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Offshore Trusts Report: Gibraltar

Legislation, Regulation and Supervision

Gibraltar's asset protection trust legislation has traditionally fallen under the provisions of the Bankruptcy Amendment Ordinance 1990. This is unusual for offshore asset protection, which is dealt with under the law on fraudulent conveyancing laws in most offshore jurisdictions, as for instance in the Cayman Islands and the Bahamas.

For a settlor to avail himself of the protection of the Bankruptcy (Amendment) Ordinance 1990 each transfer to the trust must be registered. Prior or subsequent unregistered transfers are not protected by this Act. Registration of settlements is regulated by the Bankruptcy (Register Dispositions) Regulation (99v) which permit registration only if:

  • Disclosure forms approved by the Financial Development Secretary have been completed by the settlor and approved by the trustee;

  • The trustee has reviewed the public records to substantiate the disclosures;

  • The settlor has executed an affidavit of solvency; and

  • The trustee is in compliance with the legal licensing requirements of the Financial Services (Investment and Fiduciary Services) Ordinance 1989.

The provisions in Gibraltar are attractive to many settlors because they permit the equivalent of an "advance ruling" prior to committing the actual transfer to the trust. Fraudulent conveyancing laws depend for their effect on the statutory definition of 'intent' to defraud. By contrast, under bankruptcy law, which contains no definition of intent, the only direct action which can be commenced is a bankruptcy proceeding, which has a significantly tighter test of intent.

For a bankruptcy proceeding to succeed, it is necessary to show that the target (the settlor) is resident or domiciled in the jurisdiction, and that an 'act of bankruptcy' was committed there. Since most asset protection trusts are settled via exempt companies, whose owner (= the settlor) cannot be resident and a beneficiary, this will be difficult or impossible in many cases.

Trustees, if they are not already members of the accounting or legal professions, must be licensed by the Financial Services Commission, which applies a number of criteria to determining whether a person or a company is 'fit and proper' to have a license.

Gibraltar has signed Tax Information Exchange Agreements (TIEAs) with the USA, Ireland, Germany, New Zealand, Denmark and Australia. More TIEAs are expected as the territory seeks to comply with the OECD's standard on tax transparency.

The agreement provides for full exchange of information on civil and criminal tax matters between the two jurisdictions on request. It is wide ranging and includes:

  • information regarding the ownership of companies, partnerships, trusts, foundations, "Anstalten" and other persons, including ownership information on all such persons in an ownership chain;

  • in the case of trusts, information on settlors, trustees, beneficiaries, and protectors; and

  • in the case of foundations, information on founders, members of the foundation council, and beneficiaries.

   

The Report

Offshore Trusts Guide: Introduction

The History of Offshore Trusts
Development of Professional Competence in the Jurisdictions
What Future for the Trust?
The New Age of Transparency
The Swiss Association of Trust Companies
The Society of Trusts and Estates Practitioners

Offshore Trusts Guide: Jurisdictions

Bahamas

Bahamas: Legal Framework and Formation Rules and Fees
Bahamas: 2006 Private Trust Companies Legislation

Barbados

Barbados: Legal Framework and Formation Rules and Fees
Barbados: Supervisory and Licensing Regime and Fees

Bermuda

Bermuda: Legal Framework and Formation Rules and Fees
Bermuda: Supervisory and Licensing Regime and Fees

British Virgin Islands

British Virgin Islands: Legal Framework and Formation Rules and Fees
British Virgin Islands: Special Trusts Act 2003
British Virgin Islands: The Trustee Act 2003
British Virgin Islands: :Supervisory and Licensing Regime and Fees
British Virgin Islands: New Laws on Private Trust Companies
British Virgin Islands: New Private Trust Company Regulations

Cayman Islands

Cayman Islands: Legal Framework and Formation Rules and Fees
Cayman Islands: Supervisory and Licensing Regime and Fees

Cook Islands

Cook Islands: Legal Framework and Formation Rules and Fees
Cook Islands: Supervisory and Licensing Regime and Fees

Cyprus

Cyprus: Legal Framework and Formation Rules and Fees
Cyprus: Supervision, Licensing and Tax

Gibraltar

Gibraltar: Legal Framework and Formation Rules and Fees
Gibraltar: Legislation, Regulation and Supervision

Guernsey

Guernsey: Legal Framework and Formation Rules and Fees
Guernsey: Trusts Law 2007

Isle of Man

Isle of Man: Legal Framework and Formation Rules and Fees
Isle of Man: Supervisory and Licensing Regime
Isle of Man: Uses Clients and Tax Treatment

Jersey

Jersey: Legal Framework and Formation Rules and Fees
Jersey: Supervisory and Licensing Regime
Jersey: Trusts Amendment Act 2006
Jersey: Foundations

Liechtenstein

Liechtenstein: Legal Framework and Formation Rules and Fees
Liechtenstein: Regulation Supervision and Transparency
Liechtenstein: Characteristics of Liechtenstein Trusts
Liechtenstein: Foundations

Madeira

Madeira: Legal Framework and Formation Rules and Fees

Malta

Malta: Legal Framework and Formation Rules and Fees
Malta: The Trust and Trustees Act 2004

Mauritius

Mauritius: Legal Framework and Formation Rules and Fees
Mauritius: Characteristics of the 2001 Trusts Act
Mauritius: Additional Provisions of the 2001 Trusts Act
Mauritius: Tax Treatment

Monaco

Monaco: Legal Framework and Formation Rules and Fees

Nevis

Nevis: Legal Framework and Formation Rules and Fees

New Zealand

New Zealand: Legal Framework and Formation Rules and Fees
New Zealand: Review of the Law of Trusts
New Zealand: Taxation of Trusts

Panama

Panama: Legal Framework and Formation Rules and Fees
Panama: Requirements for Acting as Trust Company in Panama

Seychelles

Seychelles: Legal Framework and Formation Rules and Fees

Turks & Caicos

Turks & Caicos: Legal Framework and Formation Rules and Fees
Turks & Caicos: The Voidable Dispositions Ordinance

Vanuatu

Vanuatu Legal Framework and Formation Rules and Fees

 


Gibraltar News

Gibraltar To Offer Foundations Tuesday 4/4/2017 Gibraltar's Parliament recently passed a bill permitting the establishment of Private Foundations.

Gibraltar Acts To Preserve QROPS Status Monday 3/4/2017 Gibraltar has made new pension regulations to maintain its attractiveness as a jurisdiction from which to transfer UK pensions.

International Support For Beneficial Ownership Info Exchange Wednesday 27/4/2016 More than 20 jurisdictions have signed up to a pilot project to exchange data held on beneficial ownership registers and registers of trusts, according to UK Chancellor George Osborne.

OFCs Join G5 Beneficial Ownership Initiative Monday 25/4/2016 Bermuda, Gibraltar, and the Isle of Man Governments have agreed to support an initiative on the automatic exchange of beneficial ownership information, which is being spearheaded by the five largest economies in the European Union.

Gibraltar To Introduce Foundations Wednesday 28/10/2015 The Government of Gibraltar has launched a consultation on the introduction of new legislation to permit the creation of private foundations.

DeMontford Bell Expands Malta Operations Wednesday 15/7/2015 DeMontford Bell, the UK-headquartered financial introducer, has announced that it is to expand its permanent operations in Malta to support the high volume of business migrating there.

Gibraltar Consults On Financial Services Fee Increases Monday 23/2/2015 The Gibraltar Financial Services Commission has launched a consultation on increases to fees for certain regulated entities – generally of 10 percent – for the 2015/16 financial year.

Guernsey Named Europe's Top Captive Domicile Wednesday 28/1/2015 Guernsey has been named European territory of the year for captive insurance business for the third year running at the UK Captive Services Awards.

Spain To Probe Homeowners' Gibraltar Ties Friday 5/9/2014 Spain's Finance Minister, Cristóbal Montoro, has announced that the Government will look into the financial affairs of Spanish homeowners with ties to Gibraltar.

Gibraltar Delays Introduction Of New Companies Law Thursday 4/9/2014 Gibraltar has agreed to industry requests to delay the introduction of its new Companies Act and Insolvency Act until November 1, 2014.