Category Archives: Company- Management

For most clients looking to defer tax on Offshore earnings the preferred solution is to have one’s Tax Free Offshore Company owned by an Offshore Private Foundation wherein the client + his/her spouse/family are named as beneficiaries.

But for clients who are either:

(a ) concerned about potential tax consequences that may arise onshore from being named as an immediate beneficiary; or

(b) wanting as much privacy as possible

there is a solution.

The solution is to set up a Discretionary Hybrid Foundation. That is a Foundation which can (a) benefit both a charity and natural persons and (b) which can, utilizing the Councillor’s “discretion”, change beneficiaries at any time.

Typically what the client does is (a) he/she nominates a tax free International Charity to be the beneficiary in the first instance and (b) he /she provides the Foundation Council with a Letter of Wishes setting out guidelines as to how and when in the future the client’s spouse/family might be substituted as beneficiaries.

I know of a client who set up one of these dual structures and then ten years later shifted his tax residence to a country that didn’t have income or capital gains tax. Once he’d moved the Foundation beneficiary was changed from a Charity to the client… whereafter the client promptly drew down the capital from/of the structure all of which was receipted/ banked tax free!

To change the beneficiary of a Foundation is easy. Here’s the steps:

1. You send the Council:

(a) a written request (called a Letter of Wishes) addressed to the Councillor advising who you want added as a beneficiary and why

(b) proof of ID and residential address as regards the new beneficiary

2. The Foundation Council then passes a Council resolution authorising a change.

3. The regulations get amended to note the new beneficiary.

4. The register of beneficiaries (usually stored at the Foundation’s registered Office) gets amended to note the changes

Local condition can have an impact. Hence you should always, before enacting such a plan, seek local legal/tax/financial advice.

Nil tax Offshore Companies are commonly used by persons working as Ship Captains or on Offshore Oil Rigs as a private, tax effective way of collecting payment for services rendered.

Generally speaking how it works is as follows:

1. You set up a nil tax Company “IBC”).
2. The Company ideally should be set up with a Nominee Director and Nominee Shareholder as part of the Corporate structure so that, for tax purposes, the Company is seen to be managed and controlled from offshore (because a Company seen to be managed and controlled from Onshore can be taxed onshore)
3. The Company enters into a contract with your current employers for the provision of services. The agreement will need to be carefully worded to ensure that several things are catered for including:

(a)   That you are able to perform the work on behalf of the Company

(b)   That the situs of the agreement as stated in the Contract is somewhere “Offshore” – from the IBC’s perspective the source of the income must be the contract itself not your labours. Hence the bargain will need to be seen to be struck and the contract signed Offshore ie in a nil tax environment.

4. Income received by the IBC will be received/banked free of tax in the first instance.

5. The IBC will contract or employ you. Ideally the IBC should pay you just enough to cover your living expenses. Whatever it pays you if you are working in territorial waters (eg UK waters, Norwegian waters etc) you may need to declare and pay tax on that money onshore. The remainder of the income can be held and or reinvested Offshore potentially tax free.

6. If you are considered resident for tax purposes (ie liable to pay tax) in a country which has CFC laws (see below which explains what CFC laws are) you would be wise to include a Foundation as part of the Corporate Structure. See below “Why Set up a Foundation” for more info. (FYI most developed countries have CFC laws)

People in the Shipping/Offshore Oil Rig industries are often attached to and hired out by an Employment Agency. If you want your Offshore Company set-up to look as commercially realistic as possible you might want to characterize the IBC as an Employment Agency (eg when you incorporate your IBC you might want to name it something like “International Oil Rig Recruitment Services Ltd” or “International Ship Captain Recruitment Services Ltd.”). See below “How To Use an IBC as a Recruitment Agency or Labor Hire Company” fmi.

What is a Controlled Foreign Corporation Law?

A Controlled Foreign Corporation (or CFC) Law is one which purports to tax onshore income or capital gains made by Companies incorporated Offshore but which are controlled from onshore.

Essentially how a CFC law works is if an individual owns or has the capacity to own the overriding majority of shares in an Offshore Company (the percentage of which varies from country to country) the that person is required to declare in his local tax return profits made by the Offshore Company.

How CFC laws came about was around 30 years ago the big western countries began to realise that certain of their citizens were using nil tax Offshore companies to avoid having to pay tax at home on their non-local sourced (ie international) income. In particular the CFC laws target the use of Nominee Shareholders and Directors. If you live in a country which has CFC laws (regardless of whether you are the director/shareholder of the Company or not) if you have the capacity to own and control the company by reference to shareholdings then you would be required to declare and pay tax at home on your Offshore Company’s earnings.

There are several ways to get around CFC laws. Historically clients used commonly to deploy an Offshore (Discretionary) Trust to own the shares of the Offshore Company. However with more and more “Onshore” tax systems claiming tax from any Trust with an onshore resident beneficiary discerning clients these days choose to establish Private Foundations (in particular Seychelles Foundations) as the ultimate holding entity as such entities should not caught by CFC laws or by CFT (Controlled Foreign Trust) Laws. For more detail click on these links:

https://offshoreincorporate.com/private-interest-foundations/

https://offshoreincorporate.com/seychelles-foundations/

https://offshoreincorporate.com/seychelles-foundations-fact-sheet/

Why set up a Foundation?

If an IBC alone is used you will still be liable to declare and pay tax at home on your IBC’s earnings if/when you live in a country which has a Controlled Foreign Corporation (“CFC) law. Failure to so declare in many countries would constitute tax evasion.

What you might do then is set up a Private Interest Foundation to own the shares of the Offshore Company.

Offshore Trusts used to widely used for such purposes back in the noughties but the problem there is that you have someone (ie a Trustee) holding property for the benefit of 3^rd parties who are inarguably beneficial owners of that property and probably/potentially entitled to the income/capital of the Trust (which can have tax consequences onshore).

A Foundation is very similar to a Trust in that it’s set up by a Founder (like a Settlor in the case of a Trust) and managed day to day by a Councillor (like a Trustee in the case of a Trust) who manages the Foundation property for the benefit of the beneficiaries of the Foundation. A key advantage of a Foundation is that it’s a separate legal entity in its own right (ie the Foundation actually owns the assets held by the Foundation – unlike a Trustee who holds property for someone else ie the beneficiaries) and generally speaking the beneficiaries are not entitled to the income or capital of the Foundation until it’s actually received.

What this means as a beneficiary is that you should be able to defer paying tax at home on the income of investments held by the Foundation enabling you to reinvest 100% of that income not just the after tax component. (One jurisdiction ie Seychelles has even taken this a step further by specifically stating in their law that the legal and beneficial owner of any asset held by the Foundation is the Foundation itself).

Seychelles Foundations

If you are a resident or citizen of a country which has the ability to track Offshore Bank account beneficiary details and you would like to keep private details of your Offshore earnings (or if you plan to set up a very sensitive business eg one that might illegal if owned/operated from where you live) again a Seychelles Foundation can help:

How so?

It all comes back to the legal structure/operation of the Seychelles Private Interest Foundation.

Bottom line is notwithstanding that individuals (or a class of beneficiary) may be named as beneficiaries in the Regulations:

1. The beneficiaries have no legal or beneficial interest in property owned by the Foundation (unless or until such time as that property is transferred to them – per section 71 of the Seychelles Foundations Act).
2. The Foundation is a legal entity in its own right not a mere Trustee (Per section 23)
3. The Councillor of the Foundation owes no Fiduciary duty to the beneficiaries (Per section 63)

As such there is no “beneficial owner” of the Foundation. The beneficial owner of any property/asset owned or held by the Foundation is the Foundation itself.

How To Use an IBC As A Recruitment Agency or Labor Hire Company

Given we are now living in the Global Village, and as more opportunities exist now than even before for qualified professionals and trades/skilled persons to work as Consultants to (or to take up contracts offered by) non-local Companies, more and more clients are setting up (and hiring out their services via) a nil tax jurisdiction based Recruitment Agency or Labour Hire Company.

It might work something like this:

1. You would incorporate a new company which might be called something like International Professional Recruitment Services Ltd  (hereinafter, “IPRS Ltd” or the “Employment Agent”)
2. This business would be characterized as and appear to the outside world to be a Professional Recruitment Agency or a (Specialist) Labour Hire Company
3. You would tell anyone who wants to hire you eg your existing employers (or contract counterparty if you are on a contract) that, as IPRS Ltd can offer you (a) consistent employment + (b) jobs the world over, and as they are experts in finding contracts for your Profession/Trade/Occupation, you are contracted exclusively to IPRS Ltd and anyone who wants to hire you has to sign an agreement with, and must pay, IPRS Ltd.
4. Your existing employers (or contract counterparty if you are on a contract), assuming they wish to keep you employed/engaged, would then have to sign a labour hire agreement with IPRS Ltd.
5. Your existing employers (or contract counterparty if you are on a contract) would thereafter pay your wages (or contract fees as applicable) to IPRS Ltd.
6. IPRS Ltd would keep a percentage of these payments as Agency commission (it would be anywhere from 2.5% to 50%).
7. The remainder of monies (ie after IPRS Ltd has retained its agency commission) would be paid to you by IPRS Ltd
8. The monies received by IPRS Ltd should be receipted free of tax and could be held and or invested Offshore potentially tax free.

For the above to work the agreement between your employers (and the agreement between you) and IPRS Ltd would need to be (and be seen to be) commercially realistic.

As always local conditions can impact on your ability to deploy such a structure as described above. Hence local legal, tax and financial advice should be sought before embarking on any such venture.

Offshore Foundations and Offshore Trusts are similar in that each is:

(a) set up by one person (in the case of a Trust a “Settlor”, in the case of a Foundation, a “Founder”)

(b) managed by a 2^nd person (in the case of a Trust a “Trustee”, in the case of a Foundation, a “Councillor”)

(c) for the benefit of a 3^rd group of persons (ie the beneficiaries).

It is usual at the time a Foundation (or Trust) is established, and at certain key junctures (see below), for the Founder of the Foundation (or Settlor of the Trust as the case may be) to provide the Trustees/Councillors with a Letter of Wishes with regard to the administration of the Foundation/Trust.

What is a Letter of Wishes?

A Letter of Wishes to is an important document, particularly in the case of a Discretionary Foundation/Trust,  as it is effectively your instructions to the Trustee/Foundation Council as to how you would like your Trust/Foundation to be administered (and/or funds/capital to be distributed) particularly after your death.

The following points should be considered when completing Letters of Wishes:

1. As opposed to a Will, the Trustees/Foundation Councillor/s usually have a discretion as to who shall benefit from the Trust/Foundation. The Trustee/Councillors will need guidance in this respect.

2. Although a written Letter of Wishes is not binding upon the Trustees/Councillor/s, they would be expected to give careful consideration to the wishes of the Settlor/Founder. As a matter of Law if a/the request as set out in a Letter of Wishes is in the best of the beneficiary/ies the Trustee/Councillor/s should act on the said Letter of Wishes.

3. The Settlor/Founder should remind the Trustees/Councillor/s as to the reasons for setting up the Trust/Foundation and generally who is to benefit. Often at the commencement of the Trust/Foundation it will be the needs of the Settlor/Founder that will be paramount and such wishes should be expressed including a statement as to whether or not assets personally owned are to be considered when the Trustees/Councillors are considering “needs”.

4. On the death of the Settlor/Founder (or the survivor of the Settlor/Founder), mention should be made of who then is to benefit. If children are to have priority, is equality to be maintained or is recognition to be given to an individual’s special circumstances and needs?

5. Is education to be a priority for the children? And if so, what type of education would the Settlor/Founder like to see preferred? For example, private as opposed to public and the option of tertiary and post-tertiary education and at what sort of institutes? Is assistance to be given to children to enable them to buy or build homes or provide support in careers or business activities?

6. At what point should the Settlor/Founder be giving consideration to partial or total distribution to the beneficiaries and is resettlement of a child’s notional share of the Trust/Foundation estate on to another Foundation or Trust for the benefit of that child and his or her direct lineal descendants allowed or appropriate?

7. In carrying out any of the Settlor/Founder’s wishes with regard to the children are the Trustees/Councillors to confer with any particular child to ascertain that child’s wishes?

8. In the case of death or incapacity of a child, are the needs of that child’s children to be considered?

9. Are there specific circumstances relating to a beneficiary such as a drug or gambling addiction which need to be included in the Letter of Wishes?

10. Has the Settlor/Founder any particular thoughts as to the need to keep the Letter of Wishes, or any part of the Letter of Wishes, confidential?

It should be noted that a Letter or Statement of Wishes is a document of a confidential nature (which in the right setup should also be protected by legal professional privilege) and therefore not capable of disclosure.
A Letter of Wishes should not only be in place at the outset but should be reviewed on a regular basis and updated where necessary to record if there is any change in the circumstances of any of the beneficiaries of the Trustee/Foundation or special needs which must be met.

When a certain beneficiary/s is in need of financial assistance it is also appropriate that a Letter of Wishes be provided at the time to the Trustees/Councillors putting the case for why a Distribution should be paid to that person or persons.

Having an offshore account is a fundamental step in diversifying yourself internationally. It is an excellent way to protect yourself from sovereign risk, currency risk, and more.

It’s especially important in today’s environment where governments will find any excuse – from terrorism to money laundering to economic downturn – to impose de facto capital controls. Having a portion of your assets out of your home country makes it more difficult, if not impossible, for your home government to freeze or confiscate your assets.

There are a number of important factors to consider when opening your Offshore Account.

These include:

• The Offshore jurisdiction’s openness to foreigners

• Taxation of interest income

• Range of services including currency options

• Stability of the Offshore jurisdiction

• Deposit insurance

Let’s take deposit insurance. In places like the United States or the European Union, deposit insurance is almost an afterthought. (Unless, of course, you’re a small European country needing a bail-out and thought to be holding money for the Russian mob – then you’re in trouble).

However, each Offshore Banking Jurisdiction has its own bank insurance policy that you should examine before opening an account. Places like Singapore take an attitude that deposit insurance is somewhat of a moral hazard and have much lower insurance maximums than other developed countries.

Singapore, for one, also does not insure deposits in foreign currencies, which again matches their goal of protecting smaller, domestic depositors who need the money, not foreigners looking to diversify their assets.

While most of the developed world does insure bank deposits, a few Offshore Jurisdictions do not. Andorra, for example, has a deposit insurance scheme which is hard to understand and it is unclear how the fund would actually repay depositors of a failed bank.

Of course, you should again evaluate the stability and history of any Offshore Banking Centre where you plan to put your money to make sure you won’t get Cyprus-ed in the future (For those of you who aren’t aware Cyprus passed a law a year or two back authorizing the Cyprus government to seize a sizeable percentage of all funds held in Cyprus Banks).

Many Offshore jurisdictions worldwide are open to accepting foreign customers, although some have many hoops you must jump through. An unfortunate part of the global “war on terror” is the OECD’s heightened “Know Your Customer” requirements, (which means it takes longer now to open an Offshore Account  than what it used to).

Some Offshore banks, require you to visit them to open your account (eg Hong Kong Banks, Singaporean Banks and most Swiss Banks). However, there are plenty of Offshore Banks that open accounts remotely.

Along those lines, an important consideration to make is which type of Offshore Bank you feel most comfortable with.

You may prefer a more liquid, local bank over a huge multi-national. It should also be considered that it may be easier for your government agency, court, or plaintiff’s lawyer in your home country to access funds in a bank which maintains a presence there: It will be easier to get the “Offshore” Bank to hand over your funds if the bank also does business in your home country and could be sanctioned for not doing as they’re told.

Another important factor is taxation. While many International Offshore Financial Centers boast a territorial tax system (ie where income earned outside the jurisdiction isn’t subject to tax), income earned in their banks certainly meets the “local source” test. Some of these jurisdictions do tax interest, others do not. Those that do tax interest may require a local tax ID number to be obtained and/or a return to be filed.

Finally, you should consider the range of services each Offshore Bank offers. If you are moving money to another jurisdiction to avoid sovereign risk, you may well want to hold your foreign deposits in another currency.

Obviously, each country has its own currency which will be the default currency that most people there hold their assets in. You may or may not be comfortable holding your deposit in that currency, however, and may want to choose a bank that offers an array of currencies to choose from. The good news is most, if not all, “Offshore” Banks offer multi-currency accounts (ie the ability to hold monies in a range of currencies).

When opening an Offshore account in a foreign currency, you should consider the stability of the currency, its exchange rate history, and other factors that may come in the future. A number of countries are looking to devalue their currencies, which you should take into account.

For example, is the currency backed by resources in the country? Is it pegged to another currency?

The Hong Kong dollar, for instance, is pegged to a tight range of the US dollar. However, some commentators believe that the Hong Kong authorities will be forced to re-peg the value against the dollar, causing an immediate change in value, or peg it to the Chinese yuan. You should do your homework to understand any currency you choose to hold your assets in.

At the same time, foreign currencies whose countries haven’t set interest rates at zero may also offer higher interest rates. Many emerging Offshore Banking jurisdictions offer high – even sky high – interest rates out of need for foreign capital and to generate an ability to loan money at uber-usurious rates. Places like Australia simply haven’t joined the global race to the bottom because they haven’t needed to. But again, always do your homework.

The media and government want you to believe international banking is illegal. It’s not. Millions of expats from around the world live outside their home country and maintain bank accounts in their places of residence.

You, too, can achieve global diversification and take advantage of a better banking environment elsewhere in the world. For many, it’s amazing to think that a number of Offshore Banking Centres have never experienced a bank failure in their history (and many haven’t had one for decades). Suffice it to say you can hedge against this risk also by holding Offshore Accounts at several different Offshore Banks.

Offshore Banking (particularly when funds are held by a tailor designed Offshore Corporate structure) and multi-currency accounts are a great way to protect yourself against sovereign risk (ie the risk of government confiscating your money), predatory law suits (ie Courts in your home country ordering you to hand over your money) and sudden currency devaluations (as happened recently in Switzerland when the Swiss Franc was devalued significantly overnight).

As always speak to your tax adviser and or your lawyer before committing to embark on such an endeavor.

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

Australia is being “picked off” by online foreign exchange brokers that are able to obtain a local licence and offer clients extremely high leverage of up to 500 times, Australia’s corporate watchdog the Australian Securities and Investments Commission (“ASIC”) says. 

Mr Greg Medcraft, chairman ofASIC, said the issue had been raised with the country’s top financial regulation forum, which comprises ASIC, the Reserve Bank, Treasury and the Australian Prudential Regulation Authority. 

“We’ve discussed this more globally, and we are being picked off as a jurisdiction that allows very high leverage, 500 to 1,” Mr Medcraft said at a parliamentary hearing on Friday. “We’re doing what we can in terms of vetting those who apply for licences in this area, particularly those that don’t have a [true] connection with Australia that are operating outside of Australia. 

“It is an issue that’s been discussed recently at the Council of Financial Regulators.”

Asked if participants in the foreign exchange market were sophisticated enough to understand the risk, ASIC Commissioner Cathie Armour said there was an “open issue”whether Australia should take the approach of other countries about limiting the amount of leverage.

CAPPED LEVERAGE

The US, Japan and Hong Kong have capped leverage. The watchdog has taken action against some Australian-based brokers. In October 2014, ASIC forced one of Australia’s foreign exchange brokers, Pepperstone, to exit the Japan market, after it was found not to have the appropriate licence. Pepperstone was offering clients leverage of up to 400 to 1, significantly above the regulatory maximum in Japan of 25 to 1.

Given the high leverage allowed in foreign exchange trading, ASIC’s Ms Armour said Australia was “quite fortunate” that brokers here had been able to operate effectively during the significant shock caused by the de-pegging of the Swiss franc in January.

High leverage creates the potential for greater profits, but also greater losses. January’s 30 per cent spike in the Swiss franc after its central bank dropped a peg with the Euro was one of the most dramatic moves ever in currency markets, and resulted in widespread losses for traders, brokers and investment banks.  

For a trader with 400 times leverage, the instant 30 per cent move resulted in a 1200 per cent loss, which exceeded the balance of most traders. FXCM, the world markets’ largest online foreign exchange broker, was forced into a distressed sale while British-based Apari declared insolvency.

The popularity of online foreign exchange trading has surged as technology has allowed individuals to bet on currency moves. Daily ­turnover has more than doubled from $136 billion to $380 billion since 2007 as speculators opt to trade foreign exchange markets that operate 24 hours a day. But foreign exchange markets are largely operated on the often opaque and unregulated over-the-counter basis.

Australia has become a hotbed of the global retail forex broking industry by virtue of its trading culture, and a safe jurisdiction for locally based players to market themselves to traders around the world. Such is its popularity that daily turnover at some of Australia’s largest brokers can exceed the entire cash equities volume of the Australian Stock Exchange on a given day.

THE SYDNEY MORNING HERALD

23 March 2015