What did Peter Tschentscher know about the Cum

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Request for information on the status quo:

Today's Mayor of Hamburg and then Finance Senator

Peter Tschentscher (55, SPD)

Photo: Christian Charisius / dpa

On November 9, 2016, the banker

Christian Olearius

(78) wrote a letter.

The multimillionaire and co-owner of the fine Hamburg private bank MM Warburg has a problem.

He fears that the tax office could reclaim 47 million euros in taxes that his bank is said to have stolen from illegal cum-ex deals.

“Dear Senator,” Olearius begins his letter.

The recipient sits just a few hundred meters from the bank on Gänsemarkt on the other side of the Inner Alster.

The finance authority there corresponds to the finance ministry in other federal states, the finance senator and thus the highest employer of the tax offices is at that time

Peter Tschentscher

(55, SPD), now mayor of the Free and Hanseatic City of Hamburg.

Because of the importance of the process, Olearius wrote to Tschentscher, he took the liberty of sending a copy of a letter that he had recently sent to the tax officer who was responsible for his bank.

In this letter, Olearius argues on seven pages that his bank always obeyed the law.

And that the tax office should consider that a multi-million dollar repayment could endanger the existence of the bank.

Olearius ended his letter to the senator and thus to the tax official's employer with the sentence that an early decision would be in the interests of the bank.

In his letter to Tschentscher, the banker prominently mentions the woman who frightens Olearius so much: Ms. P., the tax officer responsible for the Warburg Bank.

She had written a 28-page report five weeks earlier.

In it, she argues in a resolute manner why the city of Hamburg should reclaim the millions from Warburg so that they do not expire at the end of the year.

She had sent this report to the tax department in Tschentscher's tax office;

ask for consent.

The bank knows about the report and that it now depends on the authority headed by Senator Tschentscher.

And she defends herself.

She has already

handed over

her letter of defense to the then mayor

Olaf Scholz

(62), then sent it to the tax officer.

The letter has now reached the responsible Senator for Finance.

Official system of irresponsibility

Peter Tschentscher writes in the upper right corner of Olearius' letter "Request for information on the state of affairs", behind which he puts his paraphrase.

On November 15, the letter arrives at the tax department reporting to him.

When Olearius' defense document is attached to the files, it is provided with further markings.

Among other things, a passage is underlined which deals with the alleged “threat to the existence” of the bank.

It is not clear whether Tschentscher also made these comments.

Tschentscher does not comment on the markings or other specific questions with reference to tax secrecy.

The current mayor, as the Senator for Finance, never took part in the processing of tax cases, explains the Senate Chancellery in general, but was informed about the administration's approach in significant cases.

Two days after the senator has passed it on, there is a meeting in the tax authorities, several people in charge of the tax administration are present, as well as the tax officer P. The group makes a decision that takes P's report ad absurdum: Hamburg waives the millions.

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Instance at the Gänsemarkt:

The tax authority in Hamburg corresponds to the finance ministry in other federal states

Photo: Axel Heimken / dpa

Why has the city of Hamburg waived these millions for alleged tax fraudsters?

The letter of November 9, 2016, as well as other notes and e-mails that reporters from manager magazin were able to see, could bring the riddle a few decisive steps closer to its solution.

So far, politicians and officials have denied that politics had any influence on the decision.

Peter Tschentscher defends himself particularly loudly.

When the weekly newspaper “Die Zeit” and the ARD magazine “Panorama” reported on the case for the first time in February 2020, Tschentscher was outraged and publicly complained about the reporting.

Since then, he has always said that the law has always been followed.

In principle, he was informed about important proceedings, but never had any influence on tax proceedings.

For a few weeks now, a parliamentary committee of inquiry in Hamburg has been dealing with these questions.

The letter dated November 9, 2016 is part of the tax administration's case files.

These were handed over to those involved in the process a few weeks ago as part of a cum-ex court procedure, and the parliamentary committee of inquiry is now also allowed to inspect them.

The documents raise questions about where political influence begins.

And where political responsibility is required.

And they show a bureaucratic apparatus that seems to be perfectly geared towards ensuring that in the end no one should be responsible for obvious wrong decisions.

The German authorities often did not cut a good figure in the largest tax robbery in German history.

For years they followed the cum-ex financial jugglers helplessly, who with this method of exchanging shares over the dividend date in a circle, stolen billions of euros in repayments of taxes that were never paid.

The method was: confusion over complexity.

Officials often lost track in the chaos of letters from the most expensive law firms in the republic.

That has changed in the meantime: there are few cum-ex stores that have been examined as closely as those of the Warburg Bank.

Checks and weighing are carried out for months

The work of the scouts begins in January 2016. At that time, investigators from the Cologne public prosecutor's office searched the premises of the Warburg Bank after they became aware of the bank's possibly illegal business.

The banking supervisory authority Bafin intervenes and instructs the auditors from KPMG to take a close look at the incriminated transactions.

The KPMG people quickly sound the alarm.

The Bafin orders an even more extensive examination by the auditing company Deloitte.

At the same time, the tax auditors at the responsible tax office are becoming skeptical.

After knowing the results of the KPMG report in spring 2016, they want to claim the millions back from the bank.

A few weeks ago, a Hamburg tax officer told the court in Bonn, where the second criminal case relating to the business of the Warburg Bank is currently underway.

The officer was an employee of P. When the two talked to representatives of the bank about the recovery, P. suddenly became cautious.

The bankers threatened with a possible bankruptcy.

The tax office will then be checked and weighed for months.

Then the responsible department manager Ms. P. and her supervisor make a decision.

On October 5th, Ms. P. sends her 28-page report to the tax authorities.

The tax office intends to reverse the tax payments to Warburg, she writes.

In other words: The tax office wants the millions back.

On the 28 pages, Ms. P. explains the legal situation in detail and argues prudently and carefully why Hamburg should get the money back.

There is a considerable suspicion with various indications, writes the officer.

In principle, the business was carried out like criminal cum-ex deals.

The bank had obtained help from advisors who had demonstrably known that a tax was reclaimed on cum-ex transactions that had not been paid beforehand.

The profits were shared with these advisors.

Due to the political debate on the subject, it should also have been clear to the bank that the business might be problematic.

The bank argues that it has always assumed that everything came with clean things.

But it can be assumed, writes P., that this is a protective claim.

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In the focus of the investigators:

The private bank MM Warburg not far from the Hamburg Inner Alster denies the allegations of the investigators

Photo: Axel Heimken / dpa

At the end, the officer mentions the alleged endangerment of the bank that it could not financially cope with the required repayment.

Among other things, because she was threatened with further tax claims.

Her conclusion: Despite some concerns, the risk of a possible process with an unclear outcome and the possible effects on the bank, she asks the tax authorities for approval of the repayment.

At the time, the main basis of the civil servant's argument is a ruling by the Hesse Finance Court on cum-ex deals that were very similar to those of Warburg, which was made just a few months earlier.

In their judgment, the judges strengthen a principle of tax law that lay people take for granted, but was lost in sight in the turmoil of the cum-ex fog: In case of doubt, the potential cum-ex sinners must prove that the taxes they would like to be paid out, have also been paid beforehand.

If they don't, they'll have to pay back the millions.

Ms. P. also argues that there are serious doubts that the taxes that the tax office has reimbursed to the bank have been paid.

If the bank cannot prove otherwise, it will have to repay.

The day after she sent her report to Tschentscher's tax authorities, Ms. P. received an email that the Deloitte auditors had sent to the public prosecutor's office a few weeks earlier.

In it, the experts explain what they have learned about the business in the meantime - and also express massive doubts that Warburg was entitled to have the taxes reimbursed.

A week later there is a first signal of approval from the tax authorities.

An employee of the department responsible for tax law and tax courts checked the arguments from a legal point of view.

Various details of the content of the case, notes the official, he could not judge.

But the basic procedure appears to be justifiable and the procedure is legally possible.

At this point in time, nothing seems to speak in favor of not reclaiming the money from the authorities' point of view.

A skilful defensive battle

Meanwhile, blood pressure rises in the bank - and Christian Olearius takes action.

The co-owner of the bank, which he

controls

together with

Max Warburg

(72), maintains close contacts with politics.

At the beginning of September 2016, the then mayor Olaf Scholz (SPD) had already granted him a meeting, they talked about his problem with the tax office, at least that's what the banker wrote in his diary, which reporters from manager magazin could see.

Scholz confirms the meeting, but says that he can no longer remember any details.

From this diary, which the investigators from NRW confiscated during searches, the banker's defensive struggle can be reconstructed.

A defensive fight that he may also start because of a tip from the tax officer, Ms. P.

He notes that she recommended that the bank seek political assistance.

And a few days later he added that Ms. P. had now told his employees that politics had to decide.

The banker asks to meet again with Scholz.

He instructs his advisors to prepare a paper with arguments.

On October 26, 2016, Olearius finally met the then mayor Scholz for the second time within a few weeks and, according to his notes, spoke to him about the cum-ex problem.

And hands him the seven-page letter of defense, which he will also send to the tax officer, Ms. P., the following day.

Scholz also confirms this meeting, but cannot remember anything more.

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Tense finance minister:

In September,

Olaf Scholz was

asked about his meeting with the bankers in the Bundestag

Photo: Maja Hitij / Getty Images

Two weeks later, Scholz calls Olearius.

Scholz is said to have told the banker to pass the paper on to the finance senator, i.e. to Peter Tschentscher.

Scholz confirms the phone call.

If this should have happened, he would have given the paper to the official channels.

In any case, Olearius sends the letter to Peter Tschentscher on the same day, November 9, 2016.

Olearius has now placed his letter from below and above in the hierarchy of financial management.

To this day, however, he denies having had any influence on politics or administration.

On November 17th, two days after the letter with Tschentscher's handwritten note was also known to the tax administration, the officials involved met at the tax authorities.

Ms. P. and her superiors are sitting across from six employees of the authority, including the lawyer who approved the 28-page memo and the head of the tax administration.

In this conversation, they were convinced not to demand the money back, said Ms. P.'s superior in Bonn in court.

Ms. P. herself explains there that a decision was made together.

At the end of the day, Ms. P. wrote a note on this conversation.

On two narrow pages, she revokes the 28-page argument that she wrote six weeks earlier.

Surprising U-turn

It's an amazing paper.

It sounds plausible at first glance, but anyone who dares to descend into the legal cloud forests of Cum-Ex will be amazed.

The parties involved agree not to reclaim the money, Ms. P. notes, for example, so far there have only been indications, no facts have been investigated.

The chances of success in a lawsuit are low.

Deloitte's results are only guesswork.

It's a surprising U-turn.

As Ms. P. herself noted in October, there were already judgments on this fundamental problem with cum-ex deals.

In fact, it is next to impossible to conclusively prove short selling to be the crucial illegal part of these deals.

It is usually only possible through a series of circumstantial evidence.

But that's enough to force proof that the taxes were actually paid.

The necessary evidence in the Warburg case had been known to the tax authorities since the KPMG report in 2016.

Ms. P. therefore deviates significantly from her original plan.

Another part of the paper is also surprising in light of the KPMG auditors' report.

Ms. P. writes in her memo that it was said that a reclaim would presumably lead to an immediate collapse of the Warburg group.

But was that really to be feared?

The Bafin commissioned KPMG to investigate this question: Can the bank cope with a repayment?

Result: Because the owners of the bank had already vouched for the bank with their private assets in the spring of 2016, they were financially equipped.

In other cases, the banking supervisory authority should also have taken action.

If a bank threatens to go bankrupt, the Bafin is obliged to intervene.

The result of this meeting: A bank had done a huge amount of business, according to its own statements possibly even threatening its existence, in which it was probably a matter of croaking up taxes, in the best case of very aggressively saving taxes.

Everyone involved knew that.

But despite numerous circumstantial evidence, the tax administration let the case become statute-barred because the authorities feared defeat in a possible court case.

And probably also because she was worried that MM Warburg could go bankrupt through her own gambling.

The decision was explicitly supported by the then Finance Senator and today's Mayor Peter Tschentscher.

Five days after the conversation, on November 22nd, 2016, an employee of the tax authorities sent the senator the new tax official's note.

Subject: "Warburg Bank - here: Your request for information on the state of affairs".

On the next day Tschentscher reads the paper and marks it with his paraphe.

He still has two questions about details.

A few weeks later, the millions expire.

For the investigators in the investigative committee of the Hamburg citizenship, the work is only now beginning.

The picture of the decisive weeks is still full of holes in many places.

The Hamburg Senate denied the committee files and internal communication on the case from the tax authorities and the Senate Chancellery.

Reason: tax secrecy.

The opposition is fighting back.

Did Tschentscher not only support the decision, but even influence it?

There are no direct instructions to the officials to decide in one direction.

But if the markings in the letter he forwarded were actually from him, they would be an indication of a desired result.

After all, it says “Existential threat” - and who wants that?