In a surprise legal twist, HypoVereinsbank has agreed to drop its claim for more than €120 million ($160 million) against a former client, Rafael Roth, in a case involving the investment practice of dividend stripping, known as “cum-ex trades.”
The bank and its client, who has since died, used a loophole in German law allowing them, through clever short-selling, to buy shares of a company just before it paid out a cash dividend to secure capital gains tax credits.
For three years, from 2006 until 2008, everything went well. Then the German tax authorities demanded €120 million back from Mr. Roth and the bank. The one-time business partners then became adversaries.
At a hearing in July, things didn’t look bad for HypoVereinsbank, which is based in Munich. At a hearing in Frankfurt district court, the presiding judge found that Mr. Roth was responsible for the trades.
Mr. Roth’s lawyers argued that HVB had conducted the questionable sales without his knowledge. They argued that Mr. Roth never guessed that his trades were being made at taxpayer expense. But according to the judge, Mr. Roth would have had to explicitly rule out short sales in order to avoid legal responsibility, something he did not do.
But something must have happened in the time between the hearing in July and the discussions just concluded between HVB and Mr. Roth’s son, Joram Roth, and his lawyers. Last month, the bank looked to be a likely winner in court. However, looking at the new agreement, it appears the opposite is true.
One person close to the negotiations told Handelsblatt that Joram Roth will not pay €120 million to HypoVereinsbank, but only a fraction of that sum. That’s particularly bitter for the bank, since it won’t even cover the bank’s costs.
According to company sources, fees for lawyers and advisors are close to €100 million.
Neither Mr. Roth nor the bank wanted to comment on the settlement. “I won’t say anything about the numbers,” Mr. Joram Roth told Handelsblatt. “If an agreement is reached here, then it is only to end the public defamation of my father.”
Rafael Roth died in September 2013 in Berlin, where seven years earlier the bank had proposed to him the ill-fated “cum-ex” transactions. His son believes that it was the stress surrounding the deal that cost the senior Mr. Roth his life.
The attempt to bring the beneficiaries of these loopholes before court today has been called by some tax experts “retroactive criminalization.”
What is certain is that the fight over the dubious transactions could have lasted for years.
Mediation by the U.S.-based private equity investor Clemens Vedder played a decisive role in the settlement. The confidante of Rafael Roth advised his son in the negotiations.
“Without Mr. Vedder, this deal would never have been reached,” Joram Roth said. “Even when the matter had become so muddled, he found a solution. For that, my highest thanks and respect go to him.”
Mr. Vedder made sure that all parties agreed to the deal, including all tax advisers and lawyers involved. All pledged not to sue each other again. “We, together with the bank, will pursue a joint course against the tax authorities,” Joram Roth said.
However, tax authorities are not the only opponent for the former “cum-ex”partners.
Several state prosecutors’ offices investigated the matter and the charge of serious tax evasion has not been addressed. Since the bank, Joram Roth, and the diverse group of participants, including attorneys and tax advisers, have now closed ranks, it will likely make the work of the tax authorities more difficult.
For Joram Roth, the arguments made by the state prosecutors were hard to swallow.
“My father conducted the transactions between 2006 and 2008 in good faith,” Mr. Roth said. “The fact that the state now claims that he traded illegally seems rather politically motivated.”
Germany’s fiscal policymakers were apparently asleep at the switch. As early as 1999, a federal court ruled that double tax refunds were possible. Despite support for a legal change from banking associations, the tax loophole was not closed until 2012.
The attempt to bring the beneficiaries of these loopholes before court today has been called by some tax experts “retroactive criminalization.” Hanno Berger, who personally made many dividend-stripping deals, calls it a threat to the rule of tax law in Germany.