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Introduction: The History Of Offshore Trusts

It's a fairly well known fact that the trust originated in England many hundreds of years ago, and that its purpose was to preserve assets against depredations occurring through death, matrimonial and family squabbles, spendthrift descendants and the like. Taxation at death was one of the incidents that trusts were effective against, but they were not particularly designed to guard against the taxation of income or capital during the settlor's life, because such taxes were not a major threat to wealth at the time, and anyway a domestic trust was a taxable person in itself.

Income tax was first levied in England at the beginning of the 20th century, and in many countries had become worth avoiding by mid-century; but initially at least the best way of avoiding it was to turn income into capital, which was not so heavily taxed. It was only when capital taxes of various types became significant that the offshore trust came into its heyday.

Very rich people had begun to use offshore trusts in the first half of the century, but at least as much because of the additional asset protection that they offered, simply by being in a different jurisdiction, as because they were tax efficient.

The administrative overhead and other complications of dealing with an offshore location were initially very great, so that at first only conveniently close-by jurisdictions like Jersey (Channel Isles) for the Brits and the Bahamas (for Americans) developed as 'offshore' jurisdictions. The first trusts legislation in the Bahamas, surprisingly, dates from 1893. The great expansion of trusts, both in terms of number of jurisdictions and volume of business, came later when telecommunications, air transport and the end of capital controls opened up the world and gave freedom to investors and the owners of capital.

At all events, by say 1980, offshore was burgeoning in response to horrific tax rates, and tax avoidance had taken over as the main driver of offshore growth. In this process, and as more and more countries laid claim to the worldwide income and assets of individuals during life and at the end of it, the trust played a key part. But in two respects at least the traditional English trust was lacking: first in its perpetuity rule, which limited the duration of a trust to 'life in being' plus 35 years, or to 80 years, in order not to permit the alienation of property for more than one generation after death of the settlor; and secondly in its abhorrence of 'spendthrift' clauses, ie wording which prevents a creditor from 'seeing through' the trust to obtain settled assets if the settlor is a beneficiary.

In the US, and in the main island offshore jurisdictions, which all inherited English trust law (since almost all of them were British originally) perpetuities were legislated away during the 1980s and '90s - no-one wants to see assets reverting to family members who may still be living in the country from which the settlor had removed them, with disastrous tax consequences. During this period, tax authorities in high-tax countries gradually began to attack the offshore trust, either through specific legislation or through general anti-avoidance provisions, and as this process whittled away at the tax advantages of offshore trusts, asset protection began to take over as the predominant motive for offshore settlements. The 'spendthrift' problem stood in the way, particularly for non-common-law families, who had to cope with 'Code' country legislation which often incorporates forced heirship provisions and specific creditor protection (both usually absent in common law jurisdictions).

Initially, rich 'continentals' used different techniques to protect their assets, but in time they grew to like the friendly Anglo-Saxon trust, and in the latter part of the 20th century as trust law began to be implanted into the foreign soil of one 'Code' jurisdiction after another, the common-law jurisdictions needed to follow and passed laws which specifically excluded forced heirship and creditor protection provisions. The US itself has largely removed anti-spendthrift wording from its trust legislation - unlike in the unitary UK, there is a kind of onshore offshore in the US because of its federal structure, and there has been a competition between states to offer good trust regimes to residents in other states, and for that matter to compete against the offshore 'offshore', which is nowadays practicable because after the enactment of Section 679 of the Tax Code, the IRS treatment of offshore trusts is now worse than its treatment of onshore trusts.

Even without perpetuities and with asset protection features, the bare offshore trust came to be seen as vulnerable and by the turn of the century was much more likely to be used as part of a more complex framework involving corporate features and multiple jurisdictions than on its own. It's not right in fact to say that a plain trust is ineffective: in the Cook Islands, which may have been the first jurisdiction to offer asset protection trusts per se, only one trust has been penetrated by creditors in 20 years, and that was due to a weakness in the drafting of the governing law which has subsequently been corrected.

The trend towards complexity also reflects growing corporate interest in the trust, and the tendency for the more advanced offshore jurisdictions to offer structures suited to particular purposes - hence the 'purpose' trust. A trust which is suitable for one purpose may well not be suitable for another, and the original English trust law was one more time not ideal for purpose trusts, which has led to a third round of adjustment of trust legislation in many jurisdictions.

The Report

Offshore Trusts Guide: Introduction

Offshore Trusts Guide: Jurisdictions

Bahamas Barbados Bermuda British Virgin Islands Cayman Islands Cook Islands Cyprus Gibraltar Guernsey Isle of Man Jersey Liechtenstein Madeira Malta Mauritius Monaco Nevis New Zealand Panama Seychelles Turks & Caicos Vanuatu


Offshore Trusts News

US Lawmakers Approve New Cryptoassets Reporting Rules
Wednesday 25/8/2021
The US Senate has approved the inclusion of new provisions in the bipartisan infrastructure bill to require intermediaries involved in cryptocurrency trading to report details about transactions.

Wyden Takes Aim At US Pass-Through Income Tax Break
Friday 6/8/2021
Senate Finance Committee Chair Ron Wyden (D-OR) has introduced legislation to overhaul the 20 percent deduction for pass-through income introduced into US tax law in 2017.

Hong Kong Explains COVID-19 Reliefs For Tax Debtors
Friday 6/8/2021
Hong Kong's Inland Revenue Department has explained COVID-19 tax concessions available for taxpayers struggling to pay their tax dues and has highlighted upcoming property tax obligations.

Mauritius Announces New Tax Reliefs In 2021-22 Budget
Friday 6/8/2021
Mauritius announced numerous tax relief measures for investors and for wealthy foreign individuals in its newly released Budget.

Australian Tax Agency Announces Virtual Currency Tax Focus
Wednesday 9/6/2021
The Australian Taxation Office has expressed its concern that some taxpayers do not fully understand the tax implications of cryptocurrency gains.

Bahamas Announces Various VAT Changes In New Budget
Wednesday 9/6/2021
The Bahamas Government has announced various changes to its value-added tax regime in its new Budget, focusing on the real estate sector, including for sharing economy platforms.

Hong Kong Issues Tax Returns For Individuals
Wednesday 12/5/2021
On May 3, 2021, the Hong Kong Inland Revenue Department issued over 2.62 million tax returns for individuals for the year of assessment 2020-21.

Countries Discuss Post-Pandemic Tax Agenda At UN Council Meeting
Wednesday 12/5/2021
Experts speaking at the UN's Economic and Social Council's annual Special Meeting on International Cooperation in Tax Matters concluded that the international community must do more to tackle tax base erosion and profit shifting and offshore tax evasion.

China Halves Corporate Tax For Smallest Businesses
Thursday 15/4/2021
Chinese authorities have announced enhanced temporary tax breaks for small businesses.

US IRS Reminds Of FBAR Filing Obligation
Thursday 15/4/2021
The Internal Revenue Service is reminding US citizens, resident aliens, and any domestic legal entity that the deadline to file their annual Report of Foreign Bank and Financial Accounts (FBAR) is still April 15, 2021.