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How To Run a Trade Finance Business Using a Tax Free Offshore Company

A Trade Finance Business lends itself well to an Offshore Corporate Structuring Plan. Here’s it can/would work:

You form a tax free Offshore Company
The client would sign off on a contract with your tax free Offshore Company for the Company to supply Trade Finance Services on certain terms
The agreement would provide for the Company to be paid a fee for provision of these services
The source of the fees would be the contract
The contract would be signed/closed Offshore by the Company ie in a nil tax environment
The Trade Finance itself ideally would also come from Offshore (ie from an Offshore Bank established in a nil tax environment)

As such you can create a scenario whereby the income is generated, prima facie, in a nil tax environment.

Provided the Company is (a) seen to be managed and controlled from Offshore and (b) seen to be owned/beneficially owned by an Offshore/non-local resident there should be no tax payable in your home country on the Company’s earnings.

In short you should be able to achieve (a) by deploying a nil tax jurisdiction resident “Nominee” director as part of the Corporate structure & achieve (b) by setting up a Private Foundation to own/hold the shares of the Company.

Local laws can have an impact. Hence you should seek local legal/financial/tax advice before committing to set up an Offshore Company for such purposes.

Would you like to know more? Then please Contact Us:

www.offshoreincorporate.com

info@offshorecompaniesinternational.com

Why Transfer Property to a Tax Free Offshore Trust or Private Foundation?

Offshore Trusts & Private Foundations are commonly used as Asset Holding Vehicles.

So why bother transferring ownership of an onshore asset such as Real Property to an Offshore Trust or Private Foundation?

Most Trust & Estate Practitioners would tell you that the benefits of transferring ownership of property to a tax free Offshore Trust or Private Foundation include:

(a) It will enable your successors to avoid (if you are the owner of the property in your own name) having to pay Inheritance tax in respect of the property when you pass on.

(b) It will enable you to control ever after (ie even after you’ve passed on) what happens with the property and who gets to benefit financially from the property, when and in what amount

(d) It should enable you to avoid having to pay CGT (Capital Gains Tax) ultimately when the property is finally sold (ie if you set up an Offshore Trust or Foundation and structure it a certain way)

(e) It should enable you to reduce the amount of tax that would otherwise be payable on nett profits generated from renting the property

(and contrary to what you may have heard it doesn’t cost an arm or a leg to set up an Offshore trust or Private Foundation. Such an entity can be set up for as little as $US1,600!)

Note you should consult your local Lawyer and/or Financial Adviser and/or Accountant before transferring ownership of an asset to an Offshore entity as tax may apply on the transfer (eg CGT and/or Stamp Duty)

Would you like to know more? Then please Contact Us:

www.offshoreincorporate.com

info@offshorecompaniesinternational.com

How to Transfer of Ownership of an Onshore Company 2 a Private Foundation

Recently I was asked by a client can I transfer ownership of my local Company to an Offshore Tax Free Private Foundation?

The answer is you can but, as ever, you’ll need to be sure that you dot your I’s and cross your Ts!

To legally effect a change of ownership of an Onshore Company to an Offshore Private Foundation you need to effect a Share Transfer.

To achieve this all you should require is a stock transfer form to be signed by the current holder/s of the shares and deposited at the Company’s Registered Office (or at the Company Registrar’s Office ie if the Company you are transferring ownership of is incorporated in a country which has a public register of shareholders).

To minimise the chances of the legality of the transfer ever being questioned:

(a) You should ensure that the Onshore Company and IBC both sign a contract (ie a sale and purchase agreement)

(b) Once the contract is signed a Share Transfer (ie a document which effects legal transfer of ownership) will need to be signed, usually by both parties and lodged with the relevant authority/Registrar

(c) The sale should be seen to be on commercial terms (such as would otherwise exist between a buyer and seller “at arm’s length”). That said the sale contract could be an instalment or vendor finance contract ie where a deposit is paid and ownership is transferred but the seller retains a mortgage until such time as all the instalments have been paid.

(d) The price paid for the shares should be seen to be fair market value

How do you determine, or buy at, fair market value? Ideally by either:

(a) Advertising the shares for sale publicly and matching the price of the highest bidder; or

(b) Have a Licensed Valuer or a Certifier Practising Accountant review the Company’s books of account and place a value on the shares

Capital Gains tax may apply hence you should seek local legal/taxation/financial advice before committing to transfer ownership of an onshore Company to an Offshore Private Foundation.

Would you like to know more? Then please Contact Us:

www.offshoreincorporate.com

info@offshorecompaniesinternational.com

HOW TO SET UP AN E BOOK OR ONLINE PUBLISHING BUSINESS OFFSHORE

Offshore Companies are commonly used to own/operate all kind of online based businesses. Please check out these links for some examples of how certain kinds of businesses can be set up “Offshore”:

http://offshoreincorporate.com/common-offshore-corporate-strategies/#1

http://offshoreincorporate.com/common-offshore-corporate-strategies/#2

If your product involves selling EBooks – or any kind of Information based product – then you’ll be pleased to know that such a business lends itself well to an “Offshore” Corporate Structuring Plan.

In principle here’s how it can work:

A nil tax offshore company (commonly an International Business Company “IBC”) is incorporated
Copyright in the EBook or Information vests in or is transferred to the IBC
The IBC owns/operates the web-based business (eg ownership of the web-domain and the website/artworks or trademark/s or any sole distributor rights are held by or transferred to the IBC)
An Offshore account (which received payments via a merchant account) is set up in a nil tax banking centre
The Company is set up with a (nil tax jurisdiction based) Nominee Director – that way management and control of the Company is seen to be taking place from Offshore ie a nil tax environment, not your place/country of residence. (Generally speaking a Company serving Online or International customers/clients is liable to pay tax in the country from which it is seen to be managed and controlled)
The sale terms and conditions on the website provide that the purchaser’s offer is not accepted until the Company responds ie by sending an invoice or providing payment instructions which means, in so far as revenue protocols are concerned, that a/the contract is formed/the bargain is struck “Offshore” in a nil tax environment (ie the nil tax jurisdiction from where the Company is seen to be managed and controlled)
Ideally the server is located in a country which does not tax business on the basis of server location (eg Singapore)
Customers contract with and pay the IBC. All such monies are banked free of tax in the first instance
You or your local company would be contracted by the IBC to manage sales/delivery of product/website maintenance/whatever.
You would invoice the IBC periodically (eg monthly) for this service which income would be assessable income in your home state – though a smart Tax Accountant should be able to assist you to claim a series of expense against this income (eg home office, equipment, travel, phone/internet/utilities etc) to significantly reduce the amount of tax payable on this income.
Often there is some kind of intellectual property (“IP”) created or behind a website based business (even if it’s just the website/design). It may be advantageous to you down the track if ownership of the business and the IP were held by 2 different entities. What you can do there is set up a 2^nd IBC to own the IP. The first IBC (ie the Trading Company) pays license fees periodically to the 2^nd IBC which fees wold be receipted tax free. This could be advantageous if you wanted to bring ownership of the web-business onshore or if you wanted to sell the business but keep a passive (potentially tax free) income stream
Ideally once you start to grow, and to add substance, you would be wise to set up your MD/Board and or a sales team onshore to take orders and receive income in a low tax onshore environment (eh Hong Kong, Ireland, Singapore, Cyprus etc as per the Amazon/Google model)

Per above to minimise the chances of the IBC being taxed onshore ideally the IBC should be (and be seen to be) managed and controlled from offshore. How this can be achieved is including a (nil tax jurisdiction based) Nominee Director etc as part of the Corporate structure. See this page for details of how that can work:

http://offshoreincorporate.com/faq/should-i-engage-nominees-or-should-i-direct-and-hold-the-shares-in-my-offshore-company/

http://offshoreincorporate.com/faq/how-can-i-protect-my-underlying-ownership-of-my-offshore-company-where-a-nominee-is-engaged-to-act-as-director-or-shareholder/

Local laws can have an impact. Hence you should seek local legal/tax/financial advice before committing to set up an IBC for such purposes.

Would you like to know more? Then please Contact Us:

www.offshoreincorporate.com

info@offshorecompaniesinternational.com

BELIZE IBC ACT UPDATE

Legislative amendments in 2018

Towards the end of 2018, the Government of Belize proposed significant amendments to their laws to comply with the EU and the OECD (BEPS) requirements. We decided at that time not to distribute any official legal update on those amendments because:

1) a detailed and thorough analysis of the amendments introduced showed that the laws had not been finalized and many of their provisions contradicted each other;

2) the legislative amendments also left many “grey areas” making it impossible to guide our clients properly on solutions available within the legislative framework; and

3) it was obvious to us that further legislative amendments were coming in the next 3-4 months, which would somehow set the record straight, and this is exactly what happened just now.

In summary the proposed amendments outlined in December 2018 foreshadowed that for the international businesses, Belize companies that required any form of Special License in Belize would, moving forward, have to show substance in Belize, pay taxes in Belize, and, in short, be subject to all relevant Belize laws. Requirements for substance for companies which are not subject to licensing under IFSC Act, were not put forward and Belize IBCs continued to enjoy their offshore status as before.

The amendments of 2018 have quite heavily affected IP companies, which should have ceased to exist in Belize by July 2021.

It is worth noting that these amendments of 2018 didn’t work for Belize to avoid the “EU black list”.

INTERNATIONAL BUSINESS COMPANIES (AMENDMENT) ACT, 2019

Within a month of Belize being included into the “EU black list”, the Government of Belize proposed further amendments to the International Business Companies Act (the Act was published on 27 March 2019 and became effective on 1 April 2019).

General amendments include:

Belize IBCs are now allowed to do business with Belize residents, own land in Belize, hold shares in Belize domestic companies and can be owned by Belize residents;
Belize IBCs are now within Belize’s domestic tax regime and will thus be required to file annual tax returns and are subject to the Belize Income and Business Tax Act; the rate of tax under the domestic tax regime is tied to the business activity and type of income;
All Belize IBCs must now comply with physical presence requirements in order to establish economic presence in Belize;
Grandfathering provisions apply up to 30^th June, 2021 in regards to tax liability.

Ring Fencing

Belize residents can now hold shares and/or beneficial interests in Belize IBCs, do business with Belize IBCs, and Belize IBCs can now own land and other property in Belize, hold shares in Belize domestic companies and can operate and carry out core income generating activities in and from within Belize.

Income and Business Tax Act

The December 2018 amendment included provisions that effectively subjects the IBC to the Belize Income and Business Tax Act (the Tax Act). IBCs must now file tax returns and pay the appropriate taxes to the Belize income tax department. Since Belize IBCs are now required to pay taxes, they must obtain a Tax Identification Number (TIN) from the income tax department. The process for applying for a TIN includes completing the application form and providing the tax department with information on the structure and activities of the company, its directors and shareholders. Registered Agents will be able to apply for TINs on behalf of their clients and will be allowed to sign the application form as the local representative of the company. It is anticipated that Belize IBCs will only be liable for tax on Belize sourced income. Clarification on this key point is imminent.

Physical Presence Requirements

The December 2018 amendment provided for physical presence mandatory for IBCs holding a licence from the IFSC but optional for all other IBCs. This amendment was not sufficient as EU required substance for all IBCs. In response, the IBC (Amendment) Act No. 1 of 2019 (March 2019 amendment) was passed and came into force as of 1st April, 2019.

With the passing of the March 2019 amendment, all Belize IBCs must meet physical presence requirements and comply with regulations to be put in place addressing physical presence. The December 2018 amendment together with the March 2019 amendment provides that physical presence include the following aspects which will all need to be complied with:

1. Sufficient and adequate amount of suitably qualified persons carrying out its core income generating activities from within Belize;

2. Expenditures consistent with the size of business;

3. Control and management activities conducted from Belize; and

4. Keeping of records in Belize;

The March 2019 amendment does provide a carve-out for “pure equity holding” companies, which is defined as a company which:

(a) is a holding body;

(b) has as its function the acquisition and holding of shares or equitable interests in other companies;

(d) does not carry on any commercial activity;”

IBCs classified as pure equity holding companies will not be required to comply with physical presence requirements. Instead, these companies will only need to ensure that they comply with corporate filing requirements under the IFSC Act and the Income and Business Tax Act and will need to have adequate personnel in place to manage the equity holding. Such adequate personnel will be satisfied via the company’s IBC Agent so long as the Agent retains record of the equity participation or holdings of the company. These companies will still be required to file annual tax returns but will not pay tax if there is no income or if the only income is dividends and capital gains.

Grandfathering Provisions

As it relates to the tax regime, a grandfathering period was allowed for in the December 2018 amendment. All IBCs incorporated on or before 16th October 2017 will continue to benefit from tax exemption up to 30th June, 2021 and their first annual tax filing will be due on 31st March 2022.

All IBCs incorporated on or after 17th October, 2017 immediately fall within the tax regime and should file their first annual tax return by 31st March, 2020. These IBCs will also need to obtain a TIN as soon as the income tax department allows for TINs to be issued to IBCs. Please note that grandfathering provisions apply only to tax exemption and not to physical presence requirements.

One last important change to the Belize IBC Regime is the abolishing of the holding of Intellectual Property assets. The IBC (Intellectual Property Asset Prohibition) Regulations 2019 came into force on 1st January, 2019 and strictly prohibits the holding of IP assets by Belize IBCs. These regulations, however, also incorporate grandfathering provisions utilizing the same timeline as the grandfathering provisions for taxes on IBCs.

Companies incorporated on or after 17th October, 2017 are strictly prohibited from acquiring, holding, owning or dealing with any IP assets. Companies incorporated on or before 16th October 2017 that hold IP assets, may apply to the IFSC for a determination on whether they qualify for grandfathering. If the IBC is approved for grandfathering, this simply means that the company will have until 30th June, 2021 before it must dispose of all IP assets being held.

Physical Presence Regulations are in their final drafting stage and are expected to come into force before or by June. As soon as these are passed, we will provide a copy of these here on our Blog Site, together with guidance noted that all interested persons can view and reference.

Would you like to know more? Then please Contact Us:

www.offshoreincorporate.com

info@offshorecompaniesinternational.com

What is the difference between an LLC & an IBC?

The LLC (Limited Liability Company) began life in the US in the 1970s where it was first offered by the state of Wyoming (most US States now offer a version of the Wyoming LLC).

In recent years a number of nil tax “Offshore” jurisdictions (most notably Belize & Nevis) have decided to offer entrepreneurs the ability to incorporate an LLC or an IBC (International Business Company) product.

For most people it’s a bit of a mission trying to understand the difference between an LLC and an IBC. Hopefully this article will be useful to you in that regard.

First let’s look at the notion of an LLC.

An LLC is, in effect, a cross breed – displaying characteristics of both a Partnership and a Corporation.

Like a Partnership an LLC is designed as a pass-through entity. Generally speaking a Partnership does not file a return or pay tax, rather it distributes nett profits to the partners of the Partnership who then declare and pay tax on those receipts as/if applicable in the partner’s home state/country. An LLC has members who receive membership units which deliver to the member almost exactly the same rights as shares. (The traditional form of Company, that is a Private Limited Company, issues shares and has shareholders who each receive shares in the Company).

Unlike shareholders in a Limited Company, the members of an LLC are treated the same, for tax purposes, as partners in a partnership. An LLC doesn’t file a return or pay tax; it distributes nett profits to the members who declare/pay tax on those receipts at home as/if applicable.

In the case of a Partnership partners share profits and are jointly and severally liable for the debts of the Partnership.

A key advantage of an LLC is that it’s a Corporation. Generally speaking (unlike Partners in a Partnership) the Directors/Officers and Shareholders/Members of a Corporation are not liable for debts incurred by the Company.

In certain Offshore Jurisdictions (eg Belize and Nevis), if you decide to form an LLC there, you also pick up some asset protection benefits. Specially before you can attack (ie via a law suit) the membership interests of a Belize or Nevis LLC you must first pay a sizeable bond to the Offshore (ie Belize or Nevis) Courts by way of security for costs (in Belize the amount is $US50,000, in Nevis it is US$100,000).

The downside of an LLC is that it’s designed as a flow through entity ie at least once a year you should distribute/pay nett profits to the members (which means ideally you’ll also need to set up a tax free Offshore Company to act as the member of your LLC).

The LLC/IBC Combo

In the current era, by far the most popular place to incorporate a (potentially) nil tax Offshore Company is Hong Kong.

An excellent alternative to a Hong Kong type Company is a combination of a US (eg Delaware or Wyoming or New Mexico) LLC and an IBC.

In this scenario the Delaware Company acts as your frontperson giving you commercial credibility (ie it has the appearance and smell of a respected International Trading entity but it’s actually a tax free Offshore Company).

Howso?

An LLC is treated by the US Tax Authorities (“IRS”) as a Partnership ie as a flow through entity. Provided all the profit is distributed to the member/s of the LLC and provided the LLC has only one member (and provided that member is not a US resident or citizen) the LLC should pay no tax in the US.

To attain that result, all money will need to be paid from the LLC by years end hence you will need a/the 2^nd company (ie a tax free IBC) to act as member for the structure to work.

Two other big advantages of using an American LLC are that:

The USA has not committed to key International Information Exchange Treaties (which might otherwise reveal to your local taxman your connection to an Offshore Company); and
In most cases, when we incorporate an American LLC, we don’t have to supply to the Registration Agent on the ground in the US proof of who is behind the Company.

To set up an American LLC with OCI will cost between $650 and $750 (+ $400 for Nominees which you’ll need to avoid tax onshore) and from 2^nd year between $340 and $440 p/a.

To set up an IBC will cost between $900 and $1,600 + Nominees.

For more information on LLCs please click on this link: http://offshoreincorporate.com/usa-limited-liability-companies-llcs/

For more information on IBCs please click on this link: http://offshoreincorporate.com/products-services/offshore-companies/

Would you like to know more? Then please Contact Us:

www.offshoreincorporate.com

info@offshorecompaniesinternational.com

HOW TO SET UP AN ONLINE COACHING BUSINESS TAX FREE OFFSHORE

The past few years have seen a steady advance in the popularity of Business/Life Coaching Services.

With most schools and many Universities failing to properly provide students with the personal and financial skills needed to survive or succeed in the “real world”, a clever substrata of Entrepreneurs has begun to arise filling the gap in this ever widening market.

Whether you are a life skills coach, business coach or in the business of providing financial education, in the tech/virtual era many if not most such businesses can be based “Online”.

Any business where customers are sourced and services (and/or products) are delivered online can typically benefit from incorporating Offshore ie iin a nil business/corporate tax environment.

In principle here’s how it can work:

A nil tax offshore company (commonly an International Business Company “IBC”) is incorporated
The IBC owns/operates the web based business (eg ownership of the web-domain and the website/artworks or trademark/s or any products/sole distributor rights are held by or transferred to the IBC)
An Offshore account (which received payments via a merchant account) is set up in a nil tax banking centre
The Company is (seen to be) managed and controlled from a nil tax jurisdiction (which will entail the deployment of a nil tax jurisdiction based “Nominee” director). You are employed as a Sales/Coaching Consultant or in some Consulting Capacity
Ideally the server would be located in a country which does not tax businesses on the basis of server location (eg Singapore)
Customers contract with and pay the IBC. When the customer places an order the terms and condition are drafted in such a way as to make the “situs” of the contract (ie the place where the contract was formed) a/the nil tax jurisdiction.
You communicate with the client online and deliver all products/services via email or via the web.
All such monies are banked free of tax in the first instance.
You or your local company would be contracted by the IBC to manage sales/delivery of product/website maintenance/whatever.
You would invoice the IBC periodically (eg monthly) for this service which income would be assessable income in your home state – though a smart Tax Accountant should be able to assist you to claim a series of expense against this income (eg home office, equipment, travel, phone/internet/utilities etc) to significantly reduce the amount of tax payable on this income.
Often there is some kind of intellectual property (“IP”) created or behind the website based business (even if it’s just the website/design). It may be advantageous to you down the track if ownership of the business and the IP were held by 2 different entities. What you can do there is set up a 2^nd IBC to own the IP. The first IBC (ie the Trading Company) pays license fees periodically to the 2^nd IBC which fees wold be receipted tax free. This could be advantageous if you wanted to bring ownership of the web-business onshore or if you wanted to sell the business but keep a passive (potentially tax free) income stream
Ideally once you start to grow your business, and to add substance, you would be wise to set up your MD/Board and or a sales team onshore to take orders and receive income in a low tax onshore environment (eG Hong Kong, Ireland, Singapore, Cyprus etc as per the Amazon/Google model)

To minimise the chances of the IBC being taxed onshore ideally the IBC should be (and be seen to be) managed and controlled from offshore. How this can be achieved is including a Nominee Director etc as part of the Corporate structure. See this page for details of how that can work:

http://offshoreincorporate.com/faq/should-i-engage-nominees-or-should-i-direct-and-hold-the-shares-in-my-offshore-company/

http://offshoreincorporate.com/faq/how-can-i-protect-my-underlying-ownership-of-my-offshore-company-where-a-nominee-is-engaged-to-act-as-director-or-shareholder/

(and if you live in a country which has a Controlled foreign Corporation law you’ll also want/need to include a Foundation as part of the Corporate structure).

Local laws can have an impact. Hence you’d be wise to seek local legal/tax/financial advice before you commit to incorporate such a business “Offshore”.

Would you like to know more? Then please Contact Us:

www.offshoreincorporate.com

info@offshorecompaniesinternational.com

The Law of Principal and Agent Explained

In last week’s Article we looked at how an Onshore Agent Company and Offshore Principal Company can be deployed to open a Paypal Account Facility.

(As alluded to last week) this week we look in detail at the nature of a Principal/Agent relationship and how it works both at Law and Practically.

A Principal-Agent relationship is an arrangement in which one entity (the “Principal”) legally appoints another (The “Agent”) to act on its behalf.

An agent creates legal relations between a principal and a third party. The agency exists when one party is authorised by the other to act on their behalf in respect of acts that affect their rights and duties in relation to third parties. The existence of the agency may be openly acknowledged, or the agent may enter into the contract without revealing that they are contracting on behalf of another. At common law, the latter situation falls within the doctrine of the undisclosed principal.

The relationship between the principal and the agent is called the “agency,” and the law of agency establishes guidelines for such a relationship. The formal terms of a specific principal-agent relationship are often described in a contract.

For example, when an investor buys shares of an index fund, he is the principal, and the fund manager becomes his agent. As an agent, the index fund manager must manage the fund, which consists of many principals’ assets, in a way that will maximize returns for a given level of risk in accordance with the fund’s prospectus.

Authority

An agent who acts within the scope of authority conferred by his/her principal binds the principal in the obligations he/she creates against third parties.
There are essentially two kinds of authority recognised in the law: actual authority (whether express or implied) and apparent authority.

Actual authority

Actual authority can be of two kinds. Either the principal may have expressly conferred authority on the agent, or authority may be implied. Authority arises by consensual agreement, and whether it exists is a question of fact. An agent, as a general rule, is only entitled to indemnity from the principal if she has acted within the scope of her actual authority, and may be in breach of contract, and liable to a third party for breach of the implied warranty of authority.

Express actual authority

Express actual authority means an agent has actually been expressly told she may act on behalf of a principal.
• Ireland v Livingstone (1872) LR 5 HL 395

Implied actual authority

Implied actual authority, also called “usual authority”, is authority an agent has by virtue of being reasonably necessary to carry out his express authority. As such, it can be inferred by virtue of a position held by an agent. For example, partners have authority to bind the other partners in the firm, their liability being joint and several, and in a corporation, all executives and senior employees with decision-making authority by virtue of their position have authority to bind the corporation.
• Hely-Hutchinson v Brayhead Ltd [1968] 1 QB 549

Apparent authority

Apparent authority (also called “ostensible authority”) exists where the principal’s words or conduct would lead a reasonable person in the third party’s position to believe that the agent was authorized to act, even if the principal and the purported agent had never discussed such a relationship. For example, where one person appoints a person to a position which carries with it agency-like powers, those who know of the appointment are entitled to assume that there is apparent authority to do the things ordinarily entrusted to one occupying such a position. If a principal creates the impression that an agent is authorized but there is no actual authority, third parties are protected so long as they have acted reasonably. This is sometimes termed “agency by estoppel” or the “doctrine of holding out”, where the principal will be estopped from denying the grant of authority if third parties have changed their positions to their detriment in reliance on the representations made.
• Rama Corporation Ltd v Proved Tin and General Investments Ltd [1952] 2 QB 147, Slade J, “Ostensible or apparent authority… is merely a form of estoppel, indeed, it has been termed agency by estoppel and you cannot call in aid an estoppel unless you have three ingredients: (i) a representation, (ii) reliance on the representation, and (iii) an alteration of your position resulting from such reliance.”
• Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480
• The Raffaella or Egyptian International Foreign Trade Co v Soplex Wholesale Supplies Ltd and PS Refson & Co Ltd [1985] 2 Lloyd’s Rep 36
• Armagas Ltd v Mundogas Ltd or The Ocean Frost [1986] AC 717, an agent cannot clothe himself with ostensible authority simply by saying that he has authority
• Hudson Bay Apparel Brands Llc v Umbro International Ltd [2010] EWCA Civ 949

Watteau v Fenwick

In the case of Watteau v Fenwick, Lord Coleridge CJ on the Queen’s Bench concurred with an opinion by Wills J that a third party could hold personally liable a principal who he did not know about when he sold cigars to an agent that was acting outside of its authority. Wills J held that “the principal is liable for all the acts of the agent which are within the authority usually confided to an agent of that character, notwithstanding limitations, as between the principal and the agent, put upon that authority.” This decision is heavily criticised and doubted though not entirely overruled in the UK. It is sometimes referred to as “usual authority” (though not in the sense used by Lord Denning MR in Hely-Hutchinson, where it is synonymous with “implied actual authority”). It has been explained as a form of apparent authority, or “inherent agency power”.

The doctrine of the undisclosed principal

In ordinary agency, where the principal and the existence of the agency relationship are disclosed, the agent is merely the instrument through which the principal becomes a party to the contract. Therefore, the principal acquires rights and liabilities under the contract. Where the principal is undisclosed, to all intents and purposes, the agent is the party to the contract who will assume the rights and liabilities.
The doctrine of the undisclosed principal is at variance with one of the fundamental rules of the law of contract. The rule of privity of contract allows only the parties to the contract to acquire rights and liabilities under that contract. Under the doctrine of undisclosed principal, the principal may be sued or may sue on the contract that is made by its agent, despite the fact that upon strict interpretation, the agent is the contracting party and the undisclosed principal is a third party to that contract.

Commentators have suggested that the basis of the doctrine is similar to assignment, without the evidence of a transfer, the undisclosed principal being the implied assignee of the agent. In his landmark text “Bowtead & Reynolds on agency the noted commentator Bowstead, W suggests that the doctrine developed simply for commercial convenience, and is now firmly established despite being criticised as “unsound”, “unjust” and “inconsistent with elementary principles”. In Armstrong v Stokes, Blackburn J stated in respect of the legality of the doctrine: “It has often been doubted whether it was originally right to hold so: but doubts of this kind come now too late.”
As in any agency relationship, for the undisclosed principal to sue or be sued on the contract, the agent must have acted within its authority in entering into the contract. The authority can be either express or implied.

The agent of an undisclosed principal will be personally liable under the contract to the vendor, as the agent has contracted personally. The agent loses the right to sue if the principal intervenes on the contract. Therefore, both the agent and the undisclosed principal may sue and be sued on the contract. Upon the vendor discovering the existence of the undisclosed principal, the vendor has the option to choose between the agent or the principal to enforce the rights under the contract. If the vendor seeks to enforce the contractual rights or liabilities against the Agent, the Agent will be personally liable.

Would you like to know more? Then please Contact Us:

www.offshoreincorporate.com

info@offshorecompaniesinternational.com

DISCLAIMER

The above information is provided by way of courtesy and should not be construed as legal advice nor be relied upon. If you need to know or would like to know where you stand in terms of the law of Principal and Agent you should seek local specialist legal advice. Whilst all due care has been taken in its preparation the publisher Offshore Companies International Limited shall not be liable for any loss that may flow directly or indirectly as a result of any person reading, acting upon or relying upon the above information

How To Open a Paypal Account for a Tax Free Offshore Company

Most clients these days want or need to be able to offer their clients/customers the ability to pay for products or services via Paypal.

We are often asked How can I open a Paypal account for my Offshore Company?

There in effect two ways to go about this, the direct route and the indirect route.

The Direct Approach

The first thing you’ll to do is make sure you choose a jurisdiction that has a Paypal Office; Paypal now has offices or presences in most nil tax (and low tax) Offshore Company jurisdictions including:

Hong Kong

Seychelles

Belize

Nevis

The BVI

Dominica

Anguilla

Costa Rica

St Vincent

Cayman Islands

Panama

The USA

The UAE

Vanuatu

The Cook Islands

The Marshall Islands

Samoa

Switzerland

Estonia

Ireland

Gibraltar

Cyprus

Malta

For the full list check here: https://www.paypal.com/au/webapps/mpp/country-worldwide

Please note to get a Paypal account opened in the name of your tax free (or low tax) Offshore Company you will need to firstly open an account at a bank in the same country as wherein the Company is incorporated.

The Indirect Method

The indirect way to go about setting up a functional Paypal Account for your Offshore Company is to set up a 2^nd Company (eg an “onshore” Company) to act as “Undisclosed Agent” for the Offshore Company.

In this scenario the Onshore Company acts as an Undisclosed Agent for the Offshore Principal Company; It collects the payments from customers, banks the payments eventually into its own Corporate Bank Account, keeps a percentage (eg 2.5-5%) and then sends the remainder of the monies to the tax-free Offshore Principal Company.

Jurisdictions which are popularly used to do this include the UK, Ireland and Australia.

The arrangement is facilitated by the English Common Law Doctrine of Principal and Agent. For details on how that aspect of the law weeks check next week’s feature article.

Would you like to know more? Then please Contact Us:

www.offshoreincorporate.com

info@offshorecompaniesinternational.com

Discretionary Foundations & Privacy

For various reasons clients often prefer that their names not be visibly associated with an Offshore Company.

In particular, it can be problematic on several fronts if, at the end of a paper trail, your name appears in an Offshore Company’s Statutory records as the “beneficial owner” of the Company.

Regulators the world over are forever looking to implement new ways to learn who, at the end of a Corporate Family Tree, the ultimate owners of a Company are. No doubt, if you’re looking to set up an Offshore Company, you won’t want your name to be exposed as the ultimate beneficial owner of said Offshore Company. Well that can still be achieved….

For many years we used to Offshore (Tax Free) Discretionary Trusts as the preferred vehicle for clients who wanted or needed to ensure that, at the end of the paper trail, their names did not appear as the “beneficial owner” of the Company.

(For those not in the know) A Trust is an arrangement whereby one person (commonly called a “Settlor”) makes arrangements for/with a second person (called a “Trustee”) to hold/manage certain assets (that would otherwise be owned/held by the Settlor) for the financial gain of others/third parties (called “Beneficiaries”).

But with much of the developing world having passed Controlled Foreign Trust Rules and or Transferor Trust Rules (rendering many Offshore trusts liable for tax onshore regardless of who the beneficiaries are) the deployment of an Offshore Discretionary Trust has become somewhat problematic, particularly for clients for whom privacy is of paramount importance.

Enter the birth of Discretionary Foundations!

The Private Foundation is in essence Europe’s version of a Trust. Just like a Trust a Foundation is a 3 headed creature:- it’s set up by one person (called a “Founder”), managed by a second person (Called a “Councillor”) and, just like a Trust, a Foundation typically has beneficiaries, that is, persons who are designed to benefit financially from the establishment of the Foundation.

Unlike a Trust however a Foundation is a separate legal entity, ie it can sue and be sued. Moreover (under European Common Law) a Foundation is presumed to be both the legal AND beneficial owner of any asset that it holds (one Jurisdiction – ie Seychelles – has taken this a step further by stating specifically in its Foundations Act -section 71 – that any Foundation domiciled in Seychelles is deemed to be both the legal AND beneficial owner of any asset it holds).

What does this mean?

What it means is this: Usually when we open a bank account for a Company the bank asks us “Who is the beneficial owner of the Company”? But if the shareholder of the Company is a Seychelles Foundation we can say to the bank, “Hey Mr Banker by operation of law (that is section 71 of the Seychelles Foundations Act, see copy attached) the legal AND beneficial owner of this Company is the shareholder. Why? Because the shareholder is a Seychelles Foundation.”

That said I/we can foresee the day when you/we may have to declare to a bank or your local authorities if you are the “beneficiary” of an Offshore Trust or Private Foundation.

What you can do here is (when you first set up your Foundation), in the Foundation’s establishment documents you can provide for the Foundation Councillor to have a broad discretion in terms of who to install as beneficiaries and when. This would enable you to deploy a tax-free charity or a tax exempt/incomeless person (eg your minor children) as the initial beneficiary/s of your Foundation.

Potentially (and in particular if the Councillor etc of the Foundation is based in a nil tax jurisdiction) this can enable you to create a situation whereby:

(a) you should only have to pay tax at home when your Offshore Foundation or Company pays you “income”; and

(b) your name should not be revealed/reported as beneficiary of, or beneficial owner of, any Offshore Company.

And if you want to be extra careful you can even make yourself “Protector” of the Foundation meaning the Councillor would have to seek your permission before changing beneficiaries (but more on that another 60 seconds).

Would you like to know more? Then please Contact Us:

www.offshoreincorporate.com

info@offshorecompaniesinternational.com