|Why Is the UBS Whistle-Blower Headed to Prison?|
No one, including himself, would argue that Bradley Birkenfeld, 44, is a saint. The former UBS private-banking executive hasn't hidden the fact that he once bought diamonds with illicit money in Europe and then spirited them to California stuffed in a toothpaste tube, all part of an effort to conceal $200 million in assets on which his client - the Russia-born, California-based real estate mogul Igor Olenicoff - owed $7.2 million in U.S. taxes. But at the same time, almost no one in the U.S. government would deny that Birkenfeld was absolutely essential to its landmark tax-evasion case against Swiss banking giant UBS. The former UBS employee turned whistle-blower exposed the previously hidden world of offshore tax shelters, which cheats the Treasury out of about $100 billion a year. Thanks to his insider information, UBS was fined $780 million, and it promised to "exit entirely" from the U.S. tax-shelter business and to provide the names of thousands of American tax dodgers, from which hundreds of millions of dollars still might be collected. It also led to new tax treaties with the Swiss that should provide unprecedented tax information in civil cases and better access to such data in criminal cases.
"I have no reason to believe," says Kevin Downing, a senior Justice Department tax trial lawyer, "that we would have had any other means to have disclosed what was going on but for an insider in that scheme providing detailed information, which Mr. Birkenfeld did." (Read "Calling All Whistle-Blowers! The SEC Wants You.") Considering Birkenfeld's help, many observers wonder why the Justice Department decided to arrest and prosecute him. In the end, he pleaded guilty to a single fraud conspiracy count; he was sentenced on Aug. 21 in a federal courtroom in Fort Lauderdale, Fla., to 40 months in a federal penitentiary (to start Jan. 8). Many critics believe the decision to prosecute Birkenfeld, whom some consider the most important whistle-blower in years, sends the worst possible message to other financial-industry insiders who might be considering coming forward. The Government Accountability Project (GAP), a Washington watchdog organization that has extensive whistle-blower experience, says a chilling effect is already apparent: a senior executive at a European bank that offers similar U.S. tax shelters is having second thoughts about going public because of the Birkenfeld case.
"No wonder nobody has ever come forward to blow the whistle on the Swiss banks before - and with this mind-set, the government is guaranteeing that nobody will come forward again and disclose information about tax fraud on this scale," says Dean Zerbe, a tax attorney representing Birkenfeld in his dealings with the IRS. Zerbe also served as tax counsel for the Senate Finance Committee; in 2006 it revised the tax code to include whistle-blower protections.
Birkenfeld voluntarily approached U.S. authorities in May 2007 offering details on the illegal tax shelters run by UBS, where he had worked since 2001. When he realized that actual practices were violating stated bank policy, he raised his concerns internally; after being rebuffed and later finding himself in a dispute over a bonus payment, he decided to expose the wrongdoing. After talking with the IRS, Justice and the Securities and Exchange Commission and appearing before the Senate - and being told on at least one occasion by DOJ officials that they were not looking to prosecute him - Birkenfeld was arrested in June 2008 as he returned from Switzerland, where he had been living for the past 13 years, to his native Boston for a high school reunion.
The story of how he ended up headed for federal prison is still mired in sharply conflicting accounts. Justice officials claim that Birkenfeld was not completely forthcoming about his own dealings with particular clients, especially his biggest, the billionaire Olenicoff. Even as he was talking to the feds, they say, Birkenfeld was secretly advising the real estate mogul to move his money from UBS to Liechtenstein banks. (Olenicoff eventually settled for $53 million in tax and penalties.)
By Ken Stier, Oct. 06, 2009, TIME Magazine
Support the NWC! You can partner with the National Whistleblowers Center to help our programs continue and expand. No matter how large or small, your contribution goes toward assuring that the rights of whistleblowers are protected.