Category Archives: Company- Management

United States software giant Microsoft has defended its right to use Offshore hubs in Ireland, Singapore and Puerto Rico, which helps reduce its tax rate, in a submission to the US federal inquiry into corporate tax avoidance.

It is the latest technology company to claim it pays its fair share of taxes, following similar statements by Google and Apple in their submissions last week.

Microsoft confirmed its overall effective tax rate was well below the standard US corporate rate of 35 per cent.

It said it was working within international tax rules that allowed income it reported on its US tax return “as fully taxable in the US without regard to the location of the customer”.

It is unclear from the submission or the company’s annual reports how much tax the company paid on its Australasian profit s- the company claims it is above the 30 per cent company rate.

But at the same time it goes into an extensive explanation of why Microsoft uses the lower-tax nation of Singapore as a hub for its Australasian operation.

The submission said Microsoft channels its earnings through foreign hubs – it called these “regional operations centres”  - in Ireland, Singapore and Puerto Rico.

This allows it “to licence the rights to use the relevant intellectual property to produce and sell Microsoft products in respective regions” such as Australasia.

“The Singapore ROC group, organised in 1998, supplies products and services to the APAC region, also representing billions in customer revenue earned and operating expenses incurred serving 18 countries throughout Asia Pacific,” the submission confirms.

It said the APAC group operating costs are funded by the Singapore ROC, which employs over 2300 employees and contractors and owns and operates datacentre facilities that distribute software to APAC customers.

“Regional production, marketing and G&A functions are performed by the Singapore ROC,” the submission said. “The profits earned from the APAC business, after appropriate taxable payments to the US group for technology rights and other support and the payment of support fees to the local subsidiaries, are earned primarily by the Singapore ROC group.”

Microsoft said local entities are “generally required to act under the direction of Microsoft with regards to marketing campaigns, pricing, terms and conditions and policies and procedures” .

“The local subsidiaries provide very limited input into the creation of marketing or technology intangibles embodied in the material provided by Microsoft,” the submission said.

Under long-standing international rules, tax is paid where the value is created. Traditionally this has been where companies have had a “physical” location.

But the rise of online commerce deals with intangibles like intellectual property. This has made it easy for corporations to shift the location of their primary value-generating asset, their intellectual property rights, to lower-tax nations.

The practice, while completely legal under the current rules, has come under question as government revenues dry up.

The use of hubs is an annoyance to governments outside the US. In November, the Chinese government hit Microsoft with a $140 million tax bill, becoming the latest of a series of US technology companies accused by the Chinese government of tax evasion.

But Microsoft, which has previously disputed the backdated figure, said the company “complied with the tax rules in each jurisdiction in which it operates and pays billions of dollars each year in total taxes”.

“The resulting income is reported on our consolidated US income tax return as fully taxable in the US without regard to the location of the customer,” it said.

Microsoft said its overall effective tax rate was 20.7 per cent, 19.2 per cent and 23.8 per cent for fiscal years 2014, 2013, and 2012, respectively.

“The reduction from the United States federal statutory rate stems from foreign earnings taxed at lower rates from producing and distributing our products and services through our ROCs in Ireland, Singapore, and Puerto Rico,” the submission said.

“Our foreign earnings, which are taxed at rates lower than the US rate and are generated from our regional operating centers, were 81 per cent, 79 per cent, and 79 per cent of our foreign income before tax in fiscal years 2014, 2013, and 2012, respectively.”

It said the company was working within US, and other foreign tax laws as written. “That is not to say that the rules cannot be improved – to the contrary, we believe they can and should be. Microsoft is supportive of the current discussions regarding changes to international tax laws.”

The key things to note here is

Offshore Companies are commonly used to own/operate IT Services Businesses. In principle here’s how it can work:

• A nil tax offshore company (commonly an International Business Company “IBC”) is incorporated

• The IBC owns the web based business (ie it owns all proprietary items including website, IP, operating software, soft products to be delivered to customers etc)

• All services are provided/delivered via the web or via email

• The IBC is seen to be managed and controlled from – and is seen to be delivering services from –  a nil tax jurisdiction

• Any commercial agreements entered into (and/or terms and conditions agreed to) should clearly state that services are being delivered from x country (ie the Offshore/IBC jurisdiction) and that the contract is formed/closed in that jurisdiction

• An Offshore account (which receives payments via a merchant account) is set up in a nil tax banking centre

• 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 expenses 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 as part of or underpinning such a  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 you and to add substance you would be wise to set up your MD/Board and or a sales team 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 by including a Nominee Director etc as part of the Corporate structure. For details of how that can work click on these links:

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

https://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 register such a structure.

I’m often asked Is it still possible to have an anonymous offshore bank account?

The answer is yes it is still possible. Here’s how:

To succeed in your mission of having a truly anonymous offshore account there are 4 things you need to address.

1. Firstly you will want to set up an anonymous Corporate entity to be the account holder. To achieve this you will want to incorporate a Company in a Privacy Haven ie somewhere that does NOT have a public register of Directors or Shareholder or Company owners (ie somewhere like Seychelles or Belize or BVI or Anguilla or Nevis).
2. To minimise the chances of your ownership of this company being discovered you will want to ensure it is incorporated in a country which does NOT have a Tax Information Exchange Agreement (“TIEA”) with your home state (a TIEA enables your home state to demand of a tax/privacy haven, as of right, details of owners of an Offshore Company).  If you want maximum privacy then you would be wise to include a Foundation as part of the Corporate Structure (See below which explains why).
3. Thirdly you will want to ensure you open a Corporate Account at an Offshore Bank which is not going to share ownership information. Ideally that bank will NOT be located in a country which has agreed to be part of the OECD Bank Account Info Sharing Initiative (see below which lists those countries).
4. Fourthly you will want to open an account at a Bank which can/will issue you with an anonymous card ie on which one which your name (and ideally your company name) does not appear. Banks which offer this include Euro Pacific Bank, Loyal Bank, Choice Bank, CSC Bank and more.

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 do so usually is regarded as tax evasion (which is a crime and usually carries heavy penalties).

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

Offshore Trusts used to be 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 be 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.

What is the OECD Account Info Sharing Initiative? 

In May 2014 a number of countries committed in principle to the OECD Bank Account info sharing initiative. Under the initiative, a range of OECD and other countries have agreed to pass new domestic laws that will allow them to collect information on any foreign bank account holder (or any non-local underlying beneficial owner of a Corporate bank account holding entity) and then automatically exchange that information with other participating countries. The list of countries who have committed in principle to the initiative include Andorra, Argentina, Australia, Austria, Belgium, Brazil, Canada, China, Chile, Colombia, Costa Rica, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland,  India, Indonesia, Ireland, Israel, Italy, Japan, Korea, Latvia, Lithuania, Luxembourg, Malaysia, Mexico, The Netherlands, New Zealand, Norway, Poland, Portugal, Saudi Arabia, Singapore, The Slovak Republic, Slovenia, South Africa, Spain, Sweden, Switzerland, Turkey, The United Kingdom, The United States and  The European Union

If you want to avoid your interest in an Offshore account being reported to local authorities you have options:

(a)   Open an account in a country which is not in the above list; and/or

(b)   Set up a Seychelles Private Interest Foundation to hold the shares of the Offshore Company account holder (as this shifts legal and beneficial ownership of the Company to the Foundation by virtue of section 71 of the Seychelles Foundations Act)

Local laws can have an impact hence you should seek local legal/tax advice before executing a plan such as that conceptualized above.

I’m often asked “Can I transfer ownership of my (onshore) Company to an Offshore Company and if so how do I go about it?”

To transfer ownership of an Onshore Company to an Offshore Company is a fairly simple process.

First up 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 Corporate Registry.

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

(a)   Ensure that the Onshore Company and IBC both sign a share sale agreement (ie a sale and purchase agreement)

(b)   The sale should be seen to be on normal commercial terms (such as would otherwise exist between buyer and seller “at arm’s length”)

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

How do you determine, or buy at, fair market value?

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

Before committing to effect such a transfer you should seek local legal and tax advice as local transfer duties etc may apply.

I’m often asked “What is a Charitable Purpose Foundation?” & “How Can I Use a Charitable Foundation as part of an Offshore Corporate Structuring Plan?”

Any discussion about Charitable Purpose Foundations must necessarily begin with an examination of What is a Purpose Foundation?

A Purpose Foundation (like its forerunner the Purpose Trust) is one set up, not to benefit specific natural persons or corporate entities, but rather to raise funds for and/or to carry out some form of specific (usually Philanthropic or Charitable) Purpose.

Historically any Purpose Trust or Foundation set up to achieve a Purpose other than a Charitable Purpose has been held by the Common Law Courts to be unenforceable.

However of late some jurisdictions have passed laws specifically allowing for the establishment of a Foundation which is established to carry on a specific Purpose, Charitable or otherwise.

An example of a non-charitable purpose Foundation would include a Foundation which is established to maintain the Founder’s collection of antique automobiles, or perhaps one for the purpose of constructing a home for the maintenance and care of his/her cats and dogs and all their offspring.

In the Common Law world a Trust (ie the forerunner and close cousin of the Foundation) must have beneficiaries whose identity can be established with certainty. If the identity, or method of determination, of the ultimate beneficiaries of a Trust is so vague that neither the Trustee nor a Court could readily determine whether any given individual at any time was or was not a beneficiary, the Trust would be unenforceable under Common Law and therefore, invalid, unless, of course, its purpose was charitable.

Historically, a Charitable Trust, although it may have no named beneficiaries, could be enforced by the local Attorney General. In the foregoing examples, however, certainly neither the antique automobiles nor the cats and dogs could sue the Trustee to enforce the Trust, and none of them is capable of having a Personal Representative.

Interestingly one jurisdiction (ie Seychelles) has specifically catered in its Foundations Law for any attempt by a foreign Court to declare a (non-Charitable) Purpose Foundation invalid by including a provision in its law which says that “Notwithstanding a provision of a written law or of a written law of any other country, a Foundation, other than a Foundation with beneficiaries being beneficiaries in terms of section 59, shall be a Foundation established to carry on a specific Purpose”.

That being said if your heart is set on establishing a Purpose Foundation and your aim is to fly under the radar or to claim tax deductibility for any “donations” made to the Foundation the wiser choice would be to establish your Foundation as a Charitable Purpose Foundation. Certainly such a Foundation would be far more likely to survive a legal a challenge such as those which have historically struck down Non-Charitable Purpose Trusts in the Common Law Courts.

In a Charitable Purpose Foundation the objects of the Foundation must be set out in the Charter (that is the document which is publicly filed giving birth to the Foundation). Here is an example of such objects:

(a)               To provide assistance and relief for children in ill-health;

(b)               To raise funds for, and to financially assist, children in ill-health;

(c)                To promote the health and wellbeing of children, including promotion of the provision of proper health care and treatment for children;

(d)               To make distributions to non-U.S. entities and institutions that are organized and operated exclusively for charitable purposes and which further the purposes referred to in sub-paragraphs (a) to (c) above.

When used in combination with a Tax Free Offshore Company (ie where the Foundation is set up to hold the shares of the Company) a Purpose Foundation can assist you to do tax effective business abroad without you having to declare yourself (or your family members) to be, at law, the underlying beneficial owners of your Offshore Company. This affords one unparalleled Tax Deferral and Asset Protection opportunities.

The law of your home state can impact on your reporting requirements. Hence it would be wise to seek local legal and tax advice before committing to establish a Purpose Foundation.

One of the biggest dilemmas for persons looking to set up a Tax Free Offshore Company is where to Incorporate.

Whilst it’s usually quicker and easier to simply form an International Business Company, for some persons, its not feasible to have a Tax Haven IBC  owning/operating their business (eg on account of opposition or reluctance to do business on the part of suppliers or clients). If you’re looking to set up a tax free Offshore Company to own/operate an active trading business but don’t want your “face” corporation to look or smell tainted or suspicious (in addition to considering setting up a Hong Kong or Singapore Company?) it would pay to take a take a close look at the American LLC/IBC Combo option.

How it works is the LLC acts as your frontman giving you commercial credibility (ie it has the appearance and smell of a respected International Trading entity whereas, unbeknowns to all but a select few, it’s actually a Tax free Company).

Howso?

An LLC Is treated by the US Tax Authorities (“IRS”) as a Partnership ie as a flow through entity. Provided all the LLC”s pre-tax profit is distributed to the member (ie shareholder) of the LLC (and provided there is only one member and that member is not a US tax resident or a US controlled Foreign Corporation) the LLC should pay no tax in the US.

To attain that result all money will need to be paid from the LLC to the LLC’s member (ie shareholder) by taxyear’s end; hence you need the 2^nd company (ie a tax free IBC) to act as member for the structure to work effectively (see below).

If you want to avoid having to pay tax in the US or at home on the LLC’s earnings then you’ll want to set up an IBC to act as the member of the LLC. Where to incorporate your IBC depends largely on your place of tax residence. If you want to minimise the chances of your IBC being taxed where you live you will want to incorporate your IBC in a country which has NOT signed a TIEA (ie Tax Information Exchange Agreement) with your home state.

Assuming you appoint yourself as an arm’s length contractor or consultant to the IBC or LLC you should only end up paying tax at home on money you draw down from the Offshore Company by way of wages or consulting fees (less allowable deductions of which a smart Tax Accountant should be able to find many given you’d hold self employed status). The rest of the IBC’s earnings could be held and or reinvested Offshore potentially tax free.

(and you needn’t have any privacy concerns over setting up an American LLC as most LLC jurisdictions do not require you to file or even declare beneficial owners details).

Local laws can have an impact. Hence you should seek local legal and tax advice before committing to act on such a plan.

A question I’m commonly asked is can I transfer ownership of my home or investment property/s to my tax free Offshore Company?

It can be done legally but you need to assume the worst case scenario (ie that that the local revenue/insolvency authorities or a litigation lawyer will investigate and possibly try and overturn the sale) and plan accordingly.

The key is commercial reality. The sale must be – and appear to be – “above board”.

Tips:

1. The inquisitor might ask Where did the buyer come from? How did you meet the buyer? So the smart thing to do would be to list the property for sale with an agent that has international reach (ie one which regularly attracts non local real estate investors) and have the Offshore Company Director make a bid for it after a few others have made an offer.

2. The sale will need to be seen to be at fair market value (you can’t just sell the house to your Tax Haven  Company for one Dollar/Euro!). And the contract of sale will need to be seen to be on normal/reasonable commercial terms.

3. You will not want to be seen to be doing or managing anything for the IBC. Hence the communications will need to be seen to be coming from the nil tax Offshore Company Director

4. Check local tax laws first. Often when a piece of real estate is sold the seller has to pay capital gains tax (“CGT”)

5. Check local investment laws next. There may be prohibitions or restrictions on the ability of non-local persons or companies to buy local real estate.

6. If you intend to keep living in the property don’t pay rent to the nil tax Offshore Company direct; have a property manager appointed to collect the rent and manage the residential tenancy.

Local laws can have an impact. Hence you should seek local legal and tax advice before committing to embark on such a program.

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) then 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 Offshore) 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 potentially get around CFC laws. Historically clients would commonly 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 be 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/

Local laws can have an impact hence you should seek local legal and tax advice before committing to set up such a structure.

Any discussion about Charitable Purpose Foundations must necessarily begin with an examination of What is a Purpose Foundation?

A Purpose Foundation (like its forerunner the Purpose Trust) is one set up, not to benefit specific natural persons or corporate entities, but rather to raise funds for and/or to carry out some form of specific (usually Philanthropic or Charitable) Purpose.

Historically any Purpose Trust or Foundation which is set up to achieve a Purpose other than a Charitable Purpose has been held by the Common Law Courts to be unenforceable.

However of late some jurisdictions have passed laws specifically allowing for the establishment of a Foundation which is established to carry on a specific Purpose, Charitable or otherwise.

An example of a non-charitable purpose Foundation would include one which is established to maintain the Founder’s collection of antique automobiles, or perhaps one for the purpose of constructing a home for the maintenance and care of his/her cats and dogs and all their offspring.

In the Common Law world a Trust must have beneficiaries whose identity can be established with certainty. If the identity or method of determination of the ultimate beneficiaries of a trust is so vague that neither the trustee nor a court could readily determine whether any given individual at any time was or was not a beneficiary, the trust would be unenforceable under common law and therefore, invalid, unless, of course, its purpose was charitable.

Historically, a charitable trust, although it may have no named beneficiaries, could be enforced by the local attorney general. In the foregoing examples, however, certainly neither the antique automobiles nor the cats and dogs could sue the trustee to enforce the trust, and none of them is capable of having a personal representative.

Interestingly one jurisdiction (ie Seychelles) has specifically catered in its Foundations Law for any attempt by a foreign court to declare a (non-Charitable) Purpose Foundation invalid by including a provision in its law which says that “Notwithstanding a provision of a written law or of a written law of any other country, a Foundation, other than a Foundation with beneficiaries being beneficiaries in terms of section 59, shall be a Foundation established to carry on a specific Purpose”.

That being said if your heart is set on establishing a Purpose Foundation and your aim is to fly under the radar or to claim tax deductibility for any “donations” made to the Foundation the wiser choice would be to establish your Foundation as a Charitable Purpose Foundation. Certainly such a Foundation would be far more likely to survive a legal a challenge such as those which have historically struck down Non-Charitable Purpose Trusts in the Common Law Courts.

In a Charitable Purpose Foundation the objects of the Foundation must be set out in the Charter (that is the document which is publicly filed giving birth to the Foundation). Here is an example of such objects:

(a)               To provide assistance and relief for children in ill-health;

(b)               To raise funds for, and to financially assist, children in ill-health;

(c)                To promote the health and wellbeing of children, including promotion of the provision of proper health care and treatment for children;

(d)               To make distributions to non-U.S. entities and institutions that are organized and operated exclusively for charitable purposes and which further the purposes referred to in sub-paragraphs (a) to (c) above.

The law of your home state can impact on your reporting requirements. Hence it would be wise to seek local legal and tax advice before committing to establish a Purpose Foundation.

A Tax Information Exchange Agreement (TIEA) provides for the exchange of information between 2 countries on request relating to a specific criminal or civil tax investigation.

Let’s assume that you set up a Tax Free Offshore Company in a country which has a TIEA with your home/taxing country.

How it works in practice is, if your home state becomes suspicious of your connection to or involvement with an Offshore Company (ie if they think an Offshore Company is being used by you to avoid domestic tax obligations), the Tax Authorities of your home country can request of the Tax Haven Country Government, as of right, (ie if there is a TIEA entered into between the 2 countries) that they give up the name and address of the “underlying beneficial owner” of the company in question.

Although the information isn’t publicly filed this information must/will be kept by the Tax Free Offshore Company’s local Registered Agent who is obliged by law (as a condition of its International Corporate Service Provider’s License) to hand over this information upon request by/to the local Financial Services Authority (who then pass ownership details to the Tax Haven’s Attorney General’s Office who then pass it down the line to the requesting country).

It goes without saying of course but if you want to minimize the chances of anyone ever discovering that you own a Tax Free Offshore Company ideally you will want to incorporate your Offshore Company in a jurisdiction which does NOT have a TIEA with your home/taxing state.