Dusseldorf He was a fugitive for nine years and has been in the dock for three months. Now Hanno Berger might confess. Germany’s best-known tax lawyer could concede in court essential parts of what he has previously categorically ruled out: complicity in Germany’s largest tax robbery.
The push comes from Berger’s lawyers. He had “a suggestion that we might sit down together,” said Berger’s main defense attorney Richard Beyer on the most recent day of the hearing at the Bonn Regional Court. The court and defense could consider together “whether to save one or the other gathering of evidence – or maybe even come to an end.”
The court welcomed the proposal. According to information from the Handelsblatt, a first meeting in a small group took place in the past few days apart from the main hearing. Representatives of the public prosecutor’s office were also present. The message from Berger’s lawyers should make the investigators cheer. Beyer said that a “confessional admission” and an apology for the behavior after the crime could be considered.
The choice of words is like a sensation. Admission is legal German for testimony, i.e. the statement of a defendant on the allegations made against him. Hanno Berger has been charged with particularly serious tax evasion at the Bonn Regional Court. The Cologne public prosecutor sees the 71-year-old tax attorney as a key figure in the so-called Cum-Ex affair. Those involved are said to have had taxes refunded that they had not paid at all.
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Nationwide there are more than 100 procedures with more than 1500 suspects. Berger has so far denied all allegations. The fact that his lawyer is now practically offering a confession comes as a complete surprise.
The Cum-Ex affair knows many heads, Berger was always considered her biggest stubborn. He was born in Frankfurt in November 1950, studied law and rose to become the highest bank auditor in Hesse in financial management. In 1996 Berger changed sides. He no longer collected taxes, but advised the rich and companies on how to save on taxes. In 2010 he became self-employed.
key figure in the scandal
Berger quickly had something very special to offer his customers: withdrawing more money from the tax office than they had deposited. His secret was a specific way of trading stocks: cum-ex. If you did it right, Berger told Handelsblatt in 2014, there were two owners of the same stock at a given point in time. Both could then claim a refund of capital gains tax. The legislature left a loophole in the law.
When Berger said this, he was already on the run. Investigators searched his tax office in November 2012; Berger went to Switzerland. From there he railed against any German official who wanted to dispute his income from cum-ex deals – allegedly more than a hundred million euros. His tone was coarse.
Berger called the public prosecutors there “ass fiddles in Cologne”. He described one judge as a “pig judge”, other officials as “idiots, weaklings and socialist gangs”. The investigations against him are said to be a “political campaign of annihilation”.
Berger was arrested in Switzerland in July 2021 and extradited to Germany in February 2022. His thesis that cum-ex trading was simply exploiting a loophole in the law went up in smoke.
The Bonn Regional Court has already made three judgments on this. All three dealt with the business of the Hamburg private bank MM Warburg, for which Berger now also has to answer. All defendants before him were found guilty. The Federal Fiscal Court and the Federal Court of Justice declared cum-ex transactions to be punishable and illegal under tax law. The Federal Constitutional Court ruled that profits from cum-ex deals can be confiscated.
Berger didn’t want to hear any of that. In May he had his long-awaited appearance in court. At a Cum-Ex trial in Wiesbaden, Berger was invited as a witness. Equipped with a large cardboard box full of files and reports, he lectured for hours. The double tax refunds, which are always written about in the media and indictments, would not have existed, said Berger. When the court pointed out that Berger himself had raved about the blessing of double tax returns in his documents, he dodged. That’s a “bold concept,” said Berger. Everything is much more complicated than is commonly portrayed.
Process before crucial phase
Maybe he now has the feeling that everything is very simple. After Berger’s attorney, Beyer, raised the possibility of an early termination of the trial, Judge Zickler replied that he too had had similar thoughts. There is still a lot of work waiting for those involved in the process. “All this work can be cut short if you don’t have to do it, because what you have to do can be determined in a different way,” Zickler said. Even an admission equivalent to a confession would be procedural law.
Berger was loudly and immediately admonished by his own lawyer.
Beyer: “Now please listen, Dr. Berger!”
Berger: “Mr. Beyer, I’m listening very carefully!”
Beyer: “The word ‘confessional’ was also admitted.”
Judge Zickler: “Thank you for emphasizing it again.”
Berger: “I did…”
Zickler: “Now let me finish.”
Then Zickler elaborated. For the acts that Hanno Berger is accused of, a penalty of six months to ten years is provided for by law. A total penalty of a maximum of 15 years should be formed for all individual acts. But there are ways and means to mitigate this penalty.
“Well, the most interesting thing for someone who might be convicted is: ‘What’s in my favour?'” Zickler explained. “If such a high sentence is against me, what speaks in my favour? Then you will find statements that are completely clear, statements that are equivalent to a confession as extremely mitigating of the sentence.”
Berger allegedly transferred assets
Zickler had a second tip. Berger could also shorten the process by making compensation for damage. In Berger’s case, it would be at least 13.6 million euros that he earned from the Warburg business.
Nobody but Berger knows how high his fortune is. He is said to have started transferring values many years ago. This should not help Berger much in the process. The court emphasized that it was up to Berger to mitigate the damage. The amount of the permanent damage is decisive for the amount of the penalty.
For both options, the confession and the payment, be it like an instrument that is in front of Berger. “You either play the instrument or you leave it,” said Zickler. “If you don’t play the instrument, that’s totally fine too. Then the chamber just carries on as normal.”
More: Serious allegations by the public prosecutor’s office – but the accused Hanno Berger is combative