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Why no punishment for Westpac?

Written By: - Date published: 8:26 am, October 13th, 2009 - 80 comments
Categories: business, capitalism, crime - Tags:

You would have seen that Westpac was found to have undertaken the largest theft of tax money in New Zealand history. From 1998 to 2002, they hid $586 million in tax due to our government. Add about 6% interest a year and the total they owe us is $961 million.

My problem is that the judgment at present would only see us get back that the tax they owe plus that relatively low amount of interest. Oh and court costs. Where’s the punishment for an intentional plan to rip us off for as much as possible?

This was no accident, it was an intentional crime against all of us, against our country. The bastards even calculated how much tax they would need to pay to deflect IRD from uncovering the theft of all the rest. And what have we done? We’ve said ‘ohh, you cheeky beggars! You nearly got away with it there, now give us the money back and run along you wee scamps’.

IRD can charge penalty tax on top of the money due thanks to this judgment and it had better. Otherwise Westpac will have faced no consequence for its theft. In fact, as things stand it has probably made millions by investing that money at a higher interest rate than IRD is charging it.

In reality, the business should be seized by the government. Westpac undertook the most expensive criminal action in New Zealand history, I don’t see how we can’t consider it a criminal organisation and its assets, therefore to be forfeit. Westpac’s owners don’t deserve the right to own the business with which they tried to rip us off. We should take the bank’s business over and run it ourselves, combine it with Kiwibank.

bankersIf you or I stole a fraction of this amount from the government we would be locked up and rightly so. But we don’t live in a world where justice applies to business. All Westpac has got is an order to give back what it stole and not do it again, pretty please.

At the very least, the Government should stop banking with Westpac. Transfer over to Kiwibank instead. It’s bad enough that we allow New Zealand’s biggest criminal organisation to continue operating, but our government certainly shouldn’t be their customer.

80 comments on “Why no punishment for Westpac?”

  1. It’s long been known you can rob a bank with a note at the counter and get years in prison, but robbing others by clerical means, or by selling public assets to your mates, is a path to wealth, power and success.

    Proof once again that the jails only hold the stupid criminals. The smart ones are too often – much later – found to be captains of industry or among those running the country.

  2. The Voice of Reason 2

    Woody Guthrie got it right in his song about bank robber Pretty Boy Floyd:

    “Yes, as through this world I’ve wandered
    I’ve seen lots of funny men;
    Some will rob you with a six-gun,
    And some with a fountain pen.

    And as through your life you travel,
    Yes, as through your life you roam,
    You won’t never see an outlaw
    Drive a family from their home.”

    Westpac and all the other banks operate by the golden rule: He who has the gold, makes the rules.

    • Well quoted ‘Voice’. Westpac, a division of Finance Capital robbed without raising a sweat, apart from the odd nervous executive perhaps. Just bits and bytes quietly transferring from here to there around the clock until half a billion was missing.

      This will not be dealt with as a criminal case in any shape or form:
      1) Lack of Public interest. Too many people buy the ‘Matrix’ view of the world, uninteresed in doing any structrual political analysis of how our society operates.
      2) Why stop at one syndrome. If a significant actor (Westpac) got seriously pinged how long could the rest of ’em remain unpursued for similar behaviour?

  3. BLiP 3

    Westpac’s biggest customer is the New Zealand Government – surely the least we could do is take our account somewhere else.

  4. Gosman 4

    How to destroy NZ as an investment destination.

    Step 1 – Demonise the foreign owned finacial institutions.

    Step 2 – Nationalise any that have any tax and/or legal issues (i.e. all of them).

    • felix 4.1

      No, you mean “how to destroy NZ as a destination for white collar criminals to fleece the population”.

    • Marty G 4.2

      Gosman is a criminal lover. People who steal from us should be rewarded in Gosman’s book.

    • BLiP 4.3

      How to destroy New Zealand

      1. Appoint a foreign exchange dealer as Prime Minister

      2. Do nothing as foreign banks (i.e., all of them) strip the tax base

      • travellerev 4.3.1

        Actually BLiP,

        He was not just a foreign exchange dealer.

        He oversaw the development of the Derivatives products now destroying our economy for Merrill Lynch.

        It was his department for bonds and derivatives that sold the crap to pension funds world wide and he was hand picked by the Federal Reserve of New York just after the Glass Steagall act was repealed (Keeping the commercial banks and the speculative predator banks separate paving the way for the subprime crisis)

        “Sir” (according to Holmes) Johnny boy together with his peer mate Lord Aschroft and the other banking scum are having a field day ripping the world off for one last time.

    • Zepher 4.4

      Sorry Gosman. Demonising a foreign owned financial institution and making one accountable are two different things.

  5. vidiot 5

    So Marty – you want them to have bigger fines ?

    I guess you aren’t a customer of WBC – because that’s who will be footing the bill (via increased bank fees).

    At the end of the day, it will be the NZ customer base of WBC that will foot the bill.

  6. IRD can charge penalty tax on top of the money due thanks to this judgment and it had better.

    That punishes the wrong people: the shareholders. Instead, we need to directly punish the accountants and managers who made, executed and confirmed the decision to engage in criminal behaviour.

    If I stole a TV, I’d go to jail. Surely we can do the same for the creeps in suits who took us for half a billion dollars?

    • Marty G 6.1

      The shareholders appoint the men in suits and paid them to steal from us. I agree though that the individuals who approved this scheme should be punished too.

    • Daveo 6.2

      Marty’s right. Shareholding isn’t a free ride. Along with the right to own shares and profit from them comes the responsibility to hold company directors and managers to account.

      Think of it as an incentive for shareholders to make sure management behaves. Likewise, it’s an incentive for management not to engage in criminal behaviour that could scare away their investors.

    • If I stole a TV, I’d go to jail. Surely we can do the same for the creeps in suits who took us for half a billion dollars?

      If you stole a TV, you’d also get a trial. And a jury, and a right to silence. And a presumption of innocence which has to be rebutted by a prosecutor beyond all reasonable doubt.

      Call me once the “creeps in suits” have benefited from the same.

      Also, if you stole a TV, you wouldn’t go to jail.

    • Draco T Bastard 6.4

      The shareholders are just as much in the wrong because they allowed the directors et al to run the scam.

  7. Gosman 7

    Who do you think has been mainly funding the gap between NZer’s spending and saving, especially over the past 18 months?

  8. Jared 8

    Theft would imply that the tax isn’t being paid. As with any IRD decision, this is standard practice afaik and is usually how tax legislation is interpreted.

  9. Gosman 9

    If you had actually investigated the case a little more rather than just rely on superficial headline’s you will have seen that Westpac had asked the IRD to give it’s opinions on a similar tax stuctured investment product and got a green light. It looks like the IRD have changed it’s opinion of them subsequent to this decision.

    Radio New Zealand National did an indepth piece on this on the Business news section on Morning report on Friday last week I believe.

    • BLiP 9.1

      You’re so full of shit I’m sure there’s a six foot fountain of feaces popping up out the top of your head.

      Judge Harrison said: “Westpac’s challenge to the (IRD) Commissioner’s reassessments must fail. The bank has failed to discharge its onus of proving that the Commissioner erred, either in fact or law. It may count itself fortunate that he did not, on his hypothetical reconstruction, disallow the bank’s claim for exempt income.’

      Do your own fucking research!

      • Gosman 9.1.1

        Did you listen to the Radio NZ National piece on this BLiP or are you just going to cheery pick quotes that suit your agenda?

        • BLiP 9.1.1.1

          Each and every one of the fundamental transactions involved in the tax “minimisation” scam required separate IRD approval. Yet,

          [158] Westpac entered into a tenth structured finance transaction. The counterparty was First Data Corporation. Its elements were materially identical to the other nine transactions. In chronological terms it was the second in the series after Koch. Westpac applied to the Commissioner on 28 May 1999, after entering into both Koch and First Data, for a binding ruling that the statutory tax avoidance provisions would not apply to negate or vary its proposed tax treatment of First Data. The bank never sought binding rulings for Koch or the other eight transactions.

          I suggest you read the judgement before you make even more of a twat of yourself by repeating the disingenuous PR spin designed to minimise Westpac’s disgrace.

    • snoozer 9.2

      Gosman was or was not Westpac found to have not paid tax that it ought to have paid?

      It doesn’t matter if they claimed they had an excuse, that excuse did ot hold water with the court.

      In fact, the court found Westpac had intentionally paid what it thought would be just enough tax to hide the swindle.

      • Jared 9.2.1

        Thats a very pessimistic view of the whole situation. If you understood how case law was developed and how tax legislative interpretations are derived you would find that these sorts of decisions are on the whole, fairly common. Not typically for sums these big, but tax law is regularly argued in this format.

        • BLiP 9.2.1.1

          So the fact that the New Zealand tax base is short (at least) $2 Billion is a good thing because . . .

          • Jared 9.2.1.1.1

            The line has to be drawn somewhere doesn’t it? This is one of the ways the line is drawn. In the same way legislation is interpreted as case law, tax law is given an official interpretation through case law as well as through guidance issued from the IRD.

  10. willaspish 10

    If the lack of a true penalty in this case means that Westpac has actually made a ‘net profit’ from this theft, (having successfully invested the sum stolen) then, assuming it is managers’/directors’ duty to increase profits for shareholders, it kind of turns out it is the duty of all banks to undertake similar thefts. There really needs to be a sensible disincentive to steal from the tax-payer but this decision shows there isn’t.

  11. Gosman 11

    Has anyone actually worked in a bank here or are you all just basing your opinions on some stereotyped cartoon image of the greedy overseas banker out to screw the average Kiwi?

    Kiwibank’s profit’s are currently being squeezed because they are having a hard time raising funds whereas the Aussie owned banks have been using their parent companies for this purpose.

    All Banks, including Kiwibank, look to maximise profits. This includes trying to minimise Tax. That stated all Banks in N.Z. are also careful that they keep within the regulatory and legal framework. They are run and managed by NZer’s on the whole afterall.

    Essentially our financial system is benefiting greatly from this relationship at this point in time and this technical breech of the Tax rules does not mean the overseas Banks are engaging in deliberate illegal activity.

    • snoozer 11.1

      “Has anyone here actually worked in a P lab here or are you all just basing your opinions on some stereotyped cartoon image of the greedy p dealers out to screw the average Kiwi?”

      I’ve worked at a bank.

      Westpac didn’t just try to ‘minimise’ its tax – it sought to evade tax. That left you and me to pick up the tax burden instead. But you keep on apologising for them.

      • Gosman 11.1.1

        They, (along with a number of other financial institutions), sought advice that a certain investment instrument they set up complied with NZ tax laws. The IRD has now decided that it isn’t. These things are hugely complicated and do not mean someone is out to deliberately evade tax.

        Rod Oram is about to appear on Nine to Noon on Radio New Zealand National after the news at 11 am today. I suggest people here listen to this and then comment afterwards.

        • felix 11.1.1.1

          Well Oram doesn’t agree with you. Neither did the Judge. Who else are you going to hold up as a credible voice?

          • Pascal's bookie 11.1.1.1.1

            “Why would a Wookiee, an eight-foot tall Wookiee, want to live on Endor, with a bunch of two-foot tall Ewoks? That does not make sense! But more important, you have to ask yourself: What does this have to do with this case? Nothing. Ladies and gentlemen, it has nothing to do with this case! It does not make sense! Look at me. I’m a lawyer defending a major record company, and I’m talkin’ about Chewbacca! Does that make sense? Ladies and gentlemen, I am not making any sense! None of this makes sense! And so you have to remember, when you’re in that jury room deliberatin’ and conjugatin’ the Emancipation Proclamation, [approaches and softens] does it make sense? No! Ladies and gentlemen of this supposed jury, it does not make sense! If Chewbacca lives on Endor, you must acquit! The defense rests.”

            • Killinginthenameof 11.1.1.1.1.1

              “Gosman
              All Banks, including Kiwibank, look to maximise profits”

              Are you saying it is ok for me to steal stuff as long as it is for the purpose of filling my pockets with cash?

            • Gosman 11.1.1.1.1.2

              “container loads of cash shipped direct to Australia”

              With that statement you have shown your complete ignorance of how the financial system works BLiP.

              No wonder you’re arguing for additional sanctions.

            • BLiP 11.1.1.1.1.3

              Oh, that’s right – the fuckers just press a button now.

          • Gosman 11.1.1.1.2

            Ummmm……Rod Oram never stated that. In fact he stated that the banks deserve some sympathy because they were attempting to follow some rather vague new rules.

            There is no hint there is anything criminal going on here and is just business as usual. Essentially it is what happens when you try and use your tax system to encourage certain behavious – you have unintended consequences.

            • BLiP 11.1.1.1.2.1

              Gosman-to-English Dictionary

              Unintended consequences – container loads of cash shipped direct to Australia.

      • Gosman 11.1.2

        So what did you do in the bank snoozer?

        • snoozer 11.1.2.1

          BNZ and like the rest of the Aussie banks the bosses were just crims in suits.

          Are you suggesting I’m lying?

      • BLiP 11.1.3

        Gosman-To-English Dictionary

        stereotyped cartoon image – Reality

        minimise tax – Steal money

        run and managed by NZer’s on the whole – Bullshit

        technical breech – orchestrated litany of lies

    • It is not a stereotype cartoon GM.

      They are greedy overseas banks trying to rip us off. And not just us.

  12. Tom Semmens 12

    “…or are you all just basing your opinions on some stereotyped cartoon image of the greedy overseas banker out to screw the average Kiwi?…”

    Put it this way, if the following were the employment ID numbers of Westpac’s senior leadership team, I wouldn’t be the least surprised:

    167-671 – CEO
    761-176 – Sales
    716-167 – Legal
    617-716 – Head of HR
    671-167 – CFO
    671-761 – Head of Marketing

    http://en.wikipedia.org/wiki/Beagle_Boys

  13. felix 13

    Have you worked in a bank, Gosman?

    You do remind me of a certain lowly bank auditor.

  14. Jim McDonald 14

    “Three weeks ago I saw a banker on his knees, offering reparation for the damage he had done. Unfortunately, this was not in the City of London, but in 14th-century Italy, depicted in a Giotto fresco. …”

    Read: Dante’s Inferno is no more of a fantasy than the fairytales the bankers told us (Ruth Sunderland, Observer, 4 Oct 09) at http://www.guardian.co.uk/business/2009/oct/04/banking-reform-cresc-ruth-sunderland

  15. Why no punishment for Westpac?

    I suppose the simple answer – that they haven’t been convicted of a crime – is too simplistic to suffice. Because it really shouldn’t be.

    This was a civil tax case. If you want a punishment, then institute criminal proceedings. Prove to a jury they someone’s committed a crime and then we can have a proper debate over the appropriate punishment. Because at the moment you’re kinda coming off as even more reactionary than David Garrett – not only “hang ’em high” but do it before they’re convicted and even before they’re charged.

    • snoozer 15.1

      Graeme Edgeler, staunch defender of the wealthy’s right to rip the rest of us off.

      IRD can claim penalty tax and so they should.

      And, yup, criminal charges should be laid too. I’d like to see any jury in this land fail to convict a company that tried to rip us off by a billion dollars.

      • Jared 15.1.1

        The IRD should only claim penalty tax when a tax bill is overdue and not when it is being contested in proceedings like these. If the banks fail to pay as a result of the judgement being issued against them, then they should be issued with an amended tax bill that includes penalty tax, but until then, it shouldn’t apply.

      • I’m a human rights lawyer. If I’m prepared to argue for the human rights of vicious criminals, I think it’s only consistent that I argue for the human rights of tax cheats.

        The position I’m arguing against here isn’t that criminal charges should be laid, it’s that punishment should be meted out before criminal charges are laid, let alone proved.

        Detention without trial is bad enough, but punishment without trial is just so outrageous an idea I’m surprised anyone here even contemplates it.

        • snoozer 15.1.2.1

          no-one’s saying ‘don’t have due process’, Graeme. We’re just saying what we would like the outcome to be.

          • Graeme Edgeler 15.1.2.1.1

            The question to which I was responding is the title of this thread: “Why no punishment for Westpac?”. The question wasn’t “why no criminal charges for Westpac?”.

            The post continues:

            “You would have seen that Westpac was found to have undertaken the largest theft of tax money in New Zealand history.

            In reality, the business should be seized by the government. Westpac undertook the most expensive criminal action in New Zealand history, I don’t see how we can’t consider it a criminal organisation and its assets, therefore to be forfeit.

            You may not have been arguing for punishment without trial, but someone was.

            • snoozer 15.1.2.1.1.1

              um, where does the post say ‘don’t have due process’?

              If some is arrested on a heinous crime and I say ‘lock ’em up for life’, I’m not saying ‘do it without a trial’

            • Graeme Edgeler 15.1.2.1.1.2

              Right here:

              In reality, the business should be seized by the government. Westpac undertook the most expensive criminal action in New Zealand history, I don’t see how we can’t consider it a criminal organisation and its assets, therefore to be forfeit. Westpac’s owners don’t deserve the right to own the business with which they tried to rip us off.

              I’d re-iterate … the question asked in the title itself was “Why no punishment for Westpac?”

              In your example, the equivalent question is “Why hasn’t this person been locked up for life?”

              The answer to that is blindingly obvious.

  16. Brickley Paiste 16

    Graeme is right, everyone. You can’t just Gitmotise people because they’re baddies. It was a civil tax case. The Commissioner won. Hooray.

    Were IRD/SFO prosecutions considered? Could they have been? How? I do not know.

    “Instead, we need to directly punish the accountants and managers who made, executed and confirmed the decision to engage in criminal behaviour.”

    And the lawyers. They always get away with everything.

    • Gosman 16.1

      “Instead, we need to directly punish the accountants and managers who made, executed and confirmed the decision to engage in criminal behaviour.’

      Who actually stated this – you Brickley Paiste?

      As Rod Oram pointed out on Radio NZ National you can have some sympathy for the Banks here because they were attempting to play with the rules. The rules were too vague and ambiguous though.

      There is no evidence that anyone was engaging in any deliberate criminal behaviour. Tax avoidance yes, Tax evasion no. Hence the reason why what people are discussing here in regard to nationalisation is a gross overeaction (but understandable given who is making them).

      • felix 16.1.1

        Gosman,

        Earlier today you were accusing others of cherry-picking quotes.

        You then advised us to hear what Oram would have to say about the matter.

        And now you’ve twice repeated the only quote from Oram’s interview which could in any way be construed to support your position.

        The rest of the interview was spent refuting more or less everything you’ve written here today.

        You are aware, aren’t you, that the interview is archived online? And that we can all hear it for ourselves?

        For those who missed it, here it is in streaming format and also as a downloadable mp3.

        • Gosman 16.1.1.1

          Ummmm…..felix

          Rod Oram’s position is that the banks were probably engaged in a certain amount of Tax avoidance. This they have been pulled up on and will likely have to pay back once the various court cases have wond their way through the system. He stated that you can have a certain amount of sympathy for the banks as they were trying to use a new rule which was ambiguous and obscure.

          This is distinct from the banks deliverately evading tax. This is criminally illegal as opposed to just breaching the Tax rules. There is no indication that the Banks have acted in a criminal manner.

          Do you have a different take on what he had to say?

          • felix 16.1.1.1.1

            Again, you’ve cherry-picked the only sympathetic quote from the interview. You are dishonestly misrepresenting what was said.

            I’ve posted the links so everyone can hear for themselves what Oram had to say and judge the credibility of your representations for themselves.

            I’ve no interest in discussing it with you as I have no faith in your honest intentions, having read everything you’ve posted today.

          • snoozer 16.1.1.1.2

            the court heard evidence that Westpac sought advice on how to pay as little tax as possible without drawing IRD’s attention. They said they were paying 15% when really they were only paying 6%.

            It was no accident Gosman.

            • Gosman 16.1.1.1.2.1

              The IRD isn’t claiming this is Tax evasion just Tax avoidance. One is a criminal act with severe penalties the other is a technical offence.

              The argument here by most commentators seems to be that the Banks should be held criminally liable. As there is little evidence anything criminal took place this would be a waste of time and resources as well as destoying N.Z reputation as an investment destination.

              You want to see where that leads you, try Zimbabwe.

        • felix 16.1.1.2

          oops.

          here it is

  17. BLiP 17

    Gosman-To-English Dictionary

    Sympathy for the banks – Symphony for the devil.

  18. toad 18

    Don’t you mean Gosman-To-English Diptonary, BLiP?

    Oh, by the way, it’s not theft, apparently. It’s a “contingent liability“, apparently.

    Much like Melissa Lee’s. Just that it is about 10,000 times bigger.

    Oh, and the definition of “contingent liability” from the Gosman-To-English Diptonary: “funds that do not have to be repaid unless you get caught”

  19. Herodotus 19

    Of all the issues that have been raised over the last few days, this one should be pushed more than any other. When I am late paying GST, Tax etc watch the penalties and cost of interest esculate. This has been decided as Tax avoidance where is the consistency from the IRD?
    Also have we NZ put measures inplace to guarantee the banks deposits. Nice to see that this is a take,take and take relationship!
    Toad like your meaning of “contigent liability” was not what I had learnt of as the meaning, but yours has more realism than the textbooks.

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