THE LEGAL AND TAXATION ASPECTS OF ASSET PROTECTION
January 2010
This is an article based on a lecture given by Aileen Keogan at the joint conference of the Irish Tax Institute and the Society of Trust and Estate Practitioners on 26 November 2009 and is reproduced with their kind permission. Part 1 of this article published in the January 2010 edition of the Irish Tax Review outlines why and how asset protection is dealt with. Part 2, to be published in the March edition of the Irish Tax Review, will deal with the legal and taxation issues that arise out of asset protection. These articles do not deal with the specific creditor protection legislation available to NAMA introduced under the National Management Agency Act 2009.
1 Introduction
The purpose of this paper is to outline how best to advise clients who are concerned with their borrowings - when they should start protecting the assets, how they should do it and what are the benefits and potential downsides to introducing such protection.
2 Why are assets protected
While asset protection comes to mind most frequently these days in the context of potential insolvency, the use of asset protection measures is not confined to protecting assets from creditors in the face of impending insolvency.
Traditionally asset protection concerns have also arisen in the following situations
· Where traditional professions who are not entitled to incorporate with limited liability status are concerned to protect their assets over and above their professional indemnity cover (e.g. solicitors, doctors, architects, accountants). This is likely to increase further with the considerable pressures being put on the professions by virtue of the increases in the professional indemnity cover. Many professionals may only be able to afford to take out minimum cover but are then more exposed to claims above that level of cover and wish to protect their personal assets from such claims. Indeed if the cover is conditional and any such conditions are not met, the professional client may find that in certain cases the insurance will not apply and so his assets are fully vulnerable;
· Where a person is a member of a Lloyds’ syndicate;
· Where a person, who is trading under the protection of limited liability through his company, has had to give personal guarantees e.g. for rent or company borrowings;
· The entrepreneur about to start out on a potentially hazardous business;
· The business person selling up who does not want to lose all that he made if any of the warranties given are ever called upon;
· Where a person is concerned about impending divorce /separation claims from a spouse;
· Where a person wishes to avoid ‘forced heirship’ provisions requiring him to transfer his assets on death to particular beneficiaries;
· In the case of the improvident or profligate beneficiary – where the client wishes to provide for assets to pass to a child who may not be able to manage financially yet the client feels child should be given some independence;
· Corporate clients concerned about the risk of expropriation or confiscation of corporate assets operated in ‘risky’ jurisdictions, by creating what is known as a “Philips Trust”. There are significant complexities inherent in creating an appropriate trust vehicle for a large corporate body with worldwide operations and assets and this topic is outside the scope of this paper.
In all of these cases the client wishes to divest himself of his ‘good’ assets so that others cannot claim against those assets, yet at the same time the client wishes to retain the assets for his own use and enjoyment for his lifetime and have as much control as possible over them. Naturally the client also wishes to ensure the divesting of the assets and the ongoing management of the assets do not trigger significant taxes.
The people who make claims against the trustees of trusts created for asset protection purposes by a client (who was the ‘settlor’ of the trust) include:
- The creditors of the settlor who claim that the trust assets are liable to be taken into account in satisfaction of their debts;
- Members of the settlor’s family who claim indefeasible or discretionary matrimonial or succession rights;
- The Official Assignee in bankruptcy of the settlor who has been made bankrupt claiming to set aside transfers made into the trust;
- Public authorities who claim the assets disposed of are the proceeds of crime;
- In certain countries, criminal prosecution authorities who claim that an offence has or may have been committed in setting up the trust;
- The settlor himself against the trustees if it should be determined that the trust is for some reason ineffective.
The creditor usually claims against the assets by stating either that:
- the settlor retains a beneficial interest capable of being taken in the execution of the judgment (a ‘sham trust’ argument); or
- the transaction creating the trust is liable to be set aside in whole or in part as either a fraud on the creditors or made within a particular time frame that it can be set aside and thus the assets can be taken to satisfy judgment.
Claims can be made by family in relation to succession/matrimonial matters. For instance, in Ireland the following claims can be made by family members:
- The spouse of a deceased has a legal right share in the estate on the death of the settlor to either a one third share of the estate or a one half share of the estate (depending on whether the deceased had children)[1]. The asset protection structure could be challenged under legislation that allows the court to add back assets divested within 3 years of a deceased’s death if the transfer to the structure was done for the purposes of diminishing or defeating the claim of the spouse[2].
- Likewise the children of a deceased have a right to claim for proper provision to be made by the deceased[3] and if this right is reduced or diminished by the transfer of the deceased’s assets within 3 years of his death to an asset protection structure, this can also be a basis for children to claim against the trust.
- Similar claims can be made by spouses and children whose rights under intestacy have been reduced by the transfer of the assets out of the name of the deceased into the asset protection structure, again within 3 years of death[4].
- Under matrimonial legislation[5] a transfer to an asset protection structure can be reviewed by the courts and set aside within 6 years[6] of the transfer if the disposition was made with the intention of defeating a claim for relief under the matrimonial legislation.
- In addition these relatives could also claim that the transaction was a sham and accordingly the assets still form part of the settlor’s estate on either his death or on his divorce or separation.
3 How assets are protected
There are different approaches to the way a person may wish to protect assets, ranging from the simple to very complicated.
3.1 Incorporation
Where a person incorporates his business into a limited liability company, he is protecting his personal assets from being attacked in the case of any insolvency of the business. The company becomes a separate legal entity from its members/shareholders so that creditors of that company cannot attack the assets of the owner of the company to recover debts owed to them to the extent that the shareholder has fully paid up the shares in the company.
Incorporation is recommended for businesses that may be subjected to claims against them in respect of the products of that company or by its own employees e.g. construction companies are vulnerable to claims against them by purchasers of houses in respect of a fault in the building of its houses and by its employees in the event of accidents on the worksite. Limited liability is very useful to protect the shareholder from such claims against him personally. The value the shareholder has put into the company will be lost if the company is liquidated on insolvency but at least the rest of the shareholder’s assets are not vulnerable to claims by creditors of the company.
There are however limitations to the benefit of incorporation such as the following:
- In cases where the company takes out borrowings for the business, usually the bank may require a personal guarantee from the directors/ shareholders of the company thus defeating the benefit of the limited liability status in respect of those borrowings.
- If the owner has funded the company by way of an unsecured loan, it is unlikely that that loan will be recovered on a liquidation of the company as it will rank lower than secured creditors.
- As mentioned above, many professional trades are not permitted by virtue of their governing bodies to incorporate in a limited liability fashion, e.g. in the case of solicitors, doctors, architects, accountants.
- Even when limited liability is achievable, it may not be suitable for the person to apply it from a marketing point of view.
- Where the courts or the legislature permits the lifting of the corporate veil. A company is a distinct legal entity separate from its members. A veil therefore separates the company from its members from the date of incorporation. However, the courts and the legislature in certain instances can lift the corporate veil and look through the separate legal entity of the company to its shareholders or directors, e.g. where it is found that the directors have been allowing the company to be trading recklessly. If this happens, individual members can be held liable for the debts of the company itself.
The effect of incorporation is therefore limited from a pure asset protection point of view.
In turn it is important to note that the transfer of ‘healthy’ assets into a limited company will not protect those assets from an attack by the creditors of the shareholder. If the shareholder himself is likely to become insolvent, the transfer of his assets in advance of insolvency into a corporate structure will not protect those assets from claims by his creditors. The shares of the bankrupt shareholder (and therefore the value of the company and the assets within that company) are available to the creditors of the shareholder or his Official Assignee in Bankruptcy.
3.2 Nomineeship or Bare Trust
Where a trust is created so that the person who owns the assets (the ‘settlor’) transfers the assets to another person (the ‘trustee’) for the trustee to hold the assets solely for the benefit of the settlor, a bare trust or nomineeship is created. Despite the fact that the legal ownership of the asset is transferred out of the settlor’s name, creditors of the settlor could still look to this asset as it is held by the trustee beneficially for the settlor. Therefore the transfer of the asset is not an effective method of asset protection for that asset.
In many cases, it is not obvious on the face of the document that the trust is a bare trust. If a trust is created that appears to be one of substance and therefore is not a bare trust but subsequently it is held that the trust form is a sham, it becomes a bare trust as, while the legal ownership is held by the trustees, the equitable ownership and control remains in the settlor. The crucial question to ask is whether the form of the trust instrument is such that the settlor retains equitable ownership in the capital so that the trustees hold the capital to his order without the settlor having to do something positive.
The case of Rahman -v- Chase Bank (CI) Trust Company Limited [7] was a case where the trust was determined to be a sham. If the trust instrument, such as the one in Rahman, provides for many rights and powers to remain with the settlor then the easier it is for the trustees to let the settlor run the trust and the easier it becomes to attack the trust as a sham.
If the transaction is shown to be a sham then the assets are treated as continuing to belong to the settlor and those assets can be taken to satisfy any creditor’s judgment.
The difficulty for clients is that the client as settlor usually wants to keep control of his assets, particularly where the assets being transferred to the trust are business assets. There have been structures where the settlor transfers 98% of the business assets to the trustees to hold as limited partners and he retains the 2% of the asset himself subject to a Partnership Agreement where control is reserved to the 2% holder as the general (and managing) partner. In such a case a Partnership Agreement may satisfactorily explain the settlor’s daily control of the business assets for partnership purposes but, if the settlor in turn seeks to control the disposition of the income and the capital benefits out of the trust to the beneficiaries, then the trust and perhaps the related partnership could be regarded as a sham. If the truth is that the property continues to belong to the settlor and the transaction of creating the trust is merely a smoke screen, it is open to challenge.
A concern may also arise in the event that the trustee himself becomes a bankrupt and his creditors seek to take the trust property into account in meeting the trustee’s own debts. While the creditors are not entitled to do so as it is not property beneficially owned by the trustee[8], the trustee[9] will have to prove the fact of the trust to ensure that the assets are protected.
3.3 Life Interest or other Interest in Possession Trust
Where a trust is created so that the person who owns the assets (the ‘settlor’) transfers the assets to another person (the ‘trustee’) for the trustee to hold the assets solely for the benefit of the settlor for his lifetime and for the assets to pass on the settlor’s death a certain way (e.g. to the spouse or children of the settlor), a life interest trust is created. This is a form of an interest in possession trust, other forms being trusts in favour of a person for a period shorter than a lifetime.
The effect of such trusts is that the beneficiary of the interest in possession has the right to receive the income of the trust. Therefore, if such beneficiary were to become bankrupt, his creditors could require the trustees of the trust to pay that income to them to meet the debts incurred by the beneficiary.
While the trustees are generally given power under the terms of the trust to invest in assets which may or may not produce income (and therefore presumably weigh in favour of capital growth), the trustees are at all times bound by their fiduciary duty to balance the needs of the person holding the interest in possession against the needs of the persons entitled on the expiry of that interest in possession (the remaindermen). Therefore if the creditors believe that the trustees have not balanced the need for income for the life tenant (who as the bankrupt would have to pass on that income to his creditors) as against the need for capital growth for the remaindermen, they could sue the trustees for breach of their duties as trustee.
Therefore, although the transfer of a client’s assets into a life interest trust or other interest in possession trust will give protection to the capital value of the asset, it will not give any protection to the income arising out of such assets and will not protect the trust assets from being converted into income producing assets, which income can be taken by the client settlor’s creditors to meet debts.
While a client is reassured that he is guaranteed this income at least until his creditors get it, it does not afford the client the right to seek to control the trust management and therefore care needs to be taken to ensure the trust does not become controlled by the client and therefore a sham in which case the capital would also be available to his creditors.
3.4 Protective trust
The protective trust was originally a Dickensian style of trust whereby the benefactor sought to ensure that his dependant received a living from a trust through a life interest but, concerned that the dependant might squander what he would get from the trust in the future, the trust would automatically convert to deprive him of the interest in the trust on certain acts arising so that the beneficiary would not be guaranteed anything into the future (and so his creditors could not claim that interest from him). While it is still suitable for the improvident and the profligate, in more modern times with adjustments it has also become more fashionable for the risk taking entrepreneur.
A protective trust in modern times is a combination of a life interest and a discretionary trust. It is a trust which provides that the beneficiary, who may become vulnerable to creditor claims, receives all the income from the trust fund during his lifetime but, if anything happens or if the beneficiary himself commits any act which would, if he were entitled absolutely to the trust fund, have the effect of depriving him of it, his interest as a beneficiary would cease and determine immediately. In such a case, instead of the trustees holding the trust fund for the beneficiary for his lifetime, they would automatically[10] hold the trust fund on discretionary trusts for a class of beneficiaries including the original beneficiary, his spouse and children and other extended family members if so desired. The discretionary trust would continue for the balance of the lifetime of the original beneficiary and if required[11] could automatically cease on the death of that beneficiary to pass on death to specific persons e.g. to his spouse and/or children.
The effect of this is that the funds would still be available to the client beneficiary through payments to his family or on a discretionary basis to discharge outgoings actually incurred by him, yet he would not be automatically entitled to the assets in the event his creditors sought to recover from them. Yet until the client has become unable to meet his debts, he is guaranteed the income from the trust. It is often more reassuring for clients to be guaranteed this income for that time, however again it does not afford the client the right to seek to control the trust management and therefore care needs to be taken to ensure the trust does not become controlled by the client and therefore a sham.
3.5 Discretionary trust
A discretionary trust provides that trustees hold the trust fund on discretionary trusts for a class of beneficiaries including the ‘intended’ beneficiary, his spouse and children and other extended family members if so desired. The trustees are usually guided by a letter of wishes written by the settlor regarding how they might exercise their discretion. This letter is not legally binging on the trustees. The discretionary trust could continue for the lifetime of the ‘intended’ beneficiary and if required[12] could automatically cease on the death of that beneficiary to pass on death to specific persons e.g. to his spouse and/or children. The advantage to this trust over the protective trust is that the automatic change in status of the trust from a life interest trust to a discretionary trust would trigger capital gains tax (as outlined in Part 2) but if the trust is always discretionary such tax would not arise on the beneficiary becoming bankrupt. Similar to the protective trust, CGT would still arise on the death of the beneficiary (if the discretionary element were to cease automatically on death) or on any payments out of capital from the trust.
It has become a trend that the creation of discretionary trusts for the purposes of protecting assets are made more ‘awkward’ to attack by creating blind trusts and/or locating such trusts offshore.
3.5.1 Blind Trust
To be valid a trust must have certain ascertainable beneficiaries. In many instances a trust is set up whereby the beneficiary is a charity, such as the Red Cross, and the trust is held for exclusively charitable purposes or such exclusively charitable purposes as the trustees may select from time to time. There is then power to add anyone in the world to the class of beneficiaries or a power to appoint to anyone in the world which power is to be restricted to persons nominated in writing by either the settlor, the protector or existing beneficiaries. This is done often for perception purposes, given that it would on the face of the trust appear that the settlor is not a beneficiary of the trust and therefore his creditors are less likely to seek to attack the trust. However if the settlor is subsequently added as a beneficiary of the trust and discovery proceedings are taken against the trustees, this mechanism of hiding the trust assets is defeated. If the settlor has been appointed the assets in the trust, such assets would be available to his creditors to meet payment of their judgements.
To ensure that this trust is not challenged as a sham, the trustees should not take literally the settlor’s letter of wishes but should act independently of the settlor. In addition the letter of wishes should not indicate that the settlor would be of the view that the trustees should never actually benefit the charity.
The trustees will be subject to the rules regarding accountability which means that each beneficiary needs to know that he is a beneficiary so he can bring the trustees to account if necessary.[13] Therefore in a discretionary trust where the Red Cross are named as the charitable beneficiary, the Red Cross would need to be informed that they are the potential beneficiaries. The persons who are identifiable as merely contingent beneficiaries (e.g. the issue of the settlor unnamed) can also exercise their rights to see accounts and discover how the trust property is invested[14]. While there is no duty to inform the objects of discretionary powers (as opposed to discretionary trusts) the settlor may be uncomfortable with the objects of the discretionary trust having such information.
3.5.2 Offshore Asset Protection Trust
A typical asset protection trust is usually made so totally offshore so that the trustees, the governing law and the situs of the assets are all out of the jurisdiction where the settlor carries on or has carried on his business. It is not necessary for this to happen, however the offshore element is usually included so as to provide obstacles to creditors and others in attacking the trust.
The offshore asset protection trust (‘offshore APT’) is designed to side step the insolvency law, the succession law and the matrimonial law of the jurisdiction local to the settlor. However it is not usually designed to be tax efficient. It is also usually extremely costly to implement and manage and therefore is only used by clients of considerable means.
Another typical feature of an offshore APT is that the settlor remains very much the principal beneficiary, if not the only beneficiary, during his lifetime. He may have a life interest or other interest in possession limited to come to an end in certain circumstances (such as bankruptcy) i.e. as a protective trust, but the settlor will occupy a particular role in the control of the assets in question. This is the great attraction of the offshore APT for the settlor but can also be its downfall.
While the offshore element of the APT seeks to cause an obstacle to the creditor seeking to enforce his judgment for debt or to the relative making the claim, it is not necessarily an insurmountable one. The Brussels Conventions[15] facilitate the creditor/spouse considerably in enforcing his claim if the creditor/spouse obtains a judgement in one of the EU states and the offshore APT is located in another EU state. Because of this, typically offshore APTs are located outside of the EU but this can introduce further taxation downsides. In other jurisdictions, the local legislation can ultimately provide comfort to the creditor so that the creditor’s judgement for debt can be enforced in the country where the offshore APT is located and they can access the funds, however the cost and time spent in doing this can put off many creditors.
There is also the possibility of the situs of the offshore APT moving jurisdiction through provisions in the trust instrument so that the place of residence or business of the trustees (as opposed to the place where the assets are or indeed the governing/proper law of the trust) can change. Sometimes this can take place automatically or in consequence of an exercise of a power to do so, whether exercised by the trustees, the settlor or someone else, such as a protector. In such cases clauses known as “flee clauses” are inserted allowing for a trigger event where the jurisdiction can change. This is a favourite technique in asset protection planning where the trustees do not move but the assets within the APT do, leaving one trust and joining another. Sometimes ‘pilot trusts’ are set up with nominal value to allow for this. In this way there can be a chain of pilot trusts stretching from jurisdiction to jurisdiction so as to again provide obstacles for creditors in claiming against the assets of the trust.
Quite apart from the cost involved in going to such extremes in running away from creditors seeking to enforce judgements against the trust in various jurisdictions, the downside to this approach is that on the transfer of the trust to another jurisdiction the trust may not comply with the laws of that jurisdiction. If the trust is defeated by provisions within the legislation of that jurisdiction, the result will be that that jurisdiction would decide that the trustees hold the assets on resulting trust for the settlor himself, thus unwinding the protection. Examples where this could arise is that the use of the protective trust where a life interest is determinable on bankruptcy is valid in one jurisdiction (e.g. Ireland) but void as against public policy in another jurisdiction (e.g. England and Wales[16]); also the trust must comply with the local rules against perpetuities and accumulations. This also ignores the significant tax implications that most likely could arise on a trust exiting one jurisdiction and entering another.
Such provisions however will only protect the trustee in the trustee’s home jurisdiction. If he or the assets of the offshore APT should stray outside of that offshore nirvana or if the trustee himself holds assets in other countries, the trustee may find himself subject to legal proceedings, judgments and orders under a less kindly law. Therefore if the assets consist of Irish situate property and this property is transferred into an APT created in Belize, the creditors can still attack the assets in Ireland even though the Belize law does not recognise the attack on the trust itself. The trustee therefore needs to bear in mind that the trust can be subject to claims within its home jurisdiction and claims within any jurisdiction where the trust assets are located.
3.6 Transfer to spouse
The simplest and most tax effective way of protecting assets is to transfer them to a spouse, provided of course the client is comfortable with the spouse owning the assets solely going forward.[17]
The complexities arising from this approach would be
- What types of assets are most suitable for transferring? It would be sensible to transfer assets free of borrowings;
- Would the spouse also be vulnerable to being made a bankrupt? If the spouse is also in a business that is exposed to claims, are the assets moving from the proverbial ‘frying pan into the fire’?;
- If assets that are currently free of borrowings are transferred to the spouse, will these need to be used by the spouse to earn a living for the family and, if so, will the spouse have to enter into borrowings in her own right?;
- What about future divorce or separation? Marriages are put to considerable tests when financial difficulties arise.
Typically a client is usually comfortable in transferring the family home to his spouse provided he clears the borrowings off it in advance of the transfer. There is an element of resignation that in any future divorce the spouse would get the house anyhow!
3.7 Transfer to children
Another simple way to protect assets is to transfer them to a child or children (or in trust for them if they are under age 18).
The complexities arising from this approach would be
- The transfer will trigger taxes, unlike in the case of a transfer to a spouse;
- What types of assets are most suitable for transferring? It would be sensible to transfer assets free of borrowings;
- Will the child have to enter into borrowings in his own right? There is the same dilemma that if a good trading asset is transferred to the child but later that trade needs finance and the child would also enter into the spiral of borrowing;
- Is the child capable of managing the asset? Coming into assets at a young age can be intimidating or could set a child off on a spending spree!
In Part 2 of this article, we will address the legal issues that need to be considered in carrying out asset protection, in particular the restrictions imposed on its effectiveness by insolvency legislation and we will explore the taxes that arise on the creation, ongoing management and the winding up of the asset protection structures.
Disclaimer
The material contained in this paper is for general information purposes only and does not constitute legal, taxation or other professional advice. While every care has been taken to ensure that the information in this paper and related slides is accurate and up to date, you should seek specific legal and/or taxation advice in relation to any decision or course of action. No liability whatsoever is accepted by Aileen Keogan, Solicitor & Tax Consultant for any action taken in reliance on the information on this site.
[1] Section 111 Succession Act 1965
[2] Section 121 Succession Act 1965
[3] Section 117 Succession Act 1965
[4] Section 121 Succession Act 1965
[5] Section 74 Family Law Act 1995 and Section 75 Family law (Divorce) Act 1996
[6] If the transfer takes place within 3 years of the application for review of the disposition, the burden of proof is on the transferring spouse that the transfer was not made for the purpose of defeating a claim. If it takes place after 3 years, the burden shifts to the claiming spouse.
[7] Rahman -v- Chase Bank (CI) Trust Company Limited (6 June 1991)
[8] Section 44(4)(a) Bankruptcy Act 1988
[9] Or rather the beneficiary on behalf of the trustee who has the interest in pursuing this!
[10] the automatic change in status of the trust from a life interest trust to a discretionary trust triggers a disposal for capital gains tax purposes (as outlined in Part 2)
[11] Usually this would be done to avoid discretionary trust levies (see below)
[12] Again usually this would be done to avoid discretionary trust levies (see below)
[13] Brittle Bank -v- Goodwin 1864 LOR5 Eq 565, Spellson -v- George 1987, Scully -v- Southern Health Board 1991 4 All ER 563
[14] Chaine-Nixon -v- Bank of Ireland 1976 IR 393
[15] Brussels I – Council regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters (but does not apply to areas of civil law such as wills and succession). Brussels II and Brussels II bis– the Council regulations (EC) No 1347/00 of 1 March 2001 and 2201/2003 of 27 November 2003 on jurisdiction and the recognition and enforcement of judgements in matrimonial matters (Denmark excepted).
[16] Underhill and Hayton Trusts and Trustees 14 Edn at pg 155, note it is trust law not insolvency law that strikes it down
[17] There are widespread crude asset protection schemes such as the case in Canada where a husband, on the eve of bankruptcy, transferred his shares in the matrimonial home to his spouse alleging marital breakdown and thereupon obtaining a Family Court Order sanctioning the transfer. The next day he bankrupted himself, sure in the knowledge that the house was safe from his creditors! However since then the Canadian Courts have moved away from the protection from collateral attack of the Family Courts by the Bankruptcy Courts and have allowed for such a transaction to be set aside(1). The Australian courts however still appear to allow for such a method of protection. In Ireland this distinction does not arise as the fraudulent preference provisions of the Bankruptcy Act 1988(2) apply to transfers to spouses.(3)
1. Peake v Dashey #31/0434764 ON S.C. July 15 2009, also see STEP Journal Oct 2009
2. Section 59 Bankruptcy Act 1988
3. unless made before & in consideration of marriage, in which case separate provisions apply
