This briefing is intended to provide a general overview of some of the factors to be considered by clients and their advisers in the establishment of a trust in BVI, Cayman, Guernsey, Jersey or New Zealand.
This briefing is accurate as at May 2008 and should not be regarded as specific legal advice applicable for any particular circumstances.
It is not intended to be comprehensive in its scope and it is recommended that a client seek legal advice on any proposed transaction prior to taking steps to implement it.
A series of detailed briefings on other connected issues and in respect of individual jurisdictions have been prepared by Ogier and are available on request.
Introduction to the Trust Concept
A trust is a legally binding arrangement whereby a person (known as a settlor) transfers assets to another person (known as a trustee) who is entrusted with legal title to the trust assets, not for his own benefit, but for the benefit of other persons (known as beneficiaries, who may include the settlor or for a specified purpose).
The terms and rules upon which the trustee is to hold the trust assets will normally be contained in a document called the trust instrument. This is for the benefit of all parties as it will ensure that the settlor, the trustee and the beneficiaries know precisely what their respective rights and duties are. The trust instrument will usually provide that the trustee has the power to manage the trust assets in accordance with the terms of the trust instrument and governing law of the trust.
In addition to the trust instrument it is also usual for a settlor to indicate to the trustee his wishes as to the future management and disposition of the trust fund in a less formal manner. His expression is often contained in a letter of wishes which, although not legally binding, will generally be considered by the trustee to be of persuasive effect when performing his duties (for example, considering whether to make a distribution out of the trust fund).
THE COMPONENTS OF A TRUST
Once a trust is created the settlor will have divested himself of legal ownership of the trust assets. The settlor may be a beneficiary and, in certain circumstances, he may also act as a co-trustee. The settlor may also retain a degree of control over the trust by reserving the exercise of certain powers to himself (or a third person), such as the power to approve distributions, the power to appoint and remove trustees and the power to revoke the trust. However, it is essential to the validity of a trust that the settlor actually dispossesses himself of the trust assets and he may not for example simultaneously be a sole trustee and a sole beneficiary.
Legal title to the trust assets is vested in the trustee under the obligations imposed by the trust and he is responsible for the administration of the trust. A trustee must act with due diligence, as would a prudent person, to the best of his ability and skill and must observe the utmost good faith. A trustee must exercise his powers solely for the benefit of the beneficiaries. The trust assets, however, constitute a separate fund and do not form any part of the trustee's own estate.
The beneficiaries are the persons entitled to benefit from the assets held on trust. As stated above, the settlor may himself be one of the beneficiaries. In order for a trust to be valid there must generally be sufficient certainty as to the identity of the beneficiaries. An express power for the addition of further persons to the class of beneficiaries may, however, be included in the trust instrument. The beneficiaries may enjoy equal or unequal benefits, as the trust instrument prescribes or, in the case of a discretionary trust, as the trustee may determine.
It is also possible to include in the trust instrument a power to exclude beneficiaries from future benefit.
The Trust Fund
The assets constituting the trust fund may be of any type of movable or immovable property (with certain exceptions in particular jurisdictions, for example land in Jersey cannot be held by a Jersey trust). At any time after settlement on trust of the initial assets further assets may be added. Indeed, a common arrangement is to establish a trust with a nominal initial amount and subsequently to add more substantial assets.
It is not essential for the validity of a trust that there be any protector. However, in order to counterbalance the wide discretionary and fiduciary powers conferred on a trustee it is often found useful for the settlor to appoint a trusted friend or professional advisor to act as a protector of the trust. In such cases the consent of the protector will generally be required before the trustee may exercise certain strategic powers under the trust instrument.
FORMS OF TRUST
Various types of trust have been developed over time and the most appropriate structure for the settlement will depend on the settlor's particular circumstances and objectives. Some of the more common types of trust are described below.
Fixed Interest in Possession Trust
Under the fixed interest trust the principal beneficiary will normally be granted a vested interest in the income of the trust fund throughout his lifetime and the discretion of the trustee regarding the disposition of the trust fund will be limited. For example, the trust instrument may specify that the trustee is required to distribute all of the income of the trust fund to a particular individual during that person's lifetime and subsequently to distribute the capital of the trust fund in fixed proportions to named beneficiaries (such as the settlor's children).
Accumulation and Maintenance Trust
An accumulation and maintenance trust is one where no beneficiary has a fixed entitlement to the benefits accruing to the trust for a certain period, during which time income is accumulated and becomes an accretion to capital. The persons who are ultimately entitled to the trust capital may thus benefit from the accumulation of capital. The trust instrument may give the trustee a discretionary power to make distributions amongst the beneficiaries up to a specific age for their education, maintenance and benefit and to provide thereafter for a designated share of the trust fund to be distributed to each child on attaining a specified age. An accumulation and maintenance trust may be particularly appropriate where the settlor wishes to benefit a group of children, for example, his grandchildren.
The discretionary trust provides maximum flexibility and is often the most efficient structure for both settlor and beneficiaries. Under the terms of a discretionary trust the trustee is given wide discretionary powers as to when, how much and to which beneficiaries he should distribute the income and capital of the trust. Such a form of trust is useful where at the time of creation of the trust the future needs of beneficiaries cannot accurately be determined. The beneficiaries are not regarded as having any direct legal rights over any particular portion of the trust fund but only a right to be considered to benefit when the trustee exercises his discretion.
Although for tax and other reasons it is generally desirable for a trust to be constituted as an irrevocable settlement, in certain circumstances the settlor may require the additional comfort of knowing that he has retained the power to revoke the trust and enforce the return of the trust fund. Careful consideration should be given to the possible consequences of a revocable trust because, under the jurisdiction of the settlor's domicile, residence or nationality, revocation may negate some of the expected benefits of creating the trust.
Charitable Purpose Trust
Generally, in order for a trust to be valid there must be identifiable beneficiaries. In brief, the onerous duties imposed upon trustees are owed to the beneficiaries and without ascertainable beneficiaries who may enforce these duties against the trustees a trust will not be upheld. A long held exception to this general rule has permitted trusts to be established in favour of charitable purposes. In such instances a representative of the state is tasked with the role of enforcing the trustee's duties and obligations.
Non-charitable Purpose Trust / 'STAR' Trust
Many offshore jurisdictions (including Jersey, Guernsey and the British Virgin Islands) have amended their legislation to permit the creation and enforcement of non-charitable purpose trusts, i.e., trusts in which property is held by trustees on trust to carry out specific purposes which do not qualify as charitable purposes. This new type of trust is often simply referred to as a 'purpose trust'. All the usual rules for trusts apply save in two respects. First, the trust deed must set out the particular purpose or purposes for which the trust has been established. Second, the trust instrument must provide for a person whose duty it is to enforce the trust in relation to its non-charitable purposes.
This person is called the 'enforcer' and must be a person different from the trustee or trustees. Although an enforcer may be likened to a protector, the role of an enforcer is essentially quite different. Non-charitable purpose trusts enable purposes which are not charitable in the strict sense but are, or may be, beneficial in a wider sense, to be fulfilled. However, important commercial advantages may also be obtained by the use of such trusts.
Cayman has gone further with provisions introduced in the Special Trusts (Alternative Regime) Law 1997 (now incorporated in the Trusts Law (2001 Revision)). "STAR trusts" (as they are known) may be established for non-charitable purposes but this can be as an alternative to, or jointly with provision for persons to benefit. The regime provides that no beneficiary under a STAR trust has any right to take court proceedings to enforce the accountability of the trustee or any right to be involved in, or informed about, the conduct of the trust and that all rights of that description are to be the exclusive concern of an 'enforcer'; a person or persons chosen by the settlor.
The Virgin Islands Special Trusts Act 2003 created a special trust (known as a "VISTA trust") in the British Virgin Islands which exists as an alternative to a non-charitable purpose trust. A VISTA trust is used purely for the holding of shares in a British Virgin Islands Business Company, and enables a trustee holding such shares to distance himself entirely from the management of the company in which the shares are held. Where the trust deed contains a provision enabling the application of VISTA, the trustee will hold the shares 'on trust to retain', and this duty will take precedence over any duty to preserve or enhance the value of the shares. The responsibility for managing the company lies with the directors and the directors only (although the trustee may be given limited powers for appointing or removing directors and the trust deed can provide for circumstances when it will be required to intervene in the trusts). Such legislation circumvents the ongoing problem in other jurisdictions with regard to trustees' liability in relation to such high-risk assets as private family company shares.
USES OF OFFSHORE TRUSTS
The range of uses to which a trust may be employed is still being developed but flexibility and confidentiality are the principal advantages which a trust has over other legal forms designed to hold, preserve and transmit wealth. The trust concept has proved to be enormously adaptable and is widely used in financial planning.
Such is the flexibility of a trust that it would be impracticable to define its potential, however, some typical applications are the following:
Preservation of Wealth
Trusts may be used to preserve the continuity of ownership of particular assets, such as a business, within a family. By vesting legal ownership of the assets in the trustee, the relevant individuals may be able to continue to benefit from the assets, whilst avoiding fragmentation of ownership amongst a large number of second and third generation beneficiaries. The use of a trust avoids, on the death of a beneficiary, the risk of a share of assets becoming owned outside the family, and thus enables settled assets to be preserved intact for the benefit of future generations.
Where a settlor disposes of assets during his lifetime by settling them on trust, the trust assets will not form any part of the settlor's estate upon his death. This may enable a settlor to avoid forced heirship rules which may be mandatory under the laws of his domicile, residence or nationality and which would otherwise dictate the persons to whom and proportions in which a settlor's estate will devolve.
In Jersey specific legislation has been enacted to provide that where a person domiciled outside Jersey makes a lifetime transfer of assets to a Jersey trust no rule relating to inheritance or succession will affect the validity of the transfer to the trust.
The Guernsey Trusts Law has equivalent provisions relating to the validity of Guernsey trusts and lifetime transfers of assets to Guernsey trusts.
Cayman has enacted legislation to provide that no disposition of property to a Cayman trust shall be set aside because of foreign heirship rules.
BVI legislation has similar provision to the effect that no trust or disposition to a BVI trust shall be set aside because it avoids or defeats any right claim or interest conferred by foreign law upon any person by way of heirship rights.
The effect of a trust is to divest the settlor of ownership of the settled assets. Accordingly, upon the death of a settlor there will be no need to obtain a grant of probate or similar formalities in order to deal with the trust fund. A trust therefore provides an efficient vehicle for the transfer of beneficial ownership interests on the death of a settlor. Further, because the interests of a beneficiary under a discretionary trust will not constitute a separate asset, a trust structure may assist in the avoidance of stamp duty or inheritance taxes which would otherwise be payable on the death of a beneficiary. In addition, a trust can be used to hold shares in a company owning immovable property, rather than directly in the real property itself, with the effect of transforming characterisation of an interest from immovable to movable, which can present attractive opportunities for tax and financial planning. A trust may also be used to protect financially unsophisticated beneficiaries and to make financial provisions for the improvident.
Historically trusts have been established for the principal purpose of protecting assets from risk. In a modern context, trusts may be employed to hold assets in a secure and stable political environment. The use of a trust in conjunction with an underlying company can be used to convert an onshore asset into an offshore one and to interpose an additional layer of confidentiality in a chain of ownership. The use of the trust and company combination may also enable trust assets to be held in a jurisdiction which does not recognise the trust concept. Such an arrangement may be attractive to a lender for the purpose of obtaining security against assets. Trusts can also safeguard assets against strategic risks, such as confiscation or expropriation by the State in the country of the Settlor's domicile, residence or nationality. As a further protection, a modern trust instrument can provide for the proper law of settlement to be moved to another jurisdiction in the event of political or strategic emergency in the country of the trustee's residence.
Cayman has gone further in this regard. In 1989 the Cayman Islands enacted the Fraudulent
Dispositions Law (now the 1996 Revision). One of its effects is that a settlor who is solvent may create a Cayman Islands trust of property on terms that the trust property cannot be claimed by his creditors on his subsequent bankruptcy if more than six years have passed since the property was transferred to the trustee. It is essential that neither the trustee nor the trust assets are located in a jurisdiction in which the effectiveness of this law may be questioned. The law does not affect the principle that the settlor's own assets may be claimed by creditors on his subsequent bankruptcy so it is important the settlor should not retain any interest in or powers under the trust that might in turn pass to creditors. It is also important to preserve evidence that the settlor was solvent at the time any property is transferred to the trustee.
The variety of means to which a trust may be put in the commercial context has only been partly realised. Offshore trusts have been used for the following commercial purposes:
- as a unit trust for the collective investment of capital;
- in Eurobond issues, the interests of investors may be regulated pursuant to the terms of a debenture trust deed;
- in off-balance sheet transactions, the share capital of an 'orphan' special purpose vehicle will typically be held by a trustee under the terms of a charitable trust;
- in an inter-creditor agreement, the rights of one creditor group may be subordinated to the rights of other creditors and regulated under the terms of a subordination trust forming part of the overall security package;
- asset securitisation schemes have been structured to provide for mortgages and receivables to be held pursuant to the terms of a trust; and
- employee share option and executive incentive schemes (as well as regular pension schemes) will benefit from being established in a politically stable, fiscally neutral jurisdiction.
CREATION OF A TRUST
It is preferable for a trust to be created by the execution of a formal written instrument so that all parties will know exactly what their respective rights and duties are. Trusts created in writing may be either by an instrument signed by both the settlor and the trustee, or by a Declaration of Trust signed by the trustee alone. Following execution of the trust instrument a trust will come into existence upon settlement of the initial property, which may be supplemented later. Lawyers in the Ogier group are able to assist with preparation of all of the appropriate documentation.
CHOICE OF DOMICILE
POLITICAL AND ECONOMIC STABILITY
British Virgin Islands
The British Virgins Islands is a British Overseas Territory with a strong constitutional relationship with the UK. It is responsible for its own internal self-government, most notably in relation to taxation. The British Virgin Islands has an independent legal system based largely on that of the UK, with most law derived from English common law, and the final appeal remains to the English Privy Council. The economy is one of the most prosperous in the Caribbean. The British Virgin Islands has developed into a well-established jurisdiction for financial services as a result of the government's commitment to business.
The Cayman Islands is a British Overseas Territory and although a governor is appointed by the British Government there is a large measure of internal self-government. However, the British Government retains responsibility for internal security, defence, external affairs and the appointment of certain public officers, including judges.
The Cayman Islands has a well-developed and experienced court system which has been tested with large commercial cases, including the massive BCCI liquidation. The final court of appeal is the Privy Council in London and it is common practice for advocates from the U.K. to appear before the Cayman Islands courts on major litigation matters. Caymanian legislation dealing with commercial matters is specifically relevant to its role as an offshore financial centre and the general law is derived from English common law.
Guernsey and Jersey
Guernsey and Jersey do not form part of the United Kingdom. Each is a self-governing dependency of the British Crown. By constitutional convention established over some 500 years, each jurisdiction has complete autonomy in all matters of internal government, including taxation. The legal systems are separate but similar, derived in part from the customary laws of Normandy but strongly influenced by English law in company and commercial matters. The Judicial Committee of the Privy Council remains each jurisdiction's ultimate court of appeal.
Guernsey and Jersey's special constitutional position has been recognised by the European Union in a protocol (No.3) attached to the United Kingdom's treaty of accession to the European Union. The protocol provides that the Treaty of Rome shall apply to each jurisdiction only to the extent necessary in relation to the arrangements for the free movement of goods. Accordingly, European Union directives on fiscal harmonisation, financial services and company law do not have effect in Guernsey or Jersey, and, in this respect, the jurisdictions enjoy significant advantages over Luxembourg and Ireland.
New Zealand is located in the South Pacific, in a time zone 12 hours ahead of Greenwich Mean Time. With a population of over four million and a thriving and highly diversified economy, it is one of the leading nations of the Pacific rim region.
New Zealand has been inhabited since approximately 1100. The first recorded European habitation was in 1769. New Zealand became an English colony in 1840 and subsequently became fully independent and self-governing in 1947. It remains a member of the British Commonwealth and the English monarch is the head of state – represented in New Zealand by a Governor General nominated by the New Zealand government.
INTEGRITY AND REPUTATION
Each of Cayman, Guernsey and Jersey is a recognised jurisdiction for the purposes of the
Financial Action Task Force ("FATF") for its anti money laundering legislation.
The British Virgin Islands is a member of the Caribbean Financial Action Task Force ("CFATF"), a regional body which supports the policies of the FATF.
New Zealand is a member of the United Nations, the British Commonwealth, the WTO, the OECD and a number of other international organizations and supra-national bodies. Moreover, New Zealand has a network of modern double tax agreements with leading jurisdictions. Further, New Zealand is not "blacklisted" by the tax or regulatory authorities of any major jurisdiction. These factors distinguish New Zealand from the traditional offshore centres and are likely to make it attractive to those clients unable or unwilling to utilise such centres.
MODERN LAWS AND INNOVATIVE LEGISLATION
British Virgin Islands
With the introduction of the VISTA legislation, it has been said by leading practitioners that the British Virgin Islands has the most modern and coherent trust legislation globally. Policies and legislation have been developed in close partnership with the private sector, and as a result responds well to the needs of business and demonstrates a sophisticated and cutting edge approach.
British Virgin Island trust law is based predominantly on English trust law, but has developed beyond English law to permit purpose trusts, extend the perpetuity period and most notably to create the unique VISTA trust. Trusts in the British Virgin Islands are exempt from registration under the Registration and Records Act and trustees are exempt from any reporting and filing requirements, ensuring a high degree of confidentiality.
Trusts are protected by the requirement that companies carrying on trust company business must obtain a licence and conform to various requirements (with the exception of private trust companies which meet the criteria in the relevant regulations).
The local legislation relating to trusts is largely the result of a close partnership between the government and the private sector. This has enabled the Cayman Islands to keep ahead of its competitors with modern, cutting-edge legislation. As noted above, Cayman Islands law is derived from English common law. However, there are particular developments of the laws relating to trusts in the Cayman Islands which should be noted.
Although the trust developed in England gave settlors great flexibility in deciding how trust property might be applied and enjoyed, certain limits were established:
- a trust, with minor exceptions, could only be established for the benefit of person and not for the promotion or advancement of impersonal objectives;
- beneficiaries were entitled to be informed about the state of the trust property and the way in which the trust was administered by the trustee and, if necessary, to commence court proceedings to protect their interests;
- the duration or life of a trust was limited;
- trust property might in some circumstances be seized by the settlor's creditors, even if he were not a beneficiary, notwithstanding that he was solvent when the trust was created and that the trust had been created many years earlier;
- the extent to which the settlor might interfere in the administration of the trust once it was created was curtailed.
These restrictions have largely ceased to apply to Cayman Trusts as a result of changes in the law adopted by the Cayman legislature:
- trusts may now be established for the promotion or advancement of impersonal objectives (see the section on "Star Trusts" above);
- beneficiaries' rights to information and to take court proceedings may be excluded (see the section on "Star Trusts" above);
- in some instances, no limit no applies to the duration of a trust; where a limit still applies, a trust period of up to 150 years is now permitted;
- a solvent settlor may create a trust that cannot be attacked by his creditors after six years have expired, even though he is a beneficiary (see the section "Asset Protection Trusts" above).
- a trust which takes effect during the settlor's lifetime will not be treated as a will or invalid testamentary disposition; a settlor can reserve extensive powers or interests to himself or a protector or third party without jeopardising the integrity of the trust as an enforceable lifetime trust.
Legislation has strengthened Cayman trusts in other areas as well:
The choice of Cayman law as the governing law is conclusive and any questions arising in connection with the trust will be determined according to Cayman law and the application of foreign law is excluded. It prohibits the enforcement of a foreign judgment regarding a Cayman trust on the basis that it contravenes forced heirship laws because the trust concept is not recognised in that jurisdiction.
Cayman has led the way amongst the offshore countries with its innovative legislation which makes it a favourable destination for trusts. It is not a party to the Hague Convention which provides that parties to the Convention will recognise trusts which are more closely connected to states other than those chosen for the institution of the trust, the applicable law, the place of administration and the habitual residence of the trustees.
Further protection for the settlors and beneficiaries of Cayman trusts is provided by the Banks and Trust Companies Law (2003 Revision) which imposes minimum standards on commercial trustees and requires them to be licensed by the Cayman Islands Monetary Authority.
Guernsey and Jersey
While trusts have been established in Guernsey and Jersey for many years their operation is governed by modern, comprehensive statutes.
The Trusts (Guernsey) Law 2007 (the "Guernsey Trusts Law") (which updates the 1989 legislation) will come into force on 17 March 2008 and the equivalent Trusts (Jersey) Law 1984 (the "Jersey Trusts Law") is still in force having been updated frequently since its original enactment (together, the "Trusts Laws"). The Trusts Laws provide that a trust exists, and will be enforced by the courts, where a trustee holds or has vested in him assets for the benefit of a beneficiary, whether or not yet ascertained or in existence, or for a specified purpose. Both the Guernsey Trusts Law and the Jersey Trusts Law confirm that the trust assets constitute a separate fund and do not form any part of the personal property of a trustee. The Trusts Laws also impose fiduciary duties on trustees, regulate the administration of trusts and provide rights of beneficiaries. For example, any beneficiary has a legal right to force a trustee to act in accordance with the terms of the trust instrument and the relevant Trusts Law. Unlike the position in certain other offshore jurisdictions, Jersey and Guernsey trusts can be of unlimited duration.
Under the Guernsey Trusts Law a trustee or a former trustee is entitled to a statutory non-possessory lien over trust property in respect of all liabilities and expenses duly incurred in connection with the trust. This offers an alternative to the "chains" of indemnities commonly requested by outgoing trustees.
The Guernsey Trusts Law also clarifies the rules relating to the limitation period for breach of trust actions brought against a trustee and provides a maximum 18 year limitation period for all matters other than trustee fraud.
The performance of a trustee's duties will be enforced by the Royal Court of Guernsey or Jersey, if necessary, at the instigation of a beneficiary.
Both Guernsey and Jersey Courts will seek to ensure that a trust established under the relevant Trust Law is administered by the trustee in accordance with the provisions of the trust instrument and that Trust Law; thus providing a high degree of protection for both settlor and beneficiaries. Both Courts have an acknowledged proficiency in the law of trusts and the senior British Judges who sit on the Courts of Appeal provided added assurance to settlors and beneficiaries that litigation, while unwelcome, will be decided upon justly, fairly and with an expertise which may be lacking in less sophisticated jurisdictions.
There is no requirement under Guernsey or Jersey law to register trust documents with any governmental office or agency. This enables complete confidentiality of the trust arrangements to be maintained. Indeed, Guernsey and Jersey trusts may be established by means of a written declaration signed by the trustee alone without the requirement that the settlor appears as a party to the instrument.
The extension to Guernsey in 1993 and to Jersey in 1995 of the Hague Convention on the Recognition of Foreign Trusts has given further impetus to the expansion of trust services on the Island. Under this convention trusts which have been duly constituted under the laws of Guernsey and Jersey must be recognised by the signatories to the convention. At present these include the following jurisdictions: the United Kingdom, France, Italy, Netherlands, Luxembourg, Monaco, Malta, Switzerland, the United States of America, Canada, China, Cyprus and Australia.
Further protection for the settlors and beneficiaries of Guernsey and Jersey trusts is provided by the Regulation of Fiduciaries, Administration Businesses and Company Directors, etc (Bailiwick of Guernsey) Law and the Financial Services (Jersey) Law respectively, which impose minimum standards on commercial trustees and require them to be licensed by the Guernsey Financial Services Commission or the Jersey Financial Services Commission
New Zealand law can potentially offer some interesting opportunities. New Zealand trust legislation is modern and comprehensive. In addition, it provides expressly for a number of innovative statutory concepts (such as the role of "advisory trustee" and "custodian trustee" which can potentially offer the opportunity for the settlor or other parties linked to the settlor to have close involvement in the on-going operation of a trust).
British Virgin Islands
British Virgin Islands trusts will be exempt from all British Virgin Islands taxes provided that no beneficiaries are resident in the Islands and that the trust does not conduct any business or own any land in the jurisdiction.
There are no corporation, capital gains, income, profits or withholdings taxes in the Cayman Islands. Moreover the government may give an undertaking that no taxes will be imposed in the Cayman Islands for a fixed number of years. The period of the undertaking depends on whether a company, partnership or trust is used and will usually be renewed at the end of such period.
The Cayman Islands has no tax treaties and is committed to retain this status. There is no exchange controls; the local currency is tied to the U.S. dollar, which is freely accepted and used within the local economy.
Guernsey and Jersey
Where all of the beneficiaries of a Guernsey or Jersey trust are resident outside of Guernsey or Jersey respectively, the trust will be exempt from assessment both in respect of Guernsey or Jersey income tax on income arising outside the Island and income on bank deposit interest arising inside Guernsey or Jersey. For practical purposes, therefore, the trustee may make distributions out of a trust fund established in Guernsey or Jersey without any withholding or deduction for income tax. There is no inheritance, wealth, gift or capital gains tax or equivalent forms of indirect taxation charged on the creation or transfer of assets to a trust. In this respect Guernsey and Jersey trusts differ from trusts created under the laws of other jurisdictions, such as Bermuda and Liechtenstein.
New Zealand has a tax system for trustees and trusts which in practical terms is very similar to that adopted by leading offshore jurisdictions. New Zealand imposes no capital gains, inheritance, capital transfer, wealth, asset or similar taxes. New Zealand does not impose any income tax on a New Zealand resident trustee in respect of a trust provided that there is no New Zealand resident settlor or beneficiaries of the trust and the trustee receives no New Zealand sourced income in respect of that trust.
There is no requirement that the governing (or proper) law of a trust be New Zealand in order to use a New Zealand trustee to take advantage of the New Zealand trust tax regime described below.
The New Zealand trust tax regime focuses on the trustee and the settlor. It is the jurisdiction of residence of the settlor and the trustee which is significant. The governing law of the particular trust is not determinative.
Accordingly, if settlors or their advisors are more comfortable using a trust governed by the law of another jurisdiction with which they have more experience or which has particular features which are necessary or helpful for the particular case (for instance, Cayman, Guernsey, Jersey, etc), that governing law can be adopted without affecting the New Zealand tax position in any way.
GOOD COMMUNICATION AND ACCESS
The communications system in each jurisdiction is first class and the legal and financial service providers operate information technology systems on a par with those available in any other major financial centre.
The British Virgin Islands is connected by frequent flights to San Juan International Airport in South America, which has direct flights to the United States and Europe, and is well connected to the rest of the world via telecommunications. It remains of the same time of GMT-4 hours throughout the year.
The Cayman Islands are accessible by regular direct flights from London, New York, Chicago, Toronto, Miami, Atlanta, Houston, Tampa and Nassau, and remains on the same time (GMT-5 hours) throughout the year.
Located in the English Channel, Guernsey and Jersey are easily accessible by regular direct flights from London and other United Kingdom airports and are in the same time zones as the United Kingdom.
New Zealand is located in the South Pacific, in a time zone 12 hours ahead of Greenwich Mean Time.
Professional and Support Services
All jurisdictions have a large number of legal, accounting, banking and fiduciary service providers.
Recruitment is often made from the leading firms in the United Kingdom, Australia, New Zealand and Canada.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.