Asset Protection Comments: March–May 2004

This page contains previous commentaries on the subject of asset protection based on recent news items, recently discovered books or websites, and new or “reborn” asset protection products discovered by WIL’s research team. While these commentaries – and even their cumulative sum – are hardly exhaustive, we believe they will alert and remind our readers of the always-pressing need for implementation of a sound asset protection plan, encourage critical analysis of the various means of asset protection that are available, and help stimulate creativity in the implementation of one’s chosen strategy.

12 May, 2004 – BACK TO BASICS

Asset protection exists in numerous forms throughout both law and equity. Many state jurisdictions in the U.S., for example, have homestead exemptions which provide that creditors cannot seize your home (or a percentage of the value thereof) for the purpose of satisfying claims against you. Many people exploit these types of statutory provisions by, for example, buying an expensive house in one of these states (Florida, e.g.). Such statutized provisions are perhaps the simplest ways to protect assets and can be effectively discovered and utilized with the help of any competent attorney.

The most pervasive forms of asset protection, however, generally involve relinquishment of legal ownership of assets. This, again, takes many different forms. Gifting assets to a spouse or child, incorporation of a company, transferring property to a trust, contractual exchanges – all are valid and useful in their context, and all involve a legal transfer of ownership.

The simple and obvious reason that transferring ownership is useful and effective is that a financial predator cannot take from you what you do not own. The less obvious and yet equally important consideration is that transferring assets makes you a smaller, and thus less attractive target. Financial predators are usually relatively sophisticated about finding their victim. Just as a lion looks for easy prey, a smart financial predator will, prior to making an attack, assess the likelihood of collection. Does the mark live in a large, expensive house titled in his own name? Does he own a Mercedes Benz or, better still a Ferrari? Can he be spotted regularly at the most upscale restauraunts, American Express Gold card in hand?

There is a tradeoff between living a lifestyle that is fulfilling to you on the one hand, and being sufficiently lavish about it that you awaken the envy (or mere awareness) of those around you to such an extent that you subject that lifestyle to a real and serious threat of attack.

An passage from the Old Testament of the Bible referencing ancient history indicates that this element of human nature is not new:

“At that time Merodach-baladan the son of Baladan, king of Babylon, sent envoys with letters and a present to Hezekiah... And Hezekiah welcomed them, AND HE SHOWED THEM ALL HIS TREASURE HOUSE, the silver, the gold... all that was found in his storehouses; there was nothing in his house or in all his realm that Hezekiah did not show them.

“Then Isaiah the prophet came to King Hezekiah, and said to him, ‘...Behold, the days are coming, when all that is in your house, and that which your fathers have stored up till this day, shall be carried to Babylon; nothing shall be left.’” ~~ 2 Kings 20:12-17, Bible (King James Version).

And so it happened. Having seen the riches of the king’s house and of the temple in Judah, the hungry Babylonians eventually conquered the small nation and carried away all of its riches.

When you are ready to make yourself a smaller, less attractive target, contact WIL to implement practical asset protection strategies, and avoid having your riches carried off to Babylon!

A thought-provoking article in a somewhat similar philosophic vein, on reducing your tax burden by intentionally lowering your personal income, i.e., taking less income in exchange for more leisure, can be found here.

05 May, 2004 – WHEN IS AN OFFSHORE TRUST OBLIGATION “QUALIFIED”

When the outspokenly atheistic comedian W.C. Fields was on his deathbead in a hospital, his nephew one day found him leafing through a Bible. When he queried “Uncle Claude” about the apparent contradiction with his publicly professed beliefs, Fields replied that he was “looking for loopholes.” With slightly less at stake, an army of attorneys, accountants, and amateur legal sleuths peruse the Internal Revenue Code in a battle of wits with the U.S. government regulation writers, looking for ways to avoid the purported one other certainty in life besides death.

As we detail elsewhere on the site, it is not a simple matter to improve one’s privacy – never mind reduce one’s taxes – by moving assets into an offshore trust (or other offshore legal entity). Pretty much any offshore trust with a U.S. person named as a grantor, trustee, or beneficiary will be subject to annual reporting requirements and owe taxes on most income and/or distributions. IRS Form 3520 must be filed by U.S. Persons to report “Certain transactions with foreign trusts” as well as “Receipt of certain large gifts or bequests from certain foreign persons.” A “U.S. person who, during the current tax year, is treated as the owner of any part of the assets of a foreign trust under the grantor trust rules” also must file Form 3520, as well as Form 3520-A. The Form 3520 (and 3520-A) instructions define a trust grantor – and thus a part-owner of the trust assets – to include any person who “directly or indirectly makes a gratuitous transfer of cash or other property to a trust.”

This example is indicative of how the regulation writers have thought ahead to the mechanisms people will to use to attempt to circumvent the rules, and have in effect said: “Before you even think of going there, we are a step ahead of you, and we are looking at the substance of potential transactions, not just the form. Moreover, when there is ambiguity or a lot of room to manoeuvre, we are going to rule that the substance is automatically that you are retaining de facto control of the trust assets – and thus will tax you on the trust income.” (It would appear that the IRS is suspicious that any “gift” to a trust may later be “gifted” back, under some private or unwritten agreement.)

What if, as an alternative to a gift, you exchange assets into a trust in return for an obligation (loan, note, etc.)? If the obligation you would then hold is “qualified” then you still must file Form 3520. An obligation is “qualified” only if:

1. The obligation is reduced to writing by an express written agreement;
2. The term of the obligation does not exceed 5 years (including options to renew and rollovers) and it is repaid within the 5-year term;
3. All payments on the obligation are denominated in U.S. dollars;
4. The yield to maturity of the obligation is not less than 100% of the applicable Federal rate under section 1274(d) for the day on which the obligation is issued and not greater than 130% of the applicable Federal rate;
5. The U.S. person agrees to extend the period for assessment of any income or transfer tax attributable to the transfer and any consequential income tax changes for each year that the obligation is outstanding, to a date not earlier than 3 years after the maturity date of the obligation, unless the maturity date of the obligation does not extend beyond the end of the U.S. person’s tax year and is paid within such period (this is done on Part I, Schedule A, and Part III, as applicable); and
6. The U.S. person reports the status of the obligation, including principal and interest payments, on Part I, Schedule C, and Part III, as applicable, for each year that the obligation is outstanding.

A consideration of the list might lead lead you to conclude that, with some care, an obligation could fairly readily be structured so that at least one of the above “qualifying” conditions is violated, thereby avoiding filing requirements (assuming other triggering conditions are similarly absent).

We will discuss in a future commentary on these pages how this idea could be used to a W.I.L. client’s benefit, as well as other aspects of the filing requirement criteria. In the meantime we welcome you to contact us for information and implementation of sound (having both adequate form and substance) contractual relations with offshore entities that provide immediate privacy and asset protection advantages.

27 April, 2004 – DEFENDING AGAINST BEAR MARKETS: THINK “SHORT”, BUT NOT AS IN “-TERM”

The modern-day equivalent of barbarian hordes – lawyers and government agents – are not the only threats to your assets. There are would-be fraud perpetrators, mentioned in a previous column in these pages. And even if you have minimized the danger from the former by prudently diversifying the jurisdictions that have the final legal say on controversies concerning your assets, and are alert to the later, there is the unavoidable risk for anyone that does not live hand-to-mouth: that which comes from participating in investment markets. A major bear market can devastate the value of your assets fully as effectively as a rogue legal system or government agent.

The almost-universal investor predispositon is to look for investments worthy of purchasing, with the hope of capital gains in time or the expectation of a current income yield. Typical investment assets such as equities, bonds, notes, money funds, bank accounts, real estate, bullion, and collectibles all fit into this mold. However, sophisticated investors, including anyone who has ever participated in the futures markets, understand that the usual advice of “buy low, sell high” can be reversed to “sell high, buy low later.” Short selling, in effect or in reality, involves borrowing an asset from an owner and then selling it, with a promise to redeliver it to the owner in the future. If the price falls, you pocket the price difference (minus dividends, if any, you have paid to the original owner of a stock during the interval – a detail we will not discuss further here).

There are several good reasons to consider adding short selling to your investment tool arsenal, including:

• Short sales can truly diversify your portfolio, whereas most investment assets (such as those listed above) demonstrate a positive correlation among their returns.
• If “everything” has been bid up and is at risk of a substantial fall – as the author of the “River of Losses” piece on this Web page maintains – you can take advantage of the situation rather than lament the lack of opportunities.
• If a Great Depression-like economic implosion is lurking as a possibility, if not a certainty, short selling makes available the opportunity to hedge your current holdings against the concomitant financial losses, or even to make large gains in a short time. In principle, there is no reason to fear a major bear market if you can sell short.

Among the myths about short selling is that it is risky because if you are long (own) an asset the worst that can happen is that it goes to zero, whereas there is no theoretical upper limit to how high, e.g., a stock can go once you have shorted it. In fact large magnitude losses of either kind demonstrate poor money management more than the inherent riskiness of the strategy. Going into any trade you should have some idea of your “I was wrong, it is time to cut my losses and get out” point. Short selling speculative, thinly traded stocks is, however, a game that is best left to sophisticated market players – quick gains are possible when an overhyped or fraudulent stock collapses, but it can become a battle of nerves with the stock’s promoters and large losses are possible as well.

Trading in the futures (or foreign exchange forward) markets – one of the easiest markets in which to trade from the short side – is also alleged to be “risky”. This is because trading in those markets is often done with large amounts of leverage: Traders may only have to put up 5% of a contract’s value or less, so that, e.g., a 5% price movement against them would wipe out their contract margin. Any investment, no matter how stodgy, can be made risky if bought using enough leverage. Again, the solution is to be smart about managing your money rather than disavowing an asset class where you are not forbidden from being imprudent (similar to not going to Las Vegas without having bought a return flight ticket).

The other prevalent myth is that short transactions are tricky, somehow. While shorting an asset does involve finding a willing lender – and retail brokers do often discourage their “unsophisticated” clients from such trades, like many things once you understand the idea and become acclimated to executing it, it loses its mysterious aura. In the futures markets going short is precisely as easy as calling your broker and instructing him to make a short sale trade. For stocks with traded options, a synthetic short sale can be created by buying a put option and selling a call option with the same strike price (shorting a stock option is less involved than shorting a stock).

Hopefully this brief introduction will stimulate further research on your part if the idea of actually incorporating short selling into your money management strategy is new to you. There is no need to fear bear markets any more! As a bonus, markets usually fall faster than they rise, with the usual explanation being that fear is a stronger motivator than greed.

16 April, 2004 – ANOTHER ONE BITES THE DUST

Another prominent author and offshore services promoter has gone down in flames. Terry Neal, author of The Offshore Advantage and four other books, and former head of Nevis American Trust Company has plead guilty to conspiring to defraud the United States government and faces a possible five-year prison term (link here).

This follows the conviction of Marc Harris, another prominent offshore services provider and founder of the Marc M. Harris Group on 16 counts of financial fraud, including tax evasion and money laundering, in November of 2003 (link here).

And most recently, eight more people were indicted on federal charges relative to the activities of The Aegis Co., which allegedly helped hundreds of rich Americans avoid $68 million in taxes through the use of domestic and offshore trusts (link here).

The impact of these cases on the clients of these various companies will not be favorable. At best they will now be an active entry in some federal financial cop agency watchlist. Goodbye privacy and living a “below the radar” lifestyle. The less lucky – in all likelihood those who pushed the legal boundaries most egregiously – will be subject to corollary prosecutions. Having killed the mother hen, the chicks are undefended. And given the usual inclination of United States Prosecutors to emphasize high-profile “slam dunk” cases it is natural for them to try and pick off followups to cases where the publicity wheels are already turning.

Our column from 27 March, 2004 entitled “OFFSHORE SCAMS = ASSET PROTECTION IN REVERSE” (below) discussed the pitfalls of unwise offshore investment practices, and is well worthy of our readers’ consideration. The general principle elucidated in that column applies equally to today’s article. Whether you are the victim of a fraudulent offshore investment, or whether you are involved in defrauding the government of your “home” country and are subsequently discovered – facing asset forfeiture and/or prison time, you have done the exact opposite of what you intended to do by implementing an asset protection plan in the first place.

The moral of this story is identical with the message that WIL has been conveying since its very inception – if one is to gain by taking advantage of the myriad benefits available in both onshore and offshore structuring, ONE MUST FOLLOW THE LAW TO THE VERY LETTER. No taking advantage of fake deductions, no skirting over filing requirements, no acting as though a corporation or trust is your alter ego, etc. and ad nauseum. All structures, contracts, and other interactions between structures and especially those involving yourself MUST have REAL SUBSTANCE in addition to having proper legal form. Offshore advantages are the reward of the diligent, not the haphazard.

If you desire planning that avoids the use of mere tricks and stage magic illusions, and value reliance on strict legal groundwork and totally above-board strategies, contact us to begin your asset protection planning now.

8 April, 2004 – MUCH ADO ABOUT TRUST PROTECTORS

For those of our readers who are making a study of trusts and the usage of trusts in an asset protection plan, you have undoubtedly defined for yourself and come to an undertanding regarding the roles of the various traditional parties to a trust.

There is the Settlor (also referred to as a Creator or Grantor) – which is the entity that actually establishes the trust for the benefit of the Beneficiary.

The Beneficiary is the entity that is entitled to equitable distributions of the trust property or income in accordance with the trust document and/or the direction of the Trustee. Various jurisdictions now allow trusts to be established without a specific ascertainable beneficiary and instead allow the trust to be established for the benefit of a specific purpose (for example: feeding starving children). In such cases the trust document either specifies exactly how the purpose is to be met, or the Trustee is given discretion regarding how best to satisfy the purpose. The possibility of a “purpose trust” allows for a certain amount of flexibility in interfacing with and carrying out the objectives of the trust.

The Trustee is the legal fiduciary of the trust’s assets and is the legal representative of the trust. The Trustee holds the assets for the benefit of the Beneficiary (or for the Purpose, as the case may be).

In addition to these traditional roles, the Trustee generally has the authority to hire any number of people to fill various managerial or consultancy positions as may be required.

In modern asset protection planning, an additional position has become vogue – that of a trust Protector. Some jurisdictions have actually statutized the Protector position into their trust legislation. However, in any jurisdiction where a contractual trust can be formed, the position of Protector can be added and specifically defined in the trust contract itself.

Normally a Protector does what the name implies – it protects the integrity of a trust (i.e., that operation of the trust in strict accordance with the intent of the parties as specified in the trust document) via oversight of the Trustee. Generally a Protector is given the authority to change trustees, and sometimes even to amend the trust, change beneficiaries, or change the situs of the trust.

While in general, having a party to ensure that the Trustee is strictly following the provisions of the trust as specified in the trust document is probably a good idea, keep in mind, here as with any offshore financial services provider, that if a trustee or other party who has access to a trust’s funds is truly dishonest then the ability of a protector to step in and assert control of the situation is of limited value. By the time the Protector has effectively fired the dishonest parties and taken control, there will probably not be much left to control.

Further, since the Trustee can be fired at will by the Protector, the Protector could be claimed to have substantive control of the trust. This, in turn, could overturn most of the benefits that arise from setting up a trust in the first place. (See, for example, our summary of the Affordable Media/Anderson trust case here). As such, in most cases it is wise to resist the inclination to hold the office of Protector yourself.

Just as you make a careful decision when choosing whom to trust as your banker, broker, financial advisor, and attorney, it is important to make a well educated decision to trust a professional foreign trustee firm and a professional protector when interacting in any way with an offshore trust. It is for this reason that we offer the tremendous amount of educational material on this site, including offshore news, financial news, and a wealth of commentary on topics specific to trusts, corporations, asset protection, and the offshore arena in general. We believe that upon further investigation you will find that W.I.L. is exactly the type of company that you want to do business with. Contact us to get started right away.

More information on the possible benefits and pitfalls of creating a protector for a trust is available here and here.

27 March, 2004 – OFFSHORE SCAMS = ASSET PROTECTION IN REVERSE

It is easy to see the many possible benefits to moving one’s wealth offshore. Greatly increased financial privacy, enhanced asset protection, a sharp increase in the number of available attractive investments, all while lessening one’s tax burden, are some of the most common motivations for implementing various offshore strategies.

However, it is a sad fact that many people, in their enthusiasm to avail themselves of the above-mentioned benefits, throw caution to the wind and involve themselves in schemes that they would have never participated in onshore.

Trust is an important factor in all financial dealings, and making use of the services of competent trustees, well respected attorneys, bankers, accountants, and professional money managers that have a proven track record of success are all important and valuable components of successful financial planning, and more specifically offshore financial planning.

On the other hand, dreams of big returns that turned to dust, with principal losses of 100% due to mismanagement or fraud, have occurred with sobering frequency. The exercise of discretion is something that is lacking all too often in “newbies” to the offshore financial arena. Protecting oneself, however, is not so difficult. Attention to some basic rules that you utilize onshore will serve your offshore planning equally as well.

1. Big profit opportunities are, as a rule, accompanied by big risks. Tens of thousands of professionals spend their working hours looking for opportunities where the risk-reward is out of line in their favor. If someone promises huge returns on a “risk free” basis, run the other way.
2. Corollary to the above: If something sounds too good to be true, especially if it is being pitched as something that has to be acted on immediately, there is a good chance that it is.
3. DIVERSIFY. Even the best investments can and do go bad from time to time. Great managers lose their touch for extended periods of time. Investment asset classes cycle in and out of favor for extended periods of time – sometimes decades. Participation in multiple investment vehicles will give your portfolio a much greater chance of surviving and flourishing.
4. Cultivate the attitude that there are an abundance of good investment opportunities available at all times (if you are willing to trade on either side of the markets – long and short – this is demonstrably true). This will negate the trap of investing in something questionable or overly-risky because it is your last chance to “hit the big time.”
5. Knowledge is power. Understand what you are doing. If you choose to subcontract out part of your portfolio’s management understand the limits of your knowledge: You cannot follow every stock in a mutual fund portfolio, but you can understand the manager’s investment approach. A commodities fund trader is not going to share his or her system details, but you can look at the record and see whether the volitility is tolerable to you. Never heard of some hotshot trader who is going to make you a fortune? Start Googling! Cannot figure out why you have never heard of the “secret” market where the “elite” allegedly rake in the profits? That is because it does not exist.
6. Cultivate humility. Like life itself, the market is a great humbler. By stepping outside the conventional group-think and thinking independently you can certainly discover opportunities that the crowd has ignored. But still look both ways before crossing the street. An “I am right ... the market is wrong, and will eventually see the wisdom of my ways” predisposition is dangerous at any time, and is suicidal in the long run.

Future commentaries will delve into more detail, but these provide a good starting point.

Remember this: Rushing offshore to lose all of your money in a bad or miscalculated investment is asset protection in reverse, and is more financially devastating than frivilous lawsuits, angry ex-spouses, evil business partners, or having half of your earnings disappear in taxes.

W.I.L.’s mission is, as it has always been, to inform you of the great benefits available offshore and to encourage you to avail yourself of those benefits. But do so carefully. Give thorough consideration to your planning. Follow the investment rules specified in this article. Offshore advantages are the reward of the diligent, not the haphazard.

When you are ready to take these steps, contact us. We are here to assist you every step of the way.

19 March, 2004 – UPDATE ON THE ANDERSON/AFFORDABLE MEDIA CASE

The Offshore Myths page has been updated with the results of the Anderson/Affordable Media case – memoirs of a botched asset protection plan that worked anyway. Read our commentary on the complete case here.

12 March, 2004 – BEWARE REPORTING REQUIREMENTS!

Note: This lesson deals with U.S. Internal Revenue reporting requirements and thus applies primarily to U.S. citizens and residents.

In our previous asset protection lesson (5 March) we discussed practical guidelines to follow when implementing an asset protection plan. One of those guidelines was the minimization of legal reporting requirements in order to maximize privacy. In this lesson we will review some of those reporting requirements.

Each United States person who has a financial interest in, or signature authority over a bank, brokerage, or other financial account in a foreign country which exceeded $10,000 in aggregate value at any point during the reporting year, must report the existence of the account(s) on Form 1040, Schedule B, line 7a, and Form TDF 90-22.1.

Each United States person that receives a distribution – including collateral-free and interest-free loans of cash or marketable securities in excess of $10,000 – from a foreign trust, is a grantor of a foreign trust, or is a transferror to a foreign trust with one or more U.S. beneficiaries must provide additional information via Form 3520.

U.S shareholders of controlled foreign corporations must report their pro rata share of certain income to the IRS, including income from dividends, interest, annuities, capital gains, gains from commodities and foreign currency as well as rents and royalties from related entities (nonoperating sources of income, basically). Income sourced from manufacturing, trading or selling to unrelated parties, drilling and mining, insurance or reinsurance of foreign risks and certain off-shore banking profits is not currently included in the reportable category.

Failure to comply with applicable tax laws may result in criminal prosecution.

Tax and reporting guidelines are general in nature and are provided for information purposes only. For specific tax advice applicable directly to you, please contact a tax professional.

For further details see http://www.irs.gov/instructions/i1040sa/ar02.html#d0e1667.

To some degree, reporting the existence of offshore structures and accounts compromises your privacy and as such effectively eliminates your first line of financial defense, which is a financial predator’s lack of awareness of the assets’ existence.

Most contractual interaction with a WIL Trust, however, is legally not reportable, and thus preserves your first line of defense. Assets can be invested in the multitude of investment opportunities and markets available to offshore companies and citizens in total privacy and in a largely tax free environment allowing significantly greater compund growth than if the returns were taxed. Finally, assets are sitused offshore and as such are more difficult for predators to locate and more legally complicated to access than if they were located in your home jurisdiction.

To learn how to take advantage of cutting edge asset protection techniques and put this type of relationship to work for you, contact Wealth International, Ltd. immediately.

5 March, 2004 – ASSET PROTECTION GOES MAINSTREAM

Society is becoming more and more predatory in nature. An annual survey published by Lawyers Weekly indicates that the 10 largest verdicts in 2003 to individual plaintiffs (amounting to $1.3 billion) represents an increase of over 200% since 1997.

Even Forbes has run articles on the importance of asset protection (article here).

In response to this increasing threat, leading lawyers are now asserting that asset protection is an affirmative duty of today’s financial and legal advisors. (See Litigation Threat an Opportunity and Obligation for Planners.) Not so long ago, if one was not already very wealthy and connected with the top international attorneys that have traditionally provided these services, one was required to either peruse the mail-order catalogs of alternative and survivalist book peddlers or, more recently, to scour the internet and wade through a mountain-stack of hay in order to find the proverbial needle of valuable and accurate asset protection advice and/or services.

Now, however, financial planners and attorneys from London to Beverly Hills and New York City are peddling their brand of asset protection strategies. Many are worthless, some are a small step in the right direction, and a precious few are staggeringly effective. Perhaps the majority fall somewhere between those extremes.

So how does one know whether an asset protection plan is going to be effective in practice? Here are some guiding principles that you may find useful:

1. Solid legal foundation.
   
   Many of the shoddy, hole-in-the-wall type asset protection providers sell structures such as bearer share corporations and bank accounts in offshore jurisdictions with hopes that secrecy alone will serve as sufficient protection. This is a very dangerous position as it often encourages one to break reporting laws, which, if discovered, could land the violator in prison. While protecting one's financial privacy cetainly makes plenty of sense in that financial predators cannot take what they cannot find, the very best asset protection plans will couple privacy with a strong legal foundation so that, even if the existence of the plan is discovered, protection will be maintained with little or no negative consequence.
2. Cost effective.
   
   While predators do abound, not everyone is preyed upon. Insurance is only a good idea if the cost of that insurance is reasonably priced when compared to the event being insured against and the chances of that event happening. So it is with asset protection. It makes far more sense to spend $950 for strong insurance against financial calamity than to spend $25,000 for equivalent protection. Shop around.
3. Assets are legally sited offshore to the extent physically feasible.
   
   If assets are all sitused (legally resident) in your “home” jurisdiction, they are far easier for predators to locate and far less legally complicated to access than if they are located abroad. Further, stictly domestic asset protection plans are often equally and sometimes more expensive than offshore plans because in order to be effective, they often have to be much more complicated than their offshore counterparts.
4. Assets are truly insulated from legal judgements against you.
   The most effective asset protection plans call for a legal separation between you personally and the assets which are to be protected. The operating principle here is “They cannot take from you what you do not own.”
5. Privacy is maximized through minimal legal reporting and filing requirements.
   
   Many, many offshore asset protection vehicles exist that trigger reporting requirements. Such requirements compromise your privacy and as such effectively eliminate your first line of financial defense. Personal offshore bank and brokerage accounts, controlled foreign corporations, and traditional offshore asset protection trusts all fall under this category.
6. Is operationally practical.
   
   At the very least look for moderate access to the types of financial services and conveniences that you are used to. While buying gold coins and burying them on a small plot of land in Mozambique might be a very effective asset protection stragety, it is not going to be efficient for most people.

Stick to these six principles and your asset protection plan is sure to be a success.

If you require planning that satisfies all of these criterion, please contact us to find out how to get started immediately.

1 March, 2004 – NON-DOMESTIC INSURANCE AND ANNUITIES

Non-domestic life insurance and annuities have been a highly publicized asset protection strategy for many years. Traditionally, Switzerland has been the jurisdiction of choice for these types of arrangements, and rightly so. According to Swiss law, annuity and life insurance policies cannot be included in a bankruptcy proceedings or seized by creditors. Even if a foreign court should specifically order the seizure of a Swiss annuity or mandate its inclusion in a bankruptcy estate, the insurance policy will not be seized by the Swiss authorities, provided that the following conditions exist:

1. The buyer of the policy has designated his or her spouse and/or children as the beneficiaries of the policy (whether revocably or irrevocably), or has irrevocably designated a third party (such as a trust) as a beneficiary of the policy.
2. The policy’s beneficiaries are designated not less than one year prior to the initiation of collection proceedings leading to the policy owner’s bankruptcy, OR in cases where the the beneficiary has been designated with the clear intent to damage creditors, the designation was made at least five years prior to the commencement of debt collection proceedings resulting in a bankruptcy decree or resulting in the seizure of assets from the policyholder.
3. The policy is deposited in Switzerland.

This arrangement offers obvious benefits in terms of asset protection. However, it should be noted that as of April 7, 1995 the annual income on most foreign annuity contracts is taxable, and if if its income is reported every year then, ipso facto, the annuity’s existence is known and the privacy benefit is gone.

While no asset protection plan should rely strictly on secrecy in order to be effective, aggresively shielding one’s privacy is a powerful first step in terms of asset protection simply because financial predators cannot take that which they cannot see (and hopefully do not even know exists).

The good news is that, as mentioned in passing under #1 above, a policy’s beneficiary can often be designated as a trust or other legal entity. This offers the opportunity to combine the traditional non-domestic insurance or annuity product with properly structured offshore entities in a very balanced and comprehensive asset protection strategy.

If you are interested in incorporating Swiss insurance products with your interaction with a WIL Trust, please contact us for further information.

Further information on Swiss insurance products is available here.

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