Dividend stripping: Dutch Prosecutor’s office looking for those ultimately responsible at ABN Amro
The criminal investigation into dividend stripping at ABN Amro has moved into a higher gear. The Dutch Public Prosecutor’s office is currently questioning suspects and others involved and has set its sights on senior management. Follow the Money highlights the primary candidates. ‘Every decision made by the Risk Committee was eventually also validated by the board of directors.’
‘Harley’: that’s the name of the criminal investigation into Morgan Stanley. The Dutch Public Prosecutor’s office has suspected the US merchant bank of years of tax fraud since 2021: it allegedly filed false tax returns related to dividend stripping. ABN Amro assisted Morgan Stanley in this, and for that reason, the Public Prosecutor’s office also suspects the Dutch bank – most of which is still state-owned – of tax fraud.
No details about the criminal investigation were known, but in mid April, Het Financieele Dagblad reported that preliminary interrogations were underway. According to a document that Follow the Money managed to get its hands on, it seems that the public prosecutor has indeed approached an ex-ABN Amro employee for a witness interview. In the letter to the ex-ABN Amro banker, an employee of FIOD – the department conducting the ‘Harley’ investigation on behalf of the public prosecutor – confirms the appointment and clarifies a few things.
‘In short, this criminal investigation focuses on the suspicion that Morgan Stanley was involved in dividend stripping, in which ABN Amro Bank / Fortis Bank (AAB/Fortis) assisted.’ Morgan Stanley allegedly used a ‘combination of transactions’ with Fortis GSLA bv and ABN Amro Bank NV, among others, to make it appear as though it was the legal owner of an AEX shares package and thus of its dividend.
The FIOD officer is particularly interested in the creation of the so-called ‘Boardtables’
GSLA is the abbreviation of Fortis’ infamous Global Securities Lending & Arbitrage division, where large-scale ’dividend arbitrage’ activities have been carried out since the end of the last century. After the nationalisation of Fortis Bank Nederland in 2008, the GSLA division – by then renamed into Global Securities Financing Group (GSFG) – fell under ABN Amro. ‘It is suspected that several corporate income tax returns were intentionally filed incorrectly in connection with dividend stripping.’
The FIOD officer has several questions he is keen to raise during the witness interview with the ex-ABN Amro banker. He is particularly interested in the creation of the so-called ‘Boardtables’. It is an unusual term that was coined specifically for the GSFG division; these ‘tables’ were meant for transaction overviews that needed to be discussed at senior levels, sources reveal. The FIOD official wrote: ‘Who at the senior management of AAB/Fortis was responsible for the processes surrounding the mandates, Boardtables [...] and their oversight?’
On the Boardtable
At the end of last year, Follow the Money obtained one such Boardtable document from the department targeted by the FIOD. It contains many revealing details about CumEx and CumCum transactions that the GSFG department wanted to carry out in 2009 – shortly after the nationalisation of ABN Amro and Fortis Bank Nederland (FBN). They would generate the ‘largest expected revenue’ for the department.
The Boardtable document also mentioned a key risk: reputational damage. ‘With ABN-FBN becoming one of the 3 “big sisters” in the Netherlands, and given all the developments [at] Fortis-FBN, the Dutch media are keeping a close eye on FBN. Can we afford renewed publications on this subject?’
The answer was evidently ‘yes’. The transactions went ahead. A person directly involved told Follow the Money that ‘CumEx fitted squarely into the Merchant Bank Risk Committee’s risk appetite at the time. There was money to be made!’ Professor of Tax Law Jan van de Streek commented that the Boardtable document is ‘rock-solid evidence of unethical business practices’.
The document also contains details that disclose which bodies within the bank knew about the dividend stripping. The document, which is addressed to the Merchant Bank’s Risk Committee, states that representatives from Risk, Legal, Tax and Compliance were present on 15 January 2009 to discuss proposals from the GSFG division.
According to Bas Cohen – former director of the GSFG division, who worked at ABN Amro until 2013 – all decisions regarding transactions were well documented. He told Follow the Money: ‘You sometimes get the impression that pretty wild stuff was going on, but everything was properly recorded.’
Cohen explains the procedure: ‘When lucrative trading opportunities arose, you investigated them and sought permission from a risk manager. You had to substantiate the proposals. And the Risk Committee often required a legal opinion on them. Then an opinion was obtained. At KPMG, at Deloitte or another firm. Freshfields’ opinions in Frankfurt carried the most weight. And if the opinion was positive enough, the transaction proposals were approved. And everything decided in the Risk Committee was ultimately validated by the board as well.’
The criminal investigation into Morgan Stanley and ABN Amro stems from a civil case previously conducted by the tax authorities. That originated in 2009 when an observant tax inspector became suspicious about the tax return of a Morgan Stanley branch in Amsterdam that had no employees. The case dragged on for years, and the investigation gradually covered more and more financial years. At first, the tax authorities wanted clarification on the 2007/8 to 2009/10 financial years, which was later extended to the 2012/13 financial year.
Frans Buikema is the tax inspector who led this investigation. During the roundtable discussion organised by the Dutch House of Representatives in late 2021 on dividend tax fraud, he said more than 20,000 hours of work had been put into the case.
Morgan Stanley may have to pay a tax claim of 200 million euros
The case eventually led to a harsh verdict from the Amsterdam Court of Appeal in 2020. Morgan Stanley had wrongly claimed back dividend tax through a letterbox firm – managed by trust company TMF – and may have to pay a tax claim of 200 million. This 90-page judgement was the prelude to the criminal investigation.
While studying the ruling, Follow the Money noticed in 2020 that the Global Securities Lending & Arbitrage (GSLA) department of the former Fortis Bank Netherlands had mistakenly been listed in the document. This department had been active in dividend stripping since the late 1990s.
The most controversial variant of dividend stripping is CumEx. CumEx transactions are highly complex and are intended to claim back dividend tax that was never paid. Both the share owner and a party that has artificially acquired a dividend certificate through a scheme claim back the dividend tax. This trick, also called double dipping, is made possible partly due to flaws in stock exchange trading systems (see our Dutch CumEx-explainer).
This April, for the first time, Belgium handed down a prison sentence to someone for CumEx fraud
CumEx fraudsters are now being criminally prosecuted in multiple countries. In Germany, this led to several long-term prison sentences. In April, for the first time, Belgium handed down a prison sentence to someone for CumEx fraud.
GSLA was actively involved in setting up CumEx transactions in Germany for years. In 2018, Follow the Money reported that the public prosecutor of the German state of North Rhine-Westphalia wanted to raid ABN Amro in Amsterdam back in 2014. The public prosecutor of Cologne suspects several (former) ABN Amro bankers of involvement in CumEx. Last year, the first ex-ABN Amro banker was arrested in Majorca on the orders of a German prosecutor.
Another variant of dividend stripping is CumCum. This is the variant the Dutch Public Prosecutor’s office is focussing on concerning Morgan Stanley and ABN Amro. CumCum occurs when a shareholder has paid dividend tax, is not entitled to claim it back himself and, therefore, trades that ‘right’ via a financial construction so that another party who is able to claim it, can collect the return. On trading floors, this was called ‘dividend arbitrage’; the prosecution argues it is tax fraud.
Research by the international collective of investigative journalists The CumEx Files, in collaboration with the University of Mannheim, of which Follow the Money was a member, showed that dividend strippers may have cheated Dutch treasuries to the tune of 27 billion euros over the period 2000-2020.
The Netherlands is one of the first countries in Europe where public prosecutors are conducting criminal investigations into CumCum fraud. In late March, it became clear that French prosecutors were also taking this course: investigating authorities, with the support of the Cologne Public Prosecutor’s office, carried out raids at five major banks in Paris, including Société Générale, HSBC and BNP Paribas. The latter bank became the owner of the Belgian part of Fortis in 2009.
Tax authorities in several German states have since been busy recovering amounts from banks
In July 2021, the German finance ministry published a new, much stricter interpretation of the rules on dividend stripping (CumCum). Tax authorities in several German states have since been busy recovering amounts from banks.
By the end of 2022, German authorities are said to have already collected or are in the process of reclaiming more than 5 billion euros, according to answers to questions raised in the Bundestag last year. ABN Amro noted in its 2022 annual report that this might affect the bank, as the tax authorities of federal states in Germany want to recover claims. It also pointed out in the annual report that this could also affect ABN Amro financially.
A threat to the bank
In its 2022 annual report, ABN Amro also noted that the Dutch Public Prosecutor’s office is investigating the period 2009-2013. However, the history of dividend stripping shared by ABN Amro with Morgan Stanley through the former Fortis Bank Netherlands goes back further. This is evident from documents collected by Follow the Money in recent years.
The benchmark date is 2005. In February of that year, whistleblower Stefan Stanciu reported fraudulent CumEx and CumCum practices within the Global Securities Lending & Arbitrage (GSLA) department within Fortis Bank Netherlands. These posed a serious threat to the bank, according to Stanciu. His report was included in the Incident Analysis Report prepared by compliance officer Philip Meijer.
‘The magnitude of the alleged irregularities (including potential fraud) and the potential repercussions facing the bank both internally (people, business, money) and externally (regulators, tax authorities, reputation) if substantiated, meant that a decision needed to be made how best to proceed the handling of this claim.’
‘The parties mainly looked at what was still possible and whether we could do it in such a way that nobody would see it’
The report also contains a passage mentioning the US investment bank. ‘There are other plans, like the one that began with Morgan Stanley [...], which he claims carry similar risks of conflicting with regulations and potentially damaging Fortis’ reputation.’
Stanciu’s concerns were not taken seriously. The report states that Filip Dierckx, a former member of Fortis’ board of directors at the time, ‘was warned that management should be careful not to overreact to the allegations’. Stanciu eventually lost his job.
‘After the whistleblower’s report, considerable changes took place within the bank,’ a former employee of the department in question told Follow the Money. ‘The parties mainly looked at what was still possible and whether we could do it in such a way that nobody would see it. Or that it was still possible with a positive opinion from Clifford or KPMG. But after that, trading continued of course.’
The Public Prosecutor’s office wants to know who in senior management was responsible for this from 2009 to 2013. Follow the Money highlights the primary candidates.
Jan van Rutte was the CEO of Fortis Bank Nederland until 2010 and CFO of state-owned bank ABN Amro until 2013, thus responsible for the department dealing with taxes, where the details of all transactions with tax components were known. Van Rutte was a member of the board at Fortis Bank Nederland in 2005. That year, according to the abovementioned Incident Analysis Report, he had been informed of Stefan Stanciu’s report. The CumEx and CumCum operations were not ceased, despite Stanciu’s notification.
Van Rutte previously could not substantively answer questions about the Boardtable document: he could not recall the document. Van Rutte told Follow the Money: ‘This must have been shortly after the nationalisation of Fortis Bank Nederland, which was a very turbulent period, certainly in my role, with lots of emails, notes and talks following the nationalisation in October 2008, the continuation and survival of Fortis Bank Nederland as an independent bank, preparatory talks for a possible merger with ABN Amro.’
When Follow the Money asked him whether he had already been invited for a witness interview, he replied: ‘I am not aware of any details about the investigation at Morgan Stanley.’ For further comment, Van Rutte refers us to ABN Amro.
In 2013, Van Rutte was succeeded by Kees van Dijkhuizen. On 1 January 2017, Van Dijkhuizen succeeded Gerrit Zalm as chairperson of the board of directors. He retired three years later. Late last year, Het Financieele Dagblad revealed that Van Dijkhuizen is suspected of violations under the Dutch Money Laundering and Terrorist Financing (Prevention) Act (Wwft).
‘We received a positive external and internal tax opinion for both the German CumEx and the other proposed transactions: fiscally OK,’ as stated in the Boardtable document. One of the bank’s tax experts who reviewed and approved the list of transactions − CumEx and CumCum − mentioned in the document was Bas Castelijn, then Global Head of Tax for Merchant, Private and Retail banking. Castelijn is currently Lead Tax Partner Financial Services Industry at Deloitte Nederland.
Hans van Horzen was Head of Group Tax, in other words, the big boss of ABN Amro’s Tax department; he resigned in 2013. Complicated tax constructions and transactions had to be run past him first before the bankers could act on them.
Shortly after the nationalisation of ABN Amro, he gave an interview to commemorate Ernst & Young’s anniversary, in which he said something about his contact with the Ministry of Finance. ‘They [previously] reluctantly opened the door for me and looked at me like I was some kind of con man,’ Van Horzen said. ‘Now, as Tax Director of ABN Amro, the Ministry opens the door with a smile and offers me coffee. Relations with the tax authorities have always been good.’
Van Horzen was a member of the supervisory board of the ABN Amro pension fund until June 2021.
According to the Incident Analysis Report, Marc van Kessel was Fortis’ in-house tax lawyer who – after whistleblower Stanciu’s report − looked into the CumEx and CumCum practices in 2005. Van Kessel still works for ABN Amro Clearing Bank as head of a team that deals with tax matters.
Jeroen Dijst was a member of the board at Fortis Bank Nederland and its Chief Risk Officer until July 2010. He then served as ABN Amro’s Managing Director Asset & Liability Management / Treasury until August 2015. He was the most senior risk manager at the time of the aforementioned Boardtable document. Dijst is currently Chief Risk Officer at the Volksbank and a member of its board of directors.
From July 2010, Wietze Reehoorn was Chief Risk Officer at ABN Amro. He worked there until the end of 2017. Reehoorn had previously featured in a Follow the Money investigation that revolved around some questionable tax structures that ABN Amro thought it could use to make money at the expense of the Dutch treasury in 2010 and 2011.
Legal and Compliance
From the beginning of 2009, Caroline Princen had been a member of the ‘transition team’ tasked with shaping the merger of the banks upon nationalisation. Princen was given final responsibility for Legal and Compliance in April 2010, despite having no banking or legal experience prior to joining the bank’s board. Princen also had no significant expertise in compliance, even though it was her job to ensure that everything within the bank was done according to laws and regulations. She is now CEO of the energy and telecom company Nuts Group.
Princen was assisted by Nico Zwikker, who was responsible for compliance at Fortis before nationalisation. He was Group Compliance Officer from 2009 and had to help manage the merger; he was with the bank until 2013. Zwikker was well acquainted with Fortis’ CumEx and CumCum practices. He was the Compliance Officer of the GSLA department and ‘even went along to visit customers to explain that the [CumEx] transactions were up to scratch,’ lawyer Remco Verkerke told business magazine Quote in 2006. Zwikker was Chief Compliance Officer at Robeco from January 2020. He left the asset management firm in early 2023.
Having authored the Incident Analysis Report dated 25 February 2005, Philip Meijer was familiar with the details of whistleblower Stanciu’s report. He worked as Compliance Officer at Fortis, and from 2008, as Senior Compliance Officer Financial Markets & Clearing, was responsible for the part of the organisation that had the clearest overview of transactions and where cooperation with dividend-stripping third parties continued to take shape after 2010: the ABN Amro Clearing Bank.
Marcel Jongmans was the Senior Executive at ABN Amro Clearing Bank (formerly Fortis Clearing Bank) between 2004 and 2016.
A foreign ex-banker who joined a company devoted to CumEx transactions told Follow the Money that Fortis’s clearing and custody department had a reputation among dividend strippers: ‘My colleagues established the company, and by the time I joined, the setup with Fortis was already in place. We generally heard through the market that Fortis offered custody services to companies like ours.’
Jan Bart de Boer was Managing Director at Fortis Clearing until July 2010, after which he became Chief Commercial Officer of ABN Amro Clearing Bank. He was in direct contact with third parties who considered dividend stripping their core business.
The clearing bank and the GSFG department were the responsibility of the now Dubai-based former CDA politician and former State Secretary for Finance Joop Wijn. He was asked to be part of the so-called transition team after the nationalisation of ABN Amro and Fortis Bank Nederland. From 2010, he served on the board of the state-owned bank, which was IPO’d in November 2015.
In 2017, he left ABN Amro and joined the successful Amsterdam-based payment services company Adyen. There, too, he was privileged to witness the IPO. The few years he was responsible for strategy and risk at Adyen yielded him at least thirty million euros.
In 2018, Wijn informed Follow the Money via Adyen’s spokesperson that he ‘only became operationally responsible’ for the day-to-day business at a few former parts of Fortis Bank Nederland as of 1 July 2010. Before then, he had ‘no say in how the business was run’.
‘The tax department fell under the CFO during the entire period,’ Wijn asked the spokesperson to add. However, the confidential internal correspondence that Follow the Money obtained shows that Wijn was actively kept up to date on matters concerning third parties engaged in dividend stripping.
Wijn is currently a supervisory board member at the ASR insurance company and NIBC Bank in The Hague, which US private equity giant Blackstone acquired in 2020.
As Minister of Finance, Gerrit Zalm was in charge of the FIOD while it investigated dividend stripping. In early 2006, FIOD investigators invited whistleblower Stefan Stanciu to explain in detail the CumEx and CumCum transactions within Fortis. The investigation led to a presentation at the Ministry of Finance that year, entitled Global Dividendtax Fraud Investigation, as reported by Follow the Money. At the time, the investigators called for a ‘full-scale criminal investigation’, but that failed to materialise.
The Fortis legacy landed in Zalm’s lap in 2009 when he was asked to lead the newly nationalised banks. The transition to a state-owned bank took place under his leadership; Zalm was ultimately responsible for the implemented policy. Since 2021, the FIOD has been conducting criminal investigations into Zalm on behalf of the Public Prosecutor’s office. Like Joop Wijn, he is also suspected of de facto management of violations of the Anti-Money Laundering and Terrorist Financing (Prevention) Act (Wwft).
For years, as head of the GSFG department, Bas Cohen was on top of the transactions through which Fortis and later ABN Amro wronged the Dutch tax authorities and those of other countries. He is nevertheless convinced that he is not to blame, as all transactions were approved by the relevant committees.
Cohen tells Follow the Money that the FIOD has not yet approached him to testify. ‘It surprises me a bit that, with everything that is going on and what I am reading about it, nobody has said, “Gosh Bas, can you please explain it all to us.” Maybe I am a bit too matter-of-fact and transparent. I have nothing to hide, so I will share everything I can share.’
Translation: Delia Burggraaf
‘As a state bank, ABN Amro was involved in international dividend fraud,’ was the headline of the article published by Follow the Money in November 2018 as part of the international research project The CumEx Files. It stated, among other things, that the bank facilitated dividend stripping until early 2016. Until then, the necessary clearing services were provided to some former subsidiaries acquired by ex-employees in 2010, as revealed in an Amsterdam court ruling. One of these ex-employees was arrested last summer on the orders of the public prosecutor of the German state of Hesse and has been detained in custody ever since.
On the day Follow the Money published the aforementioned article, ABN Amro issued a press release clarifying that dividend stripping had long since ceased to be a business activity: ‘Since 2010, ABN AMRO has discontinued and sold off any activities involving any risk of it getting caught up in dividend stripping, while also designing policies to prevent and preclude any involvement in such matters. Rejecting any form of involvement in dividend stripping (“zero tolerance”), its tax policy has been rolled out by means of ongoing tax awareness sessions held throughout the bank.’
The bank’s statements about its ‘zero tolerance’ policy do not correspond with the facts, as it has been established that ABN Amro facilitated and also financed dividend stripping through the clearing bank. The prosecution also suspects the bank of being involved in dividend stripping in the period 2009-2013.
Although the bank repeatedly refers to previous press releases and announcements in annual reports when questioned, the spokesperson now refuses to answer questions about the previous statements concerning its policy on dividend stripping.
Except for Bas Cohen, the above (former) ABN Amro bankers did not answer any questions and/or they referred us to the bank.
ABN Amro’s spokesperson announced that he did not want to respond to questions about individual employees and did not respond to Bas Cohen’s submitted statements.