Cum-Ex & Cum-Cum

Criminal Defence in Tax Criminal Law – in Frankfurt and Nationwide

Problem: Investigations, Asset Recovery, Section 153 AO – what those affected should expect

Cum-Ex and Cum-Cum have been the subject of intensive investigations for years. Alongside criminal allegations, parties often face asset recovery, interest claims and complex attribution issues. Those affected include investors, traders, bankers, tax departments – and not infrequently external advisers. In this environment, early, consistent criminal defence with deep knowledge of capital market mechanics and tax attribution is crucial.

For orientation, see our pages on Cum-Ex & Cum-Cum defence, our practice areas in criminal defence and general guidance on German criminal procedure. Updates from investigations and case-law are reflected across our English pages; for broader defence topics, see general criminal defence in Germany and white-collar crime defence.

Solution: Consistent defence – preserve your right to silence, review the file, structure the fact pattern precisely

We safeguard your right to silence, promptly request access to the case file and map the alleged fact pattern: trading sequences around the record date, securities lending, short sales, and refund/credit pathways. In Cum-Cum matters, we examine attribution of dividends, beneficial ownership and potential correction scenarios. Our work is grounded in specialisation in tax offences and white-collar criminal law.

Legal framework: Brief overview for the defence

Cum-Ex refers to exploiting settlement windows around the dividend record date to achieve multiple credits/refunds of withholding tax that was only paid once. Cum-Cum concerns structures shifting dividend burdens between limited and unlimited taxpayers. Key background pages: Cum-Ex & Cum-Cum defence and our practice areas.

Central defence questions include: Who was the tax owner of the shares? Where did beneficial ownership lie (pledgee vs. lender)? Which subjective elements (intent, knowledge, advice) can be evidenced? For corporate roles and advisers, consider potential exposure and boundaries of adviser liability within Cum-Ex/Cum-Cum constellations.

Recent case-law: Highlights shaping your defence

• Withholding tax claim & compensation: Courts scrutinise the link between the capital gains tax claim and substitute payments; we address the legal and factual nexus in detail (see our overview of white-collar crime defence).
• Asset recovery (Einziehung): The scope of confiscation is often the largest financial risk lever; we challenge causation, double counting and interest accrual with precision.
• No automatism towards trial: Proceedings can end without a main hearing if evidentiary gaps or legal hurdles prevail — facts beat assumptions.
• Cum-Cum & Section 153 AO: On amended returns, the trigger is recognising an inaccuracy; there is no general duty to investigate.
• Beneficial ownership with the pledgee: Attribution questions in secured transactions can decide outcomes.
• Admissibility of indictments: Hurdles in Cum-Cum complexes provide defence angles when attribution and causality are unclear.

These lines of authority yield levers for defence — e.g., on shareholder status, causation between declarations and refunds/credits, or the breadth of asset recovery.

Defence strategy: How we proceed in Cum-Ex/Cum-Cum

1) Secure rights – no premature statements
First rule: silence. We take over communication with tax investigators, prosecutors and tax offices. Early “assessments” often become burdensome later.

2) File access & fact-pattern analysis
We reconstruct trades around the record date, securities lending chains, short positions and settlement paths. In Cum-Cum mandates, we review transaction links, security transfers, refund applications and the timing of any recognition under Section 153 AO.

3) Attribution & knowledge – the subjective side
Who initiated, approved or monitored what? What role did internal guidelines, external opinions, audit notes play? For advisers and corporate organs, boundaries of adviser responsibility are crucial.

4) Attack asset recovery & calculations
We contest confiscation and benefit calculations (causation, double burden, alternative causation, interest). Our white-collar practice summarises typical levers.

5) Section 153 AO in Cum-Cum – careful triage
No general duty to investigate; Section 153 AO hinges on recognition of inaccuracies. We assess if and when that threshold is met — closely aligned with prevailing case-law.

6) Define procedural goals
From discontinuance for lack of suspicion to limiting the case or reaching an agreement in the main hearing — we work outcome-oriented and represent you decisively.

Role clarity: Investor, trader, adviser – who bears what?

Cum-Ex/Cum-Cum scenarios are often modular. Liability depends on concrete contributions, knowledge elements and organisational responsibility. For advisers and intermediaries, potential liability risks exist — and defence lines emerge where mandate scope, audit remit or information base were limited.

Sectors and persons: Banks, brokers, family offices, high-net-worth individuals

We defend individuals and companies — from desk traders and compliance officers to corporate bodies. Decisive questions remain: contribution, knowledge, attribution of withholding-tax issues and actual control. Not every case proceeds to a main hearing — facts and legal hurdles can stop cases earlier.

Advantages with Buchert Jacob Peter

• Specialised criminal defence in complex tax offences with capital-markets know-how.
• Focus on confiscation & attribution: We robustly test calculation theses and “chain causation”.
• Frankfurt – nationwide: Short lines to courts, prosecutors and tax authorities.
• Call to action: Secure your defence — discreet, swift, strategic. Start via our page on criminal defence in Frankfurt (English-speaking) or contact us directly below.

FAQ – Cum-Ex & Cum-Cum

What is the difference between Cum-Ex and Cum-Cum?
Cum-Ex concerns multiple credits/refunds of withholding tax that was only paid once; Cum-Cum shifts dividend burdens between limited and unlimited taxpayers. See our page on Cum-Ex & Cum-Cum defence.

How central is dividend compensation?
It often sits at the heart of claims and court assessments; we address this within our white-collar defence focus.

Is asset recovery (Einziehung) inevitable?
No. It is a major prosecution lever, but it can be attacked on causation, allocation and double-counting grounds.

What does Section 153 AO mean in a Cum-Cum context?
Corrections depend on recognising inaccuracies; there is no automatism. We examine whether and when that threshold is met.

Who is the shareholder — how is attribution determined?
The key is beneficial ownership. We analyse secured transactions and lending structures in detail.

Can proceedings end without a main hearing?
Yes, depending on evidentiary gaps and legal hurdles. We pursue pragmatic outcomes where appropriate.

Do I need a specialist defence lawyer?
Absolutely. Choose experienced criminal defence lawyers in Frankfurt with expertise in tax offences and white-collar crime.

Contact Us – Specialist Criminal Defence Lawyers in Frankfurt and Nationwide

• Frank M. Peter, Criminal Defence Lawyer, Specialist in Criminal Law
• Dr. Caroline Jacob, Criminal Defence Lawyer, Specialist in Criminal Law
• Dr. Sven Henseler, Lawyer, Diploma in Fiscal Administration (FH)
• Of Counsel: Prof. Dr. Frank Peter Schuster
• Cooperation Partner: Tax Adviser and Former Tax Investigator Frank Wehrheim

Our law firm Buchert Jacob Peter has been based in Frankfurt am Main for more than 25 years with experienced lawyers in criminal defence. We represent clients nationwide across Germany.

📞 Phone: +49 69 710 33 330 · ✉️ E-Mail: kanzlei@dr-buchert.de
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