Billionaire Ty Warner Hasn’t Revealed Source Of $80 Million UBS Deposit
On January 31, 1996, Ty Warner, owner of Beanie Babies maker Ty Inc., flew to Zurich and deposited about $80 million at UBS AG, instructing that all correspondence about the account be held at the bank. In 2002, after UBS signed up for a program that required it to share more information on U.S. depositors with U.S. authorities, he went to Europe again to move his funds to a Swiss bank with fewer U.S. ties, this time holding it in the name of a Liechtenstein trust.
For more than a decade, Warner kept his Swiss stash secret from the Internal Revenue Service and from his own accountants, evading at least $5.6 million of federal taxes on $25 million in earnings from the account.
Without taxes nicking his returns, Warner’s offshore holdings had grown to $107 million by 2008. The now 70-year-old Forbes 400 member (estimated net worth $2.5 billion) admitted all of this in October 2013, when he pleaded guilty to one felony count of tax evasion, and agreed to pay a $53.5 million penalty (half the maximum in the account) and $16 million in back taxes and interest.
What Warner has never disclosed to the government, however, is the source of that initial $80 million deposit. (A new book about the Beanie Babies craze has intriguing details about the secretive Warner , which the author extracted from Ty Warner’s sister, two former girlfriends and former coworkers, but offers no new insight into his tax crimes.)
In fact, prosecutors say they can find no evidence the $80 million was transferred from Warner’s business or any of his personal accounts in the U.S., raising the distinct possibility that he evaded tens of millions more in taxes on that initial $80 million deposit. They cite his failure to disclose the money’s source as one reason Warner should do at least some jail time—a punishment that is still possible, though unlikely.
While the government has not publicly speculated where the money might have came from, Jeffrey Chernick, another toy maker who had the same UBS banker as Warner, admitted in a guilty plea that he funded his Swiss account with payments from Hong Kong and Chinese manufacturers which were not reported by him to the IRS. Similarly, billionaire Leandro Rizutto, founder of Conair , was convicted in 2002 of depositing millions in kickbacks from Asian suppliers into Swiss accounts.
Based on the U.S. Sentencing Guidelines, Warner should have gotten between 46 and 57 months in the federal pen for the $5.6 million in evasion he admitted. Last year, Chicago Federal District Court Judge Charles P. Kocoras let him off with two years of probation and 500 hours of community service. The U.S. Department of Justice has appealed that sentence to the 7th Circuit Court of Appeals, which has yet to rule. The Beanie Babies billionaire could still go to jail—just don’t bet on it.
Congress intended the sentencing guidelines to be generally binding on judges. In 2005, however, the U.S. Supreme Court ruled they are merely advisory. Subsequent Supreme Court and appellate decisions have made it clear that trial judges have broad discretion to depart from the guidelines and that their sentencing decisions will only be overturned if they’ve failed to properly consider the guidelines or if their decisions are substantively unreasonable.
During a hearing last September, members of a three judge 7th Circuit appeals panel seemed unimpressed by the government’s case. Their comments suggested they believe Kocoras had, in his sentencing decision, properly considered the guidelines before rejecting them and was due some deference.
“You’ve got Judge Kocoras here; a veteran judge, certainly not some bleeding heart Pollyanna, who obviously agonized, agonized over this sentence, knew it wouldn’t be a popular sentence, shall we say, and still did this. What happens to judges’ with such stellar careers discretion in your view?” 7th Circuit Judge Ilana Diamond Rovner asked Assistant U.S. Attorney for Northern Illinois Michelle M. Petersen.
In addition, the government’s own lenient treatment of offshore tax cheats seemed to make Kocoras’ dramatic departure from sentencing guidelines more reasonable in the appellate judges’ view. Warner’s lawyers had argued that he should be spared from jail not only because of his age and charitable good works, but also because many others convicted of having secret offshore accounts, (including billionaire Igor Olenicoff, who hid more than $200 million offshore) had gotten off on probation.
And, they noted, in September 2009, Warner tried unsuccessfully to enter the Internal Revenue Service’s Offshore Voluntary Disclosure Program, which grants amnesty from criminal charges to those who fess up to their secret offshore accounts (including the source of the money) and pay civil penalties and back taxes and interest.
Indeed, in a nod to how low other offshore sentences have been, the U.S. Attorney didn’t demand before sentencing that Warner be given a guidelines term of 46 months or more, but instead called for jail time of “at least a year and a day’’—which with time credited for good behavior, works out to eight or nine months. “Can you see my concern that you’ve started the judge down the road of kind of a minimalist approach to custody?’’ 7th Circuit Judge Joel M. Flaum asked Petersen.
Warner’s lawyer, former U.S. Solicitor Paul D. Clement, drove home that point at the hearing, and also played up the role of the OVDP in setting the stage for leniency for offshore cheats. Said Clement: “I think it helps explain why you do have this dynamic of over half the people charged with this crime get a probationary sentence… I have to imagine that amnesty program is what influenced them to seek a year and a day for the sentence in this case. And what I want to emphasize is that my client was not turned down for that program because the amount of the tax loss was too high. If you satisfied their criteria, they took all comers; and in a sense since the amnesty program was designed to get revenue back in the system, the bigger account the better.’’
Warner was rejected from the OVDP because the the government already had his name, making him ineligible. Indeed, as prosecutors have repeatedly emphasized, by the time he tried to confess, Warner’s Swiss banker had been indicted and toy maker Chernick had pleaded guilty and was cooperating fully with prosecutors. (Despite all his cooperation, Chernick got three months incarceration for hiding $8 million offshore.)
In arguing that Warner is different from those in the OVDP program, prosecutors point out that participants in the OVDP are required to cooperate fully and make a complete disclosure, including of the source of any offshore funds. Warner has not only refused to explain where the $80 million he deposited in UBS in 1996 came from, but also secretly fought a grand jury subpoena for his Swiss bank records all the way up to the Supreme Court. Ultimately, he was forced to hand them over.