Private Client & Offshore Services updates

Guernsey

Contributed by Ogier
Harvey Weinstein and you: what employers should be doing about sexual harassment
  • Guernsey
  • March 01 2018

What started with complaints against an Oscar-winning film producer has led to a movement that has toppled government ministers and reduced much-loved figures from the entertainment world to pariahs. Although Guernsey may feel far away from Hollywood or Westminster, the issue of sexual harassment is just as real. So what should an employer do to protect its employees and its business from harassment?

The importance of trustee minutes
  • Guernsey
  • February 22 2018

In today's climate, in which professional trustees are held to increasingly high standards by regulators, courts and clients, it has never been more important for fiduciaries to record their decisions. A court's ruling may turn on the content of trustee minutes, and regulatory authorities are entitled to scrutinise all available evidence of a licensee's conduct in assessing its corporate governance and compliance with anti-money laundering and counter-terrorist financing legislation.

Anti-anti-suit injunctions
  • Guernsey
  • February 01 2018

An anti-anti-suit injunction is a relatively rare form of anti-suit injunctive relief granted by a particular court in order to stop a party from pursuing an application for an anti-suit injunction in another court. In a recent decision, the Guernsey Court of Appeal stated that "particular caution" should be applied in granting an anti-anti-suit injunction.

Funds litigation: Guernsey on map after £1 billion, seven-year case
  • Guernsey
  • December 21 2017

The Royal Court recently issued its judgment on what is thought to be the largest civil case in Guernsey's history. The decision has cleared a Guernsey investment fund that went into insolvency in the wake of the financial crash in 2008 of liability over its collapse. The scale of the case underlines Guernsey's position as not only one of the world's largest offshore finance centres, but also a venue capable of handling complex and demanding funds litigation cases.

Scope of powers for trustee in bankruptcy where concurrent domestic insolvency proceedings exist
  • Guernsey
  • December 07 2017

The recognition of the powers of an English trustee in bankruptcy in Guernsey is generally pursued either by way of a letter of request issued by the foreign court or an application via common or customary law. A recent decision examines the position – not previously encountered in Guernsey – of an application for recognition under common law in a situation where there were already désastre proceedings in Guernsey.


International

Trust protectors: reportable under CRS, but not under FATCA
  • International
  • October 20 2016

The Foreign Account Tax Compliance Act does not require reporting of US protectors who are not otherwise beneficiaries or settlors of the trust. In contrast, under the Common Reporting Standard (CRS) Implementation Handbook, protectors will now be reported to their country of tax residence. It is unfortunate that the CRS requires disclosure of trust protectors who contributed no money to the trust, have no beneficial interest in the trust and have no effective control over the trust.


Jersey

Contributed by Ogier
At a glance: guide to Jersey's new charity law
  • Jersey
  • May 17 2018

The next phase of the Charities (Jersey) Law 2014 was enacted on May 1 2018, allowing entities to finally register as charities under the law. The remaining provisions of the law are expected to come into force on January 1 2019, which will amend Jersey taxation legislation in relation to charities. This is an exciting opportunity for Jersey to reinforce and develop its status as a centre of excellence for philanthropy both in private wealth management and impact investing.

Disability to be a protected characteristic under Jersey discrimination law
  • Jersey
  • May 17 2018

Effective from September 1 2018, the Discrimination (Jersey) Law 2013 will be amended to include disability as a protected characteristic. The amending regulations will give individuals the right to complain to the Employment and Discrimination Tribunal when they believe that they have experienced discrimination. While many employers and groups will be familiar with the way that the regulations work, they should be taking steps to ensure that they are compliant ahead of the implementation date.

Changes to JFSC codes of practice
  • Jersey
  • April 05 2018

The revised Jersey Financial Services Commission codes of practice came into force on March 21 2018. As a matter of urgency, regulated businesses should therefore review the changes to the codes and consider whether any new implementation measures are necessary. The changes to the codes have considered industry feedback and include both new and revised regulations to align Jersey with the Group of International Finance Centre Supervisors standard.

Generation games and avoiding family disputes
  • Jersey
  • April 05 2018

The use of private trust companies is becoming more common as a method of retaining family control through the generations. This, of course, all needs to be balanced against tax and reporting considerations, as well as practical ones. That said, however good the adviser, it is difficult to plan for family disputes; therefore, the main emphasis should be on maintaining flexibility so that the trustee can react to changes of circumstances and wealth passing through the generations.

JFSC Supervision Examination Guide
  • Jersey
  • March 29 2018

The Jersey Financial Services Commission (JFSC) recently published its Supervisory Examination Guide. The guide, which is effective immediately, gives a detailed overview of the supervisory examinations conducted by the JFSC. Examinations are a key tool used by the JFSC to detect and deter breaches of regulatory standards and improve compliance.


Macau

Contributed by Rato, Ling, Lei & Cortés Advogados
Macau payment services updates: legal implications
  • Macau
  • May 31 2018

Some critics have labelled Macau's functioning legal and financial framework as a legal impediment to financial innovation and change; however, it could be suggested that a number of recent actions – including the authorisation of one public company limited by shares to provide payment services in relation to bank cards and another to provide payment services via the Internet and mobile phones – may result in innovation in the industry as a result of the Financial System Act.

New instruction on dealer-operated electronic table games
  • Macau
  • January 25 2018

Following the end of Macau's gaming industry monopoly, dealer-operated electronic table games have assumed an important and decisive role in the Macau gaming market. Considering the development and increasing importance of this type of gaming product, the Macau Gaming Inspection and Coordination Bureau recently decided that it was necessary to advance a new set of technical standards.

Macau Sino-Portuguese offshore activities
  • Macau
  • November 09 2017

Macau was previously bestowed with an offshore regime boasting a comprehensive list of 20 offshore activities. This initially attracted many businesses, but the allure was greatly reduced after the removal of 12 activities from the list. Just as many began to believe that offshore activity was over, Macau's mandate to become a commercial and trade cooperation service platform between China and Portuguese-speaking countries came into play.

Fiscal information exchange – update and enlargement
  • Macau
  • August 24 2017

The Legislative Assembly recently approved the legal framework for the exchange of fiscal information in order to align Macau with G20 and EU standards. Law 5/2017 expressly revokes Law 20/2009 and has standardised the exchange of fiscal information within the countries which are parties to the international conventions and treaties to which Macau is also a party. The law therefore aims to avoid double taxation and tax evasion.

Proposed changes to leasing regime under Civil Code
  • Macau
  • May 18 2017

Macau's legal regime for real estate rentals is set out in the Civil Code, with specific rules on rental prices. These terms are expected to be improved to cope with the reality of the market. According to the Legislative Assembly, the leasing regime reform provides for further protection and control based on the Civil Code and intends to enhance the local lease market with affordable rental prices.


USA

Contributed by Kozusko Harris Duncan
Establishing 'foreign' trusts in the United States
  • USA
  • May 24 2018

Trusts remain a flexible succession planning tool for families wishing to pass wealth to future generations in a responsible manner and can include philanthropic goals. The wealth-creating settlor wants to establish such a trust in a jurisdiction with well-established trust laws, a stable business environment, responsive and efficient trust officers and clearly stated comprehensive annual fees. When comparing jurisdictions, the United States should be included.

Overview (March 2018)
  • USA
  • April 05 2018

US citizens and US residents are subject to income, gift and estate taxes. Non-US persons are subject to tax on certain US income and property transfers. Advisers to international families must be able to recognise when a family member has come in contact with the US tax net and plan accordingly. This will often mean seeking advice from competent US tax counsel. Even if no tax is due, running the gauntlet of US reporting obligations requires specialised knowledge.

Completing and filing Form 5472 for foreign-owned US LLC
  • USA
  • February 01 2018

A limited liability company (LLC) created under the laws of a US state that is wholly owned by a single non-US person (a foreign-owned LLC) will be required to report transactions with its non-US owner and related parties to the Internal Revenue Service. Advisers to families with succession planning structures that use US foreign-owned LLCs should familiarise themselves with Form 5472 and determine whether the LLC has had any reportable transactions with its sole non-US owner or a related party.

Revised Forms W-8 clarify some FATCA issues – but not all
  • USA
  • November 30 2017

The Internal Revenue Service (IRS) recently released an updated Form W-8BEN-E and Form W-8IMY. Non-US entities should use these new forms when requested to certify their status under the Foreign Account Tax Compliance Act. Among other things, the new forms clarify confusion over which global intermediary identification number should be reported for the trustee of a trustee-documented trust.

Practical FATCA and CRS compliance for family trust structures
  • USA
  • September 07 2017

All over the world, financial institutions are collecting information on and reporting individuals associated with a family's succession planning trust structure. The family's interests are best served when the family office and professional advisers take a proactive approach to complying with the Foreign Account Tax Compliance Act and the Common Reporting Standard as they apply to each entity within the family trust structure.