COMMENT: Corporate raiders hit Hermitage Capital

By bne IntelliNews August 7, 2008

Hermitage Capital in London -

Hermitage's chief executive, Bill Browder

ED: what follows is the content of a letter circulated by William Browder's fund Hermitage Capital detailing how the tax payments from several of the fund's assets were stolen by raiders. This text is unedited and has not been verified by bne. END

We are writing to keep you updated on the administrative harassment we have been experiencing in Russia over the last year. We recently learned a number of new things that fully explain what was behind the issues we have been facing. Sometimes the truth is stranger than fiction and the story we tell below will probably be as shocking to you as it was to us.

As you may recall from our last letter on April 3rd, an unsuccessful attempt was made to steal assets from our three Russian investment vehicles through a sophisticated "corporate identity theft." The whole story began in June 2007 when our offices (and those of our lawyers) were raided by the Moscow Interior Ministry, who seized all the original corporate documents of our Russian investment holding companies. This was done under the guise of a tax investigation into withholding tax payments from a managed account belonging to one of our clients. Even though it was confirmed by the Russian Tax Ministry that there were no taxes owed, the Moscow Interior Ministry used the spurious tax case as a cover to go on a wideranging search for assets held in Russia by these three Hermitage investment vehicles.

Simultaneous to the asset search, HSBC (as trustee for the Hermitage Fund) was fraudulently wiped off the share registry of our three vehicles and was replaced with a new and unknown company called Pluton from Tatarstan. When we investigated who was behind Pluton, we discovered it was 100%-owned by a man named Victor Markelov, who further investigations revealed is a 41-year-old convicted murderer from Saratov, Russia. In order to change ownership of a Russian company, one needs to have the original charter, corporate seal and certificate of registration of that company. All of these documents and seals had been taken by the Moscow Interior Ministry during the raid on our lawyers' offices and were in the Interior Ministry's possession when this fraudulent ownership transfer and identity theft took place.

At the same time, a number of lawsuits were filed by a tiny shell company called Logos Plus in St. Petersburg using forged contracts, which appeared to have been created using the same documents that were in the hands of the Moscow Interior Ministry. The perpetrators then sent lawyers that we didn't appoint and never heard of to the St. Petersburg court to "defend" our companies, but instead of defending them, they "fully admitted liability and accepted all the claims." As a result, the judges in St. Petersburg awarded Logos Plus $376 million of damages against our three stolen vehicles.

At first, the perpetrators' plan appeared to be to get bogus court judgments and then use these judgments to seize any assets they found. Their hope was that the asset searches at HSBC, Citigroup, ING and Credit Suisse between June and August 2007 would yield a jackpot of assets for the perpetrators to seize. Unfortunately for them, all our assets had been moved out of Russia into safe and lawful jurisdictions a long time before and the perpetrators got from us. After we learned about the whole scheme, we filed a number of criminal complaints, and went to court with the proof of the fraudulent claims and were ultimately successful in invalidating the St. Petersburg court decisions.

That seemed like it should have been the end of our troubles in Russia, but it wasn't. In early April we discovered that two new cases identical to those in St. Petersburg had been filed against our vehicles late last year in Moscow and Kazan for an additional $903 million.

Again, lawyers who we had never appointed and never heard of showed up to "defend" our companies, and again they admitted full liability and the courts awarded the plaintiffs $903 million. What was particularly disturbing about this new discovery were the dates when the cases were filed. They had been filed on October 19th, 2007 in Moscow and October 22nd, 2007 in Kazan. This was more than a month after the asset search had yielded no results. It seemed strange and worrying that the perpetrators would continue to be so active filing fake cases against our companies when it was clear at this point that they would not be able to seize any assets since these companies were empty. We did further investigations to try to understand what their motivation was.

The whole story started to make sense in June this year when we requested information on our three stolen companies from the Russian company registration database. We learned that the perpetrators had opened new bank accounts for the three companies in December 2007.

Two of the vehicles set up accounts at the Universal Savings Bank ("USB"), and the third vehicle opened an account at Intercommerz Bank. Both banks were tiny by any measure.

USB had total capital of $1.5 million, and Intercommerz had capital of $12 million. Looking more closely at the banks' disclosure statements on the Russian Central Bank's website, we learned that the aggregate customer deposits increased by 623% at USB and 273% at Intercommerz shortly after our stolen companies had opened their accounts. What was truly chilling were the amounts by which the banks' deposits had increased. USB's deposits had grown by $97 million and Intercommerz's by $143 million - roughly the same amounts that our vehicles paid in capital gains tax to the Russian government in 2006.

In light of this disturbing coincidence, we dug deeper to see if there was any more detailed information about the spike in deposits at the two banks. Under Russian regulations, all banks have to report their top ten borrowers and depositors to the Central Bank on a monthly basis, and this information is widely available in Moscow. We were able to see the reports for the two banks and learned that two of our stolen investment vehicles were the largest and second largest depositors at USB with a combined $91 million in their accounts, and our other stolen vehicle was the largest depositor at Intercommerz with $139 million in its account. The size of each of our stolen vehicles' deposits was exactly equal to the amount of tax it had paid in 2006 to the Russian budget.

The whole story now fell into place. In short, after the straightforward asset seizure failed because our vehicles were empty, the perpetrators set out to steal the taxes that Hermitage vehicles had paid in 2006. How did they do this? They filed bogus court claims that were exactly equal to the 2006 profits of each of the Hermitage vehicles. Our three companies had combined profits of $972 million that year, and the fake court claims from Moscow, Kazan and St. Petersburg totaled $972 million. By burdening our vehicles with these new "claims,"we believe the perpetrators went back to the tax authorities and filed amended tax returns with additional "losses" that reduced the companies' profits to zero. On the basis of the restated results, the perpetrators appear to have filed for a refund of all the taxes that the Hermitage Fund paid in 2006 ($230 million) and directed it to the newly opened accounts in these tiny banks. With the refund money deposited in the banks, the perpetrators could wire it wherever needed, complete the fraud and then cover their tracks. Indeed, as of the time of writing of this letter, USB has filed a liquidation request with the Russian Central Bank and once the waiting period is over, it will cease to exist.

So the two-pronged scam worked in one area and failed in another. The perpetrators weren't able to steal the assets from us based on the fake court claims, but they were able to steal $230 million from the Russian government by filing amended tax returns on behalf of our stolen companies. What makes this story even more shocking is that we filed six 255-page criminal complaints with the Russian authorities in December last year, one month before the tax fraud took place, and they did nothing to stop it. Two complaints were sent to the Russian General Prosecutor, two to the Russian State Investigative Committee and two to the Internal Affairs Department of the Interior Ministry. There was enough information to prevent the fraud and indict a number of people behind it if the government had acted.

Instead of doing anything to save the Russian state from this highly sophisticated and organized looting, two of our complaints were thrown out immediately; two were returned to the same Interior Ministry official we were complaining about (essentially, he was being asked to "investigate himself"); and one was thrown out for "lack of any crime committed."

Only one complaint was taken seriously. It was taken up by the Russian State Investigative Committee in early February, but before it could get any traction, the case was lowered to the South region of the Moscow district of the State Investigative Committee (the lowest level of the Committee) and by June, another senior Interior Ministry official whom we had named in our complaint had joined the "investigation" team (again, to "investigate himself"). To this day there has been no serious response by the Russian authorities to this massive fraud against the Russian state.

As we described in our April letter, the problem of corporate "raiding" is now so endemic in Russia that President Medvedev speaks about it as one of the biggest problems faced by Russian businesses. In this case, raiders have taken this problem to a new and absurd extreme by "raiding" the Russian state itself and so far getting away with it. Together with HSBC, we will shortly be filing new criminal complaints with the Russian General Prosecutor and Russian State Investigative Committee as well as with many law enforcement authorities outside of Russia. It is hard to predict what will happen next in this unfolding and unbelievable saga, but as always we will keep you updated on any further developments as they arise.

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