Bradley Birkenfeld

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Bradley Charles Birkenfeld[1][2][3] (born February 26, 1965) is an American banker and whistleblower whose disclosures to the United States government led to a massive fraud investigation against the Swiss bank UBS and other banks that had enabled tax evasion by U.S. taxpayers.[4][5][6] In February 2009, as a result of the information he gave U.S. authorities, the U.S. Department of Justice (DOJ) announced it had reached a deferred prosecution agreement with UBS that resulted in a $780 million fine and the release of previously privileged information on American tax evaders.[7][8] As a result of the financial recoveries facilitated by his whistleblowing, Birkenfeld received a $104 million award from the IRS Whistleblower Office in September 2012.[9]

The record-breaking whistleblowing award came less than six weeks after Birkenfeld had been paroled from prison, where he had been incarcerated for abetting tax evasion by one of his clients.[10] Despite prosecutors recommending a lighter sentence due to his ongoing cooperation with federal authorities, in August 2009, Birkenfeld was sentenced to 40 months in prison and fined $30,000.[2] Many advocacy groups from around the world criticized Birkenfeld's prosecution and sentence on the grounds that it would discourage financial industry whistleblowers.[11] Birkenfeld was released from prison to a halfway house in New Hampshire on August 1, 2012 and was released and put on probation on November 29, 2012.[9]

The erosion of Switzerland's fabled bank secrecy that began when Switzerland amended its federal banking law in 2009 in the wake of the UBS scandal, a cycle that culminated when Switzerland officially signed the Convention on Mutual Administrative Assistance in Tax Matters on 15 October 2013, began with Birkenfeld's revelations.[12] Signing the convention, an international tax treaty with nearly 60 signatories that facilitates the exchange of tax data between countries, represents a rollback of Switzerland's status as a tax haven for offshore assets.

The Swiss media credit Birkenfeld's act with effecting a sea change in Swiss banking. After Birkenfeld's award, the Swiss newspaper Blick claimed, “Birkenfeld was a blessing for the Swiss financial industry,” in that his revelations helped accelerate the industry's transition away from its reliance on “dirty” money by dooming the bank secrecy laws that enabled tax evasion.[13]

Birkenfeld has compared the Swiss banking industry with gangsters. "In essence, bank secrecy is analogous to criminal racketeering — and the Swiss government, along with every Swiss private banker, is a co-conspirator."[14]

Birkenfeld’s key role in as a financial industry whistleblower was recognized by Tax Analysts, a nonprofit organization that provides news and analysis to financial officers and tax accountants, when it declared him its 2009 Person of the Year. Calling him “the Benedict Arnold of the private banking industry”, Tax Analysts said that he “single-handedly” brought about serious changes to the global tax system through his revelations about tax evasion that caused governments to go after tax cheats.[15]

Early life and education[edit]

Birkenfeld was born on February 26, 1965, in Brookline, Massachusetts, a suburb of Boston.[16][17][18] His father was a neurosurgeon. Birkenfeld attended Thayer Academy, a prep school, and graduated from Norwich University in Vermont in 1988.[19][16] Many of Birkenfeld's classmates at Norwich, which is the oldest military academy in the United States, typically went into the military upon graduation, but he decided on a career in finance.[20] He obtained a master's degree at the American Graduate School of Business in Switzerland.[16]

Banking career[edit]

Birkenfeld began his career in banking in the currency trading department of State Street Bank & Trust in Boston. Birkenfeld claims that he first blew the whistle on illegal activities while at State Street, approaching the FBI in 1994. The information did not lead to any indictments.[19] He says that he turned down an offer to join the FBI after the incident, but that claim has been disputed.[21]

In 1996, he was hired as a private banker at Credit Suisse, moving on to Barclay's Bank in 1998.[16] In October 2001, Birkenfeld began working at UBS in Geneva, Switzerland, again as a private banker offering wealth management services.[18] His principal job responsibility was to solicit wealthy Americans to move their assets to the bank, enabling them to hide their funds due to Switzerland's strict banking secrecy laws and thus avoid paying U.S. taxes. Although UBS was not permitted to give investment advice in the U.S., Birkenfeld and other similar employees lied about the purpose of their trips to the U.S. Birkenfeld advised American clients how to avoid IRS scrutiny, including placing cash and jewels in Swiss safe deposit boxes.

According to Birkenfeld, UBS sponsored events like art shows and yacht races in the United States to attract wealthy people as potential clients. The events gave its Switzerland-based bankers, who essentially behaved as salesmen offering the product of a Swiss tax haven, a chance to network with the rich in order to cement deals, which was illegal under U.S. banking laws.[22][23]

One of Birkenfeld's wealthiest clients was a California real estate developer, Igor Olenicoff, a billionaire whom he met while working at Barclays and who he brought along with him as client to UBS. In 2001, Olenicoff and Birkenfeld met in Geneva, the result of which was a transfer of $200 million to UBS accessible to Olenicoff via credit cards supplied to him by Birkenfeld.[18] Birkenfeld allegedly introduced Olenicoff to bankers who helped him create off-shore companies to hid his assets and evade taxes.[24]

Olenicoff subsequently pleaded guilty to tax evasion and paid a $52 million fine, but avoided a jail sentence. The DOJ would eventually prosecute Birkenfeld for his role in helping Olenicoff evade taxes.[25]

Whistleblowing and arrest[edit]

According to Birkenfeld, in 2005, he learned that UBS's dealings with American clients violated an agreement between the bank and the IRS.[18] He resigned from UBS on October 5, 2005 after reading an internal document prepared by UBS's legal department that delineated prohibited cross-border banking activities in the United States. The prohibitions were antithetical to the job description of wealth managers servicing American clients in the United States. Birkenfeld believes that the memorandum was prepared to give UBS legal cover should bank-sanctioned illegal activities be uncovered. The bank could then shift the blame to its employees.[26]

He subsequently complained to UBS compliance officers about the bank's "unfair and deceptive business practices". According to Birkenfeld, when he received no response, three months later he wrote to Peter Kurer, then General Counsel for UBS, about the illegal practices.[27][28] After leaving UBS, he became a partner at Union Charter Ltd., where he specialized in wealth management.[29]

In 2007, Birkenfeld decided to tell the DOJ what he knew about UBS's illegal practices. At the same time, he wanted to take advantage of a new federal whistleblower law, the Tax Relief and Health Care Act of 2006, that could pay him up to 30% of any tax revenue recouped by the IRS as a result of Birkenfeld's information. Birkenfeld also wanted immunity from prosecution for his part in UBS's transactions.[17] In April 2007, Birkenfeld's counsel sent the DOJ a summary of Birkenfeld's information and indicated his desire to become an IRS whistleblower. The DOJ responded that it was not part of the IRS's whistleblower program and that it would not grant Birkenfeld immunity.[17] Nonetheless, Birkenfeld met with the DOJ. When communications between Birkenfeld and the DOJ stalled, Birkenfeld contacted the Securities and Exchange Commission, the IRS, and the U.S. Senate.[17]

In April 2008, Birkenfeld's lawyers told the DOJ that he would assist the DOJ in return for immunity.[17][30] Birkenfeld was arrested in Boston on 7 May 2008 when he deplaned from Switzerland at Logan Airport and arraigned at the U.S. District Court, Southern District of Florida in Fort Lauderdale on May 13th.[31]

The prosecutor in the case, DOJ Tax Division Senior Litigation Counsel Kevin M. Downing, justified the prosecution of Birkenfeld by claiming he failed to be forthcoming about his clients, specifically, Igor Olenicoff. Downing said, "With regard to whistleblowers: those who seek to be treated as true whistleblowers need to know they must come in early and give complete and truthful disclosures.... Mr. Birkenfeld did not come in and give complete and truthful disclosures. Therefore, he is not entitled to whistleblower status."[30]

Birkenfeld resigned his position with Union Charter on 3 June 2008 after agreeing to plead guilty. On June 19th, Birkenfeld pleaded guilty to a single count of conspiracy to defraud the United States.[32] At his subsequent sentencing hearing, DOJ prosecutor Kevin M. Downing admitted that the U.S. could not have pieced together UBS's "massive fraud scheme" without Birkenfeld's assistance.[2][33]

Birkenfeld's sentencing and imprisonment[edit]

On 21 August 2009, although the prosecution recommended 30 months, Birkenfeld was sentenced by U.S. District Judge William Zloch[34] to 40 months in prison and a $30,000 fine.[2][35] Downing requested that the judge leave Birkenfeld free for 90 days so he could continue to cooperate with the DOJ, after which the prosecutors might request a reduction in sentence. Parties who sent letters to the court requesting leniency included U.S. Senator Carl Levin (D-MI), who conducted hearings into the UBS tax evasion scandal as head of the Senate Homeland Security Committee’s Permanent Subcomittee on Investigations,[36] and the IRS and the SEC.[35]

Lead prosecutor Kevin Downing had declared that Birkenfeld was not a whistleblower, yet, the IRS eventually did accord Birkenfeld whistleblower status. Birkenfeld and his attorneys contend that they asked the DOJ to formally subpoena him to testify, otherwise, his release of confidential client data would violate Switzerland’s 1934 Banking Law and would subject him to arrest on his return to Switzerland, where he made his home. The Swiss law enshrines bank secrecy and makes it a criminal offense to reveal information on clients. The DOJ refused to do so.[37]

While Downing claimed in court that Birkenfeld was not forthcoming about his relationship with his clients, specifically Olenicoff, he had, in fact, revealed information about Olenicoff to the IRS, the SEC and the Senate Homeland Security Committee’s Permanent Subcomittee on Investigations. On 9 October 2007, the Permanent Subcomittee, formally subpoenaed Birkenfeld,[38] proferring legal cover to be forthcoming about UBS’s illegal marketing practices, which he detailed for the committee, providing names and evidence. Even Downing admitted to the court that there would have been no case against UBS without the information Birkenfeld supplied to the U.S. government. What Birkenfeld and his attorneys claim was a misrepresentation of his cooperation with the government by Downing has served as the basis for legal action asking for a review and reduction of his sentence.[19]

Birkenfeld began serving his 40-month sentence at the Schuylkill County Federal Correctional Institution in Minersville, Pennsylvania on 8 January 2010.[30][39][40][16][41]

Birkenfeld did not appeal the conviction.[16] On 5 January 2010, Birkenfeld formally requested that U.S. Attorney General Eric Holder investigate alleged prosecutorial misconduct, claiming that DOJ officials had made misleading statements to the judge.[33][42] On 15 April 2010, his attorneys filed a Petition for Commutation of Sentence.[16][43] Birkenfeld was released from prison on 1 August 2012.[44]

Criticism of prosecution[edit]

Various advocacy organizations from around the world requested that Attorney General Eric Holder review Birkenfeld's case. A letter from the National Whistleblowers Center said that the "destructive impact of Mr. Birkenfeld’s sentencing will radically undermine the ability of law enforcement to detect, prosecute and prevent illegal off-shore banking practices".[45]

Stephen M. Kohn, one of Birkenfeld's lawyers, told reporters at a press conference held the day Birkenfeld entered prison that his imprisonment would hurt the government's efforts to catch tax evaders by discouraging potential banking industry whistleblowers.[46] Kohn contended, "...[I]t is sending a chilling effect on the willingness of other bankers to step forward and do the right thing."[47]

Since Birkenfeld blew the whistle on the UBS tax evasion scandal in 2007, the Swiss bank has been able to avoid prosecution in the United States due to deferred prosecution agreements with the DOJ. The fines subsequently levied in the tax evasion scandal, the 2008 auction rate securities market manipulation case, and the 2011 municipal bond derivatives market rigging case seemingly had little deterrent effect on the bank. U.S Representative Peter Welch (D-VT) told the New York Times in July 2012:

It’s depressing. The Justice Department has to decide: Is the day of consent decrees and settlements, where you pay a fine, one passed on to shareholders, are those days over? Are the days of jail time here?[48]

There have been a dearth of banking industry whistleblowers since Birkenfeld's arrest and incarceration. Former UBS banker Renzo Gadola, whose name was given to federal authorities by Birkenfeld, was arrested in 2010.[49] Gadola, who founded RG Investment Partners (Zurich) after leaving UBS, pleaded guilty to conspiracy to defraud the United States by enabling American citizens to evade taxes through the use of offshore companies. In November 2011, Gadola was sentenced to five months probation and fined $100. Unlike Birkenfeld, who had voluntarily come forward with information, Gadola did not cooperate with American proseuctors until he was incarcerated.[50]

UBS settlement[edit]

Based on an investigation that begun in March 2008, the DOJ found that UBS's internal probe into Birkenfeld's allegations "did not examine or follow up on available evidence of private banker communications with U.S. clients".[27] The DOJ developed a criminal case against UBS that threatened UBS's license to operate in the United States. UBS announced that it would cease providing cross-border private banking services to U.S.-domiciled clients through its non-U.S. regulated units as of July 2008.[51]

UBS agreed on February 18, 2009 to pay a fine of $780 million to the U.S. government and entered into a deferred prosecution agreement on charges of conspiring to defraud the United States by impeding the IRS' tax collection efforts. Of the $780 million that UBS paid the U.S. government, $380 million represented disgorgement of profits from its cross-border business, while the balance represented U.S. taxes that UBS failed to withhold on the accounts.[52][53] The figures include interest, penalties and restitution for unpaid taxes.

As part of the deal, UBS also settled Securities and Exchange Commission charges of having acted as an unregistered broker/dealer and investment adviser for Americans.[54] Additionally, UBS paid $200 million for settlement with the U.S. Securities Exchange Commission (SEC) to avoid a trial on UBS' alleged conduct that the company facilitated the ability of certain U.S. clients to maintain undisclosed accounts in Switzerland and other foreign countries, which enabled those clients to avoid paying taxes related to the assets in those accounts.[55] In July 2009, to avoid additional fines, UBS agreed to provide the names of 4,500 Americans who had offshore accounts with UBS.[56]

IRS award[edit]

In 2010, IRS Commissioner Douglas Shulman estimated that UBS's tax evasion schemes had generated profits of up to $200 million annually on $20 billion held by approximately 20,000 American taxpayers in undeclared, secret bank accounts.[57] The Birkenfeld revelations lead to the IRS offering amnesty programs for Americans hiding their assets in offshore accounts.[58][59]

In September 2012, the IRS Whistleblower Office awarded Birkenfeld $104 million as a whistleblower.[1][2][60][61] The award was the largest whistleblower payout in history, to either an individual or a group.[62][63] Birkenfeld received the award under the IRS whistleblower program, which gives informants a percentage of money the U.S. government recovers after fraud is found.[64] The award was calculated on $400 million in taxes recovered from UBS, and represents a 26% bounty.[9]

The IRS explained its decision by citing Birkenfeld’s “exceptional cooperation” and the “breadth and depth” of the information he provided, all of which led to “unprecedented actions” against UBS.[65] The IRS used the information to negotiate a $780 million settlement with UBS in 2009. Under that deal, UBS admitted to helping U.S. clients cheat on their taxes. The bank later turned over the names of nearly 5,000 U.S. clients suspected of tax evasion.[66] IRS amnesty programs have since collected $5 billion from people who participated in UBS’s illegal scheme based on the information provided by Birkenfeld.[65]

Olenicoff Lawsuit[edit]

In 2008, UBS, Birkenfeld, Union Charter, and its owner David Schwedel were named defendants in a $500 million lawsuit by Igor Olenicoff for the counseling that led to his tax fraud.[67] The suit was dismissed in April 2012. Birkenfeld has since filed a federal lawsuit against Olenicoff to recover his costs of defending the lawsuit.[68]

Legal Malpractice Lawsuit[edit]

In November 2012, Birkenfeld sued the law firm of Schertler & Onorato and the attorneys David Dickieson, Danny Onorato, David Schertler, and Peter Taylor for failing to obtain whistleblower protection for him from the federal government. In his lawsuit, Birkenfeld alleged that Schertler Onorato and its attorneys “falsely represented themselves to [him] as experienced in and knowledgeable about federal whistleblowing laws and procedures” though they actually had “very limited experience in the area.” Complaint at ¶ 14, Birkenfeld v. Schertler & Onorato, LLP, Civil Action No. 0008397-12 (D.C. Super. Ct. Oct. 31, 2012).[69] Birkenfeld also claimed that the attorneys with Schertler Onorato violated his constitutional rights when, in a meeting with federal prosecutors, they failed to rebut the prosecutors' demand that Birkenfeld could not meet with officials from the IRS and the United States Senate.[70]

Schertler Onorato retaliated by suing for 12.5% of all monies awarded to Birkenfeld by the IRS, as per their original retainer agreement of October 23, 2007. That agreement capped fees at $80,000. A second retainer agreement was signed on May 9, 2008 and called for an additional fee of $50,000. The law firm representing Birkenfeld in the fee dispute, Kohn, Kohn & Colapinto, claimed that the second retainer agreement superseded the first and abrogated the original.[70] Kohn, Kohn & Colapinto had taken over Birkenfeld's case after Birkenfeld dismissed Schertler & Onorato and were the attorneys of record when he won his IRS award.[71]

Birkenfeld also filed with the District of Columbia Attorney-Client Arbitration Board to settle the fee dispute. On October 31, 2013, the two sides settled their lawsuit for an undisclosed amount and Birkenfeld withdrew his claim for arbitration.[70]

DUI arrest[edit]

Birkenfeld was arrested on July 20, 2013 for driving while intoxicated. His trial was set for November 12, 2013[72] but then postponed until February 2014.[73]

References[edit]

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