Miami's Art Basel's Role in the UBS Scandal. Years from now this scandal will make a great movie and snapshot of a certain society at a certain time and place. South Florida residents will wonder then why #SoFL news media never told them about all of this at the time
Of course Florida and South Florida in particular is a character in the emerging tax scandal involving Swiss banking giant UBS, and billions of undeclared greenback$.
Why should this 2008 story be any different from so many dozens of crazy stories before it over the past thirty years?
(See: Sen. Levin: Shut Down Giant Swiss Bank UBS, Investigation Reveals Secrecy Tricks Allegedly Used by Swiss Bankers
By BRIAN ROSS, AVNI PATEL, and RHONDA SCHWARTZ, July 17, 2008 http://abcnews.go.com/Blotter/story?id=5394214&page=1 )
It's really great that the Art Basel Art Fair could help facilitate the meet-and-greet card exchanges that led directly to illicit behavior and financial transactions among the monied class.
Friendly, competent help like that down here is VERY hard to find, as we all know from experience.
No wonder UBS kept coming back year-after-year!
As of this morning, the UBS logo still appears in the bottom left of the Art Basel web page
http://www.artbasel.com/
FYI: Art 40 Basel takes place June 10-14, 2009.
In a few years, when they eventually make a feature film out of Tom Wolfe's upcoming novel on the Miami area, I hope they at least do some on-site shooting down here so that some good can come from all the (temporary?) ill-gotten gains.
(Who knows, maybe MIA's construction will even be finished by then!)
Regardless of how old the cool as a cucumber Swiss banker Bradley Birkenfeld really is, I hereby nominate Jeremy Irons to play him. http://www.imdb.com/name/nm0000460/
I can already see him in the role, stepping out of a long dark Town Car at night, impeccably dressed with a tan and saying bon mots to folks who love nothing in the world so much as cultured and erudite people tossing bon mots their way.
A little bit of Reversal of Evidence http://www.imdb.com/title/tt0100486/ and a little bit of Damage http://www.imdb.com/title/tt0104237/ and pretty soon you're talking Swiss banker with dollar signs in his eyes as he hands out UBS business cards with the familiar three keys on it.
Ironically, I'm doing this post while simultaneously watching Clark Gable and Lana Turner on Turner Classic Movies in 1941's Honky Tonk, http://www.imdb.com/title/tt0033726/ in which Gable plays -yes- a lovable but tough con man in the Old West.
Naturally, now that I say all these things about characters and actors, I see thru this http://www.msnbc.msn.com/id/22474914/ and this New York magazine article from early this year, http://nymag.com/daily/entertainment/2008/01/inside_tom_wolfes.html that Wolfe's novel Back to the Blood already has identifiable characters, and, none of 'em are Swiss bankers with the savoir-faire to help those with the dough avoid the tax man.
Maybe I'll have to be the one write that screenplay after all!
Herewith, the Swiss variation of a con, except here, rich folks are the easy marks, eager to escape paying Uncle Sam their fair share of the tax load while indulging their haute culture in South Florida.
And remember, as the Herald keeps insisting we must, they're not all snobs, they're just connoisseurs and possible condo-owners to be.
Meanwhile, back in The Miami Art District...
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Why should this 2008 story be any different from so many dozens of crazy stories before it over the past thirty years?
(See: Sen. Levin: Shut Down Giant Swiss Bank UBS, Investigation Reveals Secrecy Tricks Allegedly Used by Swiss Bankers
By BRIAN ROSS, AVNI PATEL, and RHONDA SCHWARTZ, July 17, 2008 http://abcnews.go.com/Blotter/story?id=5394214&page=1 )
It's really great that the Art Basel Art Fair could help facilitate the meet-and-greet card exchanges that led directly to illicit behavior and financial transactions among the monied class.
Friendly, competent help like that down here is VERY hard to find, as we all know from experience.
No wonder UBS kept coming back year-after-year!
As of this morning, the UBS logo still appears in the bottom left of the Art Basel web page
http://www.artbasel.com/
FYI: Art 40 Basel takes place June 10-14, 2009.
In a few years, when they eventually make a feature film out of Tom Wolfe's upcoming novel on the Miami area, I hope they at least do some on-site shooting down here so that some good can come from all the (temporary?) ill-gotten gains.
(Who knows, maybe MIA's construction will even be finished by then!)
Regardless of how old the cool as a cucumber Swiss banker Bradley Birkenfeld really is, I hereby nominate Jeremy Irons to play him. http://www.imdb.com/name/nm0000460/
I can already see him in the role, stepping out of a long dark Town Car at night, impeccably dressed with a tan and saying bon mots to folks who love nothing in the world so much as cultured and erudite people tossing bon mots their way.
A little bit of Reversal of Evidence http://www.imdb.com/title/tt0100486/ and a little bit of Damage http://www.imdb.com/title/tt0104237/ and pretty soon you're talking Swiss banker with dollar signs in his eyes as he hands out UBS business cards with the familiar three keys on it.
Ironically, I'm doing this post while simultaneously watching Clark Gable and Lana Turner on Turner Classic Movies in 1941's Honky Tonk, http://www.imdb.com/title/tt0033726/ in which Gable plays -yes- a lovable but tough con man in the Old West.
Naturally, now that I say all these things about characters and actors, I see thru this http://www.msnbc.msn.com/id/22474914/ and this New York magazine article from early this year, http://nymag.com/daily/entertainment/2008/01/inside_tom_wolfes.html that Wolfe's novel Back to the Blood already has identifiable characters, and, none of 'em are Swiss bankers with the savoir-faire to help those with the dough avoid the tax man.
Maybe I'll have to be the one write that screenplay after all!
Herewith, the Swiss variation of a con, except here, rich folks are the easy marks, eager to escape paying Uncle Sam their fair share of the tax load while indulging their haute culture in South Florida.
And remember, as the Herald keeps insisting we must, they're not all snobs, they're just connoisseurs and possible condo-owners to be.
Meanwhile, back in The Miami Art District...
__________________________________
(Numbers in blue are footnote numbers)
from page 3/114:
On June 30, 2008, the United States took another step. It filed a petition in the U.S. District Court for the Southern District of Florida requesting leave to file an IRS administrative summons with UBS asking the bank to disclose the names of all of its U.S. clients who have opened accounts in Switzerland, but for which the bank has not filed forms with the IRS disclosing the Swiss accounts.10 The court approved service of the summons on UBS on July 1, 2008.11 The summons has apparently been served, but according to Swiss authorities the Swiss and American governments are negotiating over its execution.12 This John Doe summons represents the first time that the United States has attempted to pierce Swiss bank secrecy by compelling a Swiss bank to name its U.S. clients.
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from page 6-7/114
In May 2008, a second international tax scandal broke when the United States arrested a private banker formerly employed by UBS AG, one of the largest banks in the world, on charges of having conspired with a U.S. citizen and a business associate to defraud the IRS of $7.2 million in taxes owed on $200 million of assets hidden in offshore accounts in Switzerland and Liechtenstein. The United States had earlier detained as a material witness in that prosecution a senior UBS private banking official from Switzerland traveling on business in Florida, allegedly seizing his computer and other evidence. In June 2008, the former UBS private banker, Bradley Birkenfeld, pleaded guilty to conspiracy to defraud the IRS.8 His alleged co-conspirator, Mario Staggl, part owner of a trust company, remains at large in Liechtenstein. The current UBS senior private banking official, Martin Liechti, remains under travel restrictions. This enforcement action appears to represent the first time that the United States has criminally prosecuted a Swiss banker for helping a U.S. taxpayer evade payment of U.S. taxes.9
On June 30, 2008, the United States took another step. It filed a petition in the U.S. District Court for the Southern District of Florida requesting leave to file an IRS administrativesummons with UBS asking the bank to disclose the names of all of its U.S. clients who have opened accounts in Switzerland, but for which the bank has not filed forms with the IRS disclosing the Swiss accounts.10 The court approved service of the summons on UBS on July 1, 2008.11 The summons has apparently been served, but according to Swiss authorities the Swiss and American governments are negotiating over its execution.12 This John Doe summons represents the first time that the United States has attempted to pierce Swiss bank secrecy by compelling a Swiss bank to name its U.S. clients.
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from page 9/114
Marsh Accounts: Hiding $49 Million Over Twenty Years.
James Albright Marsh, a U.S. citizen from Florida in the construction business, formed four Liechtenstein foundations, two in 1985, one in 1998, and one in 2004, and transferred substantial sums to them. LGT assisted him in establishing the two 1985 foundations, using documents that gave Mr. Marsh and his sons substantial control over the foundations and strong secrecy protections. By 2007, the assets in his four foundations had a combined value of more than $49 million. Although LGT became a participant in the QI Program in 2001, which requires foreign banks to report information on accounts with U.S. securities, LGT did not report the Marsh accounts. Instead it advised Mr. Marsh to divest his LGT foundations of U.S. securities, and treated the accounts as owned by non-U.S. persons, the Liechtenstein foundations that LGT had formed. After Mr. Marsh’s death in 2006, the IRS apparently discovered the Liechtenstein foundations through the documents released by the former LGT employee. Mr. Marsh’s family is now in negotiation with the IRS over back taxes, interest and penalties owed on the $49 million in undeclared assets.
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from page 16/114:
Mr. Birkenfeld testified that UBS also provided its Swiss bankers with tickets and funds to go to events attended by wealthy U.S. individuals, so that they could solicit new business for the bank in Switzerland. He said that UBS sponsored U.S. events likely to attract wealthy clients, such as the Art Basel Air Fair in Miami; performances in major U.S. cities by the UBS Vervier Orchestra featuring talented young musicians; and U.S. yachting events attended by the elite Swiss yachting team, Alinghi, which was also sponsored by UBS. A UBS document laying out marketing strategies to attract U.S. clients confirms that the bank “organized VIP events” and engaged in the “Sponsorship of Major Events” such as “Golf, Tennis Tournaments, Art, Special Events.” This document even identified the 25 most affluent housing areas in the United States to provide “targeted locations where to organize events.”
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page 19/114
Olenicoff Accounts.
These concerns are further illustrated by the recent criminal prosecution involving UBS accounts opened in Switzerland by Mr. Birkenfeld for Igor Olenicoff. Mr. Olenicoff is a billionaire real estate developer, U.S. citizen, and resident of Florida and California. From 2001 until 2005, Mr. Birkenfeld and Mario Staggl, a trust officer from Liechtenstein helped Mr. Olenicoff open multiple bank accounts in the names of offshore companies he controlled at UBS in Switzerland and Neue Bank in Liechtenstein. For a time, Mr. Olenicoff was Mr. Birkenfeld’s largest private banking client. To service these accounts, Mr. Birkenfeld met with Mr. Olenicoff in the United States and elsewhere, communicated with him by telephone, fax, and email in the United States, and advised him on how to avoid disclosure of his accounts and assets to the IRS. In 2007, Mr. Olenicoff pled guilty to one criminal count of filing a false income tax return by failing to disclose the foreign bank accounts he controlled. He was sentenced to two years probation and 120 hours of community service, and paid six years of back taxes, interest, and penalties totaling $52 million. In 2008, Mr. Birkenfeld pled guilty to conspiring with Mr. Olenicoff to defraud the IRS and avoid payment of taxes owed on $200 million in assets hidden in accounts in Switzerland and Liechtenstein. Their alleged coconspirator, Mr. Staggl, remains at large in Liechtenstein.
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page 42/114 one of the most fascinating parts of the story!
(1) Marsh Accounts: Hiding $49 Million Over Twenty Years
James Albright Marsh, Jr. (“Mr. Marsh”) is a construction contractor who lived in Florida with his wife and six children, until he died in 2006.117 He, his wife, and his children have always been U.S. citizens. In 1985, Mr. Marsh traveled to Liechtenstein, and LGT helped him establish two Liechtenstein foundations, the Chateau Foundation and Lincol Foundation, which then opened accounts at LGT Bank. Also during the 1980s, Mr. Marsh formed two more Liechtenstein foundations, called Topanga Foundation118 and Largella Foundation,119 apparently using two other financial institutions in Liechtenstein.120 Over the years, these four Liechtenstein foundations opened accounts at five Liechtenstein banks.121 By 2007, the Liechtenstein accounts had assets with a combined value in excess of $49 million.122
This section on Mr. Marsh continues for about five pages with all sorts of secretive legal corporate tactics they employed to keep below the radar.
__________________________________
from page 79-81/114
Using Transfer Corporations to “Cover Up the Tracks” of Client Funds. As indicated in some of the case histories described earlier, LGT documents obtained by the Subcommittee show that it was not uncommon for LGT to set up intermediary, pass-through corporations that were used by the bank, in the words of an LGT employee, “to cover up the tracks” of funds moving into LGT client accounts. When asked about these corporations, the head of compliance Officer for LGT Group confirmed their existence, explaining that these “auxiliary services corporations” served several functions, including the transmission of funds “confidentially.”338
The documents show that LGT used BTS Management Ltd., formed in the British Virgin Islands (BVI), to establish a number of the transfer corporations. The documents indicate that LGT typically asked BTS Management to form a BVI corporation which then opened an account at LGT or another bank, such as Bank du Gothard in Luxembourg. The transfer corporation then received funds or securities from an LGT client and immediately transferred those funds or securities to LGT, if its account was at an outside bank. In some instances the transfer corporation was then dissolved; in other instances, it continued in existence. Once the funds or securities were delivered to LGT bank, they were moved internally within the bank, using a mechanism called “journaling” to transfer them from one LGT account to another, here from the transfer corporation’s LGT account to the client’s LGT account. This internal transfer mechanism makes it much more difficult to trace the movement of funds and securities, since it leaves no record outside of the bank showing that the assets were transferred to the ultimate recipient, the LGT client.
The Subcommittee investigation uncovered several examples of LGT engaging in this practice. For example, Sera Financial Corporation is a BVI corporation that appears to have functioned as an LGT transfer corporation. An internal LGT document describes Sera Financial as a “[s]pecial purpose company (indirect subsidiary of LTV) for portfolio transfers for assets which are to be brought into an LTV structure.”339 The document shows, by account number, that Sera Financial held one account at Banque du Gothard and eleven separate accounts at LGT Bank in Liechtenstein.340 The document explains this unusual account structure as follows:
For each customer, a sub-account or deposit facility is opened under a reference at BdG[Banque du Gothard] and at LGT …. Funds transfers as well as securities deliveries to BdG are in favor of SERA …. BdG is instructed to forward cash values and securities without delay to LGT BIL [Bank in Liechtenstein] in favor of Sera Financial Corp. with specification of the reference. ... As soon as the assets are credited at BIL, they are transferred to the destination account ….341
One example of how Sera Financial was used involves a new trust set up for a U.S. client in 2000. A LGT memorandum to the file discussing the transfer of assets to the new trust states:
“The trust shall open an account in the LGT Bank in Liechtenstein. The transfer of assets should take place using this account. To cover up the tracks from UBS Zurich to the trust in Liechtenstein, I recommend an intermediary Single Purpose Company.”342 LGT decided to use Sera Financial as the transfer corporation. A wire transfer instruction from Gotthard Bank shows how the transfer operation worked.343 It shows that on October 31, 2000, after $1.2 million had been credited to the Sera Financial account at Banque du Gothard: “BTS Management Limited, Tortola, as Managing Director of the company Sera Financial Corporation, Tortola, B.V.I. [h]ereby declares: … that the following beneficiary(ies) is/are entitled to the above-referenced transaction,” naming the U.S. citizen from Florida, known to the Subcommittee as a U.S. client of LGT at that time. The $1.2 million was then transferred to his account.
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pages 96-97/114
Mr. Birkenfeld testified that UBS not only authorized and paid for the business trips to the United States, but also provided the Swiss bankers with tickets and funds to go to events
attended by wealthy U.S. individuals, so that they could solicit new business for the bank in Switzerland. He said that UBS sponsored U.S. events likely to attract wealthy clients, such as the Art Basel Air Fair in Miami; performances in major U.S. cities by the UBS Vervier Orchestra featuring talented young musicians; and U.S. yachting events attended by the elite Swiss yachting team, Alinghi, which was also sponsored by UBS. An internal UBS document laying out marketing strategies to attract U.S. and Canadian clients confirms that the bank “organized VIP events” and engaged in the “Sponsorship of Major Events” such as “Golf, Tennis Tournaments, Art, Special Events.”405 This document even identified the 25 most affluent housing areas in the United States to provide “targeted locations where to organize events.”406
Mr. Birkenfeld described to the Subcommittee how Swiss private bankers used these events and other means to find new U.S. clients during their trips to the United States: You might go to sporting events. You might go to car shows, wine tastings. You might deal with real estate agents. You might deal with attorneys. … It’s really where do the rich people hang out, go and talk to them. … [I]t wasn’t difficult to walk into a party with a … business card, and then someone ask[s] you, ‘What do you do?’ and you say, ‘Well, I work for a bank in Switzerland, and we manage money there and open accounts.’ And people immediately would recognize, oh, this is someone who could open new business by opening accounts.407
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page 98/114
For example, the Subcommittee found that at least five UBS client advisors travelled to the United States for trips coinciding with the Art Basel Art Fair, an annual UBS-sponsored event held in early December in Miami Beach since 2002. The data shows that, over the years, several UBS Swiss client advisors were in Miami during the art show, including three in 2007.On the customs forms completed over the years by UBS travelers prior to landing at Miami International airport, only one client advisor stated that the purpose of the trip was for business, while five described the visit as for pleasure. These client advisors’ trips, however, coincided closely with the dates of the Art Basel event, including an invitation-only private showing. Moreover, the Subcommittee’s analysis of the customs and travel records obtained from the Department of Homeland Security show that a Swiss-based UBS client advisor traveled to New England from June 20-25, 2004, a trip coinciding with the UBS Regatta Cup, held in Newport, RI from June 19-26, 2004.
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pages 105-106/114
(5) Violating Restrictions on U.S. Activities
The UBS practices just described, related to Swiss banker activities undertaken in the United States to recruit and service U.S. clients, may have violated U.S. law as well as UBS policy. As explained earlier, U.S. securities and banking laws prohibit non-U.S. persons from advertising securities services or products, executing securities transactions, or performing banking services within the United States, without an appropriate license. Moreover, U.S. tax laws may require a foreign financial institution to report to the IRS on 1099 Forms sales of non-U.S. securities effected in the United States, such as by executing a transaction by a broker physically in the United States or ordering the completion of a transaction through telephone calls or emails originating from the United States.
It was to avoid violating U.S. law, exceeding its licensed activities, or triggering 1099 reporting requirements, that caused UBS to issue policy statements restricting the activities that its non-U.S. bankers could undertake while in the United States. Its 2002 and 2004 policy statements, for example, prohibited UBS Swiss bankers, while in the United States, from advertising securities products to their clients, informing clients of how their security portfolios were performing, providing copies of account statements, or using U.S. mails, faxes, telephone calls or email to discuss a client’s securities portfolio.443 UBS also prohibited its Swiss bankers from prospecting for new clients while in the United States, soliciting new accounts, or obtaining signatures on account opening documentation.
Despite these prohibitions, it appears that UBS Swiss bankers in the United States servicing U.S. clients routinely undertook actions that contravened the UBS restrictions.
Mr. Birkenfeld described, for example, an art festival sponsored by UBS in Miami each year, which he attended with other Swiss bankers for the express purpose of soliciting new accounts. “We went to these events. We went to dinners, we went to art exhibitions, we went to private homes as private bankers, knowingly by management that they were paying for our hotel, paying for our airfare, paying us our salary, and getting us tickets to the UBS VIP tent to drink champagne with clients.”444 He testified that he witnessed Swiss bankers soliciting new accounts and completing account opening documentation while in the United States. He testified that in some cases, “instead of saying, ‘I signed it in New York,’ they brought the forms back to Geneva and they put in ‘Geneva.’”445 When asked whether he had promoted securities products during his trips to the United States, he responded, “We were promoting anything.”446
Mr. Birkenfeld also told the Subcommittee that UBS Swiss bankers routinely communicated with their U.S. clients about the status of their accounts, including their securities portfolios. He said that some Swiss private bankers communicated with their U.S. clients by telephone or fax, or by sending occasional documents to them in the United States by overnight mail.447 He said the bankers sometimes used code names during the telephone calls, so that the U.S. client would not have to identify themselves by name, in case anyone was listening.448 He said that U.S. clients generally did not like sending or receiving emails via computer, “because they didn’t want that link, for obvious reasons.”449 Nevertheless, some clients did use email, as shown in the case involving Mr. Birkenfeld and Mr. Olenicoff, examined further below. Mr. Birkenfeld also described how Swiss bankers brought into the United States information about clients’ accounts and securities portfolios. He told the Subcommittee that his day-to-day interactions with clients were in direct contradiction to the restrictions set out in UBS’ policy statements. He indicated those policies simply were not enforced while he was at the bank.450
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from page 108/114
Contrary to this representation by UBS, however, a Subcommittee review of the relevant travel data for the Swiss bankers determined that, from January to April 2008, UBS client advisors made twelve trips to the United States, travelling from Switzerland to New York, Miami, San Francisco, and Las Vegas. The Customs I-94 Forms indicate that, on half of these trips, the Swiss bankers indicated they were travelling for business purposes, while on the other half, the Swiss bankers indicated they were travelling to the United States for non-business purposes. With respect to Mr. Liechti, head of the UBS Wealth Management Americas division, the I-94 Form shows that he arrived in the United States on April 20, 2008, on business. There is no record of his departure to date.
The clear contrast between the UBS policy restrictions dating back to at least 2002, and the activities undertaken by UBS Swiss bankers while traveling in the United States, as described by Mr. Birkenfeld in his deposition, in connection with his recent indictment, and in internal UBS documents, suggests that until recently, the UBS restrictions were not being enforced. This lack of enforcement, in turn, raises concerns that UBS Swiss bankers with U.S. clients may have been routinely violating not only the bank’s internal policies, but also U.S. law. UBS is currently under investigation by the SEC, IRS, and Department of Justice regarding the activities of its Swiss bankers in the United States.
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And in the end...
D. Analysis
Unlike LGT, UBS did not generally refrain from conducting banking operations within theUnited States. UBS Swiss bankers targeted U.S. clients, traveled across the country in search of wealthy individuals, and aggressively marketed their services to U.S. taxpayers who might otherwise never have opened Swiss accounts. UBS practices resulted in its U.S. clients maintaining undeclared Swiss accounts that collectively held billions of dollars in assets that were not disclosed to the IRS. UBS serviced these accounts, in part, by offering banking and securities products and services within the United States that UBS Swiss bankers were not licensed to provide. Swiss bank secrecy laws hid not only the misconduct of U.S. taxpayers hiding assets at UBS in Switzerland, but also the actions taken by UBS bankers to assist those U.S. clients.UBS has now stopped all travel by its Swiss bankers to the United States, issued morerestrictive policies, and is conducting an internal review to gauge the nature and extent of the problem. UBS also cooperated with this Subcommittee in its efforts to gain a full understanding of the facts and issues.
from the:
U.S. SENATE PERMANENT SUBCOMMITTEE ON INVESTIGATIONS,
STAFF REPORT ON TAX HAVEN BANKS AND U.S. TAX COMPLIANCE,
July 17, 2008 at: http://abcnews.go.com/images/Blotter/REPORT-Tax%20Haven%20Banks%20(July%2017%2008).pdf
from page 3/114:
On June 30, 2008, the United States took another step. It filed a petition in the U.S. District Court for the Southern District of Florida requesting leave to file an IRS administrative summons with UBS asking the bank to disclose the names of all of its U.S. clients who have opened accounts in Switzerland, but for which the bank has not filed forms with the IRS disclosing the Swiss accounts.10 The court approved service of the summons on UBS on July 1, 2008.11 The summons has apparently been served, but according to Swiss authorities the Swiss and American governments are negotiating over its execution.12 This John Doe summons represents the first time that the United States has attempted to pierce Swiss bank secrecy by compelling a Swiss bank to name its U.S. clients.
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from page 6-7/114
In May 2008, a second international tax scandal broke when the United States arrested a private banker formerly employed by UBS AG, one of the largest banks in the world, on charges of having conspired with a U.S. citizen and a business associate to defraud the IRS of $7.2 million in taxes owed on $200 million of assets hidden in offshore accounts in Switzerland and Liechtenstein. The United States had earlier detained as a material witness in that prosecution a senior UBS private banking official from Switzerland traveling on business in Florida, allegedly seizing his computer and other evidence. In June 2008, the former UBS private banker, Bradley Birkenfeld, pleaded guilty to conspiracy to defraud the IRS.8 His alleged co-conspirator, Mario Staggl, part owner of a trust company, remains at large in Liechtenstein. The current UBS senior private banking official, Martin Liechti, remains under travel restrictions. This enforcement action appears to represent the first time that the United States has criminally prosecuted a Swiss banker for helping a U.S. taxpayer evade payment of U.S. taxes.9
On June 30, 2008, the United States took another step. It filed a petition in the U.S. District Court for the Southern District of Florida requesting leave to file an IRS administrativesummons with UBS asking the bank to disclose the names of all of its U.S. clients who have opened accounts in Switzerland, but for which the bank has not filed forms with the IRS disclosing the Swiss accounts.10 The court approved service of the summons on UBS on July 1, 2008.11 The summons has apparently been served, but according to Swiss authorities the Swiss and American governments are negotiating over its execution.12 This John Doe summons represents the first time that the United States has attempted to pierce Swiss bank secrecy by compelling a Swiss bank to name its U.S. clients.
_____________________________
from page 9/114
Marsh Accounts: Hiding $49 Million Over Twenty Years.
James Albright Marsh, a U.S. citizen from Florida in the construction business, formed four Liechtenstein foundations, two in 1985, one in 1998, and one in 2004, and transferred substantial sums to them. LGT assisted him in establishing the two 1985 foundations, using documents that gave Mr. Marsh and his sons substantial control over the foundations and strong secrecy protections. By 2007, the assets in his four foundations had a combined value of more than $49 million. Although LGT became a participant in the QI Program in 2001, which requires foreign banks to report information on accounts with U.S. securities, LGT did not report the Marsh accounts. Instead it advised Mr. Marsh to divest his LGT foundations of U.S. securities, and treated the accounts as owned by non-U.S. persons, the Liechtenstein foundations that LGT had formed. After Mr. Marsh’s death in 2006, the IRS apparently discovered the Liechtenstein foundations through the documents released by the former LGT employee. Mr. Marsh’s family is now in negotiation with the IRS over back taxes, interest and penalties owed on the $49 million in undeclared assets.
____________________
from page 16/114:
Mr. Birkenfeld testified that UBS also provided its Swiss bankers with tickets and funds to go to events attended by wealthy U.S. individuals, so that they could solicit new business for the bank in Switzerland. He said that UBS sponsored U.S. events likely to attract wealthy clients, such as the Art Basel Air Fair in Miami; performances in major U.S. cities by the UBS Vervier Orchestra featuring talented young musicians; and U.S. yachting events attended by the elite Swiss yachting team, Alinghi, which was also sponsored by UBS. A UBS document laying out marketing strategies to attract U.S. clients confirms that the bank “organized VIP events” and engaged in the “Sponsorship of Major Events” such as “Golf, Tennis Tournaments, Art, Special Events.” This document even identified the 25 most affluent housing areas in the United States to provide “targeted locations where to organize events.”
________________________________
page 19/114
Olenicoff Accounts.
These concerns are further illustrated by the recent criminal prosecution involving UBS accounts opened in Switzerland by Mr. Birkenfeld for Igor Olenicoff. Mr. Olenicoff is a billionaire real estate developer, U.S. citizen, and resident of Florida and California. From 2001 until 2005, Mr. Birkenfeld and Mario Staggl, a trust officer from Liechtenstein helped Mr. Olenicoff open multiple bank accounts in the names of offshore companies he controlled at UBS in Switzerland and Neue Bank in Liechtenstein. For a time, Mr. Olenicoff was Mr. Birkenfeld’s largest private banking client. To service these accounts, Mr. Birkenfeld met with Mr. Olenicoff in the United States and elsewhere, communicated with him by telephone, fax, and email in the United States, and advised him on how to avoid disclosure of his accounts and assets to the IRS. In 2007, Mr. Olenicoff pled guilty to one criminal count of filing a false income tax return by failing to disclose the foreign bank accounts he controlled. He was sentenced to two years probation and 120 hours of community service, and paid six years of back taxes, interest, and penalties totaling $52 million. In 2008, Mr. Birkenfeld pled guilty to conspiring with Mr. Olenicoff to defraud the IRS and avoid payment of taxes owed on $200 million in assets hidden in accounts in Switzerland and Liechtenstein. Their alleged coconspirator, Mr. Staggl, remains at large in Liechtenstein.
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page 42/114 one of the most fascinating parts of the story!
(1) Marsh Accounts: Hiding $49 Million Over Twenty Years
James Albright Marsh, Jr. (“Mr. Marsh”) is a construction contractor who lived in Florida with his wife and six children, until he died in 2006.117 He, his wife, and his children have always been U.S. citizens. In 1985, Mr. Marsh traveled to Liechtenstein, and LGT helped him establish two Liechtenstein foundations, the Chateau Foundation and Lincol Foundation, which then opened accounts at LGT Bank. Also during the 1980s, Mr. Marsh formed two more Liechtenstein foundations, called Topanga Foundation118 and Largella Foundation,119 apparently using two other financial institutions in Liechtenstein.120 Over the years, these four Liechtenstein foundations opened accounts at five Liechtenstein banks.121 By 2007, the Liechtenstein accounts had assets with a combined value in excess of $49 million.122
This section on Mr. Marsh continues for about five pages with all sorts of secretive legal corporate tactics they employed to keep below the radar.
__________________________________
from page 79-81/114
Using Transfer Corporations to “Cover Up the Tracks” of Client Funds. As indicated in some of the case histories described earlier, LGT documents obtained by the Subcommittee show that it was not uncommon for LGT to set up intermediary, pass-through corporations that were used by the bank, in the words of an LGT employee, “to cover up the tracks” of funds moving into LGT client accounts. When asked about these corporations, the head of compliance Officer for LGT Group confirmed their existence, explaining that these “auxiliary services corporations” served several functions, including the transmission of funds “confidentially.”338
The documents show that LGT used BTS Management Ltd., formed in the British Virgin Islands (BVI), to establish a number of the transfer corporations. The documents indicate that LGT typically asked BTS Management to form a BVI corporation which then opened an account at LGT or another bank, such as Bank du Gothard in Luxembourg. The transfer corporation then received funds or securities from an LGT client and immediately transferred those funds or securities to LGT, if its account was at an outside bank. In some instances the transfer corporation was then dissolved; in other instances, it continued in existence. Once the funds or securities were delivered to LGT bank, they were moved internally within the bank, using a mechanism called “journaling” to transfer them from one LGT account to another, here from the transfer corporation’s LGT account to the client’s LGT account. This internal transfer mechanism makes it much more difficult to trace the movement of funds and securities, since it leaves no record outside of the bank showing that the assets were transferred to the ultimate recipient, the LGT client.
The Subcommittee investigation uncovered several examples of LGT engaging in this practice. For example, Sera Financial Corporation is a BVI corporation that appears to have functioned as an LGT transfer corporation. An internal LGT document describes Sera Financial as a “[s]pecial purpose company (indirect subsidiary of LTV) for portfolio transfers for assets which are to be brought into an LTV structure.”339 The document shows, by account number, that Sera Financial held one account at Banque du Gothard and eleven separate accounts at LGT Bank in Liechtenstein.340 The document explains this unusual account structure as follows:
For each customer, a sub-account or deposit facility is opened under a reference at BdG[Banque du Gothard] and at LGT …. Funds transfers as well as securities deliveries to BdG are in favor of SERA …. BdG is instructed to forward cash values and securities without delay to LGT BIL [Bank in Liechtenstein] in favor of Sera Financial Corp. with specification of the reference. ... As soon as the assets are credited at BIL, they are transferred to the destination account ….341
One example of how Sera Financial was used involves a new trust set up for a U.S. client in 2000. A LGT memorandum to the file discussing the transfer of assets to the new trust states:
“The trust shall open an account in the LGT Bank in Liechtenstein. The transfer of assets should take place using this account. To cover up the tracks from UBS Zurich to the trust in Liechtenstein, I recommend an intermediary Single Purpose Company.”342 LGT decided to use Sera Financial as the transfer corporation. A wire transfer instruction from Gotthard Bank shows how the transfer operation worked.343 It shows that on October 31, 2000, after $1.2 million had been credited to the Sera Financial account at Banque du Gothard: “BTS Management Limited, Tortola, as Managing Director of the company Sera Financial Corporation, Tortola, B.V.I. [h]ereby declares: … that the following beneficiary(ies) is/are entitled to the above-referenced transaction,” naming the U.S. citizen from Florida, known to the Subcommittee as a U.S. client of LGT at that time. The $1.2 million was then transferred to his account.
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Mr. Birkenfeld testified that UBS not only authorized and paid for the business trips to the United States, but also provided the Swiss bankers with tickets and funds to go to events
attended by wealthy U.S. individuals, so that they could solicit new business for the bank in Switzerland. He said that UBS sponsored U.S. events likely to attract wealthy clients, such as the Art Basel Air Fair in Miami; performances in major U.S. cities by the UBS Vervier Orchestra featuring talented young musicians; and U.S. yachting events attended by the elite Swiss yachting team, Alinghi, which was also sponsored by UBS. An internal UBS document laying out marketing strategies to attract U.S. and Canadian clients confirms that the bank “organized VIP events” and engaged in the “Sponsorship of Major Events” such as “Golf, Tennis Tournaments, Art, Special Events.”405 This document even identified the 25 most affluent housing areas in the United States to provide “targeted locations where to organize events.”406
Mr. Birkenfeld described to the Subcommittee how Swiss private bankers used these events and other means to find new U.S. clients during their trips to the United States: You might go to sporting events. You might go to car shows, wine tastings. You might deal with real estate agents. You might deal with attorneys. … It’s really where do the rich people hang out, go and talk to them. … [I]t wasn’t difficult to walk into a party with a … business card, and then someone ask[s] you, ‘What do you do?’ and you say, ‘Well, I work for a bank in Switzerland, and we manage money there and open accounts.’ And people immediately would recognize, oh, this is someone who could open new business by opening accounts.407
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For example, the Subcommittee found that at least five UBS client advisors travelled to the United States for trips coinciding with the Art Basel Art Fair, an annual UBS-sponsored event held in early December in Miami Beach since 2002. The data shows that, over the years, several UBS Swiss client advisors were in Miami during the art show, including three in 2007.On the customs forms completed over the years by UBS travelers prior to landing at Miami International airport, only one client advisor stated that the purpose of the trip was for business, while five described the visit as for pleasure. These client advisors’ trips, however, coincided closely with the dates of the Art Basel event, including an invitation-only private showing. Moreover, the Subcommittee’s analysis of the customs and travel records obtained from the Department of Homeland Security show that a Swiss-based UBS client advisor traveled to New England from June 20-25, 2004, a trip coinciding with the UBS Regatta Cup, held in Newport, RI from June 19-26, 2004.
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(5) Violating Restrictions on U.S. Activities
The UBS practices just described, related to Swiss banker activities undertaken in the United States to recruit and service U.S. clients, may have violated U.S. law as well as UBS policy. As explained earlier, U.S. securities and banking laws prohibit non-U.S. persons from advertising securities services or products, executing securities transactions, or performing banking services within the United States, without an appropriate license. Moreover, U.S. tax laws may require a foreign financial institution to report to the IRS on 1099 Forms sales of non-U.S. securities effected in the United States, such as by executing a transaction by a broker physically in the United States or ordering the completion of a transaction through telephone calls or emails originating from the United States.
It was to avoid violating U.S. law, exceeding its licensed activities, or triggering 1099 reporting requirements, that caused UBS to issue policy statements restricting the activities that its non-U.S. bankers could undertake while in the United States. Its 2002 and 2004 policy statements, for example, prohibited UBS Swiss bankers, while in the United States, from advertising securities products to their clients, informing clients of how their security portfolios were performing, providing copies of account statements, or using U.S. mails, faxes, telephone calls or email to discuss a client’s securities portfolio.443 UBS also prohibited its Swiss bankers from prospecting for new clients while in the United States, soliciting new accounts, or obtaining signatures on account opening documentation.
Despite these prohibitions, it appears that UBS Swiss bankers in the United States servicing U.S. clients routinely undertook actions that contravened the UBS restrictions.
Mr. Birkenfeld described, for example, an art festival sponsored by UBS in Miami each year, which he attended with other Swiss bankers for the express purpose of soliciting new accounts. “We went to these events. We went to dinners, we went to art exhibitions, we went to private homes as private bankers, knowingly by management that they were paying for our hotel, paying for our airfare, paying us our salary, and getting us tickets to the UBS VIP tent to drink champagne with clients.”444 He testified that he witnessed Swiss bankers soliciting new accounts and completing account opening documentation while in the United States. He testified that in some cases, “instead of saying, ‘I signed it in New York,’ they brought the forms back to Geneva and they put in ‘Geneva.’”445 When asked whether he had promoted securities products during his trips to the United States, he responded, “We were promoting anything.”446
Mr. Birkenfeld also told the Subcommittee that UBS Swiss bankers routinely communicated with their U.S. clients about the status of their accounts, including their securities portfolios. He said that some Swiss private bankers communicated with their U.S. clients by telephone or fax, or by sending occasional documents to them in the United States by overnight mail.447 He said the bankers sometimes used code names during the telephone calls, so that the U.S. client would not have to identify themselves by name, in case anyone was listening.448 He said that U.S. clients generally did not like sending or receiving emails via computer, “because they didn’t want that link, for obvious reasons.”449 Nevertheless, some clients did use email, as shown in the case involving Mr. Birkenfeld and Mr. Olenicoff, examined further below. Mr. Birkenfeld also described how Swiss bankers brought into the United States information about clients’ accounts and securities portfolios. He told the Subcommittee that his day-to-day interactions with clients were in direct contradiction to the restrictions set out in UBS’ policy statements. He indicated those policies simply were not enforced while he was at the bank.450
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Contrary to this representation by UBS, however, a Subcommittee review of the relevant travel data for the Swiss bankers determined that, from January to April 2008, UBS client advisors made twelve trips to the United States, travelling from Switzerland to New York, Miami, San Francisco, and Las Vegas. The Customs I-94 Forms indicate that, on half of these trips, the Swiss bankers indicated they were travelling for business purposes, while on the other half, the Swiss bankers indicated they were travelling to the United States for non-business purposes. With respect to Mr. Liechti, head of the UBS Wealth Management Americas division, the I-94 Form shows that he arrived in the United States on April 20, 2008, on business. There is no record of his departure to date.
The clear contrast between the UBS policy restrictions dating back to at least 2002, and the activities undertaken by UBS Swiss bankers while traveling in the United States, as described by Mr. Birkenfeld in his deposition, in connection with his recent indictment, and in internal UBS documents, suggests that until recently, the UBS restrictions were not being enforced. This lack of enforcement, in turn, raises concerns that UBS Swiss bankers with U.S. clients may have been routinely violating not only the bank’s internal policies, but also U.S. law. UBS is currently under investigation by the SEC, IRS, and Department of Justice regarding the activities of its Swiss bankers in the United States.
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And in the end...
D. Analysis
Unlike LGT, UBS did not generally refrain from conducting banking operations within theUnited States. UBS Swiss bankers targeted U.S. clients, traveled across the country in search of wealthy individuals, and aggressively marketed their services to U.S. taxpayers who might otherwise never have opened Swiss accounts. UBS practices resulted in its U.S. clients maintaining undeclared Swiss accounts that collectively held billions of dollars in assets that were not disclosed to the IRS. UBS serviced these accounts, in part, by offering banking and securities products and services within the United States that UBS Swiss bankers were not licensed to provide. Swiss bank secrecy laws hid not only the misconduct of U.S. taxpayers hiding assets at UBS in Switzerland, but also the actions taken by UBS bankers to assist those U.S. clients.UBS has now stopped all travel by its Swiss bankers to the United States, issued morerestrictive policies, and is conducting an internal review to gauge the nature and extent of the problem. UBS also cooperated with this Subcommittee in its efforts to gain a full understanding of the facts and issues.
from the:
U.S. SENATE PERMANENT SUBCOMMITTEE ON INVESTIGATIONS,
STAFF REPORT ON TAX HAVEN BANKS AND U.S. TAX COMPLIANCE,
July 17, 2008 at: http://abcnews.go.com/images/Blotter/REPORT-Tax%20Haven%20Banks%20(July%2017%2008).pdf
Dave
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