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The business of secrecy has become even more lucrative, says whistleblower

Swiss whistleblower Rudolf Elmer tells Indian publication The Wire that tax evasion is still common despite international pressure to share banking information. He blames the ease of setting up complex corporate structures where the beneficial owner is not known.

The Wire (TW): It’s been 15 years since you left Julius Bär and since then we’ve seen more whistleblowers, leaking greater amounts of data on illicit global financial flows. But we’ve also seen some international cooperation over cracking down on tax evasion. How much have things changed?

Rudolf Elmer (RE): Well, the question is have things really changed? It looks like to the man on the street that there is a lot of change going on in favour of the public over the last 15 years. In my view, generally speaking, yes there is a lot of talk. But actually not that much has changed, to be crystal clear.

At the moment it appears that Swiss bank secrecy is gone. But as a matter of fact it still exists and is applied strictly within Switzerland. The exception is the United States, which is a striking example of how to deal with tax havens. I would say it is the only country that has challenged Switzerland seriously when they got the Swiss government to release around 5,000 UBS bank account holder names back in 2009.

In my view, for the man in the street, it appears to them that there is some change. But there isn’t really. There is still a big fight being waged by banks, multinational conglomerates and certain ultra-high net worth individuals and also governments to simply keep hiding assets under secrecy laws.

Actually, the business of secrecy has become even more lucrative. And this is because of the same pressure that has been exerted by the international community over the last fifteen years. It has become more lucrative because even today, it is pretty simple to set up complex corporate structures where the beneficial owner is not known.

There are still corporate directors, directors who here are not real life men made out of flesh but a company itself. For example, Corporate Director Ltd. in the British Virgin Islands. You have corporate secretaries. Bearer shares are also another simple way to hide the true beneficiary. So the entire structure as such is one where you can’t link it to a person. And if you can’t link it to a person or a multinational conglomerate, how do you tax their profits? It’s pretty simple. That business still exists and it is flourishing!

Rudolf Elmer, 61, ran the Caribbean operations of Swiss private bank Julius Bär for eight years until he was dismissed in 2002 for making threats against the bank. He then moved to Mauritius and began sending global tax authorities what he said were the secrets of his former employer. When they failed to act on the information he provided, he decided to go public with it and contacted Wikileaks in 2008. In 2011, he passed on a second batch of information to Wikileaks, days before being convicted of violating Swiss banking secrecy laws.

He was arrested straight after his 2011 trial (which saw him fined for threatening Julius Bär employees) and faced court again in 2016, accused of breaking banking secrecy rules in connection with the Wikileaks publicity stunt. Although Elmer was fined in that appearance, he was cleared of handing Wikileaks data as it could not be proved what material was contained on the CDs. The Zurich prosecutor’s office appealed the decision as it wanted Elmer convicted for the more serious offence of violating banking secrecy. The whistleblower’s case is expected to be heard by the Federal Supreme Court soon.

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In my experience, certain ultra high net worth individuals, in their earlier days… they were just too greedy to not pay the fees to set up a tax-evading structure properly and therefore the structure was not waterproof, in the sense that the beneficial owner is hidden and the transactions are properly anonymised or disguised. Today, they know they are forced to do something in order to protect their offshore wealth.

Today, they are forced to invest more money in creating a complicated and untouchable financial structure. Now, this structure that they create is most likely legal. What you do within this structure, what goes in there or comes out it might be illegal whether it is tax avoidance or money laundering, terror financing or whatever.

It’s also a legal issue. So if Nestléor a large insurance company wants to set up a structure in Jersey… in such a small country, they can easily pressure local politicians. Or take for instance, what the Cayman prime minister is widely known for asking when confronting such matters: ‘What’s in it for me?’ Those multi-nationals can’t do this in Germany for instance, at least not so openly. So it’s that legal framework that those offshore centres provide, with several goodies for rich people and the cash cow secrecy laws.

Consider a case that happened three years ago. England wanted to have information from the Cayman Islands about a clear case of money laundering. The attorney general of the Cayman Islands decided not to provide the information to London. And London didn’t challenge this decision. They were more than happy that the attorney general said no, because it would have been a scandal.

So what has changed? Look at what happened in Switzerland with HSBC, Geneva in 2015. It was the first time that authorities conducted a house and company premise search of a well-known bank in Switzerland. The government filed a complaint not over assisting tax evasion but the serious crime of money laundering! Eventually, HSBC simply paid 40 million Swiss francs to close the legal case. Now, here the Prosecution Office came to the conclusion HSBC Geneva is a bank engaging in a criminal act or possible criminal act. But the Swiss authorities don’t investigate to the end of it because HSBC put money on the table and agree to cough up fines.

TW: Is this the way it should work or have the 40 million Swiss francs only represented the cost of doing dubious business in Switzerland?

RE: So, things have not really changed. These are small fines, a quarter’s profit or so. As a matter of fact those fines are ridiculously low for the banks and the culprits escape personal liability. Is that progress? The truth is that things are just getting more obvious, as the Panama Leaks show us, if you’re interested in how things really work.

TW: Why are we not seeing significant progress? As you pointed out, there’s more data than ever out there that shows how the global financial system has failed to limit to a reasonable level tax evasion and money laundering and so on…

RE: Generally speaking the real culprits – bankers, tax lawyers, the Big Four auditors, asset advisers and managers etc – are not being prosecuted at all. And countries, such as India, do not follow through to request and receive information. That’s a key problem in this opaque financial system. Personal responsibility is simply not there. Suppose I was a banker and I knew if I helped someone to avoid taxes or even worse, I know I will not need to go to prison because the bank will pay a fine and the legal case is closed. There’s not even the slightest bit of fear. So what kind of personal responsibility do I have? It will only change if there is the risk and that there is a high probability if I am caught I would go to prison for several years for facilitating and assisting tax fraud or other crimes related to my work.

So, sanctions, in the sense that people who help assist tax evasion have to be afraid of going to prison, are simply a must. And one thing that has changed is that international and domestic law [of various countries] has changed recently but not enough and strict prosecution of those tax evaders still does not really exist or the punishment is still very, very mild. Therefore, it has not been acted upon or followed through to tackle the problem seriously.

That’s one thing which is crucial: people have to be prosecuted and they have to go to prison!

Secondly, there are a number of issues with the ‘Big Four’ audit companies. The conflict of interest is built in their business model. On one hand, they act as advisers on tax matters for ultra high net worth individuals, multinational conglomerates and even governments and then they go onto work as auditors and confirm the accounts are based on a ‘true and fair’ view. Now, I was an auditor for seven years with KPMG. I did know what was going on, but I couldn’t speak up due to the Swiss secrecy and professional laws which I had to obey.

Therefore, the Big Four, they precisely know what is going on. However, they are not held or made responsible. The only big audit company I can think of the is the Enron case in the US where the partners had to go to prison and the firm of Arthur Anderson disappeared. But that’s the exception – which simply confirms the rule.

So if you don’t hold these guys responsible as well… and the game is only about fines, things will not really change at all. What I have learnt over the last 15 years is that fines even the ones levied by the US DOJ have just become parking tickets these days. The Big Four shouldn’t be allowed to do both things: tax advising and auditing. And actually, the auditors have to have the responsibility to confirm in an audit report that there is no material tax evasion happening within the multinationals.

Because the partners of the Big Four know what the term ‘material’ means – you have to make them responsible for it if material profit shifting is going on and having mentioned it in the yearly audit report. These partners do have the knowledge…they are very close to the business and are well aware how the multinational makes their big profits by profit shifting.

But our society is not there yet to make these partners and particularly the Big Four responsible and force them to make disclosures in their auditor reports or actively fight such abusive practices.

TW: What fault would you place at the doorsteps of developing countries, countries that may have some but not clinching evidence of their ultra high net worth individuals of engaging in tax evasion?

RE: So now we come to the countries that face really serious problems because of Switzerland.

Primarily, I believe, it is an issue of sanctions. India, for instance, could put pressure on Swiss industry or even the Swiss government. Not only on the banking industry but also on big companies. Pressure on Nestlé, Roche, Novartis etc, e.g. threatening not to allow business in India anymore if there is no reasonable cooperation on tax matters and particularly by the Swiss financial industry. Politically, India can put pressure. Your government can put pressure on any Swiss multinational conglomerate, in my view.

Therefore, India could tell them if the Swiss government doesn’t cooperate on the tax issue matter, then there is no place in India for Swiss multinationals. You could even withdraw or delay licences for banks. No business for them [the companies] in India. Why can’t the Indian government say that?

The Americans were able to sanction Switzerland due to their monopoly of the US dollar. As a Swiss bank you must have an USD correspondence bank domiciled in the United States. If US authorities do not allow you to use this US bank, the Swiss bank is like a dead fish in the water. So the Americans applied pressure in 2009 and the Swiss, they knew about it. At the end of the day it was a big dirty deal in the case of UBS. Because Switzerland needed urgently 60 or 70 billion dollars in order to rescue UBS and if the American would not have provided the swap facilities for that amount UBS would havegone bankrupt.

TW: But that’s not so easy for smaller countries or countries with less leverage like India to do…

RE: That’s true. It’s not so easy and sometimes even impossible. But if you are in cooperation with other countries that have a similar problem… then it becomes easier. The BRICS grouping of countries is ideal for this. In my view, simply out of common reasons of fairness, they [BRICS] should apply pressure on Switzerland, Europe and most importantly on secrecy jurisdictions (tax havens).

And you see the BRICS standing up against tax evasion within their own grouping and alliance, with the automatic exchange of information. But they could also use that grouping to take a stronger stance against offshore tax havens.

I agree that in developing countries, there is a question of corruption amongst government officials that makes things supposedly more difficult than it should be. But that is no excuse at all. Here in Geneva and in the US there is also moral corruption or call it business-oriented conflict of interest. But that can’t be an excuse. The man on the street needs to understand the way how things work and that at the end of the day he/she pays even a bigger bill (taxes etc) if these abusive practices continue in the near future.

The way that things work is that civil society needs to stand up, request change and make strong political pressure. India could have considered sanctions years ago, let’s say against banks domiciled in Switzerland by not giving them a licence to do business in India. Ultimately, it’s about self-interest of each country. However, you have to play the game hard and force for instance secrecy jurisdictions to bite the bullet and provide information of tax evaders. Otherwise it’s not going to work. There must be enormous pressure. The Swiss federal government is a striking example, when it was forced to bite the bullet in 2009 and release client information to the US government in order to rescue UBS.

Cooperation over tax evasion and money laundering won’t happen if countries continue to be nice to each other. It is a power game which, if played properly, will serve civil society at the end of the day.

TW: But there have been a certain amount of concessions that Switzerland has made over the last three years. In 2015, it agreed to help India with investigations that were based on stolen data if that data was acquired through official channels…

RE: Officially, in the vast majority of cases, Switzerland still takes the position that if it is stolen data it will not cooperate with other countries. The key clause here is through “official means” or “normal administrative means”.

How does that work? It sounds good, but doesn’t work in practice in my view. It is a dead-end road. How do you get hold of data from offshore jurisdictions through administrative or official means? That basically means through a legal information request and as we’ve seen in the example of UK and Cayman Islands, where the latter basically said no, how well that works. This is a known pattern.

So my view is that it’s great on paper, terrible in spirit. Refusing to work and use stolen data is an excuse. In the age of whistleblowers, it is a crucial case to think about.

In my case, I didn’t even – as per the legal definition – steal the data. I was the compliance officer and was responsible for the data and therefore I could not have stolen the data. I abused the data but did not steal it.

And even if the data is stolen, what should the international community say to this? Suppose for a second we are back in the year 2008, which is when I first gave some documents to WikiLeaks. What if the data that I had was on the whereabouts of Osama Bin Laden or Mexican drug dealers, or weapon dealers? Of course authorities would use that data! Or if it’s data that contains details about the ISIS network. Nobody would say ‘hey, we can’t investigate this data because it’s stolen”.

But in my case, and in many other whistleblowing cases, authorities chose precisely this path. The data I have contains information on Mexican drug-lords, terrorists and police officers, but they [authorities] refused to investigate.

TW: Have you tried to approach other countries with your data?

RE: I tried several times. I was in Germany three or four times. What I learnt in Germany at the beginning of 2006 is that they behaved in a way that showed that they didn’t really want to investigate the data. It became more about me than the data. Obviously, it was a political issue at those times and still is up to a certain extent because there were so many influential people who did not real have an interest to fight tax evasion.

I was extremely lucky that the tax authorities of Nordrhein-Westfalen were under the control of a finance minister who was known for ‘buying CDs’, Norbert Walter Borjans. He bought and still buys CDs from whistleblowers – which I think is still right, because that’s the only way to get good information on tax evasion. I don’t personally like that methodology, but that may be the only way that has been really successful . But nevertheless, I have never sold data, I believe in the fact that tax authorities have to do their job properly supported by the politicians.

TW: Apart from Germany?

RE: I was in the lucky position that my US lawyer Jack A. Blum helped me to talk to US authorities and then to UK authorities. But you know how UK authorities work – protect Cayman at all costs! The US was better.

When I first got the data to Europe, I decided to come here [Switzerland] and thought that this is because it is a clear Swiss problem, this was a problem to be solved by Swiss authorities.

But nobody wanted to do that. On the contrary, I was punished and experienced a social and financial death. I was terribly naive.

TW: Why not India?

RE: See, I am convinced it is up to the government to approach me. It’s not up to me to go say hello. We’ve learned how some governments can respond if they aren’t appreciative. In certain cases – maybe this is the case in India – officials in the finance ministry or country’s tax authority often work for the very same companies that they are trying to investigate for tax evasion after they retire. Or their election campaign is financed by those companies, they receive some other post-retirement incentives such as making very well paid speeches in those companies.

And for instance prosecutors, tax investigators, even judges, they work later as consultants or as lawyers for these companies. It doesn’t look good on their resume that they used stolen data to prosecute wealthy men or businesses. I said this in Greece… but I’m open to cooperate definitely if somebody reaches out when my legal case is closed in Switzerland.

And once I win my case in the federal court here in Switzerland… because that’s my limiting point. Unfortunately, if I release the client data today, the Swiss prosecution could conduct another house search. The legal case is still pending… and a final verdict still does not exist after 12 years of investigation. It could take another two or three months I believe. It really depends on what the Federal Court final verdict will be. Nobody wants to make a decision in my favour even though the legal logic is pointing in my favour and the higher court of Zurich has ruled that Swiss bank secrecy laws are not applicable in my case.

TW: On the list of names you have, what percentage are Indian clients?

RE: I would say about 20 [people] on the list are Indian. Please consider that Julius Bär primarily dealt with ultra-high net worth individuals. The crème of the crème. They are big boys with a tremendous amount of financial and non-financial assets managed out of Switzerland.

Julius Baer was the first to popularise the so-called hedge funds domiciled in the Cayman Islands. A ticket in a hedge fund is not spare change. This is big money. If you attract a person who makes investments in that sort of thing, it’s not happening in a bank in India. It’s a bank somewhere in an offshore jurisdiction. And these bankers sell products designed by a Swiss bank. So if there was a hedge fund set up by Julius Baer in Caymans, the client advisors of the bank had to put those products in the portfolios of the clients of the bank.

Many of those clients, at that time 15 years ago, signed an advisory or management agreement. Because they, obviously, did not want to receive a call in India from a Swiss bank or any mail or even any visits from their client advisors. And generally speaking they do have hold-mail agreements which means that the mail is kept in Switzerland, it is not sent to the client. However, as a banker or as a client adviser, you need to have control over the account and be able to make decisions without consulting the client. It is often difficult to interact with the clients in real-time and more importantly for secrecy reasons it is not in the interest of the client. Consider if an answering machine is confiscated by the police and the client has to admit that he has a bank account, a Cayman trust etc. managed by Swiss client advisor.

On the other hand Switzerland is a great place in that sense. Because rich Indians have good reasons to travel to Switzerland. You have the United Nations, you have the World Economic Forum. They can say that they have come do some sightseeing, some light skiing. All these are good reasons to travel to Switzerland to visit your client adviser and discuss strategy without it looking suspicious. You love skiing etc. all good reasons to travel to Switzerland in order to visit your client advisor and discuss the strategy without being suspicious!.

So you meet the client adviser in the hotel in St. Moritz and he shows you then the statements, asks you to sign certain documents and usually he hands you over some cash in order to pay for your holiday trips in Switzerland or for whatever.

TW: Are there Indian politicians on that list?

RE: Yes. I would say also people with political affiliation.

The rest are the type that you would normally expect to come across with people who live an international life. Businessmen, movie stars, sports people and cricketers and so on.

TW: The ‘automatic exchange of information’ is what everybody is talking about in the last three years. India and Switzerland signed an agreement last year that will kick in from 2019. Authorities and bankers have heralded it as the death of Swiss banking secrecy. Critics say it’s not enough and a little late. Your thoughts?

RE: Generally speaking, it’s a move in the right direction. But it’s a bit like playing golf – you have to follow through. If you don’t and hit the ball just a bit, it doesn’t not really fly and gain distance.

Now why do I say this? Automatic information exchange requests that the bank knows the client by name and that the bank account is in addition set up in the client’s name. So an Indian, opening up a bank account in Switzerland, lets say for some smaller purpose and to avoid a bit of taxes – he opens up a bank account in his name. He is going to have nightmares with automatic information exchange. Because the bank will exchange the information of his account with Indian tax authorities. Anyway, we are talking here about the small clients, not the big fish.

Secondly, automatic information exchange doesn’t differentiate between financial and non-financial assets. So we are not talking about yachts, houses, buildings, paintings or whatever. If you set up a structure – as I said in the beginning, where the beneficial owners is not known – or suppose you have a valuable painting that is owned by a British Virgin Island company and that company is owned by a trust…that information will not be and cannot be exchanged by automatic information exchange.

Thirdly, there is a tremendous volume when it comes to information that will be exchanged. It’s very hard for tax authorities to digest that information and draw the right sort of conclusions timely. That is in my view on of the biggest drawbacks. I mean, it is a big flow of data and therefore I am not really convinced it will work from an operational point of view.

Tax authorities need to have extreme manpower to handle that information. You have to see from a political point of view, in most countries including India, tax authorities do not receive the resources and manpower that they need to do a proper job. So the number of investigations they can perform are very limited.

This is why I feel that automatic exchange is a step in the right direction, but it is only getting the small fish. The big fish, who has invested enough money in setting up waterproof structures or better in a secrecy concept with numerous trusts, companies, partnerships etc will get definitely away. It’s still the same scenario as 20 years ago when Swiss banking was the villain.

TW: How can we start unravelling this secrecy?

RE: There are a number of things that need to be done: more information must be made public and put the culprits in the scrutiny of the public eye. We must have a public registrar of companies and trusts not only in Panama but in all tax havens. From the Panama Leaks we’ve seen that one person is a director of 1,000 companies or in the Caymans there is a lawyer who is director of 4,000 companies. And you think wow, nice, these guys must be brilliant and so busy!

That’s the thing you need to make visible for society. So, a public registrar with the owners of the company is a crucial matter to gain transparency.

The other is simply political will to destroy tax havens which civil society has to request from their politicans.

TW: We have seen over the last six years, that with the fear of measures like automatic exchange, Indians are starting to move their holdings out of Switzerland. The most recent datapoint by the Swiss National Bank shows how much Indian holdings in Swiss banks have dropped. Put crudely, have people simply moved onto other places?

RE: See, Switzerland is still number one as an offshore destination and it’s getting bigger. But there are a few factors at play here. Where do you want to go with the money and where you want to go with the non-financial assets financed by tax-avoided money?

What do we know is that the United States doesn’t cooperate in automatic information exchange and therefore they attract a certain amount of money. Basically what is really happening is that it is in the interests of the United States to get capital back to the US and that’s one way of doing it; not to cooperate with automatic information exchange.

It’s very hard to move money once it’s in Switzerland. Because I can tell you, in my practical experience, those client advisers they earn so much money off the client that they will find other ways to keep the money within Switzerland. And I can tell you that if you were my client and you cheated on your taxes, I would definitely tell you: ‘If you take the money away, I might report you to India’. Fortunately, I am not a client advisor and do not to support such dirty tricks. But I know that from other client advisers and the banks I worked for, it is a common trick to keep the assets with the bank..

Now, we are seeing movement to Singapore and Hong Kong – especially movement of money from Switzerland to associated branches in Singapore and Hong Kong. Both these havens have become very popular in recent times. The dip in Indian money in Switzerland perhaps could be in part due to that but I am not really certain. I do not believe in such statistics because it would be pretty simple to put those assets in a Cayman trust and keep the bank account in Switzerland. Statistically, such a trust or a company then would be considered a Cayman asset and not anymore a Swiss asset.

The other option is transferring financial assets to non-financial assets. Buying real estate in Switzerland and then selling that real estate against cash. The real estate business doesn’t come under money laundering regulations in Switzerland and just to let you know the real estate business in Switzerland has been flourishing over the last decade.

TW: Coming to your case, what is the latest update on that? What’s the timeline and ultimate verdict that you expect?

RE: So in 2016, I was exposed to a jail sentence of four-and-a-half years. The decision of the high court of Zurich, however, was that Swiss bank secrecy could not be applied in my case primarily due to the fact that I did not have a Swiss employment contract. This was the position my lawyer took in 2005 but was simply ignored by prosecution and at least eight judges of the lower court. The judges of the high court were in a bad position due to the fact that a Swiss employment law expert made it crystal clear that Swiss bank secrecy could not be applied in my case. I was extremely lucky that this expert was willing to help in this situation. Without his second opinion I would sit today in prison.

However, the higher court wanted me to punish me in one or the other way. I had to be legally crucified in the financial centre of Zurich in order to make certain that no other Swiss banker will tell the truth about the fine art of private banking in Switzerland in those days. There were also some other charges that alleged that I made threats to Julius Bär officials. But generally, the risk that somebody does the same thing that that I did, the risk is still high. To punish me financially, the judges decided that I have to cover some of the costs of the investigation in other words $350,000 which also means that I might be personally bankrupt if I do not win the case at the Federal Court.

It needs to be noted that my case was reviewed at the lower court twice, at the higher court in 2011 and and also in 2016. Eventually, the three judges of the higher court concluded that Swiss banking secrecy cannot be applied in my case because I didn’t have a Swiss employment contract.

Obviously, I’m not completely happy about the verdict – but generally speaking it’s fine I do not need to go to prison for four and a half years at least as things stay today. We appealed the $350,000 fine – as well some of the allegations that I threatened some bank officials at the Federal Court. It’s now in the hands of the Federal Court, usually on average it takes about 140 days for a decisionif a case is appealed at the Federal Court. We filed in the complaint in November 2016, as of today approx. Two hundred and seventy days have passed and it appears that this highly political case is looked at it very closely. It could well be a political decision the court takes but then I am forced to take the case to European Court of Human Rights..

The possible decisions that it could take are: one they find me guilty of violating Swiss banking secrecy. But that isn’t likely because there are many national and international experts who do not support such a verdict and it will create even more confusion if Swiss bank secrecy could be applied extra-territorially to a person who did not hold a Swiss employment contract. Therefore. it would really be a U-turn, an extreme U-turn, to find me guilty of violating Swiss bank secrecy, however, the head prosecutor filed an appeal of close to 100 pages at the Federal Court which is a clear sign that he does not accept the verdict of the higher court of Zurich.

The other potential decision is to be overly smart and return the entire case to the higher court of Zurich by cancelling or accepting the decision of 2016, but this time removing the Swiss banking secrecy violation, and instead look at the other charges against me.

TW: Suppose the Federal Court does rule in your favour?

RE: I will publish [my data]. My view is… that it’s then time to start cooperating with governments and force governments to do their job. Therefore, the information has to be made public otherwise the information will disappear somewhere in a governmental archive. I am keen on forcing governments to do their job because this would make a big difference. If government does not act, then I’m going to go to the media again.

In my view, it would be wrong to go directly to the media. I have given or had to give the judicial system in Switzerland twelve years to solve this mess but nothing really has happened against the bank or the Swiss tax evaders. However, I don’t wish to risk going to prison again. So I can wait just a bit longer not to risk to go to prison again. I can wait just a bit little longer until the Federal Court comes up with its verdict.

The article was first published on The Wire

The Wire