Monthly Archives: May 2015

Clients often ask me “Can you set up a Private Offshore Account for me with a global bank?”

In 14+ years of specializing in Offshore Company, Offshore Trust and Private Foundation formations, and having built up a sizeable list of banking contacts, (including with major players such as HSBC, UBS, Barclays Bank, Standard Chartered Bank etc) I’ve been happy to accommodate such requests.

But with the ever widening reach of globalisation it is really hard for me to continue to do so.

Allow me to explain why…

One of the key reasons people Bank Offshore is risk reduction through international diversification. Some people mistakenly believe that to protect themselves from their country going down the tubes, they ought to move ALL of their money to ONE other country.

That’s not how it works. No country is totally resistant to all shocks or the potential shocks of a government that decides to go rogue.

Having said that, it makes sense that to obtain diversification you have to escape the system you’re in back home. With the likes of HSBC & Barclays Bank etc, it’s hard to do that.

A number of influential Tax Lawyers suggest that the achievement of perfect internationalization (ie creating a lifestyle where you are no longer beholden to any one country) includes working with banks that have no connections in the country you live in or hold citizenship in. That rules out pretty much any multinational bank such as HSBC, Barclays Bank, Standard Chartered etc.

The reason is that these banks are just as closely tied to your home country as they are the more tax-friendly locations such as Hong Kong, Singapore etc.

Even though HSBC UK is a totally different bank from HSBC Hong Kong, and their local registrations do put up some barriers, more of those barriers work against you than for you.

For example, I can only deposit a paper cheque payable to my firm’s Business Account (which is with HSBC Hong Kong) at a branch of HSBC in Hong Kong. I can’t deposit the check at a branch of HSBC in the UK or any another country.

Likewise, when an account a friend opened at a Czech Republic bank was quickly opened and then closed with him never getting the account number, he couldn’t walk into that bank’s branch in Slovenia to get the number. He had to go to the Czech Republic.

Additionally, there is increasing evidence to suggest that your government could call up HSBC in another country and say “hey, this guy owes us taxes; please freeze his account”.

Domestic bank accounts you own are an easy target for your government. For example I know of an Associate who woke up one morning in California to find that a bank account for a non-California LLC had been levied by California… for taxes he’d already paid! All it took was some empowered bureaucrat in Sacramento to push a few buttons.

Sadly, banking with multinational banks can subject you to the same provisions. I’m not saying you should dodge the tax man or skirt the law knowing that some local bank in Andorra will protect you. I’m not suggesting you do anything illegal or even immoral.

What I am suggesting is that multinational banks like HSBC will throw you under the bus in two seconds if someone with a shiny badge comes and knocks on their door asking for money. Do you think HSBC is going to risk its good standing in the United States to keep you and your $100,000 happy? Of course not. Especially not after a money laundering dispute that cost the bank a ton of money to settle.

HSBC Premier accounts are worthwhile for expats and perpetual travelers who want access to their bank in multiple countries. Many travelers experience ATM and foreign transaction fees when traveling with their home bank debit and credit cards, and having an HSBC account can prevent that in some cases.

In addition, HSBC Premier does have several airport lounges for bank customers, and I am told they are building more as the high-end banking space becomes more competitive.

However, if you are planning to move money from a high-yield online savings account to HSBC, be advised that you’ll earn essentially zero interest. In Hong Kong, a current account is paying 0.01% – if that – these days.

While HSBC does offer cheaper accounts, Premier accounts are the easiest for frequent travelers or those banking from home, and requires at least US$100,000 be tied up at zero interest.

Having said that, there is little “premier” about HSBC Premier service. My experience with HSBC Premier branches in several countries has been that you can’t even get a fresh cup of coffee while you wait for your banker. Then there’s the fact that you have to wait for your banker…

Ask anyone at the branch what the benefits of being Premier are and they’ll hem and haw and give you no real answers. My experience with the one-on-one relationship managers in large banks in the UK, Seychelles and Hong Kong has also been rather poor.

As an entrepreneur, I know the value of slick marketing and used to joke with employees in past businesses that we’d make them a “Vice-President” if they’d take less money. That’s based what HSBC, Barclays etc does… hires a bunch of grunts in monkey suits and calls them “private bankers”.

If you want one bank that you can use without the need for privacy or diversification, but rather for simplicity, HSBC can work for some people. I don’t hate HSBC, but I am a stickler for service and there are better options if you have a six-figure sum to deposit.

Ditto if you are looking to protect your cash from sticky fingers.

Further to that I’ve/we’ve recently identified some 50+Offshore Banks in over 18 countries who, we’re reliably informed, offer better services than HSBC, Barclays etc, including banks that offer excellent debit cards for expats and travelers, as well as banks with Premier accounts where you’re offered fresh fruit and champagne while you wait for your banker! We have contacted, and are in the process of setting up introduction relationships with, each such bank. Watch this space for details…

Occasionally I’m asked How can I close down my Seychelles Foundation?

There are several ways to close down a Seychelles Foundation.

One way is to let the registration lapse. In this option if you simply fail to pay the renewal fee after a period of time (max 18 months) the Foundation will be struck from the Register.

If the Foundation continues to operate past its due registration date and you don’t renew its annual operating license you would however become personally liable for any debts or liabilities that the Foundation may incur. Additionally ownership of any asset held by the Foundation could revert to you personally which may have tax consequences.

To avoid these risks and/or if you are owed money by the Foundation and want to claim priority for repayment you would be well advised to go through a formal winding up.

Winding Up

To wind up a Seychelles Foundation there is a procedure you must go through, ie as follows:

1.       Initiating the dissolution process

The dissolution is initiated through a resolution of councillors. Relevant consents for the dissolution should be obtained if the charter or regulations so requires. E.g. consent of Founder or supervisory persons (protectors)

Reason for the dissolution

The Seychelles Foundations Act section 92(1) specifies that a Foundation shall be dissolved where:

(a)    it is established for a definite period of time and that period expires;

(b)   its object is fulfilled or becomes incapable of fulfilment as determined by a resolution of councillors and, if so required under the charter or regulations, with the consent of the Foundation’s supervisory person, if any;

(c)    any term of its charter or regulations so requires;

(d)   it is unable to pay its debts as they fall due;

(e)   this Act provides that it shall be dissolved; or

(f)     the court orders that it be dissolved.

2.       Appointment of Liquidator (S92(2))

The councillors, through a resolution, should appoint a liquidator to supervise the dissolution process (or the liquidator is appointed in accordance with the charter or regulations)

The duties and powers of the liquidator are as set out under S92(3) and S93. It is recommended that publications are done by the liquidator. 

3.       Notice to the Registrar

The registered agent shall give the Registrar written notice upon receipt of the resolution (and applicable consents).

4.       Statement by liquidator

The liquidator shall give to the registered agent a written statement once he has completed the winding up and dissolution of the affairs of the foundation

5.       Filing of liquidator’s statement to the Registrar

The registered agent shall file with the Registrar a certified true copy of the liquidator’s statement

6.       Certificate of dissolution

The Registrar shall strike the Foundation off the Register and issue a certificate of dissolution certifying that the Foundation has been dissolved.

7.       Publication by the Registrar

The Registrar shall cause to be published in the Gazette, a notice that the Foundation has been dissolved and struck off the Register.

These are the relevant documents that need to be generated:

1.       Consent of Protector (if applicable)

2.       Consent of Founder (if applicable)

3.       Declaration of liquidator

4.       Resolution of Councillors

5.       Statement by liquidator – template

6.       Relevant section of the Foundations Act – including the duties and powers of the liquidator 

Note that the Foundation needs to be in good standing in order to start the process.

The term holding company is usually used to describe a company which is set up (not to own/operate a business but to) passively hold an asset eg the shares of another company or a piece of real property.

Usually all a holding company does is receive passive income eg dividends if it owns shares in other companies or rent eg if it owns real property. The advantage of setting up a Holding Company “Offshore” is if you incorporate it in the right place and structure it properly (a) you might minimise withholding taxes when dividends etc are paid to the Holding Company (see below) and (b) you can potentially receive (and reinvest) your passive income free from tax.

The other advantage of setting up a Holding Company “Offshore” is privacy. If you don’t want certain persons to know that you own a particular asset or assets you might choose to set up your holding company in a privacy haven ie somewhere which does not have a public register of directors or shareholders or beneficial owners.

A Holding Company is often placed between a Trading Company and the Ultimate Holding Entity (which might be a Company or a Trust or a Foundation) as a means by which to access a favourable DTAT (ie Double Taxation Avoidance Treaty) such as would enable you to reduce the withholding tax (“WHT”) that would otherwise apply on dividends, interest or royalties paid by a Trading Company to your Ultimate Holding Entity.

Commonly when dividends, interest or royalties are paid by an onshore company to an offshore shareholder Witholding Tax (WHT) of around 20% is payable in the country from where the payments are being made.

However deals are often brokered between countries and written in to a DTAT which afford WHT discounts if the shareholder is a resident of, or incorporated in, a particular country.

For example Mauritius Companies are commonly used to hold shares in Indian Companies as Mauritius has a favourable DTAT with India that affords WHT discounts to Mauritius persons or companies.

Likewise Seychelles Holding Companies (CSLs) are commonly used to hold shares in Chinese Companies as China has a favourable DTAT with Seychelles that affords WHT discounts to Seychelles persons or companies.

The Netherlands is another popular place for the incorporation of Holding Companies as it has an extremely wide network of WHT friendly DTATs.

American Citizens Abroad (ACA) has reportedly submitted a proposal to the US Senate Finance Committee (individual and international tax reform working groups) for the enactment of residence-based taxation (RBT) for American expatriates.

ACA proposes that US lawmakers should enact RBT instead of the present citizenship-based taxation (CBT) because it would reduce compliance burdens for expatriates, provide more efficient taxation, and improve competitiveness.

Under the current CBT, Americans abroad remain subject to US taxation as though they were still US residents. Under RBT, only US residents, whether Americans or foreigners, are subject to US income, estate, and gift taxation, while Americans resident abroad are taxed under essentially the same rules applicable to nonresident aliens.

It was pointed out in ACA’s submission that “the IRS has recognized that the vast majority of Americans residing overseas do not owe US taxes; according to the National Taxpayer Advocate, about 82 percent of all Americans abroad owed no US taxes. For most Americans abroad, the real hardship of CBT is the cost, time, and legal risks involved in compliance.”

ACA proposes that, as part of a general tax reform package, an election should be provided to citizens who are long-term nonresident citizens to be taxed as nonresident aliens if they meet certain conditions – for example, a minimum three-year period of residence abroad.

Americans abroad would still be taxed through a system of withholding taxes on passive US source income (such as dividends, rents, and pensions), capital gains taxes on US real estate, and normal income taxation on income earned in a trade or business in the United States. They would also remain subject to US estate tax on assets located there, including real estate and securities.

ACA believes that RBT would “match CBT in tax revenue generation; reduce the administrative workload and enforcement costs of the Internal Revenue Service (IRS); provide for a more efficient, equitable taxation of Americans abroad; align US law with that of all other nations; and free overseas citizens from the CBT and Foreign Account Tax Compliance Act straitjacket which imposes unreasonable compliance burdens and prevents many from accessing required financial services.”

ACA has previously accepted that an exit tax could be imposed on taxpayers electing RBT, where they would pay a capital gains tax on assets deemed to have been sold at the time of election. However, it suggests that such a tax should be subject to conditions where it would be “viewed as an anti-abuse measure aimed at wealthy individuals who might consider leaving the US for tax reasons, not as a source of US tax revenue.”

Meanwhile non resident US Citizens concerned about having to account to the IRS for tax on income earned abroad would be wise to consider setting up an Offshore Corporate Structure to hold and or receive Offshore Income – in particular a Seychelles Foundation holding entity – which can shift underlying legal and beneficial ownership of the Offshore income/assets away from the US citizen to a non-US person ie the Foundation itself  (ie an entity which should not have to report Offshore income/assets to the IRS).

Intellectual property (“IP”) is a creation of the mind and includes things like inventions, literary and artistic works, designs and symbols, software code, names and images used in business.

IP is commonly protected in law by way of patents, copyright and trademarks which enable the person who came up with the idea to securely earn recognition or financial benefit from whatever it is he/she has invented or created.

An Offshore IP company is an ideal vehicle for the administration and management of licenses and intellectual properties including computer software, technical know-how, patents, copyrights and trademarks.

Practicalities

So how does it work from a practical perspective?

At core the Offshore IP Company (which is usually set up in a nil or low tax country) is used to divert income from Trading Companies or Businesses trading in developed or high tax countries.

The first step is to transfer ownership of the IP rights to the Offshore Company/Entity.

Once that’s done the Trading Business then enters into a legal agreement (contract) with the IP Company whereby, in return for being allowed to use the IP, the Trading Company agrees to pay the Company royalties or license fees. The income arising from these agreements can then be accumulated offshore in a nil or low tax environment.

Timing is of critical importance – It is clearly preferable to acquire the IP (for example, a patent) at the earliest possible time (e.g. at the patent pending stage) before the IP becomes highly valuable. That way the capital payment for the acquisition of the IP (e.g. patent) can be set at a lower amount i.e. before its true worth has been determined in/by the market. (These capital payments may even be deferred and or staggered by way of an instalment contract such as would enable the IP Company to use subsequent royalty payments to fund the cost of the IP).
If a deal is struck for the Offshore IP Company to buy the IP before the IP gives rise to a product or service which is offered/advertised in the market the IP might even be transferred for nominal consideration enabling the IP inventor/creator to transfer patent, copyright or trademarks in favour of the low/nil tax company before the IP suffers significant appreciation in value.

Businesses Who Pay Royalties or License Fees for the use of IP

Once it has acquired the Property the Offshore IP Company can then issue (IP) sub-licenses or exploitation rights to appropriate third party structures.
For example, a majority of software companies license their users through companies which are established in “offshore” jurisdictions, or through a firm, which is not established in a classical offshore jurisdiction, but is owned or controlled by such a firm.

Typical examples of businesses that might pay license fees to a nil/low tax Offshore Company include:
- Software companies
- Companies doing business in information technologies
- License and copyrights to books, articles, music, films, etc.
- Users of Franchise operating systems

- Trademark product (e.g. Clothes/Consumer Goods/Accessories etc. Brand) manufacturers and or retailers

In some circumstances the royalties may be subject to withholding tax at source, however, the interposing of a second company in another jurisdiction may reduce the rate of tax withheld at source (a carefully selected jurisdiction can withhold taxes on royalty payments with the commercial application of double tax treaties).

Structuring Options

Another option, whilst you are still in the process of creating a new piece of intellectual property, is to involve or engage an offshore (nil tax) company as a foreign partner or financial sponsor. Participation in development at this early stage would entitle the Zero Tax Company to register as the owner or co-owner of the property.

If you involve an offshore company later, you have to sell or assign the title to the property to the offshore company, and these kind of transactions require at the least that a fair market price deal be apparent as if no associated parties were involved (+ the transfer may involve the incurring of some CGT on the part of the inventor/creator of the IP).

Benefits of an Offshore IP Company

There are numerous benefits that an IP holding company can deliver including:

• By placing your IP in one entity you are able to streamline the internal processes for inter-group licensing
• Cross-jurisdictional tax issues become simpler as you will be regularly licensing IP between the same jurisdictions
• You can justify staffing the Offshore IP Company with people who have the skills to manage the same so protecting valuable assets of the company further, simplifying the licensing process
• Assets can be valued due to the income stream that accrues for the benefit of the IP holding company
• The value of the shares in the entity can be included into the accounts which will benefit the shareholders of the holding company
• You can split your income streams in two enabling you to sell one chunk of your business first up (i.e. the operational business) whilst retaining the other (i.e. IP) arm of the business which would entitle you to receive passive income
• If your business or trading company ever gets sued and the IP is owned by a 2^nd (e.g. Offshore) Company the most precious asset of your business can/will not be lost.
• You get to retain ownership of your IP in a highly private environment where no one knows what you own or how much the IP is worth. (There have been many documented cases of inventors and artists who rise suddenly to fame only to lose their fortune just as quickly via a law suit filed by a disgruntled gold digging ex-lover or confidante… The chances of that happening if your IP is owned by a privacy haven company are GREATLY reduced)
• You can significantly if not dramatically reduce the tax that your operating/trading company would otherwise have to pay