{"id":15197,"date":"2021-10-22T04:05:42","date_gmt":"2021-10-22T04:05:42","guid":{"rendered":"https:\/\/amabhungane.org\/?post_type=stories&#038;p=15197"},"modified":"2024-09-19T13:44:09","modified_gmt":"2024-09-19T13:44:09","slug":"211022-how-investec-was-a-player-in-the-worlds-largest-tax-fraud-cum-ex-part-two","status":"publish","type":"post","link":"https:\/\/further.co.za\/amabwp\/211022-how-investec-was-a-player-in-the-worlds-largest-tax-fraud-cum-ex-part-two\/","title":{"rendered":"How Investec was a player in the world\u2019s largest tax fraud \u2013 cum-ex part two"},"content":{"rendered":"\n<p class=\"p1 wp-block-paragraph\">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 \u2014 tax they were entitled to fully recoup under a US-Germany double taxation treaty.<span class=\"Apple-converted-space\">&nbsp;<\/span><\/p>\n\n\n\n<p class=\"wp-block-paragraph\"><em>If you agree that this is top-class forensic investigative reporting by amaB&#8217;s Dewald van Rensburg, then click <a href=\"https:\/\/amabhungane.org\/support\/\"><strong>here<\/strong><\/a> to support our dedication to achieving good, objective and transparent journalism.<\/em><\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">The common denominator in this group of applications for tax refunds: Investec.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">The applications were made on behalf of the Irish office of Investec\u2019s UK arm by an international tax claim agency, supported by reams of Investec-generated paperwork including \u201ccredit advice\u201d letters certifying that dividend tax had been deducted.<span class=\"Apple-converted-space\">&nbsp;<\/span><\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">Investec issued these in its capacity as the pension funds\u2019 custodian bank.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">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.<\/p>\n\n\n\n<h4 class=\"wp-block-heading\">The cum-ex project<\/h4>\n\n\n\n<p class=\"wp-block-paragraph\">This story stems from the <a href=\"https:\/\/correctiv.org\/en\/top-stories\/2021\/10\/21\/cumex-files-2\/\"><span class=\"s1\">CumEx Files 2.0<\/span><\/a>, an international investigation coordinated by German newsroom <a href=\"https:\/\/correctiv.org\/en\/\">CORRECTIV<\/a> following on the heels of a 2018 expos\u00e9, the <span class=\"s2\">CumEx Files<\/span>.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">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.<\/p>\n\n\n<div class=\"wp-block-image\">\n<figure class=\"alignleft size-full\"><img loading=\"lazy\" decoding=\"async\" width=\"2450\" height=\"1078\" src=\"https:\/\/further.co.za\/amabwp\/wp-content\/uploads\/2021\/10\/CORRECTIV-logo-e1634788014242.png\" alt=\"\" class=\"wp-image-20974\" srcset=\"https:\/\/further.co.za\/amabwp\/wp-content\/uploads\/2021\/10\/CORRECTIV-logo-e1634788014242.png 2450w, https:\/\/further.co.za\/amabwp\/wp-content\/uploads\/2021\/10\/CORRECTIV-logo-e1634788014242-600x264.png 600w, https:\/\/further.co.za\/amabwp\/wp-content\/uploads\/2021\/10\/CORRECTIV-logo-e1634788014242-300x132.png 300w, https:\/\/further.co.za\/amabwp\/wp-content\/uploads\/2021\/10\/CORRECTIV-logo-e1634788014242-1024x451.png 1024w, https:\/\/further.co.za\/amabwp\/wp-content\/uploads\/2021\/10\/CORRECTIV-logo-e1634788014242-768x338.png 768w, https:\/\/further.co.za\/amabwp\/wp-content\/uploads\/2021\/10\/CORRECTIV-logo-e1634788014242-1536x676.png 1536w, https:\/\/further.co.za\/amabwp\/wp-content\/uploads\/2021\/10\/CORRECTIV-logo-e1634788014242-2048x901.png 2048w\" sizes=\"auto, (max-width: 2450px) 100vw, 2450px\" \/><\/figure>\n<\/div>\n\n\n<p class=\"wp-block-paragraph\"><\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">The documents come from various sources. Find out how cum-ex effects other countries worldwide on <a href=\"https:\/\/correctiv.org\/en\/top-stories\/2021\/10\/21\/cumex-files-2\/\">cumex-files.com<\/a>.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">In <a href=\"https:\/\/amabhungane.org\/stories\/211021-investec-implicated-in-investigations-into-the-worlds-largest-tax-fraud-the-cum-ex-files-part-one\/\"><span class=\"s1\"><b>part one<\/b><\/span><\/a> 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.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">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.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">Investec has emphasised to us that \u201cno current or former employees, nor the Bank itself, have been criminally charged, indicted or subpoenaed\u201d in relation to the German investigations.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">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.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">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 <a href=\"http:\/\/www.amabhungane.org\/\"><span class=\"s1\">amaBhungane<\/span><\/a> has access to as a member of a multinational journalistic partnership coordinated by the German non-profit newsroom CORRECTIV.<span class=\"Apple-converted-space\">&nbsp;<\/span><\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">It is a criminal offence in Germany to publish or extensively quote from such documents, so we have avoided doing so \u2013 and the names of some individuals have also been changed in this story on the request of amaBhungane\u2019s partners.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">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\u2019s UK arm, worked with important and now notorious figures in the \u201cindustry\u201d in a variety of capacities.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">An interim report from a German tax investigation office dated 13 December 2019 indicates that a number of individuals have already been criminally investigated \u201con suspicion of obtaining unjustified tax advantages\u201d for the pension funds.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">The individuals named include the administrators, trustees and other services providers, including Investec employee Michael Byrne, a deal structurer in the bank\u2019s Dublin office, with UK-registered Investec Bank plc facing potential secondary liability (companies cannot be criminally prosecuted in Germany).<\/p>\n\n\n\n<h4 class=\"wp-block-heading p1\">Cum-ex, the basics explained<\/h4>\n\n\n\n<p class=\"p1 wp-block-paragraph\">Cum-ex scams only work in countries that impose <b>dividend withholding tax <\/b>on<b> <\/b>shareholders in companies. Germany does and so does South Africa.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">A share is \u201ccum\u201d dividend (Latin for \u201cwith\u201d) until the dividend gets declared and it becomes \u201cex\u201d (without) dividend afterwards.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">It\u2019s the same idea as having employers deduct PAYE from employees\u2019 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.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">Cum-ex scams also only work in a few countries that have two loopholes in their stock exchange and tax systems.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">One loophole is that a share sale takes two (or more) days to take effect.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">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.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">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.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">Every cum-ex transaction involves the following:<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">1. A company on a stock exchange declaring dividends..<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">2. At least three conspirators plotting to score unearned tax \u201crefunds\u201d on those dividends:<\/p>\n\n\n\n<blockquote class=\"wp-block-quote is-layout-flow wp-block-quote-is-layout-flow\">\n<ol style=\"list-style-type:lower-alpha\" class=\"wp-block-list\">\n<li>A short seller. This means a payment made before dividend is declared, on shares that will be transferred after the dividend is declared<\/li>\n\n\n\n<li>A buyer of shares from the short seller<\/li>\n\n\n\n<li>A supplier of shares to the short seller<\/li>\n<\/ol>\n<\/blockquote>\n\n\n\n<p class=\"p1 wp-block-paragraph\">Consider three scenarios:<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\"><span class=\"s1\" style=\"color: #ff0000;\"><b>First<\/b><\/span>, if <b>Investor A<\/b> 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 <b>Investor A<\/b> gets 75% of the dividend plus a tax certificate for the other 25%. He gets that certificate from his custodian bank.<\/p>\n\n\n<div class=\"wp-block-image\">\n<figure class=\"alignleft size-full\"><img loading=\"lazy\" decoding=\"async\" width=\"993\" height=\"681\" src=\"https:\/\/further.co.za\/amabwp\/wp-content\/uploads\/2021\/10\/CumEx-Graphic-Scenario-1.jpeg\" alt=\"\" class=\"wp-image-20961\" srcset=\"https:\/\/further.co.za\/amabwp\/wp-content\/uploads\/2021\/10\/CumEx-Graphic-Scenario-1.jpeg 993w, https:\/\/further.co.za\/amabwp\/wp-content\/uploads\/2021\/10\/CumEx-Graphic-Scenario-1-600x411.jpeg 600w, https:\/\/further.co.za\/amabwp\/wp-content\/uploads\/2021\/10\/CumEx-Graphic-Scenario-1-300x206.jpeg 300w, https:\/\/further.co.za\/amabwp\/wp-content\/uploads\/2021\/10\/CumEx-Graphic-Scenario-1-768x527.jpeg 768w\" sizes=\"auto, (max-width: 993px) 100vw, 993px\" \/><\/figure>\n<\/div>\n\n\n<p class=\"p1 wp-block-paragraph\"><\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\"><span class=\"s1\" style=\"color: #ff0000;\"><b>Second<\/b><\/span>, consider a case where <b>Investor A<\/b> carries out a normal (read: legal) cum-ex sale. <b>Investor A<\/b> has shares on the day (or the day before) a dividend gets declared but then sells them to <b>Investor B<\/b>. The nature of the German market system meant that <b>Investor B<\/b> was only going to get those shares two days later \u2013 ex-dividend. That\u2019s not fair because when he bought them they were cum-dividend.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">So what kicks in is what the Germans called a \u201ccompensation payment\u201d. <b>Investor A\u2019s<\/b> custodian account automatically gets debited by the net dividend amount he had received (75% of the dividend) and this goes to <b>Investor B<\/b>. Most important, the dividend withholding tax certificate issued to <b>Investor A<\/b> gets transferred to <b>Investor B<\/b>, representing 25% of the dividend.<\/p>\n\n\n<div class=\"wp-block-image\">\n<figure class=\"alignleft size-full\"><img loading=\"lazy\" decoding=\"async\" width=\"993\" height=\"766\" src=\"https:\/\/further.co.za\/amabwp\/wp-content\/uploads\/2021\/10\/CumEx-Graphic-Scenario-2.jpeg\" alt=\"\" class=\"wp-image-20963\" srcset=\"https:\/\/further.co.za\/amabwp\/wp-content\/uploads\/2021\/10\/CumEx-Graphic-Scenario-2.jpeg 993w, https:\/\/further.co.za\/amabwp\/wp-content\/uploads\/2021\/10\/CumEx-Graphic-Scenario-2-600x463.jpeg 600w, https:\/\/further.co.za\/amabwp\/wp-content\/uploads\/2021\/10\/CumEx-Graphic-Scenario-2-300x231.jpeg 300w, https:\/\/further.co.za\/amabwp\/wp-content\/uploads\/2021\/10\/CumEx-Graphic-Scenario-2-768x592.jpeg 768w\" sizes=\"auto, (max-width: 993px) 100vw, 993px\" \/><\/figure>\n<\/div>\n\n\n<p class=\"wp-block-paragraph\"><\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\"><span class=\"s1\" style=\"color: #ff0000;\"><b>Third<\/b><\/span>, in order to rig the system and carry out a cum-ex fraud you introduce <b>Investor C<\/b> \u2013 the short seller.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\"><b>Investor C<\/b> sells shares to <b>Investor B<\/b> without actually owning those shares. Instead, the two agree that <b>Investor A<\/b> will deliver shares on some day in the future. Investor B pays upfront.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">Come delivery day, <b>Investor C<\/b> will acquire shares from <b>Investor A<\/b>, the supplier, and deliver them to <b>Investor B<\/b>, the buyer, as agreed.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">Usually the point of a short sale is to bet on how the share\u2019s value will change because <b>Investor B<\/b> paid a pre-arranged price while <b>Investor C<\/b> is going to pay the market price at delivery day. Both have taken a risk: <b>Investor C<\/b> could either be in the money or make a significant loss.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">For a cum-ex scam, short-selling has a completely different function.<\/p>\n\n\n<div class=\"wp-block-image\">\n<figure class=\"alignleft size-full\"><img loading=\"lazy\" decoding=\"async\" width=\"993\" height=\"1588\" src=\"https:\/\/further.co.za\/amabwp\/wp-content\/uploads\/2021\/10\/CumEx-Graphic-Scenario-3.jpeg\" alt=\"\" class=\"wp-image-20964\" srcset=\"https:\/\/further.co.za\/amabwp\/wp-content\/uploads\/2021\/10\/CumEx-Graphic-Scenario-3.jpeg 993w, https:\/\/further.co.za\/amabwp\/wp-content\/uploads\/2021\/10\/CumEx-Graphic-Scenario-3-600x960.jpeg 600w, https:\/\/further.co.za\/amabwp\/wp-content\/uploads\/2021\/10\/CumEx-Graphic-Scenario-3-188x300.jpeg 188w, https:\/\/further.co.za\/amabwp\/wp-content\/uploads\/2021\/10\/CumEx-Graphic-Scenario-3-640x1024.jpeg 640w, https:\/\/further.co.za\/amabwp\/wp-content\/uploads\/2021\/10\/CumEx-Graphic-Scenario-3-768x1228.jpeg 768w, https:\/\/further.co.za\/amabwp\/wp-content\/uploads\/2021\/10\/CumEx-Graphic-Scenario-3-960x1536.jpeg 960w\" sizes=\"auto, (max-width: 993px) 100vw, 993px\" \/><\/figure>\n<\/div>\n\n\n<p class=\"wp-block-paragraph\"><\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">The story still starts with <b>Investor A<\/b> 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.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\"><b>Investor C<\/b>, who doesn\u2019t have any shares before the dividend is declared, short sells shares to <b>Investor B<\/b>. These yet-to-be-acquired shares are sold \u201ccum\u201d dividend before the dividend gets declared. After the dividend gets declared <b>Investor C<\/b> goes to <b>Investor A<\/b> to buy the shares he needs to deliver to <b>Investor B.<\/b><\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">Now there is a tricky situation. <b>Investor B<\/b> had bought \u201ccum\u201d shares upfront from <b>Investor C<\/b> but when <b>Investor C<\/b> goes knocking at <b>Investor A<\/b>\u2019s door to buy shares to pass on to <b>Investor B,<\/b> these are now \u201cex\u201d shares minus the dividend and tax that got paid.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">So who gets the tax certificate?<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\"><b>Investor A<\/b> has paid the tax and received the tax certificate but is selling to <b>Investor C<\/b> 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.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\"><b>Investor C<\/b> had sold the shares upfront to <b>Investor B<\/b> cum-dividend at the full price. So <b>Investor B<\/b> still needs his \u201ccompensation\u201d. Crucially (and this is the foundation of the fraud) that includes a tax certificate that gets issued by <b>Investor B<\/b>\u2019s custodian bank \u2013 a role Investec sometimes played while allegedly knowing full well <b>Investor B<\/b> never actually paid tax.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">So now there are two tax certificates even though there had only been one tax payment. <b>Investor B <\/b>takes this \u201cextra\u201d certificate to the taxman, gets a refund and divides it between himself<b>, Investor A <\/b>and<b> Investor C<\/b>. The illicit profit is exactly equal to the tax that was not paid.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">AmaBhungane was not able to trace Byrne to obtain comment from him directly.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">A report in the leak dated 6 June 2019 cited Investec\u2019s work as custodian for at least eight funds where it was \u201cinvolved in the planning and implementation\u201d of cum-ex transactions. The leaked documents suggest Investec may have been involved with some other funds as well.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">Another public prosecutors\u2019 report dated 9 April 2020 deals entirely with \u201cInvestec Bank plc&#8217;s involvement in tax evasion related acts with cum \/ ex transactions in the Beech \/ Kamco dealings\u201d.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">The Beech fund was one of the investors that put money into the network of US pension funds while <i>Kamco Investments Inc. Pension Plan<\/i> was one of the funds.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">According to the report, investigations had shown that Investec was \u201cinvolved in various functions in cum \/ ex transactions of various US pension funds (USPPs)\u201d.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">Documents indicate that Investec\u2019s participation in this particular part of the cum-ex universe was sanctioned at a very senior level and started long before the 2011 deals.<span class=\"Apple-converted-space\">&nbsp;<\/span><\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">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.<span class=\"Apple-converted-space\">&nbsp;<\/span><\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">It conferred on the agency full power to \u201csign 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\u201d.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">The agency was also given identical power of attorney by all of the implicated pension funds.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">The agency\u2019s managing director is also on the list of individuals facing criminal investigations.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">Investec declined to provide a detailed response to questions, including relating to the US transactions, citing a long-standing policy.<span class=\"Apple-converted-space\">&nbsp;<\/span><\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">Without pointing to any specifics, Investec said amaBhungane\u2019s questions was \u201cbased on a misunderstanding of both relevant facts and the law and procedure in Germany\u201d. <span class=\"Apple-converted-space\">&nbsp;<\/span><\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">It added that \u201cInvestec Bank Limited [the South African entity] did not provide tax advice nor tax reclaim services to clients\u201d.<\/p>\n\n\n\n<blockquote class=\"wp-block-quote is-layout-flow wp-block-quote-is-layout-flow\">\n<p class=\"p1 wp-block-paragraph\"><em>Read Investec\u2019s full response to our questions <a href=\"https:\/\/amabhungane.org\/wp-content\/uploads\/2021\/10\/DOC-to-link-Investec-plc-response-to-amaBhungane-18-October-2021.pdf\"><span class=\"s1\"><b>here<\/b><\/span><\/a><\/em><\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\"><em>Read amaBhungane&#8217;s questions in full <a href=\"https:\/\/amabhungane.org\/wp-content\/uploads\/2021\/10\/DOC-to-link-211011-Questions-for-Investec.pdf\"><span class=\"s1\"><b>here<\/b><\/span><\/a><\/em><\/p>\n<\/blockquote>\n\n\n\n<p class=\"p1 wp-block-paragraph\"><b>The wrong crowd<\/b><\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">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.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">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.<span class=\"Apple-converted-space\">&nbsp;<\/span><\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">AmaBhungane\u2019s 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. <span class=\"Apple-converted-space\">&nbsp;<\/span><\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">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 \u2013 involving allegedly fabricated share ownership in Danish companies that were used to claim withholding tax refunds.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">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.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">A US lawyer acting for ACER in the Danish case did not respond to a request for comment from amaBhungane.<span class=\"Apple-converted-space\">&nbsp;<\/span><\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">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.<span class=\"Apple-converted-space\">&nbsp;<\/span><\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">According to Majithia, Investec had an \u201cexisting relationship\u201d with ACER while Investec\u2019s alleged point man for cum-ex work, Dublin-based Loman Gallagher, had known the administrator\u2019s representatives Stacey Kaminer and Robert Crema \u201cfor some years\u201d.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">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\u2019 dividends and issued the credit letters later used to make the tax refund applications.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">The German investigators have claimed that the bank had an even more hands-on role.<span class=\"Apple-converted-space\">&nbsp;<\/span><\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">\u201cAccording to the evidence available, Investec was involved in almost all derivative transactions, securing the share purchase and closing out these transactions,\u201d reads the April 2020 prosecutor\u2019s report.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">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.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">\u201cAfter some discussions around leverage fees, Investec agreed to increase the leverage facility granted to ACER for an amount up to 200m,\u201d he said.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">ACER\u2019s 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.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">Among the bad company Investec appears to have found itself in are the bosses of Ballance itself.<span class=\"Apple-converted-space\">&nbsp;<\/span><\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">The group was created by Paul Mora and Martin Shields, two of the most infamous cum-ex practitioners. In <a href=\"https:\/\/amabhungane.org\/stories\/211021-investec-implicated-in-investigations-into-the-worlds-largest-tax-fraud-the-cum-ex-files-part-one\/\"><em>Investec implicated in investigations into the world\u2019s largest tax fraud \u2013 the cum-ex files part one<\/em><\/a>&nbsp;we saw that Investec had done business with them at least as far back as 2008.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">Shields was convicted in Germany in 2020. Mora, who had denied wrongdoing, lives in his native New Zealand but is listed as \u201cwanted\u201d on Interpol\u2019s red list, to stand trial in Germany. <span class=\"Apple-converted-space\">&nbsp;<\/span><\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">Majithia, the company\u2019s representative on the pension fund deal, is also facing possible criminal prosecution.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\"><b>Too close to home<\/b><\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">In 2010 Investec had supported at least two investment funds\u2019 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.<span class=\"Apple-converted-space\">&nbsp;<\/span><\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">In both instances the real power behind the scenes was the alleged cum-ex \u201cmastermind\u201d 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.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">The advisory companies that wooed Investec were \u201cExcel Investments\u201d (the real name may not be published) and Duet Asset Management.<span class=\"Apple-converted-space\">&nbsp;<\/span><\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">Both were keen to repeat in 2011 the successful \u201cdividend season\u201d they had enjoyed in 2010 \u2014 when calamity struck.<span class=\"Apple-converted-space\">&nbsp;<\/span><\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">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.<span class=\"Apple-converted-space\">&nbsp;<\/span><\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">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.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">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.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">\u201cAiden Finn\u201d, an employee of Excel whose real name may not be revealed, told prosecutors that it was \u201ccommon knowledge to equity finance market participants\u201d that US pension funds had successfully made cum-ex refund claims in 2010.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">Another option was tax-exempt Irish investment funds.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">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, \u201cThey don&#8217;t like the Irish trade; as they are Dublin based it&#8217;s too close for them.\u201d<span class=\"Apple-converted-space\">&nbsp;<\/span><\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">On the other hand, according to Finn, Investec was interested in a \u201csubstantial\u201d pension funds and access to markets other than Germany, specifically Belgium and the Netherlands.<span class=\"Apple-converted-space\">&nbsp;<\/span><\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\"><b>Closing the taps<\/b><\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">German authorities tried to quash \u201cdividend arbitrage\u201d, of which cum-ex is the most extreme version, for years until major legal changes seemingly did the job in 2012.<span class=\"Apple-converted-space\">&nbsp;<\/span><\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">Before this there had also been ineffectual attempts by the federal ministry of finance.<span class=\"Apple-converted-space\">&nbsp;<\/span><\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">In April 2009 it introduced mandatory \u201ctax advisor certificates\u201d 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.<span class=\"Apple-converted-space\">&nbsp;<\/span><\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">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.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">Lawyers working for banks and cum-ex practitioners were quick to point out that this decree did not affect non-German taxpayers.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">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.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">In the case of the 2011 pension funds, the services of German tax lawyer Juliana Singer were enlisted.<span class=\"Apple-converted-space\">&nbsp;<\/span><\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">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.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\"><b>Aftermath or sequel?<\/b><\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">By most accounts the cum-ex fraud was successfully curtailed, at least in Germany, by the legislative changes enacted in 2012. Berger\u2019s law firm was liquidated by 2013 and today hundreds of bankers and lawyers face prosecution.<span class=\"Apple-converted-space\">&nbsp;<\/span><\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">In 2018 the European Union\u2019s European Securities and Markets Authority (ESMA) launched an investigation into cum-ex. As a part of this all member states\u2019 competent authorities filled in questionnaires assessing their vulnerability and whether they had historically been targeted.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">In its response Germany claimed that \u201cthere 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\u201d.<span class=\"Apple-converted-space\">&nbsp;<\/span><\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">It did however flag a new potential problem. There is growing concern about the abuse of so-called \u201cpre-released\u201d 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.<span class=\"Apple-converted-space\">&nbsp;<\/span><\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">ADRs are usually issued to investors by banks and those banks buy and keep the corresponding shares \u2013 in this case German shares.<span class=\"Apple-converted-space\">&nbsp;<\/span><\/p>\n\n\n\n<p class=\"wp-block-paragraph\">Between 2011 and 2016 it was possible for these ADRs to be \u201cpre-released\u201d 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.<span class=\"Apple-converted-space\">&nbsp;<\/span><\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">[sidebarContentQuote align=left]<em>Subscribe <strong><a href=\"https:\/\/amabhungane.org\/newsletter-sign-up\/\">here<\/a><\/strong> to get our newsletter.<\/em>[\/sidebarContentQuote]<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">The Securities and Exchange Commission in the US has pursued several banks for alleged fraud involving these practices.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">According to its report to ESMA, Germany is investigating whether there were duplicate tax refunds related to ADRs.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">At least two of the \u201ccredit advice\u201d letters issued by Investec which were allegedly used to procure fraudulent refunds of the underlying tax related not to shares, but to ADRs.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">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&nbsp;014&nbsp;800 ADRs representing 201&nbsp;480 shares in banking group Allianz.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">The church was tax exempt and was therefore claiming EUR239,131.58<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">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&nbsp;200 ADRs.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">These two transactions have not escaped the attention of German prosecutors and get mentioned in the public prosecutors\u2019 report from April 2020. It however remains to be seen if more ADR-related trades emerge.<\/p>\n\n\n\n<p class=\"p1 wp-block-paragraph\">Investec told amaBhungane that it \u201ctakes its regulatory responsibilities extremely seriously, continues to hold itself to high ethical standards\u201d.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>The investment bank has been named in criminal investigations of its alleged involvement in a number of the infamous German \u201ccum-ex\u201d tax scam transactions. Of particular interest to prosecutors in Germany is the case of US pension funds that relied on Investec to make allegedly fraudulent tax claims.<\/p>\n","protected":false},"author":8,"featured_media":20975,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[2],"tags":[231,3,751,757,758,460,755],"class_list":["post-15197","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-stories","tag-amab","tag-amabhungane","tag-correctiv","tag-cum-ex-scam","tag-cumexfiles","tag-dewald-van-rensburg","tag-investec"],"acf":[],"_links":{"self":[{"href":"https:\/\/further.co.za\/amabwp\/wp-json\/wp\/v2\/posts\/15197","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/further.co.za\/amabwp\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/further.co.za\/amabwp\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/further.co.za\/amabwp\/wp-json\/wp\/v2\/users\/8"}],"replies":[{"embeddable":true,"href":"https:\/\/further.co.za\/amabwp\/wp-json\/wp\/v2\/comments?post=15197"}],"version-history":[{"count":5,"href":"https:\/\/further.co.za\/amabwp\/wp-json\/wp\/v2\/posts\/15197\/revisions"}],"predecessor-version":[{"id":30059,"href":"https:\/\/further.co.za\/amabwp\/wp-json\/wp\/v2\/posts\/15197\/revisions\/30059"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/further.co.za\/amabwp\/wp-json\/wp\/v2\/media\/20975"}],"wp:attachment":[{"href":"https:\/\/further.co.za\/amabwp\/wp-json\/wp\/v2\/media?parent=15197"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/further.co.za\/amabwp\/wp-json\/wp\/v2\/categories?post=15197"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/further.co.za\/amabwp\/wp-json\/wp\/v2\/tags?post=15197"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}