Frank Vogel © Oscar Seykens
In the crosshairs of tax and investigation services: Dutch CumEx trader Frank Vogel
The tax authorities of several countries are chasing Frank Vogel, the Dutch king of the CumEx trade. Claims ranging in the millions of euros are awaiting him in Belgium and Denmark. In Germany, he is a suspect in at least one criminal investigation. A reconstruction of the tumultuous career of a notorious dividend stripper.
- Stock exchange and real estate trader Frank Vogel is one of the richest people in the Netherlands but his assets have a dark background: the CumEx trade, or as he prefers to call it: ‘dividend arbitrage’.
- Vogel is known as a very aggressive trader who gained international fame at Fortis, with transactions that have been banned in Germany since 2012.
- There are ongoing criminal investigations in six different German federal states into CumEx fraudsters who have harmed the Treasury for billions of euros.
- The tax authorities of the Netherlands, Belgium and also other countries keep a close eye on Vogel.
- In Germany, he is mentioned numerous times in various criminal investigations, and not only that: he is a suspect.
During his short walk from the Amsterdam court back to his office at the beginning of March, stockbroker and real estate entrepreneur Frank Vogel is not inclined to answer questions. The sunlight is hitting his face and with narrowed eyes he keeps looking straight ahead without saying anything. He prefers to avoid questions related to the origin of his great wealth. Vogel is firmly convinced that he has not broken any law and that he has honestly earned the tens of millions he has amassed stripping dividends in recent decades. At the same time, he has been aware for many years that regulators, tax and investigative services think otherwise.
‘Do you know that you are a suspect in Germany in a criminal investigation into CumEx fraud?’ Vogel does not answer the question and walks on with his lawyers to the property he developed himself, which he sold to the German real estate fund Warburg HiH. It’s a subsidiary of the MM Warburg Bank from Hamburg that is being charged with CumEx fraud in Bonn.
The Süddeutsche Zeitung refers to Vogel as ‘one of the largest masterminds of the CumEx companies’
A week before Vogel’s walk, on Tuesday 27 February, armed police officers and German investigative officers obtained access to an ABN Amro office in Frankfurt. Commissioned by Cologne prosecutor Anne Brorhilker, the affiliates of the bank branch were searched to gather more evidence about ABN Amro’s role in the CumEx affair, Germany’s largest post-war tax scandal. ‘CumEx’ is the term inextricably linked to the billions that bankers, stockbrokers and lawyers have been able to steal from the treasuries of European governments for several decades.
It has been clear to the Cologne prosecutor for years that ABN Amro – and in particular the Fortis part nationalised in 2008 – played a significant role in CumEx trading. In the summer of 2014, she therefore requested legal assistance to raid the headquarters of ABN Amro in Amsterdam. The February 27 raid is already the third one that the Dutch state-owned bank has had to deal with in Germany, but the display of power with which this one was carried out, was remarkable. An invasion of these proportions is ‘rare’, the Süddeutsche Zeitung wrote later that day.
The newspaper also mentions ‘an accused Dutchman, who nowadays presents himself as a smart real estate investor’. He ‘is said to be one of the largest masterminds of the CumEx companies and to also have used contacts with his former employer for that purpose.’ When asked, the newspaper informs FTM that the Dutchman they refer to is Frank Vogel.
Frank Vogel is considered a very successful businessman, which is reflected in the wealth he has amassed in recent decades. Business magazine Quote estimates his wealth at 150 million euros, with which he takes the 302nd place on the most recent edition of the national list. ‘Frankie’, as his friends affectionately call him, is the sole shareholder of dozens of companies at home and abroad, including tax-friendly areas such as Luxembourg, Dubai and Malta. And as German journalists now also know: he is quite active in business real estate. He is also the owner of villas in Aerdenhout and the South of France, he owns a wildlife parkin South Africa with exclusive lodges and he has an airplane that was once owned by fallen Dutch banker Dirk Scheringa.
Vogel has a strong preference for the much tidier term ‘dividend arbitrage’
‘I'm just a fanatic, I’m performance-oriented and can’t handle my losses very well,’ Vogel described himself years ago in an interviewin Quote. That he is a real fanatic can be seen in the ease with which he conducts lawsuits against parties who get in his way. Supervisors De Nederlandsche Bank (DNB) and the Dutch Authority for the Financial Markets (AFM) also had to contend with the former Fortis banker.
The interest of financial supervisors and investigators from tax authorities at home and abroad is not unfounded: Vogel’s assets have a controversial origin. The stockbroker, born on June 7, 1969 in Haarlem, has excelled for decades in transactions that have no economic significance: stripping dividends from shares of listed companies. Vogel has a strong preference for the much tidier term ‘dividend arbitrage’.
Germany has been Vogel’s favorite working area for many years. But the Dutch tax authorities were the first to corner him
The art of ‘arbitrating’ dividends is to use the loopholes in tax legislation to reap as much money as possible from government treasuries. Vogel is not the man to take big risks. On the contrary: the characteristic of dividend stripping is precisely that this can be done without running any financial risk. The only gamble that Vogel makes as an arbitrator is that, through new insights, lawmakers and tax administrations can later view his business in a new light and come after him to demand money, impose fines, or worse, prosecute him.
These exercises in dividend arbitrage have led to extensive fraud scandals in Germany and Denmark and are largely banned by now. In particular its most profitable version – the CumEx trade – is under scrutiny of the criminal investigation authorities in those countries. Mostly thanks to the years of investigation put in by the Cologne prosecutor Anne Brorhilker, the first criminal convictions in the largest post-war fraud case in Germany are now a fact.
Germany has been Vogel’s favorite working area for many years; It is not without reason that he is mentioned there frequently in criminal files and has now been promoted to ‘suspect’. But it is not the Cologne prosecutor who is the first to get her teeth into Vogel; the officials of the Dutch tax authorities were the first to corner him.
Everyone knows Frank
When Vogel started working at the MeesPierson bank in 1994, it came as no surprise: his father and sister had preceded him. He is quickly identified as a promising banker and ends up in the bank’s talent pool. He does not disappoint and, according to him, becomes the youngest director at Fortis, the Belgian bank-insurance company that MeesPierson took over from ABN Amro at the end of 1996. Vogel is physically impressive and his management style is confrontational too. Everything is aimed at achieving goals. Vogel is in his early thirties when he is put in charge of the most ‘entrepreneurial’ part of Fortis Bank: the Global Securities Lending & Arbitrage (GSLA) department.
He is also quirky. ‘Everyone in that department looked neat, except Frank Vogel,’ a former employee of Fortis GSLA says. ‘When I came into his office for my job interview, he was just wearing jeans and a T-shirt. He threw his feet on the table, grabbed a coke and said, “So tell me, what do you think you can do for me?”’
Within the world of securities lending, everyone knows Frank’s name. London, Paris, New York... everywhere
Under Vogel’s leadership, Fortis GSLA became the most profitable part of the Belgian bank. This is reflected in the balance on his bank account. Including bonuses, he earns considerably more than the bank’s COE, Jean Paul Votron. ‘Within the world of securities lending, everyone knows Frank’s name London, Paris, New York... everywhere,’ said a former colleague of his 14 years ago in business magazine Quote.
Vogel owes his rapidly growing fame to the enormous positions that the GSLA traders take in shares and the large profits they rake in. This is in contrast to comparable departments of well-known investment banks such as Deutsche Bank, Morgan Stanley and Goldman Sachs, which have a much lower return in the early 2000s, due to the implosion of the internet bubble. Fortis GSLA’s trade secret: the complex CumEx transactions that Vogel and his team rig. Several parties determine in advance which positions can be taken in large listed companies. This happens every time in the so-called dividend season; the aim is to claim the return of dividend tax for a second time, while it has only been paid once. The special thing is that the profits – tens of millions per transaction – are risk-free.
In February 2005, when whistleblower Stefan Stanciu exposes the dubious origin of GSLA’s huge profits, the Belgian top of the bank takes the opportunity to get rid of Vogel. He is a rigid man who refuses be tempered by a bunch of Belgians in Brussels. Also, he earns too much. Another factor that comes into play: Fortis believes that it can play the CumEx game without this cheeky Dutchman. In April that year, he is escorted out of the office at the Amsterdam headquarters. His forced departure leads to a legal fight, which is widely reported in the pages of Het Financieele Dagblad and De Telegraaf. With that, for the first time, reports on the trade secrets of the extremely well-performing Fortis GSLA are publicly revealed: the CumEx trade.
The advantageous use of pension funds
Within a few days after Stanciu’s disclosure, Fortis conducts a compliance investigation. The verdict: there’s nothing wrong with the CumEx transactions. That conclusion is supported by a legal opinion written by law firm Allen & Overy.
The FIOD suspects that the ‘disadvantage of dividend stripping’ is several billion worldwide
However, there are researchers at the FIOD who think otherwise. In May 2006, a FIOD employee at the Ministry of Finance in The Hague gave a PowerPoint presentation to some 20 tax officials, entitled ‘Global Dividend Tax Fraud Investigation’. The presentation consists of a total of 19 slides, 11 of which have been declared secret. The presentation, on which FTM has previously reported, relates to a preliminary investigation conducted by FIOD officials into the ins and outs of Fortis Bank’s Global Securities Lending and Arbitrage (GSLA) department – the department led by Frank Vogel.
The FIOD detective says that Fortis GSLA also tailored a trick for foreign shareholders who cannot reclaim dividend tax here. These are so-called CumCum transactions, in which the strippers borrow the shares from parties who are not entitled to a refund of the dividend tax, redeem that right, and then return the shares, together with part of the loot.
The trick works as follows. Dutch shares that are owned by foreign banks or investors, are temporarily placed with a Dutch entity shortly before the dividend payments. That entity then reclaims the dividend tax form the tax authorities. The Dutch legal entity, often a local branch of a foreign company, then returns the shares to their original owner, keeps a percentage by way of fee, and pays the remainder of the reclaimed dividend taxes to the foreign entity. It’s a win-win for all – except for the Dutch treasury.
GSLA is doing this not only with Dutch shares, but also with shares of American, German, Swiss and Italian listed companies. The USA taxes dividend with 30 percent in 2005; only US citizens and companies can reclaim those taxes. Fortis GSLA’s solution? It ‘borrows’ shares burdened with a 30 percent dividend tax from non-American shareholders, and lends them to US pension funds – who can then reclaim the full amount of dividend tax for the U tax authorities.
Pension funds set up especially for stripping dividends play an important role in this exercise. Pension funds are exempt from dividend tax; that makes them an ideal partner for obtaining its return. For the same reason, pension funds are also used for the more complicated CumEx transactions, in which dividend tax is reclaimed several times. A pension fund is even given a more important role in this respect: it then serves as a ‘trustee’ with which the parties involved make agreements, also regarding the distribution of the proceeds.
The last slide of the PowerPoint presentation states that the FIOD suspects that the ‘disadvantage of dividend stripping’ amounts to several billion worldwide. To obtain more information, the FIOD would like to initiate a ‘full-scale criminal investigation’, the FIOD investigator told officials of the Ministry of Finance in May 2006. But for unknown reasons, a large-scale criminal investigation does not ensue.
His own company, his own pension fund
After his controversial departure from Fortis, Vogel first files a lawsuit against his former employer. He claims to have suffered reputation damage through the bank and therefore claims 7 million euros in damages from Fortis. Vogel wins the case, but has to settle for 9 tons. However, the ‘spiritual father’ of the CumEx trade at Fortis loses the lawsuit he filed against whistleblower Stefan Stanciu; he had wanted compensation from him as well.
By then it is clear to Vogel that jobs in the financial sector are no longer within his reach, and he starts his own company: Global Securities Finance Solutions (GSFS). It specialises in so-called ‘Delta One arbitration’. Delta One is financial lingo for ‘no risk’. It is a collective name for the same arbitration activities that Vogel already performed at Fortis GSLA and with which he earned millions in bonuses. He has start-up capital, but lacks the trading infrastructure of a financial institution. Banks are not lining up to do business with him, so he is eagerly looking for a financial institution that is willing to take his bedraggled reputation for granted.
‘Thanks to the fog created by multiple companies and brokers, few people could really understand what was going on’
He finds the suitable partner: the drifting listed corner company Van der Moolen (VDM), which has not been able to make the switch to digital exchange trading and is desperately looking for a new business model. Risk-free trade at the expense of tax authorities must help Van der Moolen to recover. ‘Richard den Drijver [at the time CEO at VDM, ed.] considered CumEx trading to be the ultimate way to recover the VDM rate,’ a former employee of Van der Moolen told FTM.
In addition to the infrastructure, there is another important reason for entering into the partnership. The former employee of Van der Moolen explains it as follows: ‘The collaboration between GSFS and VDM was ideal, in theory: Frank wanted more “natural” option and stock trading in order not to let his CumEx transactions stand out too much. Thanks to the fog created by multiple companies and brokers, few people could really understand what was going on.’
In business with a convicted CumEx trader
Van der Moolen is not the only financial institution with which Vogel connects. Emails that FTM managed to obtain, thanks to the Danish business newspaper Børsen, show that in 2007 Vogel was also in contact with the German HypoVereinsBank (HVB), where the New Zealander Paul Mora is employed. Mora, who is mentioned in the emails, is one of the main suspects in the criminal investigation of the Cologne prosecutor Anne Brorhilker. The other notable name is that of Martin Shields. He was a key witness in the criminal trial in Bonn where FTM was present and is one of the first criminally convicted CumEx traders.
The correspondence shows that Vogel is a potential new CumCum and CumEx customer for the bank, which at the time is very active under the leadership of Mora – who is nowadays describedas one of the great robbers of the German treasury – setting up structures to strip dividends. HVB is proceeding energetically and has already set up a ‘test deal’ for one of Vogel’s five GSFS companies.
The structure of the test deal must take ‘the same’ shape as the transaction of the Berlin real estate magnate Rafael Roth, also mentioned in the email. With that deal Roth earned 25 million euros; two years later he is audited by tax officials. In 2011, the tax authorities of the city of Wiesbaden require Roth to repay 113 million euros, plus 10 million interest. Roth, who said he never knew about the CumEx scheme, died in 2013 at the age of 79. His son Joram claimed in Handelsblatt that his father never got over the impact of the scandal surrounding the CumEx transaction.
Email about the ‘test deal’ that HypoVereinsBank proposed to Vogel / GSFS
As an enterprising dividend stripper, Vogel prospered. His collaboration with Van der Moolen pays off and they earn 10 million euros net in their first year. The beginning of one of his ‘most lucrative periods ever’, he says in his first major interview in 2011. Van der Moolen is so excited about their collaboration that in 2008 the company offers to buy Vogel’s company. After ten months of negotiations, he agrees to an offer that values his young company at almost 90 million euros. For 49 percent of the shares, he will receive 14 million euros in cash and 29 million in Van der Moolen shares.
While the deal is in the making, at the end of 2008, Vogel decides to use the method that he so often deployed for GSLA. He sets up his own pension fund, in which he will host part of his dividend arbitrage activities: GSFS Pension Fund. This is fiscally favorable: a pension fund is exempt from corporate income tax and dividend tax, which means that it can reclaim large amounts of dividend tax from foreign tax authorities.
‘Outcast in the financial world’
But in 2009, all goes awry at Van der Moolen. The company is forced by the tax authorities to make a large depreciation. There is uncertainty about the collectability of the expected proceeds from the arbitration activities of Vogel: 43 million euros. This puts the company in serious trouble, their rate drops and the deal for the purchase of an interest in GSFS ricochets. In September that year, the listed Van der Moolen goes bankrupt. The deposit of 32 million euros from the German tax authorities arrives just too late and ends up with the bankruptcy trustee.
Vogel then wants to take over some parts of Van der Moolen, but is thwarted by De Nederlandsche Bank. ‘They literally said: We will not allow you to take over an affiliate institution because you are engaging in socially undesirable activities,’ he said in the aforementioned interview in Quote. The supervisory authority refuses to give him a statement of no objection and Vogel thinks he knows why: ‘After all, I am an outcast in the financial world.’
Excursion to Switzerland
Although the stock exchange trader has an unsavory reputation in the Netherlands, they know little about that abroad. In 2011, Vogel was even trying to do business with the Swiss private Bank Sarasin & Cie. At the time, this dignified, old private bank was fully involved in CumEx transactions. Noteworthy detail: the bank was a subsidiary of the Dutch Rabobank during that period.
Bank Sarasin uses so-called feeder funds for its CumEx trade. These funds channel assets from investors (often very wealthy entrepreneurs) to a master fund that subsequently buys and manages shares.
Sarasin’s internal documents show that GSFS Asset Management is able to negotiate a management fee of 2 percent, with a minimim of 840.000 euro
According to internal documents, Sarasin started its collaboration with the GSA Feeder Fund on January 7, 2011. Its total investment: 11.3 million Swiss francs. The party that set up the fund is Frank Vogel’s GSFS Asset Management. A former top banker from Sarasin confirmed this in an interview with German investigative officers in the summer of 2017, and said that Vogel played a crucial role in setting up that fund. In the same interrogation, the suspected top banker also reported that he had understood from two former colleagues that the GSA Feeder Fund was using an American pension fund which was registered in Luxembourg. When FTM approached Vogel about this in the fall of 2018, he told us by telephone that he felt ‘no need at all’ to answer questions from FTM.
Sarasin’s internal documents show that GSFS Asset Management is able to negotiate a management fee of 2 percent for the management of the GSA Feeder Fund, for a minimum amount of 840,000 euro. In addition, GSFS will bring in another 40 percent of preference shares and a ‘performance fee’.
Photo © Oscar Seykens
It is clear: Vogel is taken seriously in Switzerland and the CumEx trade is flourishing. The question is how long that will last. In the summer of 2011, thanks to an attentive employee, the German tax authorities discover that something remarkable is going on with a large refund request relating to dividend tax. The request is filed by an American pension fund that had very recently taken a position in shares of German companies for 6.4 billion euros.
After years of blindness, the German tax authorities discover that many more people are enriching themselves at the expense of German taxpayers
The German tax official finds out that the pension fund only has one beneficiary, and that it is a shell company located on the 20th floor of a skyscraper on Wall Street in New York. After extensive research, she concludes that the fund is actually used for a completely different activity: robbing the German treasury. The man behind the shell company is the American Gregory Summers. He becomes the first prime suspect in the criminal investigation that is launched shortly afterwards. After years of blindness and ignoring numerous signals, the German tax authorities find that many more people are enriching themselves at the expense of German taxpayers.
Battling De Nederlandsche Bank
Early 2012, DNB turns to GSFS Pension Fund. A fierce discussion ensues between the fund board and DNB after the latter sees in the 2010 financial report that GSFS has a loan of 18 million euros. Why should a tiny pension fund engage in such a huge loan? And how is it possible that the contributions made by the participants only make up a minuscule part of the assets that they invest with?
DNB finds out that Frank Vogel, the director of GSFS Asset Management, acts as asset manager of the pension fund, earning no less than 3.3 million euros in the period 2010-2012. The regulator is not amused: Vogel himself is the main beneficiary of the profits from the investments. This means that he is doing business through his pension fund, DNB concludes, and that is not permitted.
The credit line that the exchange trader has with Investec exceeds 11 billion euros in the financial year 2014
Vogel focuses on short-term, highly complex equity trading in which multiple parties work closely together. Trade that he describes as ‘Delta One’. As an asset manager, he conducts share transactions in volumes that exceed pension reserves by a factor 1000. He finances these shares with the sale of derivatives and with very large loans from the (originally) South African investment bank Investec. This is also evident from the annual accounts of MF Finance, the holding company of Frank Vogel, which FTM managed to obtain. The credit line that the exchange trader has with Investec exceeds 11 billion euros in the financial year 2014.
And Vogel does not buy the shares for the long term, as you would expect from a normal pension manager, ‘but only for receiving dividends and, in connection to that, reclaiming the dividend tax withheld by the distributing company as a pension fund’, such as the Amsterdam court concludes in its judgment of 18 June 2015. As a pension fund, GSFS Pension Fund is exempt from dividend tax, and it can reclaim substantial amounts of paid dividend tax from foreign tax authorities. This is also the greatest risk for the fund: it must retain that status.
Regulator DNB is amazed at the state of affairs. In its view, GSFS Pension Fund does not operate as a pension fund, but rather as a commercial company, which also deals with trade that the central bank considers to be ‘too complex and not integer’: dividend arbitrage. GSFS also assumes that it can reclaim tens of millions in dividend tax from foreign tax authorities. But, says DNB, what if the expected dividend is disappointing, or even not paid at all? These are risks ‘that can lead to more than the stake of the participants being lost, without adequate protection of the participants.’
Because the discussions are unsuccessful, DNB reports on 16 October 2012 that it intends to remove the fund from the register of pension funds. That actually happens on February 18, 2013. Now, GSFS Pension Fund no longer has a license and its activities are illegal from this date onward. With this, Vogel caused a unique event in the history of the Dutch central bank. ‘Deregistration as an enforcement measure is very rare; deregistration due to dividend arbitration has never occurred before,’ DNB tells FTM.
Vogel does not accept this and initiates interlocutory proceedings against the supervisor to reverse the removal of the permit. He succeeds in the first instance: on 30 May 2013, the Rotterdam court rules that DNB had wrongly removed the pension fund from the register.
Pension fund under attack
It is not Vogel’s only court victory against a regulator. Earlier, he delivered a legal blow to the financial watchdog, the Netherlands Authority for the Financial Markets (AFM). After a request for information from its German counterpart, the Bundesanstalt für Finanzdienstleistungsaufsicht (BaFin), the AFM corresponded about the Dutch stock exchange trader, who had applied for a license for his trading activities in Germany. Vogel wants to know what has been communicated about him and demands openness. The AFM refuses to do so, nd Vogel takes them to court. In August 2012, the Amsterdam court ruled in his favor.
Supervisor DNB appeals. In October 2013, during the appeal, GSFS Pension Fund receives an order from DNB to cut all ties with Vogel. The fund must also cease all secondary activities (dividend arbitrage) and investments may only be made up to a level corresponding to the pension contributions invested.
Three months later, Vogel is defeated in his legal proceedings against the tax authorities
In turn, Vogel announces, through his lawyer Jasper Hagers in Het Financieele Dagblad, to claim damages from DNB. Deregistering its license has caused the pension fund to cease operations, and Vogel demands 2 million euros in damages. ‘DNB can think whatever it want, but they do need a legal framework. They don't have that. DNB was wrong and we claim damages,’ his lawyer says in the FD.
Three months later, Vogel is defeated in his legal proceedings against the tax authorities. The Noord-Holland court rules: following the judgment of DNB, the court finds that Vogel with its GSFS Pension Fund is not actually a pension fund and is therefore subject to income tax.
In January 2015, the GSFS Pension Fund board no longer sees a future for itself, and terminates the agreement with all its employees. From that day on, the employees of GSFS Asset Management no longer pay pension contributions. The board wants to liquidate the fund. But it doesn't get that far. At the end of the month, the case takes a remarkable turn: the Amsterdam court rules that DNB should indeed have removed GSFS from the pension register. This judgment is upheld by the court and the Supreme Court in the years that follow.
GSFS Pension Fund received over 106 million dividends in total. The Belgian tax authorities want to charge 15 percent dividend tax on this
Shortly thereafter, in mid-February 2015, GSFS Pension Fund receives more bad news. The judgment of the court in Haarlem – in which the Dutch tax authorities were successful – has found its way to Belgium. In a letter, the Belgian tax administration writes that it plans to claim dividend tax on the Belgian dividends that the pension fund received in the period 2010-2012. That is a considerable amount, because in total GSFS received over 106 million dividends paid by Belgian companies during those three years. The Belgian tax authorities want to charge 15 percent dividend tax on this: almost 16 million euros. The Amsterdam fund does not have that much cash. At the end of 2015, the balance sheet total was 2.8 million euros, with a negative reserve of over 14 million. If the Belgians continue their procedure, the fund will be bankrupt.
And that’s not all. On the basis of two agreements, the pension fund can transfer part of the Belgian claim to the company for whose employees the fund was founded: GSFS Asset Management in Amsterdam, owned by Frank Vogel. The Belgian claim will also hit them hard: at the end of 2015, this asset manager has a balance sheet total of less than 4 million euros. And the Belgian claim becomes even more likely in June of that year, when the court in Amsterdam confirms the earlier decision of the Haarlem court.
Vogel is convinced that everything will be alright: ‘We are confidently looking forward to a positive outcome’
Not only the Dutch and Belgium tax authorities are targeting Vogel’s arbitration activities, the German, Swiss and Austrian tax authorities are after him as well, according to the 2015 annual report of Vogel’s MF Finance Holding. Transactions from the year 2011 are being questioned, and consequently, he is forced to make reservations for a total of 26 million euros. His trade is also under scrutiny in Italy. Vogel has already reserved three and a half tons for the Italian lawyers’ fees. He is convinced that everything will be alright, according to the annual report: ‘We are confidently looking forward to a positive outcome.’ And: ‘The management is convinced that the company is acting and has acted in accordance with all relevant tax and civil laws, tax treaties, official rulings and court decisions.’
But on January 27, 2017, DNB again attacks the GSFS Pension Fund. The fund is charged with a 10,000 euro penalty and the three fund directors are each fined 25,000 euros. GSFS Asset Management has to pay almost five million euros and ‘asset manager’ Frank Vogel 50,000 euros. The reason: ‘DNB has established that the Foundation GSFS Pension Fund, in conscious and close cooperation with GSFS Asset Management, has carried out large-scale dividend arbitration activities, whereby the purchase of shares was financed by means other than the premiums invested, and the amount of the invested capital exceeded the amount of the deposited pension contributions many times.’
An airplane full of friends
Although Vogel has fallen behind in his legal battles, he continues to earn serious money. In 2017, he recorded a profit of 24 million euros net with his dozens of companies. The profits mainly come from real estate. When the new Quote 500 list of the wealthiest people is published in November 2017, the dividend stripper, affectionately described as a ‘stock scamp’, is featured prominently. It is editor-in-chief Sander Schimmelpenninck himself who interviews him and tries to find the person behind the ex-banker, who is known to be ruthless.
Vogel has discovered, among other things, that ‘nowadays society requires you to act socially responsible. If you’re from the financial world, that's pretty new.’ For years, Vogel has been organizing an event for children with Down syndrome, the ‘Give Down A Future’ football tournament, to which well-known (former) professional footballers from his favorite club Ajax also contribute. And he invests in a breast cancer clinic. ‘The ultimate goal is that the diagnosis breast cancer in the future means not much more than hearing that you have caught a serious flu,’ says Vogel.
‘Taxation is a business asset for me. Not everyone is happy with that, but I refuse to feel bad about it’
When the interview moves to his commercial practices and he is asked whether he evades paying taxes, he replies, ‘I don’t avoid tax! We are creating a situation in which dividend tax is not part of the story.’ He sees himself as merely ‘a person who is putting in the work to pay as little tax as possible.’ And: ‘Taxation is a business asset for me. Not everyone is happy with that, but I refuse to feel bad about it.’
Schimmelpenninck also mentions Vogel’s battle with his pension fund GSFS against the central bank. He uses the pension fund as an extension of his main business activity: dividend arbitrage. Vogel: ‘De Nederlandsche Bank thinks that it should not be allowed, I do. Let me put it this way: although I've been proven wrong so far, I’m still bothered by it. So I am not yet prepared to acknowledge my defeat.’
Because of his fighting spirit, Vogel is able to limit his financial loss considerably. In proceedings for GSFS Management, his lawyer Jasper Hagers is able to reduce the fine of 5 million euros imposed by DNB to 37,500 euros. The fines themselves have nevertheless been rightly imposed, higher judges also decide. However, the fact that GSFS Asset Management does not have to transfer 5 million euros to the supervisor is a resounding victory for the Amsterdam asset manager.
In the summer of 2019, Vogel celebrates a milestone on Mykonos. With his family and a charter plane full of family and friends, he flies to the Greek island to celebrate his 50th birthday in a luxury resort and beach club. A band, dancers, a DJ with a saxophonist and a midget who serves as an animator and who is spraying champagne at the supreme moment, push the tightly organised birthday party to a climax. A camera man captured the event.
Led by his brother, his friends – mostly dressed in Roman gowns – sing to the tune of Barry Manilow’s 1970s hit Copacabana: ‘His name is Frank, he had a bank… the fine was in the offing, but they don’t know Frankie … They keep coming for more, he wins again and again…’
Claims from Belgium and Denmark
However, already years earlier, Vogel seems to have overplayed the winning hand that his friends and family ascribe to him. This is evident three months after the bacchanal on Mykonos. Following the Dutch Tax Authorities, the Belgian tax authorities rules that GSFS is not a pension fund at all and that it should pay taxes like any other company. The Belgian tax authority, against which Vogel has also taken up cause, has been successful in the court of first instance in East Flanders on 11 September. Vogels pension fund received an additional tax claim of 15.9 million eurosand a 50 percent fine on top of that amount, FTM recently revealed in collaboration with the Danish and Belgian business newspapers Børsen and De Tijd. In total: 24 million euros.
His suffering is not over yet. Vogel also loses a court case that he had filed against the Dutch state in connection with his lost battle against DNB. That was his last hope to save his pension fund. Just before Christmas, on December 24, 2019, GSFS Pension Fund is found to be at fault on appeal by the court in The Hague.
The three funds wrongly received a total of 70 million Danish kroner (approximately 9.4 million euros)
And then there is the Danish tax authorities who have an account to settle with Vogel. All in all, the Danish treasury was lifted for about 2 billion euros in the period August 2012-July 2015 and the Danes want their money back. They have filed hundreds of civil lawsuits against companies, pension funds and individuals involved in dividend stripping, including three pension funds, at least two of which have undeniable ties to Vogel. An investigation by the Danish business newspaper Børsen shows that the three funds wrongly received a total of 70 million Danish kroner (approximately 9.4 million euros).
The mastermind behind the unprecedented tax fraud, the largest in Danish history, is Sanjay Shah, who now lives in Dubai. The Brit – who once worked for the Dutch banks ING and Rabobank – directs a network of dozens of people, institutions and many pension funds involved in CumEx transactions. According to the Danish tax authorities, Vogel also belongs to Shah’s insiders club. This is evident from documents owned by business newspaper Børsen that FTM could peruse.
The Danes have travelled the ocean to pursue civil proceedings in several US states, to ensure that the money stolen from their treasury is returned. 140 complaints were filed against US-based parties involved in the CumEx fraud. Those separate complaints were bundled into one large case in October 2018 that is being handled by the Southern District Court in New York. Located in lower Manhattan, which also includes Wall Street, the court is the most influential district court in the United States. The indictment shows that Frank Vogel is seen as a ‘Shah-related individual’. Major business partners of Vogel – the clearing company ED&F Capital Management and the investment bank Investec – are also on the list.
A criminal case in Germany lies ahead. Vogel is suspected of CumEx fraud there, but his lawyer Hagers says that he has not been charged: ‘Client has never been approached by any public prosecution office.’ And: ‘You are familiar with client’s position: he has always acted correctly.’ FTM did not receive an answer as to whether Vogel has already hired a German lawyer.
Erwin de Waard 6Menno Talsma