KPMG tax shelter fraud
The KPMG tax shelter fraud scandal involves allegedly illegal U.S. tax shelters by
KPMGthat were exposed beginning in 2003. In early 2005, the United States member firm of KPMG International, KPMG LLP, was accused by the United States Department of Justiceof fraud in marketing abusive tax shelters.
Deferred Prosecution Agreement
Under an agreement, KPMG LLP admitted criminal wrongdoing in creating fraudulent tax shelters to help wealthy clients dodge $2.5 billion in taxes and agreed to pay $456 million in penalties. KPMG LLP will not face criminal prosecution as long as it complies with the terms of its agreement with the government. On January 3, 2007, the criminal conspiracy charges against KPMG were dropped. [http://www.washingtonpost.com/wp-dyn/content/article/2007/01/03/AR2007010301883.html] However, Federal Attorney
Michael J. Garciastated that the charges could be reinstated if KPMG does not continue to submit to continued monitorship through September 2008. [http://www.iht.com/articles/ap/2007/01/03/business/NA_FIN_US_KPMG_Tax_Shelters.php]
whistleblower Michael Hamersleytestified before the U.S. Senate Finance Committee and assisted the investigations of U.S. Senate Homeland Security Governmental Affairs Committee's Permanent Subcommittee on Investigations. The subcommittee's report (S. Rept. 109-54) detailed the misconduct.
On 29 August 2005, nine individuals, including six former KPMG partners and the former deputy chairman of the firm, were criminally indicted in relation to the multi-billion dollar criminal tax fraud conspiracy. The nine individuals named in the indictment were:
* Jeffrey Stein, former Deputy Chairman of KPMG, former Vice Chairman of Tax Services, and former KPMG tax partner, a lawyer with a Master’s in tax law.
* John Lanning, former Vice Chairman of Tax Services, and former KPMG tax partner, a CPA (Certified Public Accountant).
* Richard Smith, former Vice Chairman of KPMG in charge of Tax, a former leader of KPMG’s Washington National Tax, and former KPMG tax partner, a lawyer.
* Jeffrey Eischeid, former head of KPMG’s Innovative Strategies Group, former Partner-In-Charge of KPMG’s Personal Financial Planning Group, and former KPMG tax partner, a CPA.
* Philip Wiesner, former Partner-In-Charge of KPMG’s Washington National Tax and former KPMG tax partner, a lawyer with a Master’s in tax law and a CPA.
* John Larson, a lawyer, CPA and former KPMG Senior Tax Manager who left KPMG to form a series of entities with defendant Robert Pfaff, which entities participated in certain tax shelter transactions as the purported investment advisor.
* Robert Pfaff, a lawyer, CPA and former KPMG tax partner, who left KPMG to form a series of entities with defendant John Larson.
* Raymond J. Ruble, also known as R.J. Ruble, a lawyer and former tax partner in the New York, New York, office of
Sidley Austin, a prominent national law firm.
* Mark Watson, former Partner-in-Charge of the Personal Financial Planning division in KPMG’S Washington National Tax, and former KPMG tax partner, a CPA.
On 17 October 2005, another ten individuals were indicted on criminal conspiracy and tax evasion charges:
* Richard Rosenthal, former Chief Financial Officer of KPMG, former Vice Chairman-Tax Operations, and former KPMG tax partner, a CPA.
* Larry Delap, former Partner-in-Charge of KPMG’s Department of Professional Practice-Tax, and former KPMG tax partner, a CPA.
* David Amir Makov, who joined defendants Larson and Pfaff in forming entities which participated in certain tax shelter transactions as the purported investment advisor.
* Greg Ritchie, former head of KPMG’s CaTs group, and a KPMG tax partner, a CPA. After leaving KPMG, Ritchie has been serving as the CFO of a business in Beverly Hills, CA.
* Randy Bickham, former KPMG tax partner, a CPA.
* Carol Warley, former KPMG tax partner, a CPA. After leaving KPMG, Carol has been working independently out of the offices of the local Houston firm Gainer, Donnelly, & Desroches.
* David Rivkin, former KPMG tax partner, a CPA.
* Carl Hasting, former KPMG tax partner, a CPA.
* David Greenberg, former KPMG tax partner, a CPA.
Trial in Progress
In August of 2005, former official of the German bank Bayerische Hypo-Und Vereinsbank AG (HVB) Domenick DeGiorgio, who worked with KPMG to sell the shelters, pleaded guilty to tax evasion and fraud charges. [http://www.washingtonpost.com/wp-dyn/content/article/2005/08/22/AR2005082201484.html] On 15 February 2006, HVB admitted to criminal wrongdoing for its participation in the KPMG tax shelter fraud. The prosecution against the company was deferred by agreement with the U.S. Attorney. Under its deferred prosecution agreement, the company will pay $29.6 million in fines, restitution and penalties.
On 10 March 2006, U.S. District Judge
Lewis A. Kaplanreleased former KPMG accounting executive David Greenberg on $25 million bail. [http://www.iht.com/articles/2006/03/09/business/kpmg.php] Kaplan's ruling reversed his previous denial of bail to Greenberg. [http://www.accountancy.com.pk/newsprac.asp?newsid=620] Judge Kaplan ordered Greenberg to live in Manhattan under electronic monitoring until his trial for tax fraud begins, and warned his family that they would be financially ruined if Greenberg attempted to flee the country. Kaplan also said that Greenberg's finances were in such disarray that it was impossible to figure out where his assets were and how much he was worth. Called a flight risk by federal prosecutors, Greenberg was the only defendant to be arrested by authorities when the indictments were handed down in October of 2005.
On 28 March 2006, David Rivkin pleaded guilty to charges of conspiracy and tax evasion in U.S. District Court in Manhattan. [http://www.iht.com/articles/2006/03/28/business/kpmg.php] "I knew that the losses should not have been claimed on the tax forms," Rivkin told Judge Kaplan. Rivkin admitted that he conspired with others between January 1999 and May 2004 to prepare and execute false documents so that clients could file false tax returns. He also admitted that he took steps to conceal the existence of fraudulent tax shelters from the Internal Revenue Service and avoided registering the shelters with the IRS by claiming attorney-client privileges. Rivkin signed an agreement to cooperate with prosecutors, who could then ask the judge to consider giving Rivkin a more lenient sentence rather than the years he might face in prison. Sentencing was set for Feb. 9, 2007.
On 27 June 2006, Judge Kaplan ruled that by threatening KPMG with indictment unless the firm reneged on its policy of paying the defense costs of partners who were indicted for work performed in the course of the firm's tax shelter business, the Department of Justice violated the constitutional rights of employees. In his opinion, Judge Kaplan agreed with the defendants' contention that KPMG was improperly pressured to pay their legal expenses, "because the government held the proverbial gun to its head."
In the meantime, related rulings occurred in a civil case that had been brought against the Internal Revenue Service in late 2004 by two Texas lawyers, Harold W. Nix and C. Cary Patterson. Nix and Patterson sued the IRS for refunds after the tax agency denied each of their claims for nearly $67 million in deductions stemming from their use of the BLIPS tax shelter in 2000. Their lawsuit was thought to be relevant to the KPMG tax shelter fraud case, because BLIPS is one of the tax shelters alleged to be abusive by the prosecution in that matter. On 20 July 2006, Judge
T. John Wardof United States District Court for the Eastern District of Texas ruled that the use of BLIPS by Nix and Patterson was essentially legitimate, because the I.R.S.’s application of tougher Treasury Department rules in 2003 to liabilities that occurred in BLIPS was "ineffective" and "not enforceable" because it was retroactive. The Internal Revenue Code generally prohibits retroactive regulations. In response to this ruling, prosecutors in the KPMG case have indicated that they will argue that the BLIPS shelter itself was technically valid, but that the way the defendants carried it out was fraudulent. In turn, lawyers for the defendants argue that no court of law has ever ruled that the tax shelters in question were illegal. And in February 2007, Judge Ward essentially reversed himself and ruled the tax shelter consisted of fake bank loans and therefore illegitimate, despite his previous ruling identified in the link above.
On 8 February 2007,
Deutsche Bankreached a settlement with hundreds of investors to whom it sold aggressive U.S. tax shelters similar to those attacked by prosecution in the KPMG tax fraud case. [http://www.iht.com/articles/2007/02/08/business/tax.php] This settlement came a year after US DOJ prosecutors in Manhattan announced their investigation of Deutsche Bank's role in questionable tax shelters. [http://www.iht.com/articles/2006/02/15/business/tax.php]
On 23 May 2007, the Second Circuit dismissed a complaint against accounting firm KPMG to recover fees and expenses arising from criminal tax fraud charges involving former KPMG partners and employees. The court held that the district court, which presides over the criminal case, erred in extending "ancillary" jurisdiction to the civil dispute between the defendants and non-party KPMG. Treating KPMG's appeal as a petition for writ of mandamus, the court issued the writ, vacated the district court's orders, and dismissed the civil complaint. [http://www.ca2.uscourts.gov:8080/isysnative/RDpcT3BpbnNcT1BOXDA2LTQzNTgtY3Zfb3BuLnBkZg=/06-4358-cv_opn.pdf#xml=http://10.213.23.111:8080/isysquery/irl30c2/2/hilite "Stein v. KPMG, LLP", No. 06-4358 (2d Cir. May 23, 2007)] .
On 17 July 2007, Judge Kaplan dismissed charges against 13 former KPMG employees, ruling that he had no alternative because the government had strong-armed KPMG into not paying the legal fees of defendants and had violated their rights. [http://www.nytimes.com/2007/07/17/business/17kpmg.html?ei=5088&en=090bf767b7bcf7ec&ex=1342324800&partner=rssnyt&pagewanted=print] "This indictment charges serious crimes. They should have been decided on the merits as to every defendant," Kaplan wrote. "But there are limits on the permissible actions of even the best prosecutors." Barring KPMG from paying its former employees' legal bills "foreclosed these defendants from presenting the defenses they wished to present, and, in some cases, even deprived them of the counsel of their choice. This is intolerable in a society that holds itself out to the world as a paragon of justice," Kaplan wrote in his ruling. Kaplan's decision did not affect the prosecution of R.J. Ruble, a former law partner at
Sidley AustinLLP, and three former KPMG partners, including David Greenberg, who worked in the firm's Orange County office and released KPMG from any obligation to him when he left its employ. John Larson and Robert Pfaff, the other two former partners still facing charges, left KPMG eight years before the criminal action was filed and did not initially seek to have the accounting firm pay their legal bills.
On 20 August 2007, the prosecutors announced that one of the aiders and abetters of tax fraud, David Amir Makov, agreed to plead guilty and cooperate with prosecution of his former colleagues. [http://www.nytimes.com/2007/08/20/business/20tax.html?ex=1345348800&en=8685cbeba4e14ad3&ei=5124&partner=permalink&exprod=permalink] In the preceding week, the federal court in Manhattan received $150,000 from Mr. Makov as part of a bail modification agreement that allows him to travel to Israel. Because Makov never worked for KPMG, he was unaffected by Judge Kaplan’s dismissal of charges against 13 of his codefendants.
On 10 September 2007, Makov entered a guilty plea to one information count of conspiracy. He agreed to pay a $10 million penalty and provided new details on those involved. Makov gave a brief explanation on the workings of BLIPS, or Bond Linked Issue Premium Structure, which he said he helped create. In previous hearings, Judge Kaplan had chastised prosecutors for failing to explain clearly how BLIPS worked. According to Makov's testimony, the BLIPS shelters were created to generate artificial losses that were then used by wealthy investors to offset gains in legitimate income. The shelter involved a purported investment component as well as banks, extending purported loans to investors. According to prosecutors, BLIPS were marketed and sold around 1999 and 2000 to at least 186 wealthy investors and generated at least $5.1 billion in phony tax losses. The Presidio entities that Makov formed, owned, and operated with co-defendants Robert Pfaff and John Larson, both former KPMG employees, made at least $134 million selling BLIPS. The IRS regards a tax shelter as abusive if it has no legitimate business purpose or genuine economic substance, in contrast to real loans, with money at risk, or real investments. According to Makov, although BLIPS were created on paper to look like seven-year investments, they involved neither real loans nor real investment components. "There was no economic substance," Makov testified. "Instead, we created the appearance of economic substance, rather than the reality." Makov claimed that although he initially thought that BLIPS were legitimate, "as part of the deception" he was eventually "asked by representatives of Bank A," among others, "to come up with an investment rationale." He added that he was "clearly told by Bank A, KPMG" and others "that the loan was not at risk." According to "The New York Times", people close to the case have identified “Bank A” as
Deutsche Bank AG. The bank has not been charged, but is expected to reach a settlement with the government. A graduate of the Harvard Business Schooland a one-time employee of Long-Term Capital Management, prior to founding Presidio around 1999, Makov worked at Deutsche Morgan Grenfell, an investment banking arm of Deutsche Bank AG. Makov was originally charged with dozens of counts of fraud, tax evasion and conspiracy, with each count carrying five years in jail. Prosecutors are expected to drop all of the other charges if he cooperates throughout the trial.
Jury selection for the KPMG tax shelter fraud trial began on 9 October 2007. However, on 18 October 2007, Judge Kaplan postponed indefinitely the trial set to begin in five days, discharging jurors he had already selected to hear the case, and removing Steven Bauer of
Latham & Watkins, a lawyer for former KPMG executive John Larson. The government had previously asked the judge to decide whether Bauer should be removed because he worked as a lawyer for Makov and may have a conflict of interest. Larson had declined to waive his right to have an attorney free of conflicting interests. Kaplan ruled to disqualify Bauer as trial counsel for Larson, and pledged to address the issue of whether Latham & Watkins should also be disqualified if Larson seeks to be represented by another lawyer at that firm.
On 28 August 2008, the U.S. Court of Appeals for the Second Circuit upheld the dismissal of criminal charges against 13 former executives at KPMG, saying that prosecutors "unjustifiably interfered with defendants' relationship with counsel and their ability to mount a defense" by pressuring KPMG to refrain from paying their legal fees. Separately on the same day, Deputy U.S. Attorney General Mark Filip announced new prosecution rules aimed at not penalizing companies as noncooperative for protecting attorney-client material or paying for their employees' attorneys in probes. "No corporation is obligated to cooperate or to seek cooperation credit by disclosing information to the government," Filip said at a press conference at the New York Stock Exchange. "Refusal by a corporation to cooperate, just like refusal by an individual to cooperate, is not evidence of guilt."
Some of KPMG's tax shelter clients are now suing KPMG for the liability exposure.
* [http://finance.senate.gov/hearings/testimony/2003test/102103mhtest.pdf Written testimony of Michael Hamersley before US Senate Finance Committee]
* [http://www.pbs.org/wgbh/pages/frontline/shows/tax/interviews/release.html PBS: KPMG response to Hamersley Testimony]
* [http://www.nytimes.com/2003/10/22/business/22TAX.html?ex=1382155200&en=6d74160d4d63b47a&ei=5007&partner=USERLAND "The New York Times": Wide Range of Tax Shelters Draws Senate Inquiry, 22 October 2003]
* [http://www.nytimes.com/2006/06/28/business/28kpmg.html?ei=5090&en=356d51abe376782c&ex=1309147200&adxnnl=1&partner=rssuserland "The New York Times": U.S. Tactic on KPMG Questioned, 28 June 2006]
* [http://www.forbes.com/business/businesstech/feeds/ap/2006/03/27/ap2625138.html "Forbes": Former KPMG Tax Partner Pleads Guilty, 27 March 2006]
* [http://www.nytimes.com/2006/07/21/business/21shelter.html?ex=1311134400&en=48a1650cb1505ebf&ei=5090&partner=rssuserland&emc=rss "The New York Times": Judge Rules a Tax Shelter in KPMG Case Is Legitimate, 21 July 2006]
* [http://www.lexisone.com/news/nlibrary/n020207f.html "The New York Times": Court Rejects Tax Shelter Once Sold By KPMG, 2 February 2007]
* [http://blogs.wsj.com/law/2006/07/21/big-time-tobacco-lawyers-beat-irs-in-tax-shelter-ruling/ "The Wall Street Journal": Big Time Tobacco Lawyers Beat IRS in Tax Shelter Ruling, 21 July 2006]
* [http://www.businessweek.com/bwdaily/dnflash/sep2005/nf2005091_2144_db016.htm "Business Week": Inside the KPMG Mess, 1 September 2005]
* [http://www.webcpa.com/article.cfm?articleid=19204 "WebCPA.com": KPMG Exec Free on $25M Bail, 10 March 2006]
* [http://www.nytimes.com/2007/09/11/business/11kpmg.html "The New York Times": Guilty Plea Seen Aiding Tax Shelter Prosecution, 11 September 2007]
* [http://online.wsj.com/article/SB119214974631356803.html?mod=googlenews_wsj "The Wall Street Journal": KPMG Trial, Pared in Scope, Nears After Stormy Prologue, 12 October 2007]
* [http://www.washingtonpost.com/wp-dyn/content/article/2007/10/18/AR2007101802428.html "The Washington Post": Judge Delays KPMG Trial, Removes Lawyer, 19 October 2007]
* [http://www.forbes.com/topstories/feeds/reuters/2008/08/28/2008-08-28T183109Z_01_N28309998_RTRIDST_0_KPMG-RULING-UPDATE-2-CASE.html "Forbes": U.S. court upholds dismissal of charges in KPMG case, 28 August 2008]
U.S. Senate Permanent Subcommittee on Investigations Tax Shelter Hearing
* [http://hsgac.senate.gov/index.cfm?Fuseaction=Hearings.Detail&HearingID=132 Hearing Day 1]
* [http://hsgac.senate.gov/index.cfm?Fuseaction=Hearings.Detail&HearingID=133 Hearing Day 2]
* [http://www.quatloos.com/TAXSHELTERREPORTFINAL.pdf PSI Minority Report, November 2003]
* [http://frwebgate.access.gpo.gov/cgi-bin/useftp.cgi?IPaddress=126.96.36.199&filename=sr054.pdf&directory=/diskb/wais/data/109_cong_reports PSI Full Report 109-54, April 2005]
* [http://hsgac.senate.gov/index.cfm?Fuseaction=PressReleases.View&PressRelease_id=825&Affiliation=C Tax Shelter Legislation]
US Department of Justice Information on KPMG Partner Tax Shelter Indictments and KPMG Deferred Prosecution
* [http://www.usdoj.gov/usao/nys/pressreleases/August05/kpmgindividualsind.pdf August 2005 DOJ Court Filings: Tax Shelter Fraud Indictment - Stein et al]
* [http://www.usdoj.gov/usao/nys/pressreleases/August05/kpmgdpagmt.pdf August 2005 DOJ Court Filings: KPMG - Deferred Prosecution Agreement]
* [http://www.usdoj.gov/usao/nys/pressreleases/August05/kpmginformation.pdf August 2005 DOJ Court Filings: KPMG - Charging Document]
* [http://www.usdoj.gov/usao/nys/pressreleases/August05/kpmgstatementoffacts.pdf August 2005 DOJ Court Filings: KPMG - Statement of Facts]
* [http://www.usdoj.gov/usao/nys/pressreleases/August05/kpmgproposedorder.pdf August 2005 DOJ Court Filings: KPMG -Proposed Order]
* [http://www.usdoj.gov/opa/pr/2005/August/05_ag_433.html DOJ Press Release: KPMG to Pay $456 Million for Criminal Violations in Relation to Largest-Ever Tax Shelter Fraud Case, 29 August 2005]
* [http://www.usdoj.gov/opa/pr/2005/October/05_tax_547.html DOJ Press Release: Superseding Indictment of 19 Individuals, 17 October 2005]
* [http://www.usdoj.gov/usao/nys/pressreleases/August05/degiorgiopleapr.pdf DOJ Press Release: David DeGiorgio plea, 11 August 2005]
* [http://www.usdoj.gov/usao/nys/pressreleases/February06/hvbdeferredprosecutionagreementpr.pdf DOJ Press Release: HVB Deferred Prosecution Agreement, 6 February 2006]
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