary ruling that, for the first time, declared cum-ex a felony, calling it a “collective grab in the treasury.” Punishment has yet to be determined, but the give-it-back and the go-to-prison phases of this calamity are about to begin.

German prosecutors say they will now pursue 400 other suspects, unearthed in 56 investigations. Banks large and small will be ordered to hand over cum-ex profits, which could have serious consequences for some. Two have already gone bust.

Dozens of law firms and lawyers may face penalties, too, having drafted highly priced opinions contending there was no law explicitly prohibiting cum-ex and thus it was perfectly legal. That is an argument that many involved might offer in the coming years of litigation. They may insist that if Germany didn’t make the trade impossible, they did not break a law. A desk-thumping variation of that defense is already being offered by Hanno Berger, once the most formidable tax auditor in Germany, who later switched sides and became a cum-ex mastermind as well as an ally of Mr. Shields and Mr. Mora.

But officials in Germany say the trade was a form of theft, one so obviously illicit that forbidding it — which was tried twice, with ineffectively worded laws — was hardly necessary. In September, the justice minister of the state of North-Rhine Westphalia, Peter Biesenbach, went so far as to liken cum-ex players to mobsters.

Their work, he said, was “organized white-collar crime of unimaginable magnitude.”

By David Segal, The New York Times, 23 January 2020

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