UK: The Use of Life Assurance in International Tax Planning

Over the years, tax practitioners have utilised a variety of corporate vehicles and fiduciary arrangements for the tax efficient structuring of their clients’ affairs. The common law trust is one such arrangement, which has been used extensively for many different purposes and comes in a range of guises, some more recognisable than others.¹ Although there are patent advantages in adopting the offshore trust structure² it does carry inherent weakness, and for some clients, these weaknesses can produce insurmountable obstacles. Furthermore, tax authorities are becoming increasingly accustomed to the mechanics of the trust concept (particularly when compared with even twenty years ago³), and an effect of this has been to render such vehicles transparent on the basis that the relevant tax administration simply does not recognise the trustees as the legal owners of the assets. In addition, an intrinsic scepticism on the part of tax authorities further weakens the protection which is often sought by the client.

Many trust structures exist solely for the purpose of avoiding tax; others simply act as a screen to conceal funds, relying on non-disclosure as a form of tax planning. This is dangerous practice in today’s environment, and the absence of any actual commercial substance may cause it to be insufficient to achieve the objective of minimising tax liability. The substance of an arrangement is now viewed as being more important than the form. This is the case in the United Kingdom, despite there being no strict doctrine of substance over form, whilst in many continental European countries this is a concept that has been integral to the legal system for many years.

However, the purpose of this paper is not to disparage the trust as a vehicle for structuring a clients’ tax affairs, but to identify weaknesses and to explore an alternative to the trust, which is accepted by the client, the tax practitioner and tax authorities around the world, as well as being in many ways more tax efficient and more likely to stand up to vigorous scrutiny. There are other long-standing alternatives to the trust, for example, the Liechtenstein Foundation (subsequently copied in Panama and the Netherlands Antilles) or the protected cell company (which has been widely used in jurisdictions such as Guernsey and now Mauritius). A great deal has been written about the use of such vehicles and their respective benefits; however this paper concentrates on the use of life assurance as a viable alternative to conventional corporate or fiduciary arrangements.

Weaknesses of Traditional Structures

Notwithstanding the Hague Convention on the Recognition of Trusts,⁴ trusts are frequently not recognised either from a legal perspective or tax perspective. This is particularly apparent in those European countries⁵ where the law is based on the Code Napoleon.⁶ The major issue, with respect to the recognition of trusts, is that civil law systems do not, in principle, recognise the difference between legal and beneficial ownership which is effectively the basis on which a common law trust is formed. This creates a number of complex problems:

• How can the client fully understand the concept of a trust if his legal system does not acknowledge such undertakings?
• Is it safe for a tax practitioner to advise on a structure which is vulnerable to attack on the grounds that the relevant tax administration does not recognise that the client has given away his assets to the trustees?
• Is the arrangement further weakened by the fact that the client remains the beneficiary to a structure he has created?
• If the legal system of the client’s home country does not recognise the trust what happens on their death? A client’s attempt to create certainty may instead generate difficulties for his family on his death.
• Is the use of a trust reliant on non-disclosure of assets and wealth and if so what are the money laundering consequences of this?⁷

Therefore on creating a trust, the civil law client may face the prospect of having created a structure which poses more questions than answers (unless he is involved in pre-emigration planning when the use of a trust may be appropriate). Rather than being certain that the trust will stand up to scrutiny, it is likely that such an arrangement will simply be deemed transparent;⁸ as would be the case for a UK domiciled and resident taxpayer placing assets into an offshore trust.⁹ The result of such attribution of foreign income and capital to domestic taxation under anti-avoidance provisions, together with the fact that many countries view trusts with suspicion (to varying degrees), is that trusts in many instances will be inappropriate for clients who wish to plan their affairs in a tax compliant and transparent manner.

The trust is often adopted as the ultimate holding vehicle within a tax driven structure: the trust will own shares in a holding company, in turn the holding company will own the various investments either directly or via sub-holding companies.¹⁰ This allows for dividends and capital gains to flow through the structure with little or no exposure either to withholding tax or domestic taxation.¹¹ As a result, "treaty shopping" has evolved whereby corporate entities are interposed between payer and recipient to take advantage of double tax treaties thereby reducing or even eliminating tax exposure. This practice is considered to be abusive in many countries¹² and the United States has countered this problem by revising a large number of its double tax treaties¹³.

It is essential that companies used as intermediaries, whether their function is to hold shares, license intellectual property or finance investments, have real substance and are not merely brass plate entities. In the 21^st century, shell companies with no substance or management and control, are of little use to tax planners. This creates a problem for the client because the question of where central management and control are taking place from is a fundamental issue. The "boomerang" effect will apply to tax those who are deemed to be managing and controlling the company if not the directors who may, it could be argued be merely nominees. Whilst the tax implications of this are outside the scope of this paper, they will be known to the reader, and all that needs to be said is that this is a situation that investors will want to avoid. The substance of a structure is a key feature which tax administrations look for when analysing a client’s affairs and the following questions are almost always relevant:

• Does the company have its own dedicated staff?
• Do those staff take the decisions of the company; if not who does?
• What are the commercial risks undertaken by the company?
• Do the directors have the requisite skills to manage the company’s affairs?

In many instances structures created do not have enough substance and, as a result, they are likely to be rendered ineffective. The result is that they are unsuitable for tax planning, or, if used, that there is an element of risk.

Many trust structures may also fall victim to the "attribution of foreign income" rules that have been introduced in the majority of developed countries. These rules vary but essentially they allow the profits of an individual, trust, or company to be taxed in the beneficial owner’s country of residence if these profits are earned by one of the above entities in a low or no tax jurisdiction, and in which the individual has an interest or control.

Life assurance offers an interesting alternative to the traditional holding vehicles described above. This may seem an unusual proposition on first consideration but the basis of life assurance is effectively the same as that for a common law trust in that the investor wishes to enter into a contract with the life assurance company to provide benefits for his family or chosen ones in the event of his death. The participants in this arrangement are similar to settlor, trustee and beneficiary.

Unlike the concept of a trust every legal system has rules relating to sale and purchase, i.e., contract law as well as the concept of risk. Insurance is the purchase by one individual or company of an undertaking from another to indemnify him in the event that certain risks occur. Life assurance is a form of insurance where the risk insured is the life of an individual ("the life assured") who is generally the policyholder. On the occurrence of the insured event, i.e. the death of the life assured, the policy matures and a sum of money becomes payable to the beneficiaries named under the terms of the contract. The premium paid by the policyholder is used by the insurance company to provide the beneficiaries with a specified sum in the event of death of the life or lives assured. Depending on the life cover required¹⁴ it may be necessary for the life company to re-insure the risk by using an element of the premium to buy additional cover,¹⁵ which may in any event be necessary to establish that the life policy is in fact a commercial arrangement and not simply a sham.¹⁶

The benefit of using life assurance products is that the investments made by the insurance company under the policy do not form part of the insurance companies’ own assets and are segregated from other policies written by the insurance company. Therefore the investor is guaranteed a great degree of security and asset protection.

Care is required in the contractual drafting of standard life assurance products to achieve the client’s planning objective as it is necessary to ensure that not only do they meet local insurance law requirements, but also to determine that the fiscal authorities of the country in which the client is taxed will recognise the life assurance policy as such, and not seek to classify it as an investment.

In addition to the premium paid by the policyholder being a single or multiple payment of cash, it may simply be an existing investment portfolio the policyholder has with his bankers. In such circumstances the portfolio is transferred into the insurance company’s name thus avoiding losses by having to liquidate the individual investment within the portfolio, with the bank becoming the custodian of the assets. The main benefit here for all parties is that the general relationship with the bank remains unchanged: the bank does not lose the client to another competitor, and the client’s relationship with the bank which may have developed over a number of years remains the same. Such policies would be considered as "wrappers" and are discussed below.

As mentioned above, certain forms of Life Policy allow the Policy to be used as a "wrapper" for general or specific assets, the latter being known as Personal Portfolio Bonds in the United Kingdom. Personal Portfolio Bonds allow the owner (or connected persons) to choose the underlying investment which may include a wide range of assets such as securities quoted on any recognised stock exchange, unlisted shares and offshore funds, cash/deposit funds, government bonds, unit trusts, investment trusts and OEICs.

It is therefore possible to construct a dedicated and segregated portfolio within the "wrapper" of a Life Assurance Policy. Of course, as above, the premium can simply be an existing investment portfolio with a bank, which will then become the custodian holding the policy assets. The sums insured will be paid out, by virtue of the life assurance element of the insurance contract, to the beneficiaries named by the purchaser, which can include an international trust.

The unique nature of the relationship between the life company, the individual and the contents of the life policy, allow this structure to be applied beneficially in a number of circumstances, including the following:

• As an alternative to a trust/company structure; thereby avoiding the attentions of the "attribution of foreign income" legislation discussed above.
• By using the wrapper of an insurance contract to make specific investments, issues such as management and control, beneficial ownership and substance are all overcome. With respect to substance the company making the investment will either be the life company itself or an investment company incorporated by the life company and held within the policy for this specific purpose.
• Many insurance companies are located in high tax jurisdictions, such as Ireland, which allows investments to be made taking advantage of relevant double tax treaties or the EU Parent/Subsidiaries Directive to reduce withholding tax on dividends and exposure to tax in general.
• Policy assets may be used as collateral.
• To benefit specific individuals. This is done, as explained above, either because the individual contracting with the Life Company may benefit, or through the use of a life policy of which there are specific beneficiaries.
• To transfer assets before arrival in a new country; again avoiding the attribution of foreign income legislation.
• To incubate assets and protect them from capital gains tax.
• To accumulate income in a tax-free environment. This is unlikely to be available in an offshore trust unless certain conditions are met (for example the creator of the trust is specifically excluded).
• To avoid restrictions of "forced heirship rules": these are in place in some continental European countries.
• To place wealth outside the reach of future litigants/creditors.
• To achieve confidentiality: ownership is usually not subject to registration requirements.
• To place assets in more stable jurisdictions.
• To protect against illegal sequestration.

The use of life assurance and its application in the realm of international tax planning is neither new, nor ground breaking. Indeed, life assurance has been used in the United States and in the United Kingdom (and is still being used) to a large extent, although the recent restrictions placed on the use of highly personalised bonds in the United Kingdom has significantly reduced their appeal. Despite this, the popularity of so-called international investment bonds (as distinct from Personal Portfolio Bonds), which have an element of life cover built in, and which can invest in pooled funds, unit trusts and so on, seems undiminished in the United Kingdom. The prospect of further legislation, aimed at reducing the benefits of these widely used policies may now be closer with the release of an Inland Revenue Consultation document, in April 2002, entitled "Offshore Funds".

The ability of United States taxpayers to structure their affairs in a tax efficient manner has been heavily restricted by far-reaching and extensive anti-avoidance legislation, leaving only a limited number of available options. However, life assurance contracts¹⁷ are widely used for tax planning purposes and are available to individuals who want to take out an insurance policy that is not fixed or guaranteed by the insurance company, but is a variable policy with a dedicated separate portfolio account. The insured therefore reaps the entire benefit from the growth in the portfolio, rather than the insurance company, where general portfolios are grouped together. Despite the insurance company’s status as the legal owner of the assets, they are not available for general creditor claims against the insurance company. Thus, asset protection is afforded where the insurance company is the legal owner but only to support the policy taken out by the insured.

The policy could be a variable annuity policy where a single premium of, say, US$1mn buys an annuity for life, and the income derived from the investment can be rolled up without tax¹⁸ and the capital pass on death tax-free to the family of the life assured. However, although a portion of the annuity is considered as principal, the balance is subject to ordinary income tax (not capital gains). Unlike the Personal Portfolio Bonds available in the United Kingdom, US policies are subject to diversification requirements so that one investment cannot make up the majority of the assets held.¹⁹ This means that the dedicated portfolio cannot have more than 55 percent of the account in any one asset, no more than 70 percent in two, 80 percent in three and 90 percent in four.

A single premium as above is not permitted under certain types of non-MEC (Modified Endowment Contract) policies, but instead the premium is spread over five years. With such a policy, besides tax-free capital passing on death, income can be taken out during the period of the policy as a partial surrender without tax. Moreover, unlike variable annuities, the capital would not be considered to be part of the insured’s estate on death, since the insurance company owns and controls the policy assets and has an obligation to pay the proceeds on death to the insured’s family.

Despite the diversification requirements (which may be overcome by the use of several individual holding companies to hold a specific asset), the use of life assurance in US domestic planning remains very popular.

The unique way in which Personal Portfolio Bonds (PPBs) as described above are taxed is set out in the Personal Portfolio Bond (Tax) Regulations 1999 (SI1999/1029).²⁰ Prior to the introduction of this new regime in 1998 Personal Portfolio Bonds were frequently used by UK domiciled and resident individuals for sheltering capital gains made on private company shares from UK taxation. The change was prompted by the Inland Revenue’s defeat, at the House of Lords, in the case of Willoughby v. Inland Revenue,²¹ further to which the legislation was altered, effectively rendering PPBs less attractive for UK taxpayers.

The effect of the changes introduced in 1998 is for a deemed gain to apply of 15 percent of the total premiums paid. This is treated as accruing at the end of the policy year (NB even if funds are put into the product for only one day and then removed, they count as premiums). The rate of 15 percent, which is a notional gain in the value of the policy regardless of the actual growth, is then charged at tax rates appropriate to the individual policyholder. Furthermore the notional annual 15 percent growth rate is cumulative. Therefore, in each subsequent year after the 1^st policy anniversary the gain will be charged at a rate of 15 percent of the premium paid for the bond, plus compound interest per annum for each of the previous years during the existence of the bond. Where more than one premium is paid, the premium paid for the bond and the compound interest are treated separately for each premium and aggregated.

The Willoughby case and the tax treatment in the United Kingdom of personal portfolio bonds are well documented and a detailed review here is not appropriate. However, it is interesting to see how the United Kingdom in particular has led the way in the use of highly personalised bonds only to see their demise. Despite this, the use of such insurance policies outside the United Kingdom as a substitute for a common law trust is very interesting in terms of the tax advantages that may be obtained.

I began this article by observing the weaknesses of the common law trust in the context of clients from civil law jurisdictions. The problems encountered include a lack of understanding of the common law ability to split legal and beneficial ownership through to the perceived inherent abusive nature of the trust. The fact that a trust has, quite often, no other purpose, other than to act as a tax exempt holding vehicle can create problems for the client. Concepts such as fraus legis and abus de droit mean that substance is a vital component of any structure if it is to succeed. The fact that an individual wishes to take out a life assurance contract on his life in order to provide for his family in the event of his death is very unlikely ever to be challenged on public policy grounds. The concept of insurance is universally recognised and is similar to concepts found in a trust relationship, i.e., an individual subscribes for a policy, whereby a single premium is paid to an insurance company, which then uses the premium to invest in specific assets, which will be realised on the death of the life assured to pay out to the beneficiaries of the policy. Thus it contains the features found in a trust relationship. The umbrella, so to speak, is not, however, a trust deed, but a life insurance contract.

The problem encountered by many individuals, their bankers and advisors in continental Europe, is finding a solution to issues raised when a trust is used. By taking an example whereby a trust is replaced by a life insurance contract, it is possible to identify the significant advantages of using this type of vehicle in international tax planning.

Mario, an Italian resident/citizen owns a portfolio of property investments the value of which is currently $1mn; however, the value of the investments could multiply dramatically. Mario and his advisors have considered using a common law trust created by Mario on which he would settle a sum of say $1mn. The settled sum would then be used to incorporate and capitalise a BVI Company, which would then acquire the investments from Mario at an arm’s length price, namely the current value of $1mn. This proposal has been rejected on the following grounds:

• the creation of the trust with a settled sum of $1mn gives rise to an Italian gift tax assessment;
• if the trust is not declared (so as to avoid the gift tax assessment) the structure provides no long-term legal solution to Mario and his family;
• the Italian tax authorities could attempt to pierce the trust and determine that Mario is in fact the beneficial owner of the trust assets and claim that nothing has changed except the legal form;
• any gains arising on the sale of the investments in the future could be attributed to Mario personally voiding the whole structure.

The alternative is for Mario to use the $1 million as a single premium to subscribe for a life assurance policy on his life with the aim of providing for his family in the event of his death. The single premium is used to purchase the portfolio of investments in a designated and segregated account within the insurance company. Rather than create a trust as initially suggested, Mario takes out the policy in his own name but subsequently assigns the benefit to an offshore discretionary trust. The insurance company is the legal and beneficial owner of the assets and provided Mario has no control over the investments within the policy, the income arising will be attributed to the insurance company. Further to this there is no inheritance tax on the death of Mario since the assets are not within his estate.

The general rule under Italian law is that income from life insurance policies is taxable on a receipts basis, i.e., when the benefit of the life insurance policy is received by the policyholder in the case of redemption, or by the beneficiaries in the case of death. The appreciation in value of the policy is not regarded as a taxable event until it is actually paid out. If the recipient is not a resident of Italy, then no Italian taxes will be due provided that the payer insurance company is a non-Italian resident entity, and the policy is not connected with an Italian permanent establishment of the insurance company.

In the event that the recipient is an Italian resident individual, the tax due will be levied at the rate of 12.5 percent. Thus, on the basis that the insurance company selected by Mario is not resident in Italy nor has a permanent establishment there, and because the beneficiary of the policy would be a discretionary offshore trust, then on the death of the life assured, i.e., Mario, in principle, no liability to Italian income tax would arise on the payment by the insurance company to the trust. Provided that the policyholder has no control over the assets within the policy, income arising from the assets, including gains from the sale of the investment, are to be attributed to the insurance company rather than Mario. Income arising from the assets within the insurance policy will be taxable in Italy only to the extent they are sourced in Italy. Since the assets are not legally or beneficially owned by the policyholder, or by the beneficiaries of the trust, no inheritance tax issues arise with respect to these assets. On the death of Mario payments made by the insurance company to the beneficiary of the policy (the offshore discretionary trust) will not be subject to inheritance tax either.

On the death of the life assured the policy matures and pays a lump sum death benefit to the trustees. The trustees may then distribute such funds to the beneficiaries. The taxable basis for income tax purposes as applied to Italian residents is determined by Article I, Income Tax Act which states that "personal income tax shall be based upon the possession of income, whether in money or in kind, falling within the categories indicated in Article 6".

If the trustees distribute the entire proceeds of the life policy as a lump sum to the beneficiaries, who are resident in Italy, it would appear that such distribution does not fall within any of the categories specified in Article 6 and as such cannot be considered to be income subject to Income Tax. This is based on the fact that the trust is an irrevocable discretionary trust and that the payment would not be related to any income-generating assets belonging to the beneficiary, nor any income producing activity by the beneficiary.

On the basis that the payment by the trustees to the beneficiaries does not constitute taxable income, the payments should be regarded as a gift by the trustee and under new legislation in Italy will not attract Italian gift tax.

The above example of the taxation consequences of a life insurance contract to own specific assets is not restricted to Italy, with similar treatment being afforded across Europe. However, it should be noted that in some jurisdictions the death of the life assured can give rise to a charge to taxation (which in some instances may be deferred by having the policy cover multiple lives assured as is common in the United Kingdom). This type of planning can be applied to an endless number of circumstances and is not restricted to portfolio investments alone. Trustees wishing to make a distribution to a beneficiary who ultimately wants to invest the funds in a new venture may do so by creating a single premium life policy (on their own lives or the life or lives of the beneficiaries) which then acts as the investment vehicle. The beneficiary has not received a distribution per se and the assets within the policy are clearly owned legally and beneficially by the insurance company. As a result there should be no tax consequences for the beneficiary to be concerned about. Individuals in high-risk professions whose ability to earn substantial sums of money is dependent on their well being may also find such structures attractive. An example of such an individual is a football player, who not only has the ability to earn significant sums of money as a footballer but also has the ability to earn even more by the exploitation of his image rights.

Many sportsmen, whose image rights are of potentially huge value, often use structures that are devoid of any commercial purpose or reality and exist solely to receive income from image rights in a tax free manner, and often rely on non-disclosure, putting the sportsman and his advisors at risk. In many instances it is left to the individual to arrange for his own insurance cover, which most prudent sportsmen will do. Therefore, by combining the commercial reality that torn knee ligaments may leave a football player out of action for a whole season if not longer, with the ability to bring within the same arrangement a structure whereby the assets, that is the intellectual property rights, of the player, are held in a tax neutral environment from where they can be exploited, is a powerful combination.

Of course the validity of such an insurance contract could be questioned. In the United Kingdom, as mentioned above, life policies usually have an element of life cover equal to 101 percent of the fund value. Whilst a requirement exists in only a handful of continental countries for an element of life cover greater than this, it is nonetheless possible that a tax administration could challenge such an arrangement on the basis that it is merely providing for a return of capital, there being no commercial risk taken by the insurance company. If however the element of life cover was increased to, say, 125 percent or even 150 percent, so that the life company had to use part of the initial premium to reinsure the risk, there is little doubt that such an arrangement is commercially real.

Whether the use of life assurance in international tax planning is an alternative to a common law trust, or as a holding vehicle for specific investments, there is no doubt that the benefits of such structures merit close consideration. In the current climate legislating on money laundering and tax evasion, structures with real commercial substance will be required and as such life assurance contracts which have a dual purpose, will become more and more popular in a wide range of applications.