Many of us will use the offshore company to do tax planning which we will segregate it away from locally earned revenue and allow the offshore company be a tax-free vehicle. Well, nothing wrong with that as long as you can prove the revenue from the offshore company is derived from overseas.
The second reason why we incorporate the offshore company is because of privacy. In some jurisdictions like Singapore and Hong Hong, the members and directors' information can be found in public record. Some jurisdictions choose to be more open with their trade partners or investors and they allow things to be more transparent. However, there are jurisdictions that choose to protect the privacy of the corporate owners and such information cannot be found in public domain. The information is kept with the registered agents and will only be revealed under the instructions of Court Orders. For example, Cooks Islands company will only reveal the information of its beneficiary owners when it receives a Court Order from New Zealand or the Cook Islands Court. Essentially, many of these offshore jurisdictions allow nominee shareholders and directors to further conceal the shareholders and directors of the company.
Have we forgotten something? If we wish to open a bank account for the offshore company, we need to disclose the identity of the UBO, the ultimate beneficiaries of the company. So it is useless to mask the offshore company using nominee shareholders and directors? The answer can be yes and no depending on how you do it.
We are going to introduce you a dual-entity structure that will allow you to protect your assets and privacy.
This structure consists of a Private Interest Foundation holding ownership of an offshore company.
The features of a foundation include;
- a distinct legal entity, unlike a trust;
- managed by a council of members;
- can hold assets, enter into agreements with third parties (subject to this being consistent with the foundation’s objects); and
- can sue or be sued in its own name.
The above makes a foundation similar to a company, however unlike a company a foundation does not have any shareholders.
In a Private Interest Foundation, there are basically 4 components. These 4 components are the founder, the foundation council, the protector or enforcer and the beneficiaries.
A foundation is formed by a person known as the Founder (who may be either an individual or corporate body) who provides (through an endowment) the assets to be administered by the foundation. In most of the cases, we can appoint a nominee founder.
The Foundation Council
The relationship between the foundation council and the foundation is similar to the relationship between the directors and the company. You are correct to say that the foundation council is similar to the board of directors. The council members' name and passport can be found in the public registry when the foundation is incorporated. Similar to the founder of the foundation, we can appoint the nominee council members.
The protector or the enforcer is the controller of the Foundation. The council will appoint a protector. The interesting part of the role of a protector is, the protector can remain anonymous. At the same time, the protector can have full control over the foundation subjected to the foundation chapter.
The beneficiaries are appointed in the private letter of wishes and this document is a private document. Furthermore, this letter of wishes can be changed or modified at any point of time by the protector. In another word, the beneficiaries can be anonymous as well.
By having a foundation that holds all your assets, it serves a few purposes that can solve your problem, at the same time provide you with a certain level of financial privacy.
We managed to summarise it to a few points:
- Using a foundation to be the shareholder of your offshore company will add another layer of protection. You don't need to use bearer shares which will not allow you to open a bank account in many places. A foundation itself has no shareholder but it has beneficiaries. Certainly, the protector or the enforcer will have the mandate to decide who are the beneficiaries. As the beneficiaries and the protector are appointed based on private documents, they are deemed to be 100% anonymous.
- The foundation can sign for all the banking documents for the offshore company. The foundation will be treated as the beneficiary owner of the offshore company for these declarations. Certainly, the foundation has to appoint its directors in the offshore company to control the offshore company but it can be a nominee director as well. This is where the nominee directors can sign you a power of attorney and employ you as a general manager to manage the day to day operation of the offshore company which allow you to sign documents on behalf of the offshore company, including contracts and agreements.
- The foundation will serve as a channel for you to send money inward and outward. As the foundation can also be a charitable entity, it can receive funds in the form of donations and it can also give out grants to anyone you choose.
- If you have many offshore companies and you have many assets, A foundation can be designed to distribute your assets to you loved ones upon a triggering event which serves as a living will. Imagine if you have many assets and many offshore companies, the moment you are gone and none of your beneficiaries knows where are all your assets. So a foundation is a perfect vehicle to manage your wealth regardless you are alive or dead. Some might think that a Trust is good but it is all depending on the Trust Manager. A foundation council can consist of your own friends and relatives to manage the foundation. In most cases, since the inheritance assets came from overseas, there should not be any tax when on the assets given from the foundation to the beneficiaries.