The Common Reporting Standard (CRS)

The Common Reporting Standard

In 2014, the Organisation for Economic Co-operation and Development (OECD) proposed a global initiative that focused on the exchange of information concerning tax matters. The premise being, the automatic exchange of information between governments should theoretically allow for more thorough scrutiny of information presented on taxpayer returns. Increased scrutiny would then act as a deterrent to tax avoidance.

To date, more than 90 countries have agreed to automatically exchange information provided to them by financial institutions operating within their borders. The Bahamas is on schedule to begin its CRS participation in 2018.

As a follow on from the Foreign Account Tax Compliance Act (FATCA), the Common Reporting Standard or CRS is a definite game changer for the offshore financial services industry due to 3 main reasons:

• The cost of implementation.

• The attrition associated with implementation; and

• Offshore compliance fatigue by both clients and service providers.

Implementation costs:

After the mammoth FATCA review exercise that most offshore financial service providers conducted last year, it became very apparent that the cost associated with these types of reviews placed significant strain on the resources of some firms. Expenses were mostly associated with software upgrades, communication fees and temporary labour costs. It has been suggested that the cost of implementing FATCA, turned out to be ten times more than the revenue it generated due to compliance.

The fact of the matter is that financially, firms are not prepared to sustain yet another costly review of their client base and this has caused a paradigm shift in the way we expect to manage the introduction of the CRS.

There will always be inherent risks associated with any solution. However, in an attempt to minimize the expenses associated with a paper review, some firms have resorted to the terms and conditions by which they provide fiduciary services. Essentially, the “the devil is in the detail”. The principal contractual agreement between the client and the fiduciary service provider should allow for the disclosure of critical information to avoid noncompliance with the standard and at the same time, compel the client to self-certify that he or she has complied with all local tax regulations in their home country.

Attrition:

The CRS will no doubt reduce the volume of clients that maintain offshore trusts because the practical attributes usually associated with being offshore. I.e. Confidentiality, will no longer be available. Practitioners estimate that firms may lose up to 40% of business, with attrition focused on the directed, smaller, less sophisticated structures. Nonetheless, we will come out on the other end of the CRS with an industry that is smaller, more specialized, transparent and more costly for the client.

Compliance Fatigue:

Clients receive a copious amount of correspondence concerning regulatory changes. At some point it begs the question, why maintain the structure? The first quarter volatility in the markets, coupled with administration expenses, erode the value of having an offshore structure especially if the assets under management are relatively small. With the “Base Erosion and Profit Sharing” or (BEPS) initiative on the horizon, it has now become debatable as to whether preferential treatment will continue for offshore holding companies that use W8-BEN Forms to defer withholding; All of which support good arguments for the repatriation of offshore funds and has spurned a resurgence in the insurance industry as an alternative to offshore investment wealth planning.

Ultimately, once the CRS is fully implemented, at the very least, you know that your local tax authority will seek to verify the accuracy and completeness of your tax returns. Whilst the current tax season is underway, now is a good time to have a discussion with your planner.

FATCA & Hold All Mail

Foreign Account Tax Compliance Act and Hold All Mail

By now, most major financial institutions and service providers are winding up the review of their client base to ensure that undocumented US centric clients are properly identified as it relates to the Foreign Account Tax Compliance Act (FATCA) and its regulations.

From our own experience, this exercise allowed us to reconfirm that our clients were still non U.S. persons by obtaining new W8-BEN forms. However, we found examples of third party power holders and beneficiaries that were deemed US resident for FATCA purposes and these persons were properly documented by obtaining new W9 forms.

In an attempt to cure all inferences of US indicia, we reviewed all of our customers mailing addresses. Many of whom had Hold All Mail (HAM) addresses in the U.S. to assist with the copious amounts of mail sent to each client monthly. This inference of U.S. residency had to be cured to eliminate any doubt of the client being a non U.S. person. The cure process involved sending a letter to the client to have them confirm that the U.S. HAM address was only being used to facilitate the management of mail.

As an alternative to a US HAM address, we recommended the FidPro Hold All Mail Service, one of few Hold All Mail providers not located in the U.S. FidPro Hold All Mail clients did not require a cure letter. This turned out to be a significant saving for the firm and our clients were not required to send followup confirmation.

If there is an indication that your client is a US person, this should be explained. In the absence of a plausible explanation for the US indicia, you may want to recommend to your client that they seek independent tax advice to confirm their status before the 17th of August 2015.

For all Bahamian Financial Institutions or BFI’s the local FATCA Portal can be accessed here.

On International Business Companies or IBCs as Split Share Companies

The Split Share International Business Company (IBC)

A Bahamian International Business Company or IBC can be used as a split share company that is both effective and affordable to administer.

The process for creating a split share company involves amending the Articles and Memorandums of the IBC so that the Ordinary shares of the company represents the future income and/ or any type of future gain of the structure and the Preferred shares represent the existing assets and liabilities that are treated as capital.

The IBC can also be split into the same class of shares as indicated above but instead of income and capital, the shares are used to delineate between a charitable purpose (ordinary shares) and a directed purpose (preferred shares).

In both examples, the setup of the IBC represents a form of planning that can shelter clients against tax exposure as well as provide succession planning. A revocable, fully directed trust owns the redeemable, preferred shares corresponding to the capital of the company, and a second irrevocable, discretionary trust is used to hold the ordinary shares corresponding to the income.

The “Split” between the income and capital of the company via issuance of different classes of shares, theoretically allows the client to segregate himself from the income generated by the holding company.

Provided that the client has fully relinquished control and benefit of such income (due to the irrevocable trust), neither the settlor or beneficiaries are subject to tax reporting obligations in their home country. I.e. No income tax reporting obligation until receipt of an income distribution.

In summary, as long as the Trustee retains full discretion on the income trust, there are no tax or reporting obligations in most jurisdictions.

On the Topic of Automatic Trust Disclosure by Fiduciaries.

Automatic Disclosure Vs Liability

Whilst most fiduciaries are willing to provide information such as trust instruments and bank account information to the donor and beneficiaries, there is a general reluctance to disclose any other information or documents to anyone else unless required by law.

The general practice is to request written approval from the donor prior to dissemination of information regardless of who the recipient might be. In yesterday’s world, the words “bank secrecy” were used as an attribute when describing reasons for establishing an offshore trust. After time, the word “confidentiality” was perceived to be more politically correct. In today’s world, anything to do with secrecy and confidentiality is discouraged.

The industry has moved toward transparency with emphasis on clients who are reporting and are compliant in their home jurisdictions. However, as tax laws change, many clients find themselves on the wrong side of the tax code almost overnight. When this happens, fiduciaries run the precarious gauntlet of disclosing clients to regulators or risk a legal battle by which the client sues for breach of confidentiality. This is why an important feature of any trust is a disclosure clause that allows the trustee to forward information to regulators with out fear of reprisal.

When disclosure without consent is imminent, trustees often seek a Beddoe Order. The order protects the trustees against claims by beneficiaries who suggest that an action should not have been brought and enables the trustees to recover the costs from the trust property.

Moral of the story, check your trust deed and review the clause on the duty to disclose…

The FidPro Blog

Tag Archives: Court Order to Disclose

The Common Reporting Standard (CRS)

FATCA & Hold All Mail

On International Business Companies or IBCs as Split Share Companies

On the Topic of Automatic Trust Disclosure by Fiduciaries.