The string puller in the Cum-Ex tax affair faces a long prison sentence.
(Photo: dpa)
Frankfurt The German criminal process requires the presence of the accused. Alluding to Eppelein von Galingen, who had escaped his judges and coined the saying “The people of Nuremberg don’t hang anyone – they would have had him before!”, one might think: “The Germans don’t condemn anyone unless they had him.”
The alleged inventor and mastermind of the Cum-Ex business model, Hanno Berger, stayed in Switzerland for a long time. He fled there in 2012 while his office in Frankfurt was being searched.
Germany tried for many years to extradite. Legal recourse was only exhausted on February 16, 2022, and the federal court cleared the way for extradition. Berger was handed over to German officials in Constance on the border.
The statements made by the federal judges in Lausanne are interesting to read. They state that Berger is “accused that he, together with other people, set up a sophisticated system around the dividend date of his own accord, in accordance with a preconceived intention to enrich himself, in order to fraudulently obtain millions of euros in unjustified refunds from the German state by submitting capital gains tax certificates and thus plan to use the fiscal refund system of the German capital gains tax”.
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This constitutes “extraditable fraud” under Article 146 of the Swiss Criminal Code, which is to be distinguished from non-extraditable fiscal offences. When Berger was surrendered, Germany was made aware of the limitation of its punitive powers resulting from the specialty principle.
Tax lawyer in Cum-Ex fraud case in court
The Swiss trust the Germans: “Germany will observe the specialty reservation and only prosecute the complainant for those offenses for which extradition or legal assistance has been approved.”
It remains to be seen whether Berger’s defense will be able to convert this into a legal success. In any case, having someone extradited for fraud and then convicted of tax evasion requires detailed justification.
Professor Jens M. Schmittmann is editor-in-chief of the magazines Betriebs-Berater and Der Steuerberater. This article comes from the cooperation between the Handelsblatt and the latter trade journal.
More: Accused Berger complains about prison conditions