Pablo is a resident in Argentina, he is rich and successful through his enterprises in renewable energy and industry. He has always lived in Argentina and is married to a second wife who is also in love with the country. They have two children Mateo and Valeria in school in Buenos Aires.
In the mid noughties Pablo sold part of his energy enterprise and transferred the proceeds into trust in the Bahamas. He appointed a professional trustee recommended to him by a friend and sought comfort that the professional trustee would do as he wanted by appointing a friend in S America as his Protector, by reserving powers to himself to remove the Protector and replace with another in the trust, and in writing a detailed Letter of Wishes in which he told his trustee how he wanted the Trustees to invest the monies, and how and when to distribute to his five children, three from a previous relationship.
In 2016 the Argentine Government introduced an amnesty. His advisor Manuel strongly advised him to disclose all his assets offshore including the BVI shares he had sold to give him immunity from prosecution for tax evasion by paying the tax and a 10% fine.
Manuel came to me three months ago ‘What is Pablo to do? He has declared everything under the amnesty, but despite this the trustees of his trust in the Bahamas are collating the details of his financial assets held in trust, together with the names and addresses of Pablo as settlor, his friend as Protector, and his children as beneficiaries. Pablo has already disclosed all his offshore assets and is fully tax compliant, why can’t they leave him alone?’
Pablo had been drawn to the Bahamas, because of its expressed eagerness to serve the needs of the UHNW international community, and he was delighted when it took a stand against the OECD with a bilateral approach to the automatic exchange of information. Under this agreement the Bahamas would only exchange financial information with those countries with which it had an agreement and not with all the countries which had signed up under a multi-lateral agreement.
The OECD, in May 2017, paid a visit to the Bahamas where they made it clear that they don't want the Bahamas picking a different route from everyone else. Did the Bahamas want to be black listed by the OECD or would it like to reconsider signing a multi-lateral agreement?
Of course, the Bahamas has the sovereign right to make whatever legislative decisions it thinks are in the best interests of its country but if in doing so it jeopardises the well-being of other businesses which trade with OECD countries, it needed to think again. The OECD is fully aware of its power and is not afraid to use it whether against a jurisdiction like the Bahamas, financial institutions or wealthy families; even though in doing so it may be in breach of fundamental human rights.
The UN Declaration of Human Rights, the International Covenant on Civil and Political Rights and in many other international and regional treaties, the right to privacy is a human right which Governments are expected to respect. Privacy, it is believed, underpins human dignity and other key values such as freedom of association and freedom of speech. It has become one of the most important human rights issues of the modern age.
The drive to stamp out tax evasion has clearly become an obsession with tax authorities across the globe. They hate offshore structures; they see them only as devises to evade tax and therefore the loss of privacy is a small price to pay in the pursuit of more taxes. They do not see CRS as disproportionate to the mischief. It is merely putting other jurisdictions in a position of knowledge so that they can then independently evaluate the risk of tax evasion.
This blindly ignores the fact that tax authorities in their obsession to raise more taxes resort to declaring black is white and white is black – which is exactly what human rights to privacy are designed to protect.
Pablo is justifiably angry, he has done everything he can to be compliant; but does not want to wait in the hope that he will not be found out. He wants to do something now to ensure that his trust is bottom of the pile on the tax authorities’ hit list.
For the past thirty years I have been working with some of the wealthiest families in S America, Africa, Europe, Russia, Australia and Asia. They want robust structures which they can understand and which give them control, transparency and protection. Protectors, reserved powers and Letters of Wishes do not withstand the slightest puff of dispute so our structures do not include them.
Now, with the introduction of CRS our structures are a must have for every wealthy settlor who fears for his privacy, security and the well-being of himself and his family
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