In May, August and December 2011 a group of small US pension funds applied to the German taxman for refunds totalling EUR123-million (roughly R1,35-billion at the time). This was for dividend withholding tax they supposedly paid earlier that year — tax they were entitled to fully recoup under a US-Germany double taxation treaty.
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The common denominator in this group of applications for tax refunds: Investec.
The applications were made on behalf of the Irish office of Investec’s UK arm by an international tax claim agency, supported by reams of Investec-generated paperwork including “credit advice” letters certifying that dividend tax had been deducted.
Investec issued these in its capacity as the pension funds’ custodian bank.
The problem, according to German prosecutors, is that none of these tax payments ever happened. Instead, these applications, prosecutors claim, were really examples of the infamous cum-ex fraud used to extract billions of Euros from Germany and other European countries.
The cum-ex project
The Files contain around 200,000 pages. These include investigation reports from various authorities, interrogation protocols from key witnesses and accused, internal bank documents, emails, protocols from phone calls that have been tapped.
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In part one of this story we showed how Investec was deeply involved in the cum-ex trading market using German investment funds and how this was almost certainly approved by senior Investec managers.
In this part of the story, we take a closer look at how Investec was also an actor in the widespread use of US pension funds for the same kind of cum-ex scams.
Investec has emphasised to us that “no current or former employees, nor the Bank itself, have been criminally charged, indicted or subpoenaed” in relation to the German investigations.
In a nutshell, cum-ex involves a number of parties colluding to rapidly trade shares in a company right before and after dividends get declared. The point was to generate two claims for a refund of dividend withholding tax that had only been paid once.
The Investec paperwork used by the US pension funds to allegedly dupe German tax authorities now fills lever arch files in the care of German investigators and forms part of a massive leak of documents amaBhungane has access to as a member of a multinational journalistic partnership coordinated by the German non-profit newsroom CORRECTIV.
It is a criminal offence in Germany to publish or extensively quote from such documents, so we have avoided doing so – and the names of some individuals have also been changed in this story on the request of amaBhungane’s partners.
The case of the 2011 pension fund refund applications is only one of a multitude of ongoing cum-ex investigations, but shows how Investec plc, Investec’s UK arm, worked with important and now notorious figures in the “industry” in a variety of capacities.
An interim report from a German tax investigation office dated 13 December 2019 indicates that a number of individuals have already been criminally investigated “on suspicion of obtaining unjustified tax advantages” for the pension funds.
The individuals named include the administrators, trustees and other services providers, including Investec employee Michael Byrne, a deal structurer in the bank’s Dublin office, with UK-registered Investec Bank plc facing potential secondary liability (companies cannot be criminally prosecuted in Germany).
Cum-ex, the basics explained
Cum-ex scams only work in countries that impose dividend withholding tax on shareholders in companies. Germany does and so does South Africa.
A share is “cum” dividend (Latin for “with”) until the dividend gets declared and it becomes “ex” (without) dividend afterwards.
It’s the same idea as having employers deduct PAYE from employees’ paycheques rather than wait for them to pay it themselves. The company issuing the dividend pays the tax on behalf of shareholder and those shareholders who qualify can go claim back this tax at the end of the tax year.
Cum-ex scams also only work in a few countries that have two loopholes in their stock exchange and tax systems.
One loophole is that a share sale takes two (or more) days to take effect.
The second is that the tax certificates that allow you to reclaim your tax are not issued by the company paying the dividend but by your custodian bank.
A custodian bank is one that holds your shares in an account for you, pays out your dividend and takes care of the mechanics of selling your shares.
Every cum-ex transaction involves the following:
1. A company on a stock exchange declaring dividends..
2. At least three conspirators plotting to score unearned tax “refunds” on those dividends:
a. A short seller. This means a payment made before dividend is declared, on shares that will be transferred after the dividend is declared
b. A buyer of shares from the short seller
c. A supplier of shares to the short seller
Consider three scenarios:
First, if Investor A owns shares in a company which declares dividends, he gets a net dividend because the company has paid dividend withholding tax on his behalf. If the tax is 25%, then Investor A gets 75% of the dividend plus a tax certificate for the other 25%. He gets that certificate from his custodian bank.
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Second, consider a case where Investor A carries out a normal (read: legal) cum-ex sale. Investor A has shares on the day (or the day before) a dividend gets declared but then sells them to Investor B. The nature of the German market system meant that Investor B was only going to get those shares two days later – ex-dividend. That’s not fair because when he bought them they were cum-dividend.
So what kicks in is what the Germans called a “compensation payment”. Investor A’s custodian account automatically gets debited by the net dividend amount he had received (75% of the dividend) and this goes to Investor B. Most important, the dividend withholding tax certificate issued to Investor A gets transferred to Investor B, representing 25% of the dividend.
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Third, in order to rig the system and carry out a cum-ex fraud you introduce Investor C – the short seller.
Investor C sells shares to Investor B without actually owning those shares. Instead, the two agree that Investor A will deliver shares on some day in the future. Investor B pays upfront.
Come delivery day, Investor C will acquire shares from Investor A, the supplier, and deliver them to Investor B, the buyer, as agreed.
Usually the point of a short sale is to bet on how the share’s value will change because Investor B paid a pre-arranged price while Investor C is going to pay the market price at delivery day. Both have taken a risk: Investor C could either be in the money or make a significant loss.
For a cum-ex scam, short-selling has a completely different function.
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The story still starts with Investor A who owns shares at the time the dividend gets declared. However, before he sells the shares, his conspirators have to set up a covert short sale transaction in the background.
Investor C, who doesn’t have any shares before the dividend is declared, short sells shares to Investor B. These yet-to-be-acquired shares are sold “cum” dividend before the dividend gets declared. After the dividend gets declared Investor C goes to Investor A to buy the shares he needs to deliver to Investor B.
Now there is a tricky situation. Investor B had bought “cum” shares upfront from Investor C but when Investor C goes knocking at Investor A’s door to buy shares to pass on to Investor B, these are now “ex” shares minus the dividend and tax that got paid.
So who gets the tax certificate?
Investor A has paid the tax and received the tax certificate but is selling to Investor C ex-dividend. That means that there is no compensation payment and no transfer of the tax certificate. Investor A rides merrily into the sunset with his certificate in hand.
Investor C had sold the shares upfront to Investor B cum-dividend at the full price. So Investor B still needs his “compensation”. Crucially (and this is the foundation of the fraud) that includes a tax certificate that gets issued by Investor B’s custodian bank – a role Investec sometimes played while allegedly knowing full well Investor B never actually paid tax.
So now there are two tax certificates even though there had only been one tax payment. Investor B takes this “extra” certificate to the taxman, gets a refund and divides it between himself, Investor A and Investor C. The illicit profit is exactly equal to the tax that was not paid.
AmaBhungane was not able to trace Byrne to obtain comment from him directly.
A report in the leak dated 6 June 2019 cited Investec’s work as custodian for at least eight funds where it was “involved in the planning and implementation” of cum-ex transactions. The leaked documents suggest Investec may have been involved with some other funds as well.
Another public prosecutors’ report dated 9 April 2020 deals entirely with “Investec Bank plc’s involvement in tax evasion related acts with cum / ex transactions in the Beech / Kamco dealings”.
The Beech fund was one of the investors that put money into the network of US pension funds while Kamco Investments Inc. Pension Plan was one of the funds.
According to the report, investigations had shown that Investec was “involved in various functions in cum / ex transactions of various US pension funds (USPPs)”.
Documents indicate that Investec’s participation in this particular part of the cum-ex universe was sanctioned at a very senior level and started long before the 2011 deals.
On 10 April 2008 Investec executive director Alan Tapnack (since deceased) signed a power of attorney with the US agency that dealt with the refund applications.
It conferred on the agency full power to “sign any and all applications, requests, or claims for refunds, reduction, repayment, and credit of, or exemption or relief from, any withholding or similar taxes in any jurisdiction whether in or outside of the United States and to file or deliver the same”.
The agency was also given identical power of attorney by all of the implicated pension funds.
The agency’s managing director is also on the list of individuals facing criminal investigations.
Investec declined to provide a detailed response to questions, including relating to the US transactions, citing a long-standing policy.
Without pointing to any specifics, Investec said amaBhungane’s questions was “based on a misunderstanding of both relevant facts and the law and procedure in Germany”.
It added that “Investec Bank Limited [the South African entity] did not provide tax advice nor tax reclaim services to clients”.
The wrong crowd
Various documents in the leak suggest that Investec had a long term relationship with other parties implicated in the pension fund case and shows how this network of dodgy pension funds and service providers slotted into the wider cum-ex universe.
First, Investec had already signed numerous agreements with these small suspect funds in 2006 and 2007. These covered services like Investec acting as a custodian bank for trades or as a leverage provider.
AmaBhungane’s analysis of the evidence suggests that these small funds existed almost exclusively for the purpose of carrying out dodgy deals, having been implicated in both Germany and Denmark in completely separate cum-ex scams.
For instance, the US pension funds Investec was involved with are among a larger group that have been sued by the Danish government in relation to separate schemes (not linked to Investec) even more audacious – involving allegedly fabricated share ownership in Danish companies that were used to claim withholding tax refunds.
The suspect pension funds in the Investec investigation were all administered by ACER Investment Group (another defendant in the Danish case) with which Investec allegedly had longstanding ties, the leaked documents suggest.
A US lawyer acting for ACER in the Danish case did not respond to a request for comment from amaBhungane.
Among the leaked documents are statements provided by Rakesh Majithia, a deal structurer at Ballance Group, a cum-ex investment advisory firm which worked on the 2011 pension fund deals with ACER.
According to Majithia, Investec had an “existing relationship” with ACER while Investec’s alleged point man for cum-ex work, Dublin-based Loman Gallagher, had known the administrator’s representatives Stacey Kaminer and Robert Crema “for some years”.
For 2011, Investec came on board as a leverage provider as well as custodian bank for the pension funds. It was in its capacity as a custodian that Investec received the funds’ dividends and issued the credit letters later used to make the tax refund applications.
The German investigators have claimed that the bank had an even more hands-on role.
“According to the evidence available, Investec was involved in almost all derivative transactions, securing the share purchase and closing out these transactions,” reads the April 2020 prosecutor’s report.
Majithia claims that Investec was initially only going to provide a relatively small facility of EUR50-million, but that Ballance negotiated this upwards in exchange for higher fees.
“After some discussions around leverage fees, Investec agreed to increase the leverage facility granted to ACER for an amount up to 200m,” he said.
ACER’s Kaminer and Crema are both facing potential criminal prosecution in Germany and are implicated in the Danish civil litigation. So are the trustees of the US pension funds.
Among the bad company Investec appears to have found itself in are the bosses of Ballance itself.
The group was created by Paul Mora and Martin Shields, two of the most infamous cum-ex practitioners. In Investec implicated in investigations into the world’s largest tax fraud – the cum-ex files part one we saw that Investec had done business with them at least as far back as 2008.
Shields was convicted in Germany in 2020. Mora, who had denied wrongdoing, lives in his native New Zealand but is listed as “wanted” on Interpol’s red list, to stand trial in Germany.
Majithia, the company’s representative on the pension fund deal, is also facing possible criminal prosecution.
Too close to home
In 2010 Investec had supported at least two investment funds’ cum-ex trading in Germany with hundreds of millions of Euros in leverage. These funds were at the time a readily available tax-exempt vehicle for cum-ex transactions.
In both instances the real power behind the scenes was the alleged cum-ex “mastermind” tax lawyer Hanno Berger who was arrested in July this year after nine years of exile in Switzerland. Berger denies wrongdoing and is fighting extradition to Germany.
The advisory companies that wooed Investec were “Excel Investments” (the real name may not be published) and Duet Asset Management.
Both were keen to repeat in 2011 the successful “dividend season” they had enjoyed in 2010 — when calamity struck.
On 15 December 2010 German regulators announced a legislative change that would take effect at the end of that month which would effectively make it impossible to use the German funds anymore.
At this point, German authorities were aware of the cum-ex scam and began taking steps to try and shut it down. The new rule was that the fund claiming a refund on dividend tax must have been the beneficial owner of the shares on the day the dividend was declared. However, the whole basis of the cum-ex scam was to muddy the ownership of shares on the day dividends were declared.
At that point leaked documents suggest Investec was already well into talks with Excel about funding 2011 deals but these talks were abruptly aborted. Planning appears to have pivoted towards other structures.
“Aiden Finn”, an employee of Excel whose real name may not be revealed, told prosecutors that it was “common knowledge to equity finance market participants” that US pension funds had successfully made cum-ex refund claims in 2010.
Another option was tax-exempt Irish investment funds.
By 12 January Finn was talking to Investec and Merrill Lynch about these options. That evening he reported back to Berger about talks with potential funders. With regards to Investec he noted, “They don’t like the Irish trade; as they are Dublin based it’s too close for them.”
On the other hand, according to Finn, Investec was interested in a “substantial” pension funds and access to markets other than Germany, specifically Belgium and the Netherlands.
Closing the taps
German authorities tried to quash “dividend arbitrage”, of which cum-ex is the most extreme version, for years until major legal changes seemingly did the job in 2012.
Before this there had also been ineffectual attempts by the federal ministry of finance.
In April 2009 it introduced mandatory “tax advisor certificates” which had to be issued by approved firms and accompany applications for dividend withholding tax refunds when any kind of cum-ex dividend trade was involved.
These were meant to certify that there had been no collusion between the claimant and a short seller, the underlying trick present in all cum-ex fraud.
Lawyers working for banks and cum-ex practitioners were quick to point out that this decree did not affect non-German taxpayers.
Another decree of 28 April 2011 attempted to close that loophole. Non-residents would also have to certify that there had been no collusion with a short seller. This made it imperative to have lawyers and accountants on side.
In the case of the 2011 pension funds, the services of German tax lawyer Juliana Singer were enlisted.
Singer, who had previously worked with Berger before setting up her own tax practice, refused to testify in a 2017 German parliamentary hearing on the cum-ex scandal, citing the fact that she was facing criminal charges.
Aftermath or sequel?
By most accounts the cum-ex fraud was successfully curtailed, at least in Germany, by the legislative changes enacted in 2012. Berger’s law firm was liquidated by 2013 and today hundreds of bankers and lawyers face prosecution.
In 2018 the European Union’s European Securities and Markets Authority (ESMA) launched an investigation into cum-ex. As a part of this all member states’ competent authorities filled in questionnaires assessing their vulnerability and whether they had historically been targeted.
In its response Germany claimed that “there are currently no indications of market participants having systematically obtained multiple refunds of capital income tax. At present, it can be assumed that harmful cum/ex arrangements are being effectively hindered, at least in the form that was previously being used”.
It did however flag a new potential problem. There is growing concern about the abuse of so-called “pre-released” American depository receipts (ADRs) in the period following the suppression of cum-ex. ADRs are a mechanism through which US investors can indirectly own and trade foreign stocks.
ADRs are usually issued to investors by banks and those banks buy and keep the corresponding shares – in this case German shares.
Between 2011 and 2016 it was possible for these ADRs to be “pre-released” before the corresponding share had been secured which created a window for trading it that worked a lot like the short sale in a cum-ex scheme.
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The Securities and Exchange Commission in the US has pursued several banks for alleged fraud involving these practices.
According to its report to ESMA, Germany is investigating whether there were duplicate tax refunds related to ADRs.
At least two of the “credit advice” letters issued by Investec which were allegedly used to procure fraudulent refunds of the underlying tax related not to shares, but to ADRs.
One, dated 20 December 2011, was issued for the Newsong Fellowship Church and certified that the church had received dividends excluding dividend tax on 2 014 800 ADRs representing 201 480 shares in banking group Allianz.
The church was tax exempt and was therefore claiming EUR239,131.58
Another, nearly identical one issued on the same day, certified that an obscure New York non-profit, the Zichron Yaakov Institute, received dividends and paid taxes on 1 985 200 ADRs.
These two transactions have not escaped the attention of German prosecutors and get mentioned in the public prosecutors’ report from April 2020. It however remains to be seen if more ADR-related trades emerge.
Investec told amaBhungane that it “takes its regulatory responsibilities extremely seriously, continues to hold itself to high ethical standards”.