Billionaire tax felon says UBS lied in pledge to report to IRS
By David Voreacos
California billionaire Igor Olenicoff had already invested $200 million with UBS AG in 2001 when his Swiss bankers ushered him to an underground vault in Geneva.
Olenicoff, a real-estate developer with a taste for yachts and Russian art, saw floor upon floor of safe-deposit boxes. His private banker, Bradley Birkenfeld, showed Olenicoff his own space for valuables.
"They said, 'Whatever you want — corporate stock, cash, gold, silver — put it in here,' " says Olenicoff, 66, at the Newport Beach, Calif., headquarters of Olen Properties, the company he founded in 1973. "It was that aura of legitimacy and secrecy. They say, 'We're the world's largest wealth manager,' so how do you question?"
Birkenfeld, 44, had spent years wooing Olenicoff, visiting his homes in Laguna Beach, Calif., and Lighthouse Point, Fla.; cruising on his 147-foot yacht to Mayan ruins in Honduras; and flying on his Cessna Citation II jet.
Four years later, both men are admitted felons. The court cases open a door on the normally secretive world of dummy companies, offshore havens and phony financial filings that wealthy Americans often use to avoid paying U.S. taxes. President Obama has proposed to end such tax breaks for U.S.-based multinational corporations and individuals within a decade.
Sen. Carl Levin, D-Mich., estimates the cost in unpaid taxes is $100 billion a year.
With evidence from the Olenicoff case and cooperation from Birkenfeld, U.S. prosecutors have been able to penetrate the veil of financial invisibility that Switzerland guards as a national treasure.
To avoid prosecution, UBS, Switzerland's second-largest bank by stock-market value, behind Credit Suisse Group, agreed on Feb. 18 to pay the U.S. $780 million.
It renewed a pledge to stop unlicensed recruiting of customers in the U.S. and agreed to cooperate with investigators during 18 months of probation. The bank admitted in court that it had helped U.S. clients dodge taxes from 2000 to 2007.
The bank turned over information on more than 250 customers — an unprecedented breach of Switzerland's bulwark of secrecy. The Internal Revenue Service is suing UBS in federal court in Miami to get the names of 52,000 U.S. account holders who may have broken U.S. tax laws.
"It may be the biggest criminal tax investigation ever because of the dollars involved coupled with the vast number of criminal defendants, both at the UBS level and the American account-holder level," says Edward Robbins Jr., a Beverly Hills, Calif., tax lawyer who represented Olenicoff.
Seeking out the rich
Prosecutors say UBS earned $200 million a year managing $20 billion in assets for U.S. customers. Birkenfeld, a neurosurgeon's son who worked in Switzerland for three international banks, cooperated with prosecutors and U.S. Senate investigators in laying out a road map of how UBS courted clients like Olenicoff.
"This was a massive machine," Birkenfeld told Senate investigators on Oct. 11, 2007. He said as many as 60 UBS bankers crisscrossed the U.S. — without required licensing from the Securities and Exchange Commission — to find wealthy U.S. customers.
"You might go to car shows, wine tastings," Birkenfeld said. "You might deal with real-estate agents. You might deal with attorneys. It's really: Where do the rich people hang out? Go and talk to them."
UBS also sponsored art shows, yachting regattas and golf and tennis tournaments, Birkenfeld said.
He toted customer checks to deposit in European banks and bought diamonds for one client, smuggling them to the U.S. in a toothpaste tube, he said in pleading guilty to conspiracy in federal court in Fort Lauderdale, Fla., in June 2008.
By serving as couriers, the UBS bankers enabled clients to sidestep a U.S. surveillance system that reviews large cash transfers. That program is intended to prevent fraud, money laundering and the movement of funds by terrorists.
Such transactions often trigger the filing of a so-called suspicious activity report by the Treasury Department. Those alerts can prompt investigations into the money's source.
The bank had extensive schemes to avoid getting caught by U.S. regulators, Birkenfeld told Senate investigators. UBS bankers carried encrypted laptop computers, and the Swiss bank trained its staff to dodge detection by U.S. authorities.
The bankers falsely said on customs forms that they were traveling for pleasure, not business, and told clients to destroy offshore records that could be tied to UBS, Birkenfeld said in his guilty plea.
"Very few people would have imagined the level of complicity of the UBS bankers and executives," says Josh Ungerman, a tax lawyer at Meadows, Collier, Reed, Cousins & Blau in Dallas. "It's almost unbelievable that a major worldwide bank that was as well-respected would have employees engage in that type of behavior."
Blaming the bankers
Peter Kurer, before he resigned as UBS' chairman, apologized in a statement on Feb. 18 for the bank's wrongdoing.
"We accept full responsibility for these activities. Client confidentiality, to which UBS remains committed, was never designed to protect fraudulent acts," he said.
Olenicoff, who moved from the Soviet Union to Tehran as a boy and emigrated to the U.S. in 1957, has sued UBS, Birkenfeld and 37 other defendants.
His lawsuit claims they misled him about his tax liabilities, tarred his reputation and cheated him out of millions of dollars.
He's seeking $500 million in damages that he says he would give to charities through the Andrei Olenicoff Memorial Foundation, named after his son, who died at age 32 in a 2005 auto accident.
UBS says Olenicoff's complaint lacks merit. "We will defend ourselves vigorously," UBS spokesman Mark Arena says.
In a court filing, UBS denied its actions had subjected Olenicoff to tax penalties, interest or criminal investigations.
Olenicoff says he's not backing away from his December 2007 guilty plea to one count of filing a false tax return in 2002. Olenicoff also admitted in federal court that from 1998 to 2004 he failed to declare accounts in the Bahamas, England, Liechtenstein and Switzerland.
U.S. District Judge Cormac Carney sentenced Olenicoff on April 14, 2008, to two years probation and 120 hours of community service. He paid $52 million in back taxes, interest and penalties.
The judge asked Olenicoff why he had failed to fill in a box on his tax returns asking if he controlled foreign bank accounts. "It's not crystal clear to me why someone of Mr. Olenicoff's intelligence would answer a question that seems to be so easily proved to be false," the judge said. He praised Olenicoff's business success and charitable work for Eastern European orphans.
"You are an incredible man," the judge said. "When I find out that people of your stature and standing lie on your tax returns, it frustrates me, saddens me."
Olenicoff told Carney that bankers gave him bad advice.
"Should I have known that that income should have been reported here probably two years into it?" Olenicoff said. "Yes, your honor. I probably should have checked the box, but I didn't."
After a three-year criminal probe that included a search of his office and house by IRS agents in 2005, Olenicoff says he decided to plead guilty.
"I would have clearly gotten my ears boxed in by the Justice Department," he says.
Olenicoff has built an empire by buying land and building industrial and office parks and apartment buildings in four states. The son of a father who fled the Soviet Union in 1945, he became that distinctly American phenomenon — a self-made billionaire who is largely an unknown.
Brandon Birtcher, an Orange County land developer, says Olenicoff has kept a low profile as he has correctly timed economic cycles.
"He's had a very good instinct for selecting excellent locations for his projects," says Birtcher, CEO of Birtcher Development & Investments in Irvine, Calif. "He's appeared to develop them with style, architecturally. They've leased quickly and have endured the test of time."
Like many wealthy Americans and corporations, Olenicoff had used offshore accounts that allowed him to pay less in U.S. taxes. Moving money to such havens is legal as long as a taxpayer reports the accounts and income to the IRS.
Failing to report such information can result in criminal charges of filing a false tax return or tax evasion.
Olenicoff began banking offshore in 1980 on advice from Lloyds Bank California, then a subsidiary of the London-based bank now known as Lloyds Banking Group, which had extended $44.5 million to Olen in unsecured loans.
Olenicoff says he opened an account in the Cayman Islands and eventually moved tens of millions of dollars to the Bahamas, where he began banking with Barclays. He says he got a call out in 2000 from Birkenfeld at the Geneva office of London-based Barclays, where he worked before joining UBS.
Olenicoff says Birkenfeld set out to befriend him and asked to visit him in Newport Beach to discuss his Barclays holdings, which exceeded $90 million at the time.
Birkenfeld had worked at State Street Bank & Trust and Credit Suisse before joining Barclays.
"Your money in the Bahamas is in jeopardy," Olenicoff says Birkenfeld told him. Olenicoff says Birkenfeld said he had inside information that Barclays would sell its Bahamas business. Barclays did sell it six years later, according to the bank.
Birkenfeld advised Olenicoff to take his funds to another bank. Three months after that, Olenicoff says, Birkenfeld called again.
"Igor, it's time to move your money," Olenicoff says Birkenfeld said. "You ought to move it to UBS here in Geneva."
Olenicoff says Birkenfeld arranged for him to meet a UBS banker in Geneva.
Olenicoff says he moved $70 million from Barclays in the Bahamas to UBS in Switzerland. Birkenfeld then left Barclays and was hired at UBS and became Olenicoff's private banker.
Olenicoff says Birkenfeld visited him in Miami, invited him to a regatta and encouraged him to come to Switzerland. In Geneva, Olenicoff says, Birkenfeld and other bankers promised UBS would provide estate planning and meet IRS reporting requirements.
"They did the full sales pitch, and they convinced me to move the securities accounts over to UBS and move the balance of the money from the Bahamas to UBS," he says.
Birkenfeld told investigators that he and UBS knew their cross-border bankers were not registered with the SEC as broker-dealers or investment advisers, meaning they were not legally permitted to recruit or service clients in the U.S. UBS bankers made 3,800 U.S. client visits in 2004, according to its court filing.
UBS helped clients circumvent U.S. securities restrictions by referring them to outside advisers who set up sham companies in tax havens like the British Virgin Islands, Hong Kong and Panama, according to the bank's Feb. 18 admission. UBS kept records of the accounts' true owners as well as phony records saying they were owned by the sham firms.
"UBS used this procedure to help Igor Olenicoff hide from the IRS his beneficial ownership of undeclared accounts," the IRS said in court papers.
Birkenfeld began working in 2001 with Mario Staggl, a Liechtenstein investment adviser at New Haven Trust, to create accounts for Olenicoff, according to documents made public by the U.S. Senate.
Staggl contacted Olenicoff about setting up a Danish shell corporation and a Liechtenstein trust as well as transferring his yacht ownership to Gibraltar, Olenicoff says. In 2005, Birkenfeld and Staggl told Olenicoff to transfer his UBS accounts to Liechtenstein because it had better bank secrecy laws, the Senate reported.
Staggl and Birkenfeld traveled for nine days in 2004 with Olenicoff and his friends to Mayan ruins in Honduras. Olenicoff says he flew the group on his Citation jet to Roatan Island off Honduras, where he sent ahead his Sterling yacht. After that, they flew to Puerto Barrios in Guatemala, he says.
"It was lots of activity and adventure," Olenicoff says. "I considered them dear friends. Otherwise, I would never have invited them to share this experience with me."
Staggl was criminally charged by a U.S. grand jury in a sealed indictment with Birkenfeld in April 2008. On May 7, 2008, Birkenfeld had flown into the U.S. for a high-school reunion when he was arrested at Logan International Airport in Boston.
A U.S. judge later declared Staggl a fugitive. Staggl couldn't be reached for comment.
Olenicoff says that after his guilty plea and before his sentencing in April 2008, Birkenfeld visited him in California.
"The guy was still a friend and he was helping me, and he was consoling me with my IRS issues," Olenicoff says. "Talk about a two-faced liar. I considered these bankers friends, but all the time they were screwing me. That's the way that group works. They talk right, they smell right, but they're not right."