Cum-Ex architect Berger fails at the German Constitutional Court
Published: Tuesday, Feb 27th 2024, 10:10
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Hanno Berger, considered the architect of the "cum-ex share deals", has also failed before the German Federal Constitutional Court in his fight against a long prison sentence for serious tax evasion. A constitutional complaint by Berger was not accepted for decision, the highest German court announced in Karlsruhe on Tuesday. "The constitutional complaint is inadmissible because it has not been sufficiently substantiated." The decision is incontestable.
In December 2022, the Bonn Regional Court sentenced Berger to eight years in prison for three counts of particularly serious tax evasion. Berger's defense lawyer wanted to overturn the sentence due to alleged procedural errors, but the Federal Court of Justice rejected the appeal in the fall. Berger lodged a constitutional complaint against this with the Federal Constitutional Court.
With the defeat in Karlsruhe, he has now exhausted his legal options in Germany and can still take his case to the European Court of Human Rights. Berger is regarded as the driving force behind the cum-ex share transactions in Germany, which are said to have cost the tax authorities at least ten billion euros.
In the tax deals, shares with ("cum") and without ("ex") dividend entitlements were shifted back and forth between investors. At the end of the confusion, the tax authorities refunded taxes that had not even been paid. For a long time, it was unclear whether cum-ex deals were illegal. The tax loophole was only closed in 2012. In 2021, the Federal Court of Justice ruled that the transactions should be considered tax evasion.
Berger was arrested in Switzerland in 2021 and placed in extradition custody. After the Federal Supreme Court did not respond to an appeal by Berger, he was handed over to the German judiciary in 2022.
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