UHNW families are looking to family offices for independent, neutral advice

There is a misconception that people who have a lot of money have excellent advisers who look after all their problems.

This is of course true for families with family offices, but for those who do not, or their family office only looks after their investments, the industry is confusing. It is made up of specialists and until recently there were very few general practitioners to whom they could turn for guidance. This has been recognised and family offices are now being set up to provide independent, neutral and general advice.

In the medical profession there are numerous independent and unbiased general practitioners. If you have a pain you go to your doctor who may refer you to a specialist having diagnosed what the problem is likely to be. If it does not get fixed you go back to your doctor to discuss with them any ongoing concerns.

Imagine a medical profession without a doctor and then you will get some idea the frustration the UHNW community experiences in finding a good advisor for a variety of concerns. Without a general practitioner they need first to recognise their problem – without the early warning sign of pain, analyse who best to serve them, instruct them, monitor progress and at the same time stop fees running out of control. UHNW families are not always loyal because they have found an adviser they trust, but because there has not until recently been a general practitioner to turn to for an independent neutral opinion.

David came to see me Monday afternoon; he has a home in the UK which he owns through a company in Jersey. He lives in Switzerland and is anxious about the Annual Tax on Enveloped Dwellings which is approaching; this year it will cost him in excess of £100,000. His trustees in Jersey have told him that it will take between six to eight weeks to de-envelope. He sought advice from his lawyer as soon as George Osborne said his house would be subject to inheritance tax as from 2017, but was told to wait until the Government paper on ATED is published. It was promised to be forthcoming after the summer recess, but there is still no sign of it and his lawyer is away for the next few weeks abroad.

David is cynical. ‘The Government only wants another round of ATED collection. The tax on homes owned through offshore companies has been a ‘windfall’. I suspect we won’t have the consultation paper until it is too late to get our properties out of offshore companies. If I want to de-envelope by the 1st April, I need to start the process at the latest in early February which is in two weeks or I face another year’s tax. My lawyer seems to think that paying another year’s tax excess of £100,000 is somehow fine – well it is not!’

Of course I was unable to comment, but told him that ATED and IHT on UK real estate was not going away and there were a number of options. Which option was best for him was dependent on his life expectancy, circumstances and priorities. It became clear after some discussion that David was planning to sell his home as soon as his wife and children no longer wanted to come to London together. His children were now in their early twenties and would soon want homes of their own.  His intention was therefore to sell in four years.

David easily made up his mind as to what he wanted to do. I said I could introduce him to an advisor who would quickly and inexpensively provide a tax audit of his offshore structure and then I would make sure the protector gave the necessary instructions to liquidate the Jersey Company.

David would then own his home directly with his wife as joint tenants.

David was delighted; he was able to get on with what he was convinced was the right thing to do, save many thousands of pounds of tax, and feel in control of his planning.

In David’s opinion his advisers had become complacent. Their holidays and international travel seemed to be of greater importance than the concerns of their clients. Although he had known his advisers for many years David felt they only ever responded when prodded and had never once picked up the phone to warn him of any dangers or to show real interest in his concerns.

If David is not alone in his frustrations, the industry which serves the UHNW community may not only face increased dangers of litigation from clients and HMRC– as I noted last week, but as the number of family offices which provide independent estate and succession planning advice grows so may the dissatisfaction with existing advisers become evident by business going elsewhere.

Get real

In this new era of data collection and automatic exchange of information UHNW individuals can no longer hide their assets in dark corners hoping they will not be found. However, not all wealthy families set up offshore structures driven by greed.

Alice lives in an apartment with her son Michael and his two children. The apartment was put into an offshore structure by Alice's late husband Giovanni, who as a Jew living in continental Europe remembers the atrocities of Nazi invasion and the importance of secrecy. If Giovanni's father had not squirreled the family's wealth into Switzerland during the war the family would have been left with nothing. As it was they had been able to keep some priceless art and a small fortune, which remained in Switzerland.

Giovanni bought the apartment in which his wife and son now live more than twenty years ago through a trust and company structure based in Jersey. Over the years the trust had been tweaked. Fifteen years ago Giovanni, anxious that the trustees had too much power over his loved ones and family wealth, restricted their powers, such that they could not dispose of the assets in the trust without the consent of a 'Protector'. He appointed a prominent lawyer (Alberto in Switzerland) as the trust Protector, but since his death twelve years ago Alice has not heard from Alberto and does not know where he was or how to contact him.

The trustees have not had to do much for their annual fee, and as far as Alice was concerned the trust was protection for her and her family, but dormant.

Alice like so many others was taught the value of privacy and for her husband it was paramount. He witnessed so much needless suffering due to religious ancestry and the loss of fortunes by those foolish enough to let information fall into the wrong hands.

For Giovanni his desire for privacy had little to do with not wanting to pay tax, he simply did not want his family wealth confiscated. Non-payment of tax was an added benefit of paying to keep wealth in an offshore trust and company structure. However Alice appreciates that tax laws have now changed and non-disclosure is not an option worth pursuing.

Over the last few years Alice has become increasingly distressed, not only does she have to pay the administration fee but in addition the Annual Tax on Enveloped Dwellings which is rising steeply year on year. She is aware that she needs to dismantle this structure, but was reticent to do so without an independent opinion.

For her, everyone has had their snout in her trough and she wants now to clearly understand her options and how to plan. Firstly I needed to talk to her about her concerns and priorities and allay any misunderstandings she has or expectations as to who was likely to do what. We settled on the following.

She needs to:

• plan for her succession; Michael was a responsible father so it made sense for her to separate her apartment into two leases, one for her and one for her son and family
• do things in the right order – two years ago one family were advised to continue to own their home through an offshore trust and company structure, but for the company to hold the UK home as a nominee. This family now faces an immediate and substantial inheritance tax charge because the trust now holds a UK situs asset.
• understand that her offshore trustees could not dispose of any trust asset without the consent of the Protector, Alberto.
• understand that her trustees would not go out of their way to track down Alberto. They may have grown fat on trust and company administration but this would not incentivize them to track down Alberto who would bring this structure and their fees to an end
• decide how complicated she wants her structure to be, and has decided not to take out a mortgage or life insurance.

Once we had worked out a plan, Alice has decided that she wants to continue to use her advisers to implement it, confident that the plan is in her best interests.

There are many people like Alice. Over the years they have paid good money to advisers and professional administrators only to find that as the landscape changed, so this money has produced no value.

Alice was exhausted following advice blindly. With the explosion of information she wanted to clearly understand her options and anything she did not understand she wanted explained to her. This is why she had sought out independent, impartial advice from me.

With a plan Alice feels confident to instruct her existing advisers, knowing that she was in control of her wealth and circumstances. She also knows what is needed to done before 1 April, not least for her to track down Alberto immediately without whose consent nothing would get done.

Next year could be the beginning of the end

First things first, I wish you all have a Happy Christmas and an enjoyable New Year.

Here in London it has been unseasonably mild; we are seeing the first bulb shoots peeking above ground, snowbells in full bloom and yet some of the leaves on the London Planes have not yet fallen; a very odd autumn indeed.

This last year, 2015 in retrospect, I fear, will also be seen as very odd. From the outside nothing has changed. The private client industry remains extremely busy flying around the world going to meetings, money still flows into its coffers and the UHNW families continue to hold their monies in complex and convoluted structures.

However, we are beginning to see new shoots of change and unlike the bulbs and snowdrops I do not like what I see.

At the IBC conference where I was speaking a few weeks ago, I was talking to a professional trustee who was expressing concerns as to how to maintain the privacy and anonymity of her clients given the forthcoming automatic exchange of information across the globe with the introduction of the Common Reporting Standard.

This was the concern of a client of mine as well who has arranged to see me early in January. He was weighing up the advantage of maintaining privacy and anonymity by keeping his homes in the UK in an offshore structure and paying the tax or transferring them into his own name. The truth of the matter is that Governments across the globe are determined to stamp out what they see as tax evasion through the use of offshore structures and care very little about the concerns of UHNW families to preserve anonymity and privacy. These Governments demand transparency and are determined to get it. They want to see for themselves whether tax is payable!

As from 2017 highly sensitive information, which financial institutions across the globe have been at pains to protect, will now have to be freely and automatically exchanged. The identity and address of the settlor and beneficiaries, the value held on their behalf and all transfers made will be obliged to be reported. The private client industry will, in short, no longer be private. There is no hiding and any professional who assists a UHNW family in preserving their anonymity may find themselves being fined along with their clients.

A totally different approach is required and some change of habits. Each UHNW family from whatever part of the world will need to analyse their fears and address them in a different way; do they fear for their physical safety, theft or a mismatch of information as to what is being exchanged and what is disclosed to the local taxing authorities?

I live around the corner from Tony Blair, a public figure who cannot be anonymous. There are four policemen which permanently guard his home twenty four hours a day, whether he and his family are in or not. He cannot remain anonymous so he increases his personal protection.

I also live a stone’s throw from a Saudi princess, not to say I have ever seen her or even know her name, but it is obvious when she is in town. There are at least four cars parked outside her house, most of them bodyguards and chauffeurs in armour plated cars with dark windows. It is also obvious when she is about to leave or arrive, two large white vans are parked outside which are then filled with enormous suitcases. How she ever finds what she wants to wear with so much choice is a mystery.

The issue of theft is also of concern to many. I suspect that many families under the new regime will wish to reduce the number of financial institutions with which they deal, while retaining diversification and will need to review their contracts. They may also want to put in place systems to capture all financial information to ensure that there is little or no slippage. If theft is occurring it needs to be spotted immediately and the financial institution which permits it made liable for it. Similarly every family needs to know precisely what information is being exchanged so that they can declare the same amount in their tax returns.   

Financial institutions looking after the wealth of UHNW families will also need to gear up for the new regime, not only to comply with their reporting obligations but also to avoid being sued by their clients. We have long seen the intention of Governments to make financial institutions to UHNW families their unpaid whistle blowing policemen; reporting on suspicious transactions, carrying out anti-money laundering checks and checking on the identity of their clients. At the same time we have seen little or no increase of terrorists caught or criminals detained. Some may suspect that the real motive behind the anti-money laundering was to obtain information which could lead to an increase of revenue from tax evasion. Whether the case or not, information gathering has now been taken to a new level.

There is no doubt in my mind that the private client industry is set to change and like all changes there are winners and losers. For those ready to embrace the change, I believe there are rich rewards - UHNW families will be looking to renew their contracts with financial institutions that understand their concerns and to restructure their offshore structures to put themselves in the best possible position to combat automatic exchange of information. However, for those insisting on rearranging the deckchairs as the ship goes down, they could face a cruel fate from both the Government as well as clients - which could be very expensive indeed.

What a nightmare

Everyone who has a trust offshore should seriously consider carrying out a full audit, not only for any breaches of tax reporting but also for who will be disclosing information in 2017 to the tax authorities. The person orchestrating or doing the audit should be independent so that an unbiased opinion is provided on which the family can decide what it should do.

Without a full audit and changes made, financial information could be flying across the globe with little or no protection from investigative journalists – or criminals who must be delighted to see that financial institutions must now disclose information about their clients without having to pay for it or steal it.

What started out as a sub section of obscure US legislation may turn into a nightmare for many international wealthy families. Within the US Hiring Incentive to Restore Employment Act was the US Foreign Account Tax Compliant Act, more commonly known as FATCA, which obliges reporting of financial information and the automatic exchange to all interested countries. This has been picked up and developed by the Organisation Economic Co-operation and Development with the G20 countries and shaped into the Standard Automatic Exchange of Financial Information in Tax Matters known as the Common Reporting Standard (CRS).

What does it all mean? Let’s take Alexander as an example. He is the settlor of a substantial trust in Jersey which holds his investments, properties and his ongoing exporting and importing business for himself, his wife and children. The trustee of the trust is the professional arm of a significant international trust company ‘XYP Trust Company’ and his solicitor James, resident in the UK, is the protector. Because XYP Trust Company is treated as a ‘Reporting Financial Institution’ (FI) under the new CRS rules it has an obligation to report to Jersey all people who have an interest in the trust and are resident of a Common Reporting Standard country. So XYP Trust Company will be obliged to disclose the interests of Alexander, his wife and any child who receives a benefit as well as details about James. These people are said to have a ‘Reporting Account’.

Mr Chang also has a trust in Jersey, but his trust is a company which he formed ‘MTC Trust Company’ to be the trustee of his investments and properties for his wife and children. The shares are owned by a Bahamas Executive Entity ‘MTC EE’ on which there is a board of three Martha, Alan and Geoff. Martha is resident in the UK, but Alan and Geoff are resident in Jersey.

MTC Trust Company is not treated as a Financial Institution so it does not have a reporting requirement other than to give the details of Mr Chang, his wife and any child which receives a benefit as well as the board members.

Mr Chang’s trust is better protected than that of Alexander because he has more control over it and the financial institutions with which it is contracted.

What needs to be reported to the local authority by the financial institutions are the name, address, tax identity, date and place of birth, amount of interest and any change in the interest over the previous year. Reports for the previous year will start in 2017, but some may date back to interests in 2015. This information is given no guarantee that it will not get into the wrong hands.

Then there is the added difficulty as to the value of the interest, taxing authorities will be keen to investigate any mismatch of information between what is reported under the reporting and what is in the tax returns.

The impact of this legislation on the lives of wealthy families has yet to be seen, but given the powers of HMRC and its determination to stamp out tax evasion and to bring monies in shady places into the light, I can only begin to imagine the nightmares of many families post 2017. If settlors and beneficiaries want to prepare for what I can see as dangerous waters ahead, they need to review their trust structure, with the following questions in mind:

• Which financial institutions will have to report and where is this information likely to go?
• Is there an up to date record of all the assets owned by the trusts?
• Is there an up to date record of mortgages and debts of the trust?
• Do contracts with financial institutions need to be changed so as to ensure they disclose to all interested parties what thy disclose to their local authority?
• If the Protector is resident in a country such as the UK, will their controlling power make the trust resident in the UK?
• Should the Protector have some form of limited liability protection?
• What are the benefits being received by one or more parties?

Alexander may decide to replace James his Protector and WYP Trust Company with a Private Trustee Company owned by a Bahamas Executive Entity with a board of three or four. This will give the Protectors much greater protection and reduce the risk of the trust being treated as resident in the UK.

Never before has the record keeping of trusts been so important. From my experience some trusts are woefully lacking in their record keeping. I was acting for one family with substantial assets held in trust which they wanted to move to a different jurisdiction. It took two years to document properly all its assets, before the transfer could be made. Given that reporting is expected to be made in 2017 trustees should start the process now, because by 2017 it could be too late – financial institutions could then be facing penalties for breach of their obligation to report.

The impact of this life changing legislation is only now beginning to be understood and families need to be proactive, because being reactive is no longer the sensible option.

Worse than you could ever have thought possible

This morning I gave the key note speech to a packed IBC conference on Family Offices.

The role of a Family Office is to act for an UHNW family in the preservation of their wealth, but should not be restricted to investment.

There are three ways in which family wealth can be eroded

• Poor investment
• Heavy taxes, and
• Family Feuding

Families need independent, neutral and strong advice on tax planning and family governance, as well as on investment. They need a new type of family office; dedicated to serving the tax planning and succession concerns of the family, a family office which is on the same side of the table as the family.

My talk on the second day of this conference will focus on how to prevent the erosion of family wealth through family feuding and the benefit of family governance, but in my Note today I want to pick up on the attitude of HMRC to tax evasion and how it affects all of us.

Over the last two years the UK has led the drive in Europe, in the G20 and through its G8 Presidency to revolutionise international tax transparency. It now has agreement, reached among 94 countries, to exchange information on financial accounts automatically every year. This is called the Common Standard of Reporting, which will start in September 2016 with the country’s Crown Dependencies and Overseas Territories, and will be completed in September 2018.

Under these agreements, HMRC will receive a wide range of information on offshore accounts held by UK tax residents, including names, addresses, account numbers, interest and balances. This will be an unprecedented step change in HMRC’s ability to tackle offshore tax evasion.  Taxpayers and their advisers will have no right to see what HMRC gleans; some of it may be incorrect.

HMRC says it will give evaders one last chance to come forward and put their affairs in order. If they choose not to, ‘it is right and fair that we make sure that the penalties they face, and the penalties for those who help them, reflect the wider harm caused by their actions and act as an effective deterrent to others. Penalties for evasion range from 100% of the tax due to 200% and could also include a prison sentence’.

According to HMRC, it has given people ample opportunity to regularise their affairs. True, but what about those who are not aware that tax is payable. They do not know that they are committing a crime. The taxpayer does not know the intricacies of the law, but the adviser who set up the structure for them does as do the professionals who run them do.

Joshua and Jennifer came to the UK in 1988. In 1995 they set up an excluded property settlement in Jersey with the assistance of their bank which also acts as the trustee and their lawyer. This trust was used to shelter capital gains, accumulate income and provide protection from inheritance tax. The beneficiaries are themselves and their three children. Over the years, trust income has been used to buy art in New York which was has then shipped to the UK. Joshua and Jenny now have an enviable art collection and have recently been making some changes as opportunities present themselves. On the sale of the art in the UK, this is a remittance of the income on which tax is payable. Neither Joshua nor Jennifer had any idea that they had been remitting income on the sale of any piece of art in their collection.

From the attitude of HMRC set out above, it is not just the taxpayer it will be targeting it will go after the advisers; the banks, accountants and lawyers who set up the structures and then fail to warn these families of the dangers of not carrying out a thorough independent review.

Joshua and Jenny need to be advised to carry out an audit to see whether:

• There has there been any inadvertent remittance of income or capital gains to the UK which has not been declared?
• The trust was set up before the seventeen years of residence or after? Had Joshua and Jenny formed the intention to live in the UK in the tax year before they came to live in the UK? Has theseventeen out of the previous twenty year rule for forming excluded property settlements been calculated properly – if not they could be treated as tax evaders and could well have an action for negligence against their advisers.
• There is any information which HMRC could get hold of which could lead to an investigation. At the very least to carry out a thorough review could prove to HMRC that they did not intend to evade tax and could provide some form of defence against an investigation and mitigation of penalties.

My advice to all advisors who have ever advised on creating offshore structures for their clients, are managing offshore structures or administering offshore structures is to contact existing and former clients immediately to inform them of the changes. If advisers do not they may find themselves embroiled in a tax investigation and penalties for assisting to evade.

In addition they may find themselves defending a case for breach of their duty of care to their clients. Advisers are much more knowledgeable than their clients and need to be warned about any inadvertent breach, for which they could face a claim for damages.

What is around the corner needs to be thought about now. If not what is coming could be worse than anyone could ever have imagined and much more costly – both for the UHNW family and their advisors.