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.

 

Summer party

Summer Party

What a glorious summer we are having here in London – I cannot remember so many warm days over such a long period. If asked where am I going for a holiday this summer – the answer is nowhere! It is so glorious right here, on my roof terrace overlooking Hyde Park.

And Summer is also time for Summer Parties.

Our BConnect Club held its second get together in the psychedelic room above the renowned Aquavit restaurant, in the heart of St James’ in London. A fabulous venue and the food was exceptional.

Like any Club event its members were there to enjoy the company of others, eat, drink, network and make new acquaintances. For those not familiar with the BConnect Club, it is the trusted partner for the private client.

In my book, ‘When you are Super Rich who can you Trust?’. The answer is no-one. But, you can trust the collective wisdom of like-minded people. Other wealthy families have had similar problems to yours, and collectively they know the dangers, opportunities and pitfalls. Many focus on how to find a good deal in which to invest their cash - it is not easy 

The trouble is that wealthy people do not always want many people to know too much as to who they are and what they are looking for. The BConnect Club recognises this. It is for like-minded people to meet others like them offline, but also to connect with investment opportunities, product providers and professional advisers online, and if desired can, through our team of relationship managers, be guided as how to find, what you are looking for.

As I say in my book,  J.K. Rowling when she first became liquid rich, is on record as saying that she was ‘terrified’. She did not know what dangers to look out for, or who to trust. BConnect Club is the 'go to trusted partner for the private client', both online and offline to help them steer a straight course through shark invested waters.

The name BConnect Club comes from our Joint Venture partners. Ankush Mehta is the founder of Bespoke Connections, and me the founder of Family Bhive the online forerunner to BConnect Club. Together we have formed the BConnect Club.

Bespoke Connections – does what it says on the tin, it makes connections, but before BConnect, its connections were only offline. However, now with an online presence these connections can be made more meaningful. We can now connect our members not only with deals, which Ankush and his team are so good at, but also with luxury product providers such as our sponsors Cult Wines, and services such as C6 which provides our members with due diligence and insight information.

Although we are only a few months old, connecting with the contact list of Ankush and my own contact list we already have membership with net wealth in excess of £24billion and £515million liquid assets to invest. BConnect Club may be a new kid on the block, but it already has a dedicated team and is growing every day.

This is why I am so thrilled to inform you, my readers, that Svetlana Galeva, who has worked for me for over four years, has joined the team at BConnect Club.  Svetlana is a natural connector and facilitator and I wish her every success at BConnect Club.

Meanwhile GFOS goes from strength to strength. 

GFOS is a legal boutique which specialises in providing international families with significant wealth, with control over their family offices and trust assets.

Everyone knows that a company has shareholders and company directors. The shareholders are given reports and can hold an AGM and EGM if they want more information or are keen to know if someone is behaving beyond their brief or not in a manner which is their best interests. Directors and shareholders may not always see eye to eye, but good governance with its formality and rules  keeps them muddling along without too much intervention from the professionals.

This is not however, always the case with the ownership structure and management of single family offices and assets held through offshore structures. Professionals are often left to manage personal assets with few if any checks and balances, such that when a difference of opinion emerges or a dispute arises, matters are often made worse by the professionals seeking out further professional opinions, which often slows down the dispute resolution and gives rise to missed opportunities.

Through my close connection with BConnect Club and its ethos, I would like to offer every wealthy family and Single-Family Office who joins The BConnect Club as a member a FREE consultation with GFOS to review what, if anything, can be done to improve the good governance in their single-family office or in relation to their assets held offshore.

If you would like further information please contact me on caroline@garnhamfos.com or call on 020 3740 7422 I can also be contacted if you would like to buy a book, which can also be bought on line from www.garnhamfamilyofficeservices.com or at Amazon.

 

A day out at Ascot

Ascot is quintessentially English.

 

I was invited to join a business colleague Bryan and his wife Jolante for champagne and canapes at 11.00 in Car Park 1 at Ascot races last Tuesday. For those not familiar with the quirks of the English summer season, the business elite with connections, book or buy a car park space and host picnics – come rain or shine for their friends and colleagues.

 

Car park 1 is the poshest of all the car parks! But no matter how posh, if it is raining, everyone is expected to smile, stand with an umbrella in one hand and juggle the champagne and canapes with the other, using what you can of the parked car or boot as a table. Fortunately, this year it did not rain, and so I could eat and drink without fuss.  The weather on Tuesday, although cloudy, was warm with a soft breeze.

 

Bryan is a consummate networker, he was joined by a most interesting and varied group of people, from intrepid explorers, to a NHS negligence claims barrister and a former ambassador to Greece. For some, it was their first time at Ascot, and for others it is a yearly tradition. I arrived early so that I could, not only enjoy the company of my host and his guests, but also visit family and friends in other parts of the car park.

 

Most people who picnic in Car Park 1, like me, apply for tickets to the Royal Enclosure which gets you as close as possible to the Royal family, from whom there is always a good turnout. Royal Ascot is the Queen’s favourite event and she makes a point of going every day. She always arrives promptly at 2 in a long procession of horse drawn open carriages down the racetrack to her box. A little before 2.00, I joined a few friends to stand on the terraces to welcome the Queen and the Royal Procession into the Ascot stadium.

 

I am a fan of the Queen. I admire her tireless devotion to duty, and her tenacity. Most women at her age would not venture out so often let alone without a stick or an arm to lean on – not the Queen, she serves her country without complaint and stands and walks for hours without an aide. I was not the only one keen to be on the terraces to welcome Her Royal Highness. The terraces were packed with gentlemen wearing morning suits; top hats and tails, and women wearing hats and looking their best.

 

A cheer went up as the Queen approached and the gentlemen took off their top hats as a sign of respect. The Queen was dressed in a stunning canary yellow coat, with light blue hyacinths on her yellow dress and in her matching yellow hat she wore a blue hyacinth flower.

 

In the second carriage rode the Prince of Wales, with his wife Camilla, dressed in a simple but elegant cream dress coat and hat. With them rode the Prince’s nieces Beatrice and Eugene. But the belle of the ball, apart from the Queen, was the newly appointed Duchess of Sussex, only one month after her wedding to Prince Harry, riding in the third carriage.

 

Meghan looked elegant, in a white Givenchy shirt dress, and white hat with black details. She obviously fits well into her new ‘role’, and was invited to give the trophy to race winner Frankie Dettori to much applause.

 

I joined my friends as they put a £5 bet on ‘Rhodendron’ to win ‘both ways’, at the bookies, and then joined them on the terraces to watch the first race. Sadly, Rhodendron did not win. They shrugged, smiled and looked at the race card to consider what horse to back in the next race.

 

At this stage, I decided to visit some clients who were also at the races who had invited me into their box. Unlike the true Brits, who attended good English schools and make up the back bone of the square mile, the real money rarely picnics in the Car Park. They prefer the comfort and convenience of a box.

 

I started on the fourth floor. This box was packed with the great and good, their table groaned with delicious food – and on the side was another table set with empty glasses and waiters, keen to fill the glasses with whatever a guest may chose; champagne, wine, Pimms or whatever took a guest’s fancy. Our host had invited his polo team to join him, they mingled easily with the City’s leading entrepreneurs, tall, elegant and impossibly good looking.

 

The next stop was a box also on the fourth floor, full of distinguished property developers. Here more tables heaved with delicious food and empty, expectant glasses. The atmosphere was friendly and engaging.

 

The third stop was on the sixth floor, the host was a race horse owner with pictures of his winners on the walls. ‘Of course, there is no money to made in racing horses’, our hosts wife explained to me ‘unless you breed them, the winnings are derisory, (unlike in France). The thrill of owning a race horse is just that - a thrill accompanied by an enormous bill!’

 

I ended the afternoon back on the fourth floor, where some of the food had been taken away and replaced with tea and scones. I ate a few sandwiches, had a cup of tea, and then thought about going home. One of the guests and family were leaving at the same time. We departed together, and were held up by the departure of the Queen. She and her family left in black limousines, with Police clearing the way of people and traffic for the fleet of royal cars making their way back to Windsor. My fellow guest then headed for the helli park, where his pilot and helli were waiting, to fly him high over the traffic jams, while I headed back for the train. My phone rang while I was on board for London ‘So sorry to have missed you – not to mind, we’ll meet for a coffee soon’.

 

Another fabulous day at the races.

 

If you would like to buy my book on ‘When you are Super Rich who can you Trust?’ or ‘How to win business from Private Clients’ please write to me at caroline@garnhamfos.com or call on 020 3740 7422.

 

An invidious Position

My former spouse, Michael was driving along a country lane close to his home, when an elderly man turning left on a blind bend into Church Lane on his bicycle, in his slippers was hit by his car broad side. Of course, Michael stopped, called an ambulance, and did whatever he could to make the man comfortable. However, sadly the accident resulted in the man having to have both legs amputated and in due course he died from his injuries.

 

Michael when he set off from home that day, had not the slightest intention to cause grievous bodily harm, let alone murder anyone, but as a result of driving his car a man was seriously injured and eventually died.

 

In legal terms, Michael did the deed, but did not mean to cause harm, he was therefore not penalised for his actions. This has been the law for centuries, but it does not apply to non-declaration of tax.

 

If you avoid tax the fact that you did not mean to, is irrelevant. The fact that due to the ignorance of your liability you are made bankrupt is OK. The fact that you were given advice which was incorrect or that a third party such as a bank transferred monies, which you did not know about, but which results in tax payable by you, carries no sympathy with HMRC.

 

Furthermore, tax is not logical or straightforward, it is hugely complicated and changes every year. You are expected to know it all.

 

The examples, given in the HMRC Guidance Notes on Failure to Correct (which I talked about last week and the week before) are fairly obvious examples of evasion.

 

Emma has a house in Spain which she lets out, collects the rent, but fails to declare it in her self-assessment – this is clearly evasion and she needs to correct this oversight immediately. In another case Peter dies domiciled in the UK and Henry is his sole heir.  Henry inherits £200,000 which he keeps in a bank account in Cayman Islands and does not declare it. This is evasion and Henry needs to correct it.

 

However, there are many examples I can think of where assumptions are made, with or without professional advice where tax is due and not declared, because the taxpayer, did not suspect a liability and therefore fails to declare because he was not aware that tax was payable.

 

Take for example a gift of a property in Spain, by a UK domiciled spouse George to his non-UK domiciled wife Michele. Most people would expect this to fall within the 100% spouse exemption for inheritance tax purposes, but it does not. The gift from George to Michele if it is in excess £325,000 could be subject to inheritance tax on which tax could be payable.

 

Another oddity is, where a non-UK domiciled person Fabian has bank accounts abroad and his bank has been studious, so he thinks, in separating the income from the capital as it arises. Remittances, so he thinks, are being made to him in the UK from ‘clean capital’ and outside the charge to tax. However, what Fabian does not realize is that his bank has failed to identify properly the source out of which remittances are made to the UK and consequently Fabian has failed to declare the income in his tax return.

 

In both cases, HMRC could well pick up these oversights under the Automatic Exchange of Information due to start in September in 2018. If either George or Fabian do not have a ‘Reasonable Excuse’; a review by an independent accountant, HMRC could charge the non-declared tax plus up to 200% penalties, even if they had no inclining that any tax was due.

 

I was speaking recently to a leading tax accountant, he said ‘long gone are the days, when people would come to us to save tax, I now have the unpleasant task of telling my clients where they have inadvertently failed to declare, whether income, capital gains or inheritance tax.’

 

HMRC’s justification to their approach is that

 

‘Anyone who owns or has an interest in assets held offshore or has had a source of income that is offshore, or has moved income or the proceeds of capital gains offshore is potentially affected…. You should check that you have declared all tax liabilities that arise as a result of these assets and if you find that you have unpaid tax liabilities you should come forward and correct them as soon as possible and in any case no later than 30 September 2018.’

 

HMRC then sets out a list of assets which if held offshore should put you on alert that an independent report from an accountant is required confirming that no tax is due. This report is what I call your ‘get of jail free card’

 

‘Examples of assets include:

·      Art and antiques

·      Bank and other savings accounts

·      Boats

·      Cash

·      Debts owed to you

·      Gold and silver articles

·      Government securities

·      Jewellery

·      Land and buildings, including holiday and timeshare

·      Life assurance policies and pensions

·      Other accounts, such as stockbroker’s or solicitors’

·      Other bond deposits and loans

·      Rights and intellectual property

·      Stocks and shares

·      Trusts

·      Vehicles’.

 

If you would like to find out more please contact me, Caroline Garnham on 020 3740 7422 or email me on caroline@garnhamfos.com.

HMRC - splitting hairs?

Can you remember what came first, was it the chicken or the egg? Did you seek advice on your domicile first and then on how to use your status to avoid tax or did you go to your adviser to see how you could save tax? This distinction could make the difference between keeping your trust fund or paying the bulk of it over to HMRC!

 

This is the example given in Case 9 of the HMRC guidelines on how, where and when it will impose the new penalties.

 

Bernard has been a client of mine for many years, he was told by a friend that if he set up a trust offshore he could provide not only for his heirs in unequal shares, but could also save tax. His friend introduced him to a specialist firm in Switzerland, to which he went to set up his trust ten years ago. His first conversation with them which was recorded on their files, was how could he get the benefits which his friend was currently enjoying with his trust; succession and tax avoidance. The firm also told him how to complete his tax return.

 

Since the trust was set up Bernard has used the monies in trust to build his business empire, trading between Africa and Europe. The trust has served him well, apart from Bernard’s irritation about the time it takes for his professional trustees to agree to invest or disinvest, and his concern about what the trustee would do if faced with a third-party dispute, which was always of concern to him knowing how expensive such a trust dispute could be.

 

He wanted to put in place good governance, which was why he came to see me; which would address his irritation with his trustees. I explained to him how this could be done, and we set about putting it in place.

 

During our work together, Bernard asked whether we could do anything to stop HMRC investigating him and his trust. The simple answer was no, but he could stop a disaster turning into a catastrophe, first, by setting up good governance measures, which we were in the process of doing, but second by engaging an accountant to review his structure.

 

The Failure to Correct legislation introduced in the Finance Act 2017, is stated to coincide with the first information to be received by HMRC under the ‘Automatic Exchange of Information’ legislation. If as a result of information being disclosed under these new rules, HMRC discovers that an offshore structure is subject to taxation which has not been declared it can charge up to 200% penalty under the Failure to Correct legislation.

 

This may not seem unfair, until you factor in that a settlor, like Bernard could be liable for this penalty even if, as far as he was concerned, he had taken good advice and followed it to the letter. In short, the penalties can be imposed without the taxpayer having had the intention to evade tax, he was simply acting on advice on how best to plan for succession in the most tax efficient manner.

 

But, I hear you think, if Bernard has followed the rules, and taken good advice, he is tax compliant and HMRC will go away empty handed? Not necessarily. Let’s assume that HMRC once in possession of all the facts decides to investigate Bernard’s trust.

 

It will first go knocking on the door of his trustees in Switzerland. If it finds out from the files that Bernard went to the specialist firm in Switzerland for the benefits he was told would be available by a friend, this advice, regardless of how accurate and correct it is, will be ‘disqualified’ in protecting Bernard from 200% penalties, provided HMRC can find something to tax.

 

How could this happen? Let’s assume that HMRC finds in the setup correspondence and marketing material of the trustees, that ‘a trust is an ideal vehicle for succession and saving tax, but don’t worry about losing control, we are obliged to look after the best interests of our clients – which unless you are acting unreasonably, means we will do what you request’.

 

In the Pugachev case, it was decided that where a settlor retains too much control and the trustee does what is requested of him, the trust can be treated as a nominee arrangement which means that the assets can be taxed as if the assets remained owned by Bernard. This could be a serious outcome, but when added to this are the penalties of Failure to Correct, at 200% it could wipe out Bernard’s entire trust fund. Given that the trust fund consists of Bernard’s business this would probably mean that Bernard would be made bankrupt.

 

In Case 10A of the Guidance Notes, HMRC makes it clear that if Bernard, provides full details of the set up and trust structure to an accountant after setup and asks the accountant to advise how to fill in his tax return, he will be protected from the Failure to Correct penalties, provided Bernard engages the accountant before the investigation begins.

 

My advice therefore to anyone who has a trust structure offshore, regardless of how tax compliant you may think you are, if you have not already done so, take advantage of the ‘get out of jail free card’ and get an independent review by a UK based accountant as well the best possible governance you can afford for your trust structure. The stakes are simply too high not to!

 

If you would like to find out more simply call me on 020 3740 7422 or e mail me at caroline@garnhamfos.com