Santa Fe 1986 meeting

The provisions of the US code relating to Grantor trusts are in section 671 to 679. Where they apply, the income of the trust is attributed to the grantor and the beneficiary to whom the income is paid is not taxed on it. In a wholly domestic context, this will generally be beneficial to the Treasury, but where the grantor is a non-resident alien and the beneficiaries US persons, and the trust has non-US income, the rules may be advantageous to the taxpayer. Further advantage may accrue where the grantor is a resident of a treaty country and the trust income has (or is deemed to have) a US source.
No US withholding tax is chargeable on royalties paid by a US person to a non-resident licensor if they are payable for the use of the copyright etc wholly outside the US. Where a sub-licensee is a resident of a treaty country, the royalties will have exemption from (or a lower rate of) tax in their country of origin. This combination of circumstances may indicate the use of a US corporation as a “stepping stone” between a zero-tax copyright owner and ultimate licensee in high-tax countries.

Pierre Boulez conducted an orchestra in recording sessions in the US, on terms that the copyright in the recording belonged to the record company and his remuneration was to be calculated by reference to the number of records sold. It was held that the payments to him were not royalties but remuneration for personal services, having their source where the services were performed. The decision was disadvantageous to the taxpayer concerned, but opens the way for other non-resident aliens to obtain income from the US which would not have a US source for US tax purposes.

In the US, a partner who lends money to his partnership is taxable on the footing that what he receives is interest, whereas in Germany the interest is treated as part of his share of partnership profit. A german individual lending to a US partnership of which he is a member is entitled to treaty relief on what the US regards as interest, and has “exemption with progression” on what Germany regards as foreign partnership profit.

The IRS may characterise a foreign company doing business in the United States as a partnership, so as to expose the partners to high rates of tax on their income and to estate tax on their interest in the business assets.
In 1935, a California trust was held by the Federal Court to be taxable as a corporation. The court arrived at this decision in the interest of uniformity, and established the rule that the “label” of the entity is not conclusive, but rather its major characteristics. Associates and an objective to carry on business and divide the gains indicate as corporation and not a trust. Limited liability, centralisation of management, continuity of life and transferability of interest indicate a corporation as opposed to a partnership.

These tests are in practice applied in the United States with more rigour to foreign entities than to domestic entities. In 1977, the IRS rules that a German GmbH should be treated as a corporation on the grounds that it was indirectly controlled by a “single economic interest” and the ostensible restrictions on transferability of shares and powers to cause dissolution were to be disregarded. It arguably follows that the character of a foreign subsidiary could change, depending on whether its parent has multiple shareholding. However, the IRS regards a corporation incorporated under laws similar to those of the United States as a corporation “per se”, and the service issues a (Non-binding) guide of foreign entities, showing how each of them is to be treated for US purposes.

Other jurisdictions adopt other approaches to these questions. The European Community is adopting something of a new approach, in the creation of the European Economic Interest Grouping.

In the common law systems, corporate existence derives from a charter or grant; a civil law corporation derives from the agreement of the shareholders. A civil law company is inherently more mobile; it may move by consent, and requires no further governmental act.
Instability of a political nature is the most likely reason for a company to wish to move. A company may wish to move in order not to be regarded as an enemy alien in a jurisdiction where it has assets, or to come outside future exchange control regulation. A company may move in order to gain a tax advantage; its movement may inadvertently give rise to tax charges. The Netherlands has for many years allowed transfer in time or emergency to another part of the Kingdom – i.e. in practice, to the Antilles. Switzerland allows companies to create “standby” arrangements: these will be activated in the event of a declaration of emergency.

In Liechtenstein, a company may move out with government consent. “Welcoming” legislation is found in many tax havens with or without “departure” legislation. Turks and Caicos, the BVI, Nevis, the Netherlands Antilles, and Bermuda have such legislation in various forms, as do certain Australian states and Canadian provinces.

The law of Delaware permits, at a price, a temporary importation of a foreign corporation and the company may convert itself into a domestic corporation. It appears that a move into Delaware does not in itself give rise to a US tax liability, but once there, the corporation will be treated like any other domestic corporation.

In recent years, an increasing number of jurisdictions have enacted legislation (often restricted to IBC style entities) which allows the inward and outward migration of companies. In addition to the countries mentioned above, corporate continuation provisions are now found in Antigua, Bahamas, Barbados, Belize, B.V.I., Cayman Islands, Gibraltar, Guernsey, Madeira, Mauritius, Nauru, Nevis, Panama, St. Vincent, Seychelles and Vanuatu.

Dividends from a Canadian resident subsidiary to its US parent suffer 10% withholding tax. A US corporation managed and controlled in Canada is a domestic corporation for US tax and a resident for Canadian tax. For treaty purposes it is a resident of the US. It can receive dividends from a Canadian subsidiary free of any Canadian tax. The dividend from the subsidiary to the parent was originally free of Canadian tax because for treaty purposes the payor is a US corporation, but this effect was changed by s.250(5) of the Canadian Act shortly after the 1984 treaty came into operation.
A Canadian company continued in a US State (Wyoming or Delaware) becomes a domestic corporation for US tax, remaining resident in Canada for Canadian tax, and for treaty purposes a resident of Canada. It appears that in such a case no US tax is payable on dividends, but this may be doubted.

A UK parent acquiring a US company may establish a “link” corporation to borrow the funds for the purchase. The link corporation is incorporated in the US and managed and controlled in the UK. The object is to utilise the deduction for interest twice over – once for the US group and again for the UK group. The UK government seems to have backed away from any reform in this area, but the US Senate Bill would put an end to the possibility of deduction in the US. If such legislation is passed, retaliatory legislation may be expected in the UK. Dual resident corporations may be used to reduce source country taxation of cross-border leasing transactions. The US Congressional tax reform proposals (HR 3838 and the May 8/86 Senate Finance Committee agreement) on US related dual resident country arrangements should be noted.

Canada may be a useful domicile for a RA/NDA resident of the US. But dual-resident status does not generally seem to produce any beneficial result for individuals. The “tie-breaker” rules can be difficult to apply in practice and have effect only for the purposes of the treaty.

Dual residence, involving the US (and its new largely mechanical rules under IRC section 7701(b) may easily, and inadvertently arise. This is illustrated by an example involving a Canadian with a “cottage at the lake” near the Canadian-US border: three-day weekends, entailing perhaps no more than 40 hours of physical presence – say from 10pm Friday evening to noon Sunday, can easily lead to physical presence in the US exceeding 183 days in a sing year, thereby rendering inapplicable the exemption for a “tax home” and “chosen connections” in Canada. This would then require such an individual may take advantage of the “tie-breaker” rule, but this will not generally provide total exemption and protection from US tax law. For example, it may still be necessary to file US tax returns or suffer exposure to US foreign personal holding company (FPHC) or other income attribution rules.

Interest from US sources is, in general, subject to 30% withholding tax. This tax was for many years avoided by the use of a Netherlands Antilles finance subsidiary. This was cumbersome and expensive. Moreover, the US Treasury itself and other US government agencies wanted access to the Eurodollar market.
Today, the 30% withholding tax does not apply to “portfolio interest” on bonds issued after 18 July 1984, whether registered or bearer. The exemption is subject to regulations designed to ensure that it is not available where the beneficial owners are US persons. The bonds must be of the type generally offered to the public; they do not need actually to be offered to the public. There are opportunities for the use of private placements, but the Treasury has not been anxious to clarify the restrictions applicable here – indeed has attempted formally to restrict this exemption to publicly offered securities.

After a period of confusion, Treasury has conceded that home mortgage notes issued after 18 July 1984 may qualify for the exemption when packaged in mortgage see through Bonds called (“Ginny Maes”) issued by the Government National Mortgage Association. The same packaging mechanism can be used to market other commercial paper on an exempt basis. Bank loans do not enjoy exemption, but this problem may be overcome through the adroit use of finance company subsidiaries to acquire and hold the obligation for which exemption is sought. Back-to-back loans are coming under scrutiny but there is still room for planning in this area. Interest payable on short-term paper may be exempt, even if the debt is rolled over. If interest is to quality, it must not be payable to a “related person”.

The classic Antilles route is no longer available: Treasury rulings treat it as a “conduit” and provide that the ultimate recipient of the interest will be liable for US tax on it (unless he has the benefit of a treaty). But the new exemption offers a number of opportunities. And it may still be possible to use the Netherlands Antilles or other treaties so long as the intermediary is not in the position of being required to pay out what it receives – eg receiving rent for the use of equipment and paying out interest on the money borrowed to finance the purchase of the equipment. The Netherlands Antilles allows deductions for accrued dividends on preferred stock and for imputed interest on shareholders’ loans: these may escape the “conduit” doctrine.

But changes are afoot. A new treaty with the Antilles is expected. It seems likely that the branch profits tax will override many treaties and impose a 30% withholding tax on outgoing interest. Interest payable to an exempt foreign entity will be deductible only to the extent of 50% of the payor’s income (calculated before deduction of the interest).

The sections of the Code and the regulations relating to Foreign Sales Corporations are deceptively simple, and any FSC plan involves a multitude of foreign tax considerations – both in the jurisdiction in which the FSC is sites and in the jurisdiction into which it sells. It is easy to exaggerate the tax benefit of a FSC; only about a third of the expected 15,000 FSCs have been formed.
A FSC must be established in an eligible possession – USVI, Northern Marianas, American Samoa or Guam, or in a qualifying foreign country; it must not have more than 25 shareholders; it cannot issue preference shares; it must have a fixed office, properly equipped, though this may be run by an independent agency; it must maintain a complete set of books and records both abroad and in the United States; it must have at least one non-resident director at all times; it must not be part of an affiliated group which contains an “interest-charge DISC”; and it must file an appropriate and timely election with the IRS.

The primary US tax benefit of a FSC is the generation of “exempt foreign trade income” (“EFTI”), which is computed as follows. First, a FSC’s qualifying “foreign trading gross receipts” (“FTGR”) are determined. If the FSC is a related party at an affiliate US corporation, special administrative pricing rules come into play, which determine how much FTGR is allocated to the FSC. The EFTI of such a related party FSC is computed by multiplying 15/23rds times such allocated FTGR, thereby producing an overall US tax saving of 6.9% (eg 46% x 15%). For non-related FSCs, EFTI is computed by multiplying 32% times FTGR of a FSC, thereby producing overall tax savings of about 13%. Special rules addressing allocating deductions to a FSC’s EFTI and also distributing EFTI to a FSC’s shareholders should also be examined. To generate EFTI, a FSC must also meet the “foreign management” rule: the directors and shareholders’ meetings, bank account and provision of accounting and other expenses must be outside the United States for the entire year; it must conduct its foreign sales actively abroad; it must also comply with the economic processes test – ie 50% of its costs must be incurred abroad.

Twenty-three treaty-partner or Caribbean Basin Initiative countries qualify for FSC organisational purposes. These do not include Switzerland, the Netherlands Antilles or the United Kingdom. The US Virgin Islands has about 1300 organised and active FSCs. The USVI has the advantage that until 1st January 1997 there is no USVI tax on foreign trade income or USVI withholding tax on dividends; it imposes a limited tax on passive income and no gross receipts tax. Gaum has also proved a popular location, with over 300 reported FSC formations. It has a similar tax regime and a more flexible corporate law; it is close to far eastern markets.

Barbados is eligible to serve as a host country for a FSC, and to date has become the home of about 150 FSCs. Barbados imposes no tax on foreign trade income or withholding tax on dividends. Non-qualifying income suffers tax at only 2% and at worst at a higher rate. Jamaica has a similar tax regime, but without the tax on profits derived from CARICOM sales. FSC formations in Jamaica have not yet exceeded the 100 level. If employees of a Jamaican FSC qualify under s.911 of the US code, their remuneration is free of Jamaican personal income tax. Political considerations have impelled some FSC users to establish in Jamaica a branch of their Guam FSC.

The Netherlands is a qualifying location, and is an attractive location for US multinationals having European operations; a “cost plus” ruling is available if the FSC’s activities are limited to those of an administrative nature, so that the company’s profit is treated as 5% of certain defined costs. A substantial withholding tax may be imposed on outgoing dividends, but with a proper administrative ruling, this tax may be zero.

A similar regime is operative in Belgium, although the overall tax cost in Belgium appears to be slightly higher than the Netherlands. The future of the FSC appears certain; the IRS appears to adopt a benevolent attitude to such companies, but their tax benefits may be reduced by Congress.

A distribution by a FSC to a foreign shareholder is treated as being effectively connected with a US trade or business and as having a US source. Therefore, such distributions, by way of this legal fiction, are subject to US Federal income tax. All types of foreign trade – with foreign suppliers and foreign customers, with foreign suppliers and US customers or with US suppliers and foreign customers – may be conducted by a FSC without resulting in disqualification of FSC status. However, EFTI may only be generated in the case of qualifying US-to-foreign sales. It may be preferable to conduct the other two categories of trade through a foreign affiliate corporation of a FSC.

A Bill is presently before the Senate to repeal FIRPTA for the future. The cost of repeal is expected to be $1.2 billion over the first 5 years. Its effect is expected to be an improvement in the value of farmland in the United States. However, it seems unlikely that FIRPTA will be repealed altogether.
The tax was introduced in 1980, to eliminate various avoidance devices whereby non-resident aliens realised tax-free gains on disposals of US real estate. A withholding system came into effect in 1985: 20% of the gross sales price is required to be withheld.

The classic structure for investment in US real estate by a non-resident alien is the Netherlands Antilles corporation with a 3:1 debt/equity ration, owning the property or participating in a US partnership or limited partnership. This is effective to minimise taxable income. However, the rate of capital gain tax – Federal and State – on the foreign corporation, being high (up to 35%), the Antilles company needs to be liquidated before the sale so that the individual pays only the (20%) individual rate. By use of the “i” election, this can be effective for FIRPTA.

Although the share in the Antilles company is not included in the US estate of the non-resident alien shareholder, his heirs may nevertheless take a step-up in value of the shares as at the death of the former shareholder.

For some 8 years, the Antilles treaty has been under renegotiation. The treaty with Barbados came into force in February of this year: one of its articles permits the “i” election; the treaty has an anti treaty-shopping clause but this does not affect this “i” election article. The use of interest to reduce income tax on rents is not possible in Barbados.

The Bill now before the House of Representatives proposes a branch profits tax (or “branch level tax”) at a rate of 30%. Such a tax would make the above Antilles interest baitout structures unusable. The Bill would permit a company’s appreciated property to be transferred to its shareholders without a tax charge at the corporate level. A Barbados company owning a US corporation owning the real property may prove a useful structure to avoid the “branch level tax”. The Barbados company insulates the shareholder from US estate tax; before sale of the property both the US and the Barbados companies are liquidated on “i” elections made, so the tax incidence is shifted to the foreign investor-shareholder level where the tax rate will be either (a) 22% under the House Bill, (b) 27% under Senate Finance Committee Bill (if no FIRPTA repeal), or (c) 0% under Senate Finance Committee Bill (if FIRPTA is repealed), as compared to corporate level rates of 36%+ or 33%+. respectively.

The duty of care of the legal adviser may extend beyond his clients: this is illustrated by an action brought by an investor in what proved to be a fraudulent enterprise upon the establishment of which the lawyer has advised. In the Ultramares case, in 1931, the court held that a lender could not sustain an action against the company’s auditors, but this may well not be followed today. In California and New Jersey, the approach to remoteness is more favourable to claimants than that of the Federal Court and the court of other states, such as New York.
An attorney’s duty of care certainly extends to the client, with whom he has a contractual relationship. The modern trend is to admit other parties as claimants on the footing of a liability in tort.

In a tax case, the adviser is permitted to present his client’s case on the most favourable basis. He is not required to alert the IRS to unfavourable aspects of his client’s case. High rates of tax in the years since the Second World War gave rise to the growth of tax shelters. The frontier between the reasonable and the merely colourable claim became uncertain: the IRS, in Circular 230, came to require the practitioner to be satisfied that the client was more likely than not to win an appeal, and to display due diligence in enquiring into the facts as well as into the law concerned. The American Bar Association submitted a less stringent test, but acknowledge that the adviser’s duty of care extended to third-parties.

In 1982, Congress introduced measures to penalise taxpayers whose tax was understated where substantial authority for a favourable return position was not present and disclosure was inadequate: the more stringent “more likely than not” test was retained for reporting tax shelters. In 1985, the ABA set out a new criterion: the tax adviser may advocate a position, if the position is taken in good faith in the light of the present law or of reasonably foreseen future interpretation of the law, so that the client would have a realistic prospect of success on appeal.

The courts have tended to judge negligence by reference to what the profession expects of itself. Tax advisers are having great difficulty in taking out insurance. They are forming mutual insurance companies off-shore. Congress may limit or prohibit “shelter” losses from being used against other income; this exposure of tax advisers in the area of greatest financial concern – indeterminate liability to an indeterminate number of third parties for an indeterminate period of time.

The provisional passport of Costa Rica is no longer issued. An alternative proved hard to find and eventually the Costa Rican government was persuaded to provide a new travel document.
Costa Rica, unlike other parts of the former Spanish Empire, has no mineral wealth, and has developed as a country of farmers. The country has no army. The democratic system has flourished, a tradition of freedom has developed, and the country has always welcomed refugees.

After the Second World War, Argentina began to issue passports to refugees who were not citizens. Costa Rica began to issue passports to non-citizens in 1971. The new travel document is not a passport; it grants a right of residence but not nationality. The applicant must first obtain resident investor or resident pensioner status. The resident investor must demonstrate that he will receive an income of at least $1000 a month throughout a 5-year period. For pensioner status, the applicant needs to show a monthly pension of only $600.

The holder of a Costa Rican residency under this program must spend in Costa Rica an amount of days equivalent to 4 months a year, although not necessarily consecutive.

Apart from exceptional cases, an application will in practice be granted if the above conditions are satisfied.

The United States now has statutory definitions of resident and non-resident alien for income tax purposes, involving an objective test. The test of residency for estate tax is not the same: “residence” in this context is the equivalent of domicile, and the test if not wholly objective. These tests are important for aliens – individuals who are not citizens of the US (Citizens are fully taxable, regardless of their residence or domicil).
Resident aliens are taxable on income and capital gains in the same way as citizens. The non-resident alien suffers no US tax on foreign income; he is liable to regular US tax on business income with a US source, and to tax at the rate of at most 30% on US source passive income.

The Senate Bill, if it becomes law, will impose what is broadly a 27% Federal tax on income and capital gains. Seven of the 50 states (eg Texas, Florida, Nevada) impose no local income tax.

In 1980, an individual with an income in the region of $200,000, would have had an effective tax rate of a little over 40%. By 1986, the rate, under the present law, would be a little over 30%. The new regime should result in a tax at around 22-25%, and foreign taxpayers may begin to think of the United States as a tax haven.

But the rates of estate tax remain high: the rate on the domestic taxpayer rises to 55%, with an exemption of the first $500,000 ($600,000 next year). The rate for non-domiciled aliens does not rise above 30%, and the tax is avoided altogether if the US-situs assets are held by a foreign corporation. Moreover, certain US assets are deemed to have a non-US situs for estate tax purposes – eg a bank account.

The US tests for domicile are broadly similar to that adopted by jurisdictions in the British Commonwealth, though the US Courts are inclined to hold that possession of a green card is in itself evidence of the holder’s intention to reside permanently in the United States.

An alien who becomes resident in the United States without becoming domiciled there may therefore enjoy a relatively lightly taxed regime. High US bank account, however, loses its exemption from estate tax, and cannot be placed in a foreign corporation without creating income tax problems. His municipal bonds, while yielding tax-free income, have a US situs for estate tax: they may be held by a foreign corporation without income tax problems (until the corporation declares dividends). He may consider using a foreign bank, or a foreign branch of a US bank, to hold his money. He may take out life assurance against estate tax liability: the proceeds of the policy will not be included in his estate. Planning in this area is not easy, but substantial advantage can in many cases be obtained.

Domestic law in the U.S. imposes a 30% tax on the U.S. source fixed, determinable, annual or periodic income (“FDAP”) of non-resident aliens. There are now approximately 44 tax treaties to which the United States is party: treaty shopping is the use of companies or other entities established in treaty party jurisdictions to receive U.S. source FDAP income, the benefit of which ensures to another person, who typically is not entitled to any treaty benefit.
Interest payable on a loan to a U.S. obligor, even if actually paid e.g. by a foreign guarantor, has a U.S. source. Similar, a royalty payable in respect of user within the U.S. has a U.S. source, even if payable by a non-U.S. person. These source rules may make the interposition of a foreign entity ineffective. Arguments that the interposed foreign corporation is a sham and the texts of some of the more recent U.S. treaties may also render the interposed entity ineffective.

The tension between two policy considerations – the desire to encourage foreign investors and the need to avoid domestic investors being taxed at a higher rate than their foreign counterparts – gives a certain heat to discussion of treaty shopping.

The development of the law and practice in this area began with the Aiken case: the introduction of the treaty partner entity was a sham. In Perry Bass, the Tax Court held that use of the Swiss company was effective because the company was found to have substance; but in the Johanssen case, the Court rejected the use of the Swiss company. In Compagnie Financière de Suez and de l’Union Parisienne, the Court held that treaties were apt to prevent double tax and not to eliminate tax. The Gordon Report of 1980 exposed many tax haven uses, including treaty shopping transactions, and much discussion of remedies has ensued.

The draft model treaty of 1981 included a general anti-treaty-shopping clause, and older treaties contain specific anti-abuse provisions – e.g. the treaty with Luxembourg which excludes from its operation the Luxembourg Holding Company. The treaty with Iceland excludes foreign-owned companies enjoying a lower rate of tax in Iceland; but this may have been an error, since what matters is not the rate of tax but the tax base. The 1981 article excludes entities including but not limited to companies not owned less than 75% by treaty partner residents (unless the shares are listed or the company can show that tax motivation was not at the heart of the planning. It also provides that the assets of the entity may not be used substantially to offset liabilities to a non-resident of the treaty country. Eight treaties have been negotiated since the publication of the 1981 draft; which are variants of the 1981 model and increasingly rely on interpretation by the competent authority.

The proposed second level branch tax attempts to tax branch profits as if they were dividends and interest remitted by subsidiaries. This appears to violate the non-discrimination provisions of all the 44 current treaties. The effect of proposed legislation combined with the overriding of tax treaties may be to render the U.S. a classic less-developed county from the point of view of investing in the U.S.

This basic information about these jurisdictions is to be found in all the standard textbooks on the subject. The facilities are numerous and various. For companies, there are the zero-tax territories – the Bahamas and Cayman, and also Anguilla and Turks and Caicos; there are taxing jurisdictions which provide zero-tax companies for non-residents – Antigua, Montserrat, Grenada, St Vincent, The BVI; there are jurisdictions which impose tax on a territorial basis – Costa Rica and Panama; there are low-tax companies in Barbados and the Netherlands Antilles. For trusts, there are all the British Commonwealth jurisdictions – the ones which have income taxes not, in practice, imposing tax on trust income arising abroad and destined for non-resident beneficiaries, and Panama has recently revised and improved its trust law.
Some territories, intentionally or not, have proved to have particular advantages for particular purposes – the Netherlands Antilles for UK property development; Barbados and the USVI for Foreign Sales Corporations; for “management and control” of companies incorporated in various British taxing jurisdictions (the United Kingdom, Channel Islands, Isle of Man, Singapore, etc) there are the zero-tax and territorial tax countries and the BVI (where the “remittance basis” is applicable); the Australian Reserve Bank list does not include Anguilla or St Vincent; the Barbados International Business Company, which pays income tax at a maximum rate of 2%, is an interesting vehicle for Dutch and Canadian corporate investors.

Some knowledge – however sketchy – of these facilities is nowadays an essential piece of equipment for anyone practising in the field of international tax planning.