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CANADA
INCORPORATING IN CANADA THE OFFSHORE
LEGAL OR ILEGAL? OFFSHORE IBC CANADIAN OFFSHORE INCOME Revenue Canada seems to be following the lead of the IRS with respect to offshore entities and transactions. Some of the reporting is tougher and some is not as tough but the intend is the same... they want to know everything. Ongoing Affiliated Rules Passive income earned by a foreign subsidiary is taxable in Canada to the Canadian parent on a current (accrual) basis whether it is paid or not to shareholders. This income is described as FAPI (foreign accrual property income). Active business income can still be earned by subsidiaries (if you can prove to Revenue Canada that it is a "real" corporation) and taxed at better offshore rates if 90% or more of its income comes from third party transactions. Active business profits earned by a foreign sub are taxed when profits are repatriated. Certain tax credits are available for foreign taxes paid and certain dividends out of surplus are tax free to the corporation (not individuals). In 1994, new rules extended the "passive income" net to include much of the "investment business". FAPI rules are complex in nature with Revenue Canada attempting to minimize the possibility of a firm being having "active business" and ultimately make it subject to the higher and current Canadian taxes. There are anti-avoidance rules particular to foreign subsidiaries when: Importing goods into Canada, insuring Canadian risks or holding Canadian debt. New Foreign Reporting Rules - you have an interest in foreign property totally more than $100,000 (this includes, shares, bank accounts, debts/obligations and real property except homes) (this excludes interest in foreign affiliates, active business property, RPPs RRSPs and RRIFs); Transfers or Loans to Non-Resident Trusts Distributions from a Non-Resident Trust Interests in Certain Foreign Property - funds or intangible property which are situated, deposited or held outside of Canada and tangible property situated outside of Canada; Not included are types of property used or held in the course of carrying on an active business and personal use properties. Interests in One or More Foreign Affiliates Finally... The Can-Offshore program has been designed for Canadians so that it follows the rules. With our program, assets are legally secure and may accumulate exempt from taxes and prying eyes. OFFSHORE INCOME What Are You Required to Report? The main impetus for the requirement to report specified foreign property that exceeds $100,000 was a growing perception that Canadians are able to escape Canadian taxation by making investments in tax havens. Canadians are investing offshore with increasing frequency and there are indications that some are not reporting their foreign income to Revenue Canada and are therefore, not paying tax on that income. This violates the basic principle that residents of Canada are taxed on their worldwide income. It also creates inequities for taxpayers who are reporting all of their income from domestic and foreign sources because they must shoulder a greater portion of the tax burden. Canada is not the only country facing this problem. In a recently released report, Harmful Tax Competition, An Emerging Global Issue, the OECD recommends that countries that do not have foreign reporting rules consider adopting them. The recommendation is aimed at introducing measures that will assist countries in obtaining information about the foreign activities of their residents, such as transactions with related foreign payers, the ownership of foreign property, and transfers to and distributions from certain foreign entities. The report pointed out that tax authorities require information in order to be able to administer the income tax system properly. Obtaining information concerning taxpayers' foreign activities is especially difficult because such information is often located outside a country's jurisdiction. The report went on to say that countries face public spending obligations and constraints because they finance outlays on, for example, national defence, education, social security, and other public services. Those who invest in tax havens that impose little or no tax but who are residents of non-tax-haven countries may be able to use those tax haven jurisdictions to reduce their domestic tax liability. Such taxpayers are in effect "free riders" of general public goods created by the non-tax-haven country. Many tax professionals are warning that there is a serious problem of non-compliance as a result of the use of tax havens and the underreporting of foreign-source income. This is occurring because taxpayers' don't understand their obligation to report worldwide income, they are creatively using transactions to avoid tax within the current rules, or they are evading their obligations by investing offshore with no intention of reporting the income. The departments of Finance and National Revenue maintain that they need information to be able to identify these situations and to enhance compliance with the requirement in the Income Tax Act to report worldwide income. Without the reporting requirement, it is very difficult for Revenue Canada to obtain this information. The law currently requires those who pay interest or dividends to Canadians to file third-party information returns with respect to such payments, thereby effectively disclosing taxpayers' investments to Revenue Canada. However, Revenue Canada has great difficulty compelling foreigners to file these returns. It therefore believes that the best way to obtain the necessary information is to require Canadians to report their foreign investments. Chronology of the New Rule Draft legislation and information returns to implement the 1995 Budget proposal were released on 5 March 1996. Following a consultation process that included taxpayers and tax professionals, several changes to the draft legislation were made. The legislation was included in a Ways and Means Motion introduced in the House of Commons on 5 December 1996. The legislation, part of Bill C-92, became law on 25 April 1997 when it received royal assent. Under the reporting requirements, Canadian residents must disclose to Revenue Canada information on certain foreign property where the aggregate original cost exceeds $100,000, any interests in foreign affiliates and certain transactions with foreign trusts. Some Canadians have objected to the requirement under section 233.3 of the Income Tax Act for Canadian residents to report specified foreign property over $100,000. On 2 October 1997, the ministers of Finance and National Revenue announced that the government was delaying the requirement to report specified foreign property over $100,000 from the first reporting date of April 1998 until April 1999. The other reporting requirements, however, remain intact. In the interim, the ministers asked the Auditor General of Canada to perform an independent review of the $100,000 specified foreign property reporting requirement. What Must be Reported Under the Specified Foreign Property Reporting Requirement "Specified foreign property" includes foreign bank accounts, rental property outside Canada, Canadian securities held outside Canada as well as investments in foreign corporations, trusts, partnerships and other foreign entities. Neither property used exclusively in an active business nor personal-use property have to be reported. Canadian resident individuals, corporations and trusts who own "specified foreign property" of $100,000 on an aggregate basis at any time in the year are required to disclose certain information about the property to Revenue Canada (the $100,000 threshold is per person, not per family). A partnership that is more than 10 percent Canadian-owned in terms of its entitlement to income must also file a return. The draft reporting form (T1135) requires the taxpayer to describe the foreign property, disclose its cost and whether any income was earned from the property during the year. An individual is exempted from the reporting requirements in the year he or she becomes a resident of Canada. This exemption is intended to allow new immigrants an additional year to familiarize themselves with Canada's tax system and to gather the necessary information to be able to comply with the reporting requirement. There are severe penalties under the legislation for failing to file the required information return with Revenue Canada or for making a false statement or omission on the return. Examples - The following are examples of situations where a taxpayer would be required to file a T1135 return: - An individual owns shares in a non-resident corporation with a cost amount of $75,000 and a bank account in the United States with $35,000 on deposit. The return should be filed as the total cost amount of all specified foreign properties owned exceeds $100,000. - A husband and wife have a joint foreign bank account and joint ownership of other foreign property. The total cost of the foreign property owned jointly is $180,000. The proportionate ownership of the foreign property will be based on the amount contributed by each person. If the contribution by either person is more than $100,000, then that person must file Form T1135.> - An individual owns shares in non-resident corporations with a total cost amount of $250,000. These shares are held by a Canadian stockbroker. As the cost amount of the shares exceeds $100,000, the shares should be reported on Form T1135 regardless of whether the shares are physically held inside or outside Canada. - An individual owns $200,000 in U.S. treasury bills. Indebtedness owed by a non-resident should be reported on Form T1135, even if the treasury bills are not held at year end. - A self-directed Registered Retirement Savings Plan that has over $100,000 in foreign securities, because a trust governed by an RRSP does not have to file Form T1135. - Units in a mutual fund trust that invests entirely in foreign securities where the cost amount of the units is $150,000. If the mutual fund trust is resident in Canada Form T1135 does not have to be filed. - A condominium in Florida with a cost amount of $120,000. If the condominium is personal-use property (used by the taxpayer or a related person primarily for personal use and enjoyment), it does not have to be reported on Form T1135. If the property is rented out with a reasonable expectation of profit, Form T1135 has to be filed. - A warehouse in England with a cost amount of $900,000 owned by a Canadian corporation and used to store its products for distribution. The corporation does not have to report this on Form T1135 because the warehouse is used exclusively for storing inventory used in the corporation's business. Foreign property that is used or held exclusively in an active business is not " specified foreign property" and therefore does not have to be reported. LOANS - ARE NOT TAXABLE INCOME Typically, if an Offshore IBC loans you money that creates a personal reporting requirement to check the box on T1 page 2. However, if a licensed bank makes you a commercial loan at market rates, according to s.80.4(3) there is no taxable benefit. So if you could find a flexible banker, willing to continuously loan you money, (like our Government borrows), fully secured by foreign capital, and self-paying, you can repatriate any amount of Offshore IBC capital on hand - as tax-free loans, forever. Why would anyone use a ATM cash card, and live in fear as a tax fugitive, when money can be repatriated in compliance? The answer is he can live with 3-5% fees, but not 35-45% tax. We can remove that risk using a bona-fide loan program. TAX FREE OFFSHORE LOANS CANADIAN LAW Anti-Trust legislation is strong in Canada; there is no tax motive for an Offshore Trust since 1998. Our lawyers designed the only Panama Foundation that is exempt from Canadian reporting regulations. You cannot personally report what is not legally yours, same as you cannot report your neighbour’s income. The key to our Charitable Panama Foundation is the absolute foreign ownership and control of the registered shares for the Offshore IBC. No way is possible for a Canadian to ever be a Beneficiary, so it cannot be argued because the Charter is irrevocable. This method does not rely on Privacy, instead it works within the s.233.3 regulations. PANAMA FOUNDATION STRUCTURES Private Offshore Foundation Package is the only Panama Private Foundation structure available that we know of on the market drafted specifically for compliancy to Canadian regulations to own an offshore IBC and be exempt from the foreign reporting rules. As part of this compliancy, the Private Foundation is completely foreign controlled and managed. Due to the care we have taken in drafting this Foundation structure (Canada has amongst the most onerous tax reporting provisions in the world) if you are American or Western European, this may also be the most suitable offshore structure available to you anywhere. Another benefit of the Legal Structure is that it also includes (on request) an offshore bank account for the Foundation, so that they are now 2 offshore bank accounts (IBC and Foundation) as well as our privacy oriented funding and money transfer methods included as part of the package. The bank account is opened so the Foundation is accepted as the beneficial owner of the account rather than your name, you are granted a Power of Attorney which does not equate to ownership or control. As you can see, Atrium has designed this structure for maximum control and estate planning abilities. With the drafting and additional features only Atrium provides in its' Foundation structure, it takes 1 week to set up from the payment date when shelf names are selected. For full detailed information about this structure, please click here. OFFSHORE ASSET PROTECTION TRUSTS FOR US AND When it comes to discussing offshore anything and US or Canadian citizens - from offshore trusts to investments, from offshore banking to company incorporation – it’s important to note the following facts: - US citizens are taxed on their worldwide income. This includes income from interest, dividends and gains whether onshore or offshore. - The US government allows money and assets to be moved offshore freely; however it requires full disclosure relating to the amount of money or assets moved and when they are moved. - The US government has task forces committed to the prevention of money laundering and tax evasion. - The US government makes it clear that US citizens must comply with all reporting and taxation demands. So, does this effectively render the offshore world inaccessible Offshore trusts offer an individual a fair degree of personal confidentiality, privacy and asset protection from claimants such as an ex-spouse or business client for example; and if properly structured, offshore bank accounts can offer degrees of financial protection from potential future claims as well. There are many companies and individuals who claim to be able to offer US citizens offshore solutions for taxation reduction or negation purposes. The bottom line is - as stated previously - US citizens are taxed on worldwide income. Therefore it is at best unlikely that the services being advertised will apply to a US citizen and at worst the opportunity will require the US citizen in question to break the law. So how can offshore asset protection trusts potentially benefit Whether established in an offshore jurisdiction or not, most assets protected by the given trust for a US citizen can remain in America. The assets usually remain under the indirect control of the Settlor (the person establishing the trust) as well. Such a trust will usually be “irrevocable” for a set term, and during that period the Settlor will not be a direct beneficiary of the trust. Depending on circumstances and best advice, many US asset protection specialists favour structuring offshore or foreign trusts in such a way so that they are taxed as domestic grantor trusts. If the trust is created properly, any creditor or anyone suing the Settlor will be unable to reach or claim the assets within the trust. If the offshore asset protection trust has been structured as an irrevocable trust for a set term, at the end of the term provided there is no current or ongoing threat, the assets can be returned to the control and direct ?ownership? of the Settlor. Conclusion At all times US citizens must be aware that it is their legal duty to comply with American taxation and reporting requirements. The purpose of effective offshore asset protection planning is the negation of any economic incentive to sue.
OFFSHORE INCORPORATION SERVICES FREE CONSULTANCY
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