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HALIFAX ESTATE PLANNING COUNCIL OFFSHORE TRUSTS WHAT STILL WORKS ? October 15, 2007 Pierre J. Dansereau, LL.L., MBA, TEP Royal Bank of Canada Global Private.

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Presentation on theme: "HALIFAX ESTATE PLANNING COUNCIL OFFSHORE TRUSTS WHAT STILL WORKS ? October 15, 2007 Pierre J. Dansereau, LL.L., MBA, TEP Royal Bank of Canada Global Private."— Presentation transcript:

1 HALIFAX ESTATE PLANNING COUNCIL OFFSHORE TRUSTS WHAT STILL WORKS ? October 15, 2007 Pierre J. Dansereau, LL.L., MBA, TEP Royal Bank of Canada Global Private Banking Senior Manager, International Services

2 Agenda  Trusts for asset protection  The tax rules dealing with non resident trusts  Review of planning in a Canadian context  Review of planning in a U.S. context

3 Definition :Special type of trust mainly designed to offer safety for assets transferred and their protection against creditors of the settlor or of the beneficiaries. In a sense, all trusts are asset protection trusts. Many jurisdictions offer trusts but only a few of them have instituted laws specifically dealing with asset protection, namely Bahamas, Barbados, Cayman Islands. Why offshore ? What is an Asset Protection Trust ?  Debtor-favorable foreign laws  Domestic laws do not apply  Definition of fraudulent conveyance may be different  Absence of a mutual assistance treaty (or limited)  Representation in a foreign court  Property of assets held offshore  Certainty that settlor can be a beneficiary  Probably tax-neutral

4 Where should the assets be located ?  Canadian real estate ?  Shares in a private Canadian company ?  Investment accounts in Canada ?  In the US ? “Such a trust would be most effective if the situs of the trust property is outside Canada and at least one of the trustees was resident in the jurisdiction where the trust is formed. If the assets remain in Canada, there is a concern that a Canadian court would permit the execution of a judgment against the offshore trust notwithstanding its jurisdiction.” Jack Bernstein, Aird & Berlis Preserving One’s Estate Using An International Trust

5 Why do they work ?  The creditor must win a judgment in Canada  The creditor must sue in the trust’s jurisdiction and hire a local lawyer  The onshore creditor must usually post a bond  Contingency fees are illegal  The lawsuit must be admissible under local laws  The creditor may have to re-litigate the whole matter  The creditor must prove the asset transfer was made with the intent to defraud creditors  Immediate protection if solvent when the transfer was made  Protection after 2 years (Bahamas) if transfer rendered insolvent and no offshore lawsuit to quash the transfer  Each creditor must sue individually (no class action)  Possibility of “moving” the trust *** Beware of third party liability Preserving One’s Estate Using An International Trust

6 The Old Non-Resident Trust Rules  Old section 94 deemed an otherwise NRT to be resident in Canada for tax purposes if: 1.The trust received a transfer from a Canadian resident AND 2.The trust provides for a Canadian resident beneficiary related to the contributor  Department of Finance’s focus was clearly on the residency of the beneficiary(ies)

7 The New Non-Resident Trust Rules  New proposed section 94 deems a NRT to be resident in Canada if, at year end: 1.There is a resident contributor OR 2.There is a resident beneficiary  Department of Finance’s focus now shifted to residency of the contributor  Excludes exempt foreign trusts  Very limited grandfathering

8 Definitions RESIDENT CONTRIBUTOR : Canadian resident for 5 years or more + contributor to the trust RESIDENT BENEFICIARY : Beneficiary resident in Canada whose interest is not contingent on the death of a person related to the contributor and there is a connected contributor CONNECTED CONTRIBUTOR : Contributor other than a person who: - Has not resided in Canada more than 5 years during his lifetime OR - Has resided in Canada more than 5 years during his lifetime and the contribution occurred more than 5 years (18 months in the case of a testamentary trust) after becoming a non-resident and more that 5 years before becoming again a resident of Canada CONTRIBUTION : at any time, transfer or loan of an asset without an arm's length indicator

9 The Foreign Trust will be Deemed Resident if… There is a resident contributor There is a resident beneficiary At the end of the trust tax year, a person resident in Canada and has resided here more than 60 months in total At the end of the trust tax year, a beneficiary resident in Canada whose beneficial interest is not contingent on the death of a person related to a contributor when there is a connected contributor (a contributor who resided in Canada more than 5 years during his lifetime and who was resident at any time in the 5 years preceding and 5 years after the date of contribution (10 year minimum timeframe)

10 What tax planning is left for international trusts ?

11 Canadian Based Planning

12 International Border Canadian Children Canada $$$ Non resident parents Rest of World International Trust tax benefit income/gains not taxed in Canada undistributed income added to capital no "resident contributor" no "resident beneficiary" discretionary distributions of capital can be made tax-free to beneficiaries Canadian Inbound Planning

13 International Border Canadian Family Canada $$$ Rest of World International Trust tax benefit income/gains not taxed for 60 months undistributed income added to capital no "resident contributor or "resident beneficiary" for the first 60 months $$$ discretionary distributions of capital can be made to the beneficiaries Canadian Immigrant Planning Immigrating client

14 International Border Canada Non-Canadian Family $$$ International Trust tax benefit $$$ Rest of World trust deemed resident of Canada (Canadian contributor) distributions of income and capital gains to non- resident beneficiaries are not entirely deductible so trust pays tax in lieu of withholding tax deemed disposition of trust assets when Canadian contributor dies if there are no Canadian resident beneficiaries; trust is then tax-free tax in country of residence of beneficiaries ? Canadian Outbound Planning

15 International Border Canada Canadian Children $$$ International Trust tax benefit Rest of World If trust funded less than 5 years after leaving, trust deemed resident if a beneficiary resides in Canada (unless a “successor beneficiary”) otherwise, income/gains not taxed in Canada because there is no "resident contributor" or "resident beneficiary" undistributed income added to capital capital distributions made tax free Tax to the non-resident settlors ? Canadian Emigrant Planning Emigrating parentsNon resident parents

16 Tax Planning - Dead Created ByBeneficiariesName 1CanadiansNone or CharitiesPurpose or "Red Cross" Trusts 2Canadians CCPC Barbados Freeze Trusts

17 Tax Planning - Alive Created ByFor BeneficiariesName 3Non-Residents (deceased or living) CanadiansPure Inbound Trust 4New CanadiansCanadiansImmigration Trust 5Former CanadiansNon-ResidentsEmigration Outbound Trust 6Deceased CanadiansNon-ResidentsNon-Canadian Testamentary Trust 7Cdns Moving to the US Drop Off Trust

18 Tax Planning - Breathing Created ByFor BeneficiariesName 8CanadiansNon-ResidentsPure Outbound Trust 9Former CanadiansCanadiansEmigration Inbound Trust 10Returning CanadiansCanadiansPost-Death Inbound Trust 11Canadians US Co Estate Freeze Trust 12CanadiansPurpose TrustHealth & Welfare Trust

19 Other Structures  Newfangled estate freezes  Foreign life insurance ?  Foreign funds ?  Foreign private banks ?  Foreign foundations/establishments ?  Foreign structures unknown in Canadian law ?  Disclosure  FAPI and foreign affiliate regimes  Proposed FIE rules  If not conservative, make sure risk fits client's tolerance

20 U.S. Based Planning

21 Concerns  High income tax rates but lower than Canada  Variable state, county, city taxes  Gift, inheritance and Generation-Skipping Transfer Taxes  Danger that client could at some point be subject to U.S. taxation as any U.S. domiciliary  Imperfect integration with Canadian tax system (recent Protocol alleviates some problems)  Trusts taxed quite differently  Grantor trust -vs- non-grator trust  US trust -vs- foreign trust  Complete gift -vs- incomplete gift trust

22 International Border U.S. $$$ Rest of World including Canada International Trust Avoids U.S. Gift and Estate Tax, GST Transparent for U.S. Tax purposes unless funded more than 5 years before becoming U.S. person $$$ No income tax benefit U.S. Long-Term Immigrant Planning Immigrating client

23 International Border U.S. $$$ Rest of World including Canada Avoids U.S. Gift and Estate Tax, GST Transparent for U.S. Tax purposes unless funded more than 5 years before becoming U.S. person $$$ International Trust tax benefit Universal Life: accumulation tax-free, borrowing tax-free, proceeds tax-free U.S. Long-Term Immigrant Planning Immigrating client Variable Universal Life Policy

24 International Border U.S. $$$ Rest of World including Canada International Trust Avoids U.S. Gift and Estate Tax, GST Transparent for U.S. Tax purposes unless funded more than 5 years before becoming U.S. person have trust invest in deferred annuity: tax-free accumulation while in the U.S., no exit tax when leaving, cash in once out of U.S. tax net U.S. Temporary Residence Planning Client Leaving for U.S. Temporary U.S. Resident Deferred Annuity

25 International Border American Children U.S. International Trust $$$ Non resident parents Rest of World annual income not taxed in U.S. pecuniary distributions made tax free excess income taxable when distributed 3 pecuniary distributions to specified beneficiaries or distributee trusts U.S. Inbound Planning

26 Thank You !

27 RBC Contacts Mr. Pierre J. Dansereau Senior Manager, Int’l Services RBC Global Private Banking 1, Place Ville-Marie 6th Floor, East Wing Montreal, Quebec H3B 1Z5 Tel.: FAX: 514: RBC Private Bankers (Atlantic) Ms. Peggy Gates-Hammond Ms. Heidi Hogan Mr. Sylvain Levasseur Ms. Lynne Simmons

28 This presentation does not represent or replace a comprehensive financial plan or represent any type of financial planning service. The strategies, advice and technical content in this presentation are provided for the general guidance and benefit of our clients, based on information that we believe to be accurate, but we cannot guarantee its accuracy or completeness. This presentation is not intended as nor does it constitute legal or tax advice. Readers should consult their own lawyer, accountant or other professional advisor when planning to implement a strategy. This will ensure that your own circumstances have been considered properly, and that action is taken on the latest available information. Interest rates, market conditions, tax rules and other investment factors are subject to change.


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