Offshore Financial Law Trusts and Related Tax Issues 2nd Edition by Rose Marie Antoine ISBN 9780191635298 0191635294

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ISBN 10: 0191635294
ISBN 13: 9780191635298
Author: Rose Marie Antoine

Offshore Financial Law Trusts and Related Tax Issues 2nd Edition Table of contents:

I Fundamentals of the Offshore Trust

1 Introduction—The Place of the Offshore Trust in the Offshore Financial Centre

A. Introduction

B. Features of Offshore Centres

C. The Offshore Trust as a Hybrid Trust

D. Offshore Trusts Force a Jurisprudential Review of Trusts

E. Wider Issues Relating to Offshore Financial Centres and Trusts

F. Suitability of the Trust in International Commerce

G. Direction of the Work—Comparative Issue Analysis

H. Relative Uniformity in Offshore Trusts Law

I. Persuasive Precedents in Similar Off shore Jurisdictions

2 Anatomy and Functions of the Offshore Trust

A. Nature of the Offshore Trust as Hybrid Trust

B. General Features Characteristic of the Offshore Trust

C. Characteristics of Persons and Offices Associated with the Offshore Trust

D. Extended Perpetuity and Accumulation Periods

E. Increased Protection against Creditors and Others Threatening the Assets

F. Statutory Provisions Aimed at Reconciling Potential Conflicts of Law

G. Defeating the Saunders v Vautier Rule

H. Flight Clauses and Duress Clauses which Shield the Offshore Trust

I. Constituting a Valid Trust

J. Letter or Memorandum of Wishes

3 Special Trust Vehicles

A. Asset Protection Trusts

B. The Emergence of the Purpose Trust

C. Description of Key Provisions on Offshore Purpose Trusts

D. Creation of the Institution of the Enforcer

E. Interpreting the Prescribed Statutory Conditions for Establishing Purpose Trusts

F. Extension of Charitable Trusts

G. Emergence of Private Trust Companies

H. Anti-Bartlett or VISTA Trusts

I. The Shari’a Trust

4 Onshore Offshore Trusts—The United States Example

A. Introduction—Emergence of the Off shore Trust Phenomenon in Onshore Jurisdictions

5 The Role and Powers of the Offshore Protector

A. Introduction—Rise of the Institution of the Protector

B. Description of the Protector

C. The Nature of the Protector’s Powers

D. Case Law Approach to the Protector—Fiduciary or Non-Fiduciary

E. Accountability of the Protector

F. Drafting the Trust Instrument to Include a Protector

G. The Enforcer versus the Protector

6 Questions of Legitimacy and the Offshore Trust

A. Introduction

B. Self-settled Protective Trusts and Public Policy

C. Justifying the Use of Offshore Trusts

D. Defending Public Policy Challenges to Offshore Trusts

E. Attacks on Offshore Financial Regimes

F. Future Discussions on Validity

7 Acceptance of Theoffshore Trust

A. Introduction

B. Category of Trust—Hybrid Functions and Their Validity

C. A True Trust—Recharacterization

D. Public Policy and Validity

E. Evolution of the Trust

II Challenges to the Offshore Trust and Common Pitfalls to Avoid

8 Disclosure and Confidentiality Obligations

A. Introduction

B. Trusts and Confidentiality Norms in Offshore Jurisdictions

C. Avenues for Disclosure

D. Rights to Information on the Offshore Trust

E. Exceptions to Disclosure of Information

F. Inherent Discretion for Disclosure—Schmidt v Rosewood Trust Ltd

G. Secrecy Clauses

H. Partial Disclosure

I. Letters of Request and the Trust

J. Duty to Keep Accounts

9 The Offshore Trust as a Sham

A. The Essence of a Sham Trust—From Control to Common Intention

B. Identifying Offshore Trusts as Shams

C. Neutral Features which May Lead to Sham Findings

D. Protecting against Sham Attacks—Legislation and Other Initiatives

10 The Law on Fraudulent Audulent Conveyances, Creditors and the Offshore Trust

A. The Relevance of the Law on Fraudulent Conveyances to Offshore Trusts

B. US Law on Fraudulent Conveyances and Foreign Trusts—Particular Concerns

C. Duress, Termination, Flight Clauses, and the Offshore Trust

D. The Problem of Identifying Appropriate Creditors

E. Tests to Determine to which Future Creditors the Law Applies

F. Offshore Legislation on Fraudulent Conveyancing and Related Jurisprudence

G. Judicial Pronouncements on the Validity of Offshore Provisions on Fraudulent Conveyances

H. Liability of Professionals

I. Conclusion

11 Duties of Trustees in Managing Offshore Trusts

A. General Duties under the Common Law

B. Exploring the Prudent Investor Rule

C. Special Considerations for Trustees

D. Finding the Equitable Balance in Offshore Trusts

E. Abdication and Delegation of Discretion

F. Responsible Transactions, Anti-Money Laundering, and beyond

G. Avoiding Liability

H. Duties of Offshore Trustees where there are Underlying Companies

12 Liability of Third Parties to the Trust

A. Development of Third Party Liability in Modern Commerce

B. Knowing Assistance or Dishonest Assistance

C. Knowing Receipt

D. Special Parties and Strangers Who Assist or Receive

E. Other Avenues for Liability

13 Trusts and Companies—Directors’ Liabilities and Trustee Possibilities

A. The Trust as a Corporate Entity and the Question of Liability

B. Direct Liability for Breach of Trust

C. Methods to Sidestep Limited Liability—Piercing the Corporate Veil

D. Negligence of Directors

E. Third Party Liability of Corporate Trustees

F. The Demise of Dog Leg Claims

G. Duties of Nominee and Non-Executive Directors

H. Offshore Statutory Position

III The Offshore Tax Function

14 Assessing the Tax Function of Offshore Trusts

A. Introduction

B. Harmful Tax Competition versus a Level Playing Field for Tax

C. Impact of Anti-Money Laundering Laws on Tax Offences

D. Legitimacy of the Tax Function and Jurisdiction to Tax

E. Continued Opportunities in Offshore Tax Planning

F. Tax and Human Rights—Protecting Offshore Trusts?

G. Attempts to Avoid Liability

15 Overview of Statutory Tax Countermeasures Against Offshore Trusts

A. Introduction

B. Civil Law Assumptions about the Trust in Tax Matters

C. Tax Countermeasures in the United Kingdom

D. Tax Countermeasures in the US

E. Tax Countermeasures in Canada

F. Statutory Disclosure Initiatives Relating to Tax and Trusts

16 Judicial Engineering of the Tax Function of Offshore Trusts

A. Introduction

B. Interpreting Tax Avoidance

C. Tax and Sham Trusts

D. Changed Interpretations of Residence Concept

E. A Note on Human Rights and Changing Attitudes

17 The Non-Enforcement of Foreign Fiscal Law—Sustaining the Tax Function of Offshore Trusts

A. Introduction—Offshore States Follow Rule on Non-Enforcement of Revenue Laws

B. Differentiating the Rule from Other Provisions on Non-Enforcement

C. Application of the Rule against the Non-Enforcement of Fiscal Law

D. Indirect Enforcement in Substance

E. Erosion of the Rule on Non-Enforcement of Foreign Tax Law and Comity

F. Reaffirmation of the Rule on the Non-Enforcement of Foreign Fiscal Law

G. Upholding Tax Planning Functions

H. Money Laundering Legislation and the Rule on Non-Enforcement

I. Impact of the Rule post OECD Convention

18 The Emergence of Tax Exchange of Information Agreements and Other Treaty Arrangements

A. Introduction—Increased Routes to International Legal Assistance and Conflicts in Legal Approaches

B. Tax Information Exchange Agreements

C. Double Taxation Treaties

D. Mutual Legal Assistance Treaties and Tax Matters

E. Impact of Treaty Requirements on Confidentiality

19 Duties of Offshore Trustees in Relation to Tax

A. Introduction

B. Duty not to Incur Further Tax Liabilities

C. Effect of the Rule in Hastings-Bass on the Taxation of Trusts

D. Whether Trustee to Pay Taxes and Honour Settlor and Beneficiary Obligations

IV The Conflict of Laws and The Offshore Trust

20 Transplanting the Common Law Trust—Conflict of Laws and the Acceptance of the Offshore Trust

A. Introduction

B. The Hague Convention on Trusts

21 Jurisdiction Over the Offshore Trust

A. The Importance of the Jurisdiction Question

B. Traditional Bases for Jurisdiction

C. Exclusive Jurisdiction

D. Rules for Declining Jurisdiction

E. Offshore Factors Important to Jurisdiction

22 The Proper Law of the Offshore Trust

A. Introduction—Uncertainty of Rules on Proper Law

B. Offshore Provisions—Offshore Law Chosen as Proper Law

C. Impact of the Hague Convention on the Recognition of Trusts

D. Peculiarities of Offshore Trusts

E. Interpretation of Law Most Closely Connected under the Hague Convention on the Recognition of Trusts

F. Scope of Proper Law

G. Distinctions between Preliminary Questions and Proper Law on the Interpretation of the Trust and its Validity

H. Challenges to the Parties’ Choice of Law

I. The Hague Convention’s Influence on Express Choice Tested

J. Choice of Law and Judicial Power to Vary the Terms of the Trust

K. Change of Proper Law

23 Recognition of the Offshore Trust in Civil Law Countries

A. Introduction

B. Civil Law Confrontations with the Trust

C. Increasing Use of the Offshore Trust in Civil Law Countries

D. The Hague Convention and Offshore Provisions on Recognition of the Trust

E. The Trust versus the Foundation

F. The Trust as a Corporation—Rejecting Contractual Concepts

G. Explicit Recognition as a Trust

H. Conclusion

24 Rights to Succession—Forced Heirs and the Offshore Trust

A. Introduction—Addressing Mandatory Succession

B. Anti-forced Heirship Provisions to Resolve Conflicts

C. US Decisions on Forced Heirship Policies

D. Other Common Law Decisions on Forced Heirship

E. The Hague Convention and Forced Heirship

F. Public Policy and Forced Heirship

G. Consideration of Trust Interests in Maintenance and Spousal Awards

H. Forced Heirship Provisions do not Override Trustees’ Discretion

I. Validity of Hostile Beneficiaries Clauses

J. Forced Heirship and Disclosure

K. Conclusion

25 Capacity to Create the Offshore Trust and Initial Transfers of Assets

A. Introduction—The Importance of Preliminary Questions

B. Offshore Aims in Relation to Preliminary Issues

C. Validity of the Transfer—Alienation of the Property

D. Capacity to Create the Trust—The General Question

E. Capacity and Forced Heirship under the Hague Convention

F. Offshore Legislative Approach to Potential Defects of Capacity

G. Capacity of Persons from Civil Law Countries

H. Whether Offshore Trust Law Efficient in Precluding Foreign Onshore Law

I. Responding to Approaches which Confuse Capacity with Other Questions

26 The Non-Enforcement of Foreign Judgments Under Offshore Trust Law and Restraint Orders

A. Introduction—Last Defence—Special Laws Prohibiting Enforcement

B. Traditional Rules on Enforcement

C. Other Routes to Non-Enforcement—Public Policy, Comity, and beyond

D. The Rule on Non-Enforcement of Foreign Revenue, Penal, and Public Penal Law

E. Enforcement and Variation Powers and the Offshore Trust

F. Obtaining Restraint Orders against Offshore Trusts

Bibliography

Index

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