Damned Statistics

The BBC invited me on two occasions, to join Nicky Campbell on his Sunday morning show to contribute to the debate on how valuable rich people are to the UK.

The first time, as we went live – Nicky turned on me, aggressively. Is it right for some people to live in this country and not pay their fair share of tax? I cannot remember what I said, I was so surprised, but remember being quite robust. If the government tax this valuable community too much they will simply leave!

One woman, a strongly opinionated journalist, claimed they would not – we now have the statistics, who is right?

The simple answer is that one quarter have either left or given up their privileged status, but the total tax taken has gone up. Sadly, records only began in 2008, when a fee was introduced for the privilege of the beneficial tax regime for non-UK doms living in the UK.

In 1986, I was asked by the Weekend FT to write a column on tax and trusts, which I did for twelve years writing about ten articles a year. At that time, very little was written about the taxation of non-UK domiciled persons, so I had no option but to read the legislation and interpret it as best I could.

I was shocked to discover, as I wrote my articles, that non-domiciled persons could save vast swathes of tax simply by leaving most of their assets offshore, preferably in trust, and to bring into this country only monies on which they needed to live. And even this tax could, with careful planning, be avoided.

Although, I cannot claim to be responsible for the surge in the offshore fiduciary industry and an influx of wealthy people into the UK, in the 80s and 90s, I certainly think I contributed to it.

As the years rolled by, it became increasingly clear to me that the Treasury would clamp down on this ‘gravy train’ of tax breaks for the non-doms, which is precisely what it did, although for many, it was great while it lasted.

In 2008, the Government introduced a charge of £30,000 for any non-domiciled person who had been resident in the UK for 7 of the previous 9 years and did not want to pay tax on their unremitted offshore income and gains. In 2012, a new band was introduced £50,000 for any such a person who had been resident in the UK for 12 of the previous 14 years (which went up to £60,000 from April 2015). Then, in 2015, a new band was introduced of £90,000 for such a person who had lived in the UK for 17 of the previous 20 years.

Finally, from 6 April 2017, the £90,000 band was dropped and all non-UK domiciles who have lived in the UK for 15 of the previous 20 years will now have to pay UK income tax and capital gains tax on their offshore as well as their onshore wealth.

We do not know what the outcome of this deemed domiciled rule will be, because the published statistics only go up to 15-16, but we can see, from the statistics published this month the effect of the increase in the remittance charge on the behaviour of the non dom community living in the UK.

First, the total number of non-doms who do not want to pay the fee for the privilege of having their unremitted offshore wealth left untaxed, fell by one quarter, down from 120,000 to 91,000. This could either be because they did not want to continue to pay the fee for the privilege, or they have simply left the UK. The split would appear to be 50:50.

Second the tax take went up. Non doms last year paid more income tax, capital gains tax and national insurance tax than at any time since records began - 2008.

Of the non dom taxpayers only two thirds bring monies into the UK which is taxable, the others may simply leave their monies offshore, because they do not need it in the UK. The amount of tax paid on the remittances was £2,100 million, which is roughly the same as previous years, but the fee for the privilege was up to £285 million which is the highest amount ever paid, largely due to the £90,000 band.

The number of people who pay this fee is only 4,300. This means that of the 91,000 who claim non-dom tax privileges, less than 5% stay beyond seven years, or then drop their non-dom status.

As from April 2017 of these 4,300 who have been here for fifteen of the previous twenty years, they will be taxed on their worldwide income and capital gains. Ironically, provided they do not need the money to spend personally, it can usually be, legally, mitigated or avoided.

Changes were also made as from April 2017 to the rules of non-doms for inheritance tax.  If they have lived in the UK for fifteen, rather than seventeen out of the previous twenty years, they will be subject to inheritance tax on their world-wide wealth at 40%. However, this can also be avoided, provided action is taken before the fifteen-year cut-off date.  Simply set up a trust and transfer all your non UK assets into it. And if you want to know how to do this without losing control of your world-wide wealth, simply contact me.

If you would like to find out more or buy Caroline’s book ‘When you are Super Rich Who can you Trust?’, please contact Caroline on 020 3740 7422, or email on caroline@garnhamfos.com

Don't tempt fate

I have acted for Joshua for many years. He is a beneficiary of a trust, which I will call Larchwood Trust, with his sister Marcelle which was set up for him in 1998 by their father. Joshua is resident in the UK, but Marcelle is resident in Argentina.

The trust owns a number of active businesses, one of which is an import business to the UK of products from Argentina, based in the UK, which I will call Larchwood Enterprises Limited.

The Trustee of his trust ABC Limited, has an excellent track record, and has over the last few years been very acquisitive; buying large and small fiduciary businesses mostly in offshore financial centres and introducing them to their way of doing business and looking after clients.

Joshua recently received a letter from ABC Limited to say that it was proud to announce the acquisition of a fiduciary business STU Limited, with offices in Singapore, BVI, Lugano and London. Joshua wrote to me to say how excited he was that he could now have meetings with his Trustees in London and would no longer have to travel to the Channel Islands!

I wrote back to him, which I copied to ABC Limited, who I had got to know quite well over the years, to say that it was unlikely that his visits to the Channel Islands would come to an end despite ABC Limited having acquired an office in London.

Under Section 69(2D) of the Taxation of Capital Gains Act 1992, and Section 475(6) Income Taxes Act a trustee, ABC Limited will be treated as UK resident and taxable in the UK, in relation to a trust, if it acts in the course of a business which it carries on through a ‘permanent establishment in the UK’.

I told Joshua that ABC Limited would no doubt have taken legal advice before acquiring STU Limited and would have put in place rigorous processes, but Joshua was inquisitive, he wanted to know the rules and the dangers.

I told Joshua that HMRC and the OECD Tax Model Convention provide helpful guidance on the meaning of permanent establishment which is at the heart of where a trust is resident, if it has a corporate trustee acting as a sole trustee.

If ABC Limited employees were to use the offices of STU Limited when they came to London, this would not necessarily mean that Larchwood Trust would become subject to UK capital gains tax or income tax. But it depends what these employees are doing while in the UK which matters, and this is governed by three tests.

The first is if ABC Limited employees are doing trust business in the UK. If they are merely coming to the UK to pitch for new business, that is ok, but they should not be doing trust business, while in the UK.

The second test is, are the employees of ABC Limited doing trust business in the offices of STU Limited in London?

Third test is, are the employees of ABC Limited carrying out the trust business of Larchwood Trust, in the offices of STU Limited in London?

The Guidelines make it very clear what trust business is, namely

·      The general administration of the trust

·      The over-arching investment strategy

·      Monitoring the performance of those investments, and

·      Decisions on how trust income will be dealt with and whether distributions should be made.

One off meetings are ok. To give an example, if ABC Limited met with Joshua at the offices of STU Limited to discuss the potential release of capital from the Larchwood Trust, this clearly falls within a core activity of the Larchwood Trust.  Prima facie ABC Limited is acting as a trustee of the Larchwood Trust through a permanent establishment, the offices of STU Limited. However, HMRC will not make a decision based on a one-off meeting, it wants to know the whole history.  

The trap to avoid, which crops up when a trust has appointed a professional trustee, is where meetings are held by employees of ABC Limited with Joshua in London, which ABC Limited then ratifies in the Channel Islands at a formal meeting of the Directors of ABC Limited.

In my opinion, as I told Joshua, he needs a structure, where it is clear who is taking the decisions and where they are taken. Although, in most cases, on balance, it is clear that the real decisions are being taken abroad, no-one wants to tempt fate with HMRC. Fighting HMRC is not like fighting anything or anyone else. It has been told it must go after every penny of potential tax, regardless of the time and expense it takes to go through all the files and papers of Larchwood Trust, since inception.

The inconvenience and cost of flying out to the Channel Islands to have real meetings where real decisions are taken is a small price to pay to avoid years of wrangling with HMRC.

If you would like to find out more, or buy my book, ‘When you are Super Rich who Can You Trust?’ please contact me on 020 3740 7422, or e mail me on caroline@garnhamfos.com

And still the heat rises

In March 2018, the Law Society published its guidelines as to what it considers to be money laundering and high-risk activities. I quote

‘Independent legal professionals are key actors in the business and financial world’ it says, ‘facilitating vital transactions that underpin the UK economy. As such they have a significant role to play ensuring that their services are not used to further a criminal purpose….

Money laundering is generally defined as the process by which the proceeds of crime and the true ownership of those proceeds are changed so that the proceeds appear to come from a legitimate source.

But it is not restricted to drug running and fraud by criminal gangs, the Proceeds of Crime Act 2002 includes ‘profits and savings from relatively minor crimes, such as regulatory breaches, minor tax evasion or benefit fraud.’

There are three classic phases to money laundering: placement, layering and integration; getting the cash into the system, finding a way to obscure its source, and making wealth appear legitimate so that the criminal can enjoy it. We all know and agree that the proceeds of crime need to be identified as a first step to catching criminals, but the heavy guns are out for the ‘minor tax evasion’ as well, which won’t be placed, layered or integrated. More often than not it is simply sitting in a bank account waiting for a rainy day.

Schedule 9 of the Proceeds of Crime Act 2002, outlines the practices where vigilance is particularly high, which includes,

·      Advice about the tax affairs of another person by a practice or sole practitioner

·      Legal services involving the participation in financial or real property transactions concerning the buying and selling of real property or business entities

·      The managing of client money, securities or other assets

·      The opening or management of client money, securities, or other assets

·      The opening or management of bank, savings or securities accounts

·      The organisation of contributions necessary for the creation, operation or management of companies

·      The creation, operation or management of companies

·      The creation, operation or management of trusts, companies or similar structures

 In short, the entire private client industry needs to be on the look-out for the proceeds of crime and the savings from evading tax!

The industry is advised to take appropriate steps to identify, assess and understand the money laundering risks businesses faces and apply a risk-based approach to compliance with documented policies, controls and procedures to identify these problems.

At greatest risk are those lawyers involved in the sale/purchase of real property, creation of trusts, companies and charities, and management of trusts and companies and therefore anyone involved in this practice area must place additional controls where necessary to minimize the risk of money laundering.

In my area of expertise, I need to ask why a client wishes to set up the trust, the appropriateness of the structure, and to understand all aspects of the transaction.

But now we need to go even further.

Several decades ago I was working in a law firm and down the corridor from me was a lawyer, who I will call John, who kept himself to himself. John was rumoured to have a rich wife – which explained his lavish lifestyle. By chance a trainee, noticed that a lot of John’s clients were using an accountant in an offshore financial centre which was not used by any other partner in the firm, and asked why. It then came to light that John was working a little too closely with some of his clients, introducing them to this accountant, who would not ask too many questions for a fee paid to John, into his offshore bank account. He was, dismissed.

But as from 2017 senior management must flush out such rogue elements.

For most hard-working diligent tax and trust practitioners, clients are for the long term, we get to know their family, go to their weddings, funerals, religious ceremonies – we know who they are what they want to achieve and we do our best to keep them well within the tramlines of the law and introduce them only to professionals with the same high standards of decency. But in a large organisation not everyone has the same sense of integrity. A rogue worker looks the same as any other diligent practitioner, the only difference is that he/she is more motivated by financial reward than keeping his/her clients the right side of the law.

On 1st September 2017, the Government published guidance for companies on failure to prevent criminal facilitation of tax evasion. This now makes senior management in an organisation criminally liable for the failure to prevent an associated person facilitating the evasion by their clients of tax.

Up until 2017, prosecutors merely had to show that the senior members of the relevant body were not involved in or aware of such illegal activity. Now if they turn a blind eye, or fail to have a proper procedure in place to flush out such rogue elements they may find themselves in the dock alongside their criminal colleagues.

If you would like to find out more, or buy my book When you are Super Rich who can you Trust? simply send me an e mail to caroline@garnhamfos.com.

Substance over Form

Last week, I had a meeting with a dear friend and client who I will call Fred. Over the three decades I have known him, he has had good luck and bad, in about equal measures, but in recent years his commercial property interests have rocketed. He came to me, because he was looking to ‘take profits’.

Fred came to live in the UK from Australia some fifteen years ago and bought residential property in the UK, which did very well. About seven years ago, I told him, that I thought the UK government would start to attack the tax benefits of UK residential property. He took my advice and sold the UK residential property, switching into commercial property which he held in offshore special purpose vehicles in BVI and trusts which he set up in Guernsey about the same time.

I said he needed to review his entire structure the mood of the world had changed and offshore structures had to change with it, to reflect substance over form. For example, the governance of the special purpose vehicles which held the commercial property interests needed to be carefully looked at; in particular who was on the board, where board meetings were held, what the board members discussed and how everything was recorded.

I reminded Fred that ‘The key advantages of using BVI companies to hold the commercial property portfolio are they are outside the scope of UK capital gains tax provided the company is non-UK resident, which means that the central management and control of the company must be outside the UK.

I touched on the leading case on this issue – Wood v Holden last week.

Fred looked smug, he was ‘well acquainted with the rules of central management and control’. His BVI companies had a majority of Guernsey resident directors, he was not on the board, they met at least twice a year in Guernsey at which board meetings were held and minutes properly taken which were kept at the offices in Guernsey,

I asked what the minutes recorded, after all Fred was the brains behind the business empire? The majority of directors maybe resident in Guernsey, but what experience did they have in buying and selling UK commercial property? Furthermore, how in practice did Fred convey his business decisions to the Guernsey board?

He said that informal meetings and discussions were being held continuously in the UK, but when a decision had to be made, his CEO would fly to Guernsey to have a formal meeting at which the decisions would be taken.

I asked whether the minutes conveyed the business discussions? Fred said yes, his CEO would go through the properties held by the SPVs, and explain the proposals to the board at which point discussions would be held, and then the board would resolve to agree the proposals.

I asked whether these discussions were recorded and the time taken to come to these decisions? If the directors had no real knowledge of commercial property were these discussions meaningful?  These factors could now come under greater scrutiny.

The First Tier Tribunal case last year of Development Securities is unusual, but is a salutary reminder that substance trumps form.

In this case, three Jersey companies, ultimately owned by Development Securities PLC, were used as part of a tax structure designed to increase the group’s available capital losses. The offshore companies bought real estate at an artificially high price with a view to selling them on, at a loss, shortly afterwards. This loss would then be available to set off against the profits of Development Securities PLC.

The boards of the Jersey companies held at least four meetings between the date the companies were incorporated in June 2004, and the date the Jersey directors retired about six weeks later in July 2004.

At these meetings, the Jersey board considered the steps proposed, gave approvals to the entry into and subsequent exercise of the call option and set out all the related administrative steps needed to complete the transaction, - in accordance with directions from a UK tax accountant.

The First Tier Tax Tribunal wanted to look at the facts and took everything into account; all correspondence, minutes, hand written notes, telephone calls and in particular the advice given by the accountant who orchestrated the whole thing, which was not privileged.

The Tribunal came to the conclusion on the facts, that, at the time the Jersey companies were incorporated and the directors appointed by Development Securities, the decision to undertake the transactions had already been taken (by Development Securities) and that the directors of the Jersey companies, in agreeing to be appointed, in effect were also agreeing to carry out the transactions, subject only to confirmation that it was lawful in Jersey for them to do so.

What was of particular relevance in this case, was the fact that the boards of the Jersey companies did not discuss in any detail the transactions which they were to take, and in fact were not qualified to do so!

My advice to Fred, was put in place a structure so that real decisions are taken by people with real qualifications, which is not in the UK – if that means hiring a private jet once every three/four months’ – that is a small price to pay for a saving capital gains tax!

If you would like to find out more about setting up and running headquarter structures call Caroline on 020 3740 7422 or e mail on caroline@garnhamfos.com.

Should you admit weakness?

If a trustee asks an adviser, for a review of the offshore structure for ‘tax purposes’ should the tax adviser admit where it is weak or not? The answer is – it depends!

Ivan set up his business group headquarters in Guernsey fifteen years ago which is owned by a trust. The business is predominantly UK based and is now substantial.

The first area of vulnerability, I would advise Ivan, is whether any part of the structure could be treated as UK tax resident. The leading case on this is Wood v Holden, 2006.

In this case, the judge decided that a company will be resident in the place where decisions are made by its board of directors, subject to one exception. Where an ‘outsider’ has ‘usurped’ the function of the board and effectively exercises management and control from the UK, without regard to the board. In this case, the company will be treated as resident and taxed in the UK.

However, to cross this line, depends on a finding of fact. An ‘outsider’ can propose, advise and influence the decisions of the board, but must not ‘usurp’ its function. The line is crossed only where the outsider ‘dictates’ the decisions of the board and the directors do as they are told. 

There have been a number of cases since 2006, which give further clarification.

In the case of Laerstate BV v HMRC 2009 a controlling shareholder and one of the two directors Dieter Bock, resigned from the board, but continued (in practice) to exercise central management and control of the company from the UK, notwithstanding that he was no longer a director. It was decided that the influence of Dieter was such that the company was UK resident and liable to UK tax. This decision hinged on the fact that the board listened to what Dieter demanded, regardless of the fact that he was not a board member.

In Lee v Butler v HMRC 2017, HMRC successfully argued that a trust was effectively managed in the UK (a similar test, but not identical test to central management and control) in circumstances where decisions were made by a trust company in Mauritius, but the ‘shots were called’ from the UK. Again, the trust company listened to what was being dictated by non-board members in the UK.

HMRC has also made reference to recent developments in Australia. In Bywater Investments and Hua Wang Bank Berhad 2016 a company was held to be resident in Australia where an individual was carrying on the ‘real business’ in Australia with decisions being rubber-stamped by a non-resident director.

The second area of vulnerability, I would advise Ivan, which can affect the tax treatment of offshore structures, is whether the trust has a ‘fixed place’ of business in the UK, through which trust or company business is carried on, or if somebody habitually exercises, in the UK, authority to bind the offshore headquarters.

These are important areas and need to be looked at with care, because once HMRC starts an investigation it will demand to see all board papers and minutes, and possibly also the email correspondence between the directors and other key individuals. It is specifically looking for the unguarded comment, or casual conversation, on which it will build its case based on these ‘facts’.

However, getting back to my question, should an adviser admit where a structure is weak? The answer is – it depends. HMRC cannot demand to see advice which is ‘privileged’; advice from a qualified lawyer. It can however, demand to see advice from an accountant – which is not privileged.

Therefore, Ivan’s trustees, if they are concerned that that structure could be investigated by UK HMRC should first seek the advice from a lawyer to determine where the structure could be regarded as weak and how to make it more robust.

As part of this exercise, advice should also be sought as to what to do, to avoid a tax investigation, becoming a nightmare.

Long before UK HMRC starts sniffing the trustees should first seek advice from an independent accountant to tell them how to fill in all the relevant tax returns, to avoid the 200% onerous penalties for failure to correct, which I covered a few weeks ago. Then trustees need to be advised as to what to do as and when a tax inspector comes sniffing.

The temptation is to respond to the demands of the tax inspector, without first taking advice from a good dispute resolution lawyer. Tax authorities have been ordered not to compromise and have the mind-set that offshore structures are set up for one reason only - to avoid tax. So, they care little if their investigation is harsh, long winded and unfair.

If a trustee wishes to act in the best interests of his beneficiaries, it should engage the best dispute resolution lawyer to resolve the dispute. If this is not done, the dispute can, and will, drag on for years and years, benefitting only the professionals.

If you would like your offshore structure reviewed or to engage a dispute resolution lawyer, please contact me on 020 3740 7422 or e mail me on caroline@garnhamfos.com.