Archives for Legal Action

Rocco CAIRA, lawyer for clandestine SL Mortgage Funding

29th May 2013 by admin under Legal Action     

ERVA could have not found a better word to describe the client that Mr. Caira represented in Spain: clandestine.

From his Bilbao office, this “contract negotiator” expert had wholly ommited the fact that his client, Surrenda-Link Mortgage Holdings, had no authorisation to operate in Spain because it lacked the required license by the Bank of Spain…without exception. This means that it was in breach of EU mandatory regulatory compliance with the host country, among other minor legals of obligatory observance.

Together with his pal Javier Bicarregui Garay, another submissive lawyer who in turn represented -remotely- the victims of this fiasco devised by Charles “Charlie” Walton (without ever meeting them, talking to them or even the basic thing such as checking out the operation), with a power of attorney, tens of mortgage loans were signed off on distant properties via a servile happy-to-please Bilbao Notary…all of them, without exception, for an illegal investment purpose to evade Spanish taxes.

Mr. Bicarregui Garay was granted, according to the press, the Order of the British Empire.

It is strongly recommended that anyone that had given a power of attorney to Mr. Bicarregui Garay inmediately revokes it by formally signing a revocation of power of attorney public document, at the closest Notary Public.

 

 

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Misleading Publicity Legal Suit to be Filed Against Rothschild

28th May 2013 by admin under Legal Action     

The DGT (General Directorate of Tax) has confirmed that mortgage loans for any other purpose than buying the property on which they are registered, are not deductible for Spanish Inheritance Tax Purposes.

Binding consultation 04423-13 received by Lawbird lawyers today (28th May), refers also to loans granted abroad (such as those by Rothschild, SLM, Nykredit etc.) that are guaranteed by mortgages on Spanish property and is adamant: only real debts can be used to mitigate taxes.

Nobody questions that N.M. Rothschild & Sons could and should have ensured that the product they were selling was legitimate, just like any diligent person carrying out any commecial activity in Spain would do (and indeed any where in the world).

Instead, they chose to make their clients accomplices of tax fraud because some inept lawyer at Gomez Acebo & Pombo decided that it was legal, at the insistence of clowns Mark Coutanche and Steve Dewsnip, to run this circus.

Claimants will demonstrate that all the publicity issued by Rothschild, and the companies they used to sell the product CreditSelect Series (as confirmed by honest and helpful former employees) is false, fraudulent, encouraged tax evasion and has caused untold grief on victims.

The legal suit against Rothschild is to be lodged with the Malaga Mercantil Courts on the 7th of June 2013.

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The Lies of Barclays London on Equity Release

17th May 2013 by admin under Legal Action     

Barclays´ letters seem to dig a hole deeper for them whether it is to insist about the inheritance tax benefits (they still believe it works!) of their Spanish Property Investment Secured Loan (“SPISL”) or, as it happens, to question how could have someone been possibly introduced to Henry Woods Investment Managers,  of all agents.

Letter. Click on Image for full PDF version (1.3 Mb)

 

In this latest missive, it says that the banks is not providing advice to you about your own position so you may wish to take your independent advice, but I would hope that you take some comfort from the Bank’s conclusion. And their conclusion is that the bank has satisfied that the scheme is not illegal.

It then says that our records do not detail how you were introduced to HWIM…. perhaps this photo can clarify this seemingly unsolvable enigma, as well as how one ends up dealing with Barclays, offering tax evasion products, from the very heart of the City.

Once again, the rats abandon the sinking ship!

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Expert Witness Reports on Equity Release Concluded

25th April 2013 by aflores under Legal Action     

The first 2 reports drawn up by the compay Muntaudit (http://muntaudit.es/) have now been received.

One refers to Nykredit/Sydbank and the second one to Finansbanken/Sparekassen Lolland Equity Release products.

The first point that the independent firm of financial auditors has highlighted is that the product was taken out for the purpose of obtaining a tax advantage and securing an income stream. The report then notes the following:

  • The contract of Equity Release was offered to pensioners as a way to improve their quality of living by providing an additional income stream (in addition to the false tax advantages).
  • The contract does not clearly warn of the risks involved in the transaction -interest rate risk, exchange rate risk, price risk, market risk, operational risk, lack of liquidity risk, early redemption risk (on the side of the bank)-
  • It is considered to be a high-risk complex instrument.
  • The contract does not include the TAE clause (in English, APR or Annual Percentage Rate)
  • The ability of ever producing a result as advertised by the bank and agents, irrespective of the investor profile, is very low.
  • For a low risk investor, the product has an almost 100% probability of producing a negative result from the very moment it is signed.
  • The product is classified as “high-risk” and not suitable for a low risk investor.
  • The client profile, highly conservative retail investor, had specific and concrete requirements and as such, had they known the type of investment they were getting into, these contracts would have not been taken out. 
The reports will be used in the legal claims that are being filed against banks who marketed, offered and mis-sold Equity Release products to a very large contingent of pensioners residing in Spain.

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SLMH and Henry Woods, Equity Release fraud at its best

10th April 2013 by admin under Legal Action     

The Surrenda Link Mortgage Holding fell for the fake tax mitigation scheme that Charles “Charlie” Walton, based in Estepona, came up with. Just how any bank could have been so stupid to believe it is shocking but more worryingly is the fact that trusting customers, conned in the most despicable manner, have to be chasing this bank to obtain a resolution to their plight.

Below is a letter that was sent to SLMH by lawyers acting for a victim:

 

Dear Sirs

As you may be aware, the above customers took out a mortgage with your company between the years 2006 and 2007. The purpose of this mortgage was to reduce the taxable value of their property, with a view to pay a lesser IHT, and to create at the same time an income stream that would enable them to improve their lifestyle, given that they are all pensioners.

It is my understanding that Mr. Charles Walton, from the Premier Group, introduced this scheme in Spain some years back and convinced the SLM Group to provide the loans. This seems clear from the information below:

http://www.ifaonline.co.uk/international-investment/news/1329056/premier-offers-spanish-iht-mitigation

http://www.telegraph.co.uk/expat/4195059/How-to-make-Spanish-property-pay.html

The following also appear to be true:

  1. Both Premier and SLM devised, planned, promoted and sold the product to British pensioners, under the appealing name SITIRS (Spanish Investment Transfer and Income Release Scheme), on the basis of one very clear message: “reduce the value of your property or face paying a very high tax rate”. The fraudulent and misleading advertising for this artifice is undisputed.  
  2. The product was also deceitfully sold as a means to raise cash and provide an income stream, being self-sustainable: pensioners were not required to have an income (SITIRS brochure read “there are no income proof requirements from loan providers”).
  3. SLM was not regulated to provide mortgage loans in Spain, as is required by any entity that wishes to professionally provide such service in Spain. The footer warning note amply inserted in promotional literature is no mitigating factor to the lack of compliance with this non-waiverable requirement. If at all, it shows that in spite of knowing the existence of certain regulatory obligations, SLMH chose to infringe them deliberately.  
  4. SLM instructed unregulated IFA to capture clients in Spain, against mandatory regulatory provisions. Hamiltons Financial Services is one of such agents and was used as a means for SLM and Premier Group to further their business in Spain. We find the allegation that the pseudo- IFA´s were in fact hired by the customer as an excuse that deforms reality and is obviously untrue.  
  5. SLM instructed unregulated property valuers in Spain to capture clients, against mandatory regulatory provisions. Cluttons is one of such examples.

We would like to enter into a constructive dialogue in respect of these products, with a view to terminating the contracts on grounds that they are based on an illicit cause (tax evasion proposition), sold misleadingly as being able to legally reduce IHT taxes (irrespective of whether customers could have had independent advice), sold misleadingly as a means to provide an income for the duration of the term of the loan and utterly inadequate for the customer´s profile.

Should you deem the above proposition acceptable, I am be happy to discuss the procedure to achieve the a settlement on this matter.

Yours faithfully

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Equity Release for Fiscal Planning is Tax Fraud, Confirmation in Writing Received

9th March 2013 by admin under Legal Action     

As explained on a previous post, the “Hacienda” has now confirmed what many believed: that attempting to mitigate inheritance and wealth taxes by taking out a mortgage loan on a property that was otherwise unencumbered is tax fraud.

What are the implications of this conclusion for the banks?

In principle, the consequences can vary enormously depending on whether banks misrepresented their clients by making them believe that they could mitigate taxes legally, when this is untrue, and this can be proven in a court of law. Where proven, the contracts can be declared void and the bank forced to lift the mortgage on the property, and by application of article 1.306 of the Civil Code, be prevented from claiming the draw downs.

Banks that have assisted inheritors in collecting life assurance/insurance payments on death of the policy holder, without demanding that taxes were paid, can become “substitute taxpayers” and end up footing the bill. Where the owed tax exceeds €120,000, this could constitute a crime under the Spanish Penal Code, punishable with prison terms.

And for property owners?

Taxpayers may have effectively mitigated taxes by declaring the charge to represent a “true” debt, in the belief that they were doing the right thing. The right of the Tax Office to demand unpaid taxes are not compromised by virtue of agreements between the cheating banks and their victims and so, they can pursue taxpayers.

One thing is now clearer: property owners are now in a far better position to pursue the declaration of voidness/nullity of the equity release agreement, as a single juridical contract, given the gross misrepresentations by banks, and their agents, when selling this fraudulent product.

Documents

 

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Equity Release for Fiscal Planning is Tax Fraud, says Spanish “Hacienda”

6th March 2013 by admin under Legal Action     

The Spanish Tax Office has finally ruled on the validity of using mortgage loans to avoid wealth and inheritance taxes.

ERVA will post the original binding consultation letter, named as CONSULTA VINCULANTE Patrimonio -01347-13, in the next couple of days.

Meanwhile, this is what they had to say about this dodgy set up:

  1. That a calculation for wealth tax cannot take into account, and be reduced by, the value of the mortgage loan, unless the loan is used for the purpose of financing the acquisition of the property, as it is not otherwise considered to be charge on the property, but a personal debt.
  2. That according to article 7 of the Inheritance and Gift Tax Act, non-residents for tax purposes will have to pay taxes on any sums received from life insurance policies signed by Spanish companies or foreign companies operating in Spain.
  3. That the capital of a mortgage loan granted to a non-resident by a foreign bank is not subject to IHT.
  4. That attempting to offset a mortgage as described above would constitute tax fraud, pursuant to the General Tax Act 58/2003

Further to the above, we received a clarification email stating the following:

  1. That a calculation for IHT cannot take into account, and be reduced by, the value of the mortgage loan as logically, the mortgage loan is not considered to be a charge on the property but a personal loan.

 Email sent to ERVA:

From: S.G. de Impuestos Patrimoniales, Tasas y Precios Públicos

Sent: miércoles, 06 de marzo de 2013 12:26

To: Fatima Izquierdo

Subject: RV: A/A D. José Javier Pérez-Fadón Martínez_Consulta vinculante_Patrimonio 01347-13

Estimada Sra. Izquierdo: La contestación V0590-13, fechada el 25 de febrero pasado, establece la no deducibilidad en la base imponible del Impuesto sobre el Patrimonio, para supuestos de obligación real de contribuir, del préstamo hipotecario extranjero en cuanto no es carga o gravamen de la vivienda, sino deuda. En el ámbito del Impuesto sobre Sucesiones y Donaciones y para la misma hipótesis de obligación real de contribuir, como decíamos en la mencionada contestación, el causahabiente no tributará por el capital del préstamo y, como es lógico y resulta de no tratarse de carga o gravamen sobre la misma, tampoco podrá minorar el valor de la adquisición de dicha vivienda en el importe del préstamo.

Confío en que quede así aclarada la cuestión planteada.

Saludos.

Javier Pérez-Fadón Martínez.

Subdirector General de Impuestos Patrimoniales, Tasas y Precios Públicos.

Finally, we have requested from the Tax Office that the email below is incorporated to a binding letter.

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Bank Demands Proof Of Payment of Death Duties on Life Insurance

5th March 2013 by admin under Legal Action     

Unlike Nordea Bank Luxembourg, Unicaja is sending letters out to the beneficiary of a life insurance policy requesting proof that an IHT form was returned to the Spanish Tax Office, prior to releasing the funds. The bank even specifies the sum of money that needs to be declared and the appropriate box in the form, and they will not release any payments under life insurance policies until this is verified.

  • Why would Nordea Bank Luxembourg not do this? Very simple, they sold the Unit-Linked policy to precisely avoid the taxes which payment they are legally bound to supervise: the fox looking after the hen house.
  • What does this entail for Nordea Bank? Automatically, they become liable for not only scheming to defraud the Tax Office, an offence that
    could see them be prosecuted criminally but by virtue of article 8.b of the IHT Act 1987, they become “substitute taxpayers” if they pay out on life insurance policies without ensuring that the correct tax has been paid, save for the exceptional payment to the Spanish Tax Office, provided that a check is given to the beneficiaries under the policy and such check is written out to the appropriate Spanish tax department.
  • Could lawyers also be taken to task for aiding tax evasion? They could and they would, particularly where their professional and technical skills are used to assist in the commission of fraud.
  • What is the most serious consequence if the client, and his bank, get caught out? Currently, where the unpaid tax exceeds €120,000 per tax year, the taxpayer and his accomplices could face imprisonment (up to 5 years) and more severe consequences if, for example, complex fiscal engineering or tax havens are employed to further the crime. A prison term is just unavoidable unless the taxpayer repents and decides to make a full disclosure, or Statute of Limitations kicks in.

 

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Limitation of Liability Clause Used by Banks

20th February 2013 by admin under Legal Action     

Most of the banks are using the “limitation of liability” clause to argue that, whilst “every endeavour has been made to ensure the accuracy of the information provide, we cannot take any responsibility for losses sustained as a result of relying total or partially on it”.

This dishonest clause, an indipensable tool in the sales kit of any dishonest business operator worth his salt, was for example used by Nordea Bank Luxembourg S.A. to say that although loads of tax advice was given, they can never be held responsible for it.

But then, article 130 of the Consumer Protection Act states the following:

Inefficacy of limitation or exoneration of liability clauses: clauses limiting or exonerating from responsibility in respect of instances of civil responsibility under this Act are not applicable and thus, inefficacious.

See what NORDEA says about their booklet:

inheritance – the available possibilities of ensuring that your descendants prosper;

And also: 

life assurance may be the optimal way to mitigate the impact of inheritance tax.

This, and more, in 2013 and for Spain.

 


 

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ERVA reports Tax Fraud to the Spanish Tax Office

17th February 2013 by admin under Legal Action     

Having been made aware that NORDEA BANK LUXEMBOURG may be assisting inheritors on the delicate issue of filing IHT returns in respect of deceased subscribers of the tax-evading Nordea Mortgage + Unit Linked Policy package, it was deemed convenient to report this to the Spanish Tax Office.

The “denuncia” informs the authorities that NORDEA Bank Luxembourg S.A. could be advising inheritors on how to fraudulently register the mortgage loan in the tax form, as a real debt, also fraudulently leaving out the value of the unit-linked policy altogether, even though the sums obtained by the inheritors are fully taxable in Spain whether the inheritor is a resident, or not, contrary to Nordea’s publicity.

Tax Fraud is a crime prosecutable in Spain where the sums defrauded exceed €120,000.

A unit-Linked policy worth €500,000 inherited “abroad” and not declared in Spain, that is, with the assistance of Nordea’s Jesper Hertz (Marbella) and Jhon Mortensen (Luxembourg), would defraud the Spanish Tax Office €125,805.34…

 

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