Morgan Stanley charged in €124M dividend tax evasion scheme; ABN Amro admits complicity
Prosecutors in the Netherlands will file charges against Morgan Stanley and one of its employees on suspicion of an illegal dividend tax scheme that saw the foreign bank's subsidiary evade 124 million euro in taxes over several years. Though the Public Prosecution Service (OM) did not identify the American bank, it was revealed by Follow The Money after a review of Morgan Stanley’s investor statements. ABN Amro has settled its role in the case with Dutch prosecutors, agreeing to a 14 million euro fine for its involvement.
Although Morgan Stanley said in its reporting that it paid the 124 million euros plus interest as part of a settlement with the Dutch tax office, the criminal case was not resolved. An investigation by financial crimes inspectorate FIOD led to the suspicion that the subsidiary offset its dividend tax in violation of the law, “and is therefore suspected of tax evasion.”
The alleged criminality started in 2009 and continued into 2013, the Public Prosecution Service (OM) said. The scheme involved a practice where the foreign bank's Dutch subsidiary would temporarily acquire Dutch-listed shares just before dividend payouts.
While a Dutch company can typically offset dividend tax if it is the ultimate beneficial owner, the OM found that these shares were almost immediately returned abroad after the payout, along with the dividends. These filings allowed the subsidiary to unlawfully offset tens of millions of euros in dividend tax, despite not being the "ultimate beneficial owner" as defined by Dutch law.
The Public Prosecution Service also holds the European parent company and an employee involved at the time responsible for this,” the OM said. A preliminary court hearing is expected to take place around the end of this year.
ABN Amro was found to be an accomplice in the intentional filing of incorrect tax returns the Morgan Stanley subsidiary during that time, also due to the participation of Fortis. Authorities did close the criminal investigation regarding ABN Amro as part of the deal.
The Dutch State still owns a third of the bank’s shares, which was nationalized during the 2008 financial crisis. Fortis was also folded into the State-owned bank.
“The Public Prosecution Service believes these returns were deliberately filed incorrectly. The offset amount of dividend tax is related to a total of 825 million euros in dividends that were paid out on Dutch listed shares,” the OM wrote.
The quick turnaround demonstrated that the Dutch subsidiary was not actually the ultimate beneficial owner, and the company acted wrongly in reclaiming the dividend tax, the OM said. Although ABN Amro was not directly involved in filing the incorrect tax returns, the OM determined that periodic share and derivatives transactions with ABN Amro and its legal predecessors formed part of the foreign bank's transaction structure.
The 14 million euro penalty, issued as an out-of-court settlement, brings this criminal investigation for ABN Amro to a close. In determining the fine, the OM considered factors such as the gross proceeds from ABN Amro's transactions, the bank's cooperation with the investigation, and the fact that the events in question date back several years.
The Dutch State privatized ABN Amro and listed the bank on Euronext Amsterdam in 2015. It has been in the process of reducing its ownership stake in the bank for the last few years.
