再Trust2/2, November 9th 2013 P64 (信託と基金)
The ゛vast majority゛of trusts in Jersey are discretionary, says Alan Binnington, president of the island's trust-companies association. New types of ownerless structure are being created all the time. A bill awaiting parliamentary approval in Luxembourg, for example, would create Fondations Patrimoniales (private foundations). KPMG, an accountancy firm, describes this to clients as a shareholder-less ゛orphan entity゛with ゛particularly attractive゛tax advantages. The beneficiary can be another foundation or trust. These discretionary structures lead a charmed life. For example, they gained a surprising exemption from the bilateral deals between Switzerland and other European countries that were supposed to flush out undeclared money. Some countries have begun to take a hard line. France has changed its law to treat all potential trust beneficiaries as owners for tax purposes - even if they never receive a penny. Under America's Foreign Account Tax Compliance Act (FATCA), which is to take effect next year, trusts will face many of the same Draconian reporting obligations as banks. The European Commission has proposed several amendments to its saving-tax directive, in a bid to close the loopholes that Mr Morris and others have identified. These could become part of the cross-border framework for exchange of tax information emerging under the aegis of the OECD. a rich-country think-tank. The new EU regime would reject the idea of ownerless assets, at least for trust managed in the EU and dependent territories (which make up most such arrangements worldwide). In effect, until the beneficiary received money, the original owner will be deemed to have retained them and be liable for tax. The trustee will be obliged to help enforce this. So far Luxembourg has been a sticking point. Its financial industry thrives on tax-friendly and secrecy. It says it will sign up only when Switzerland, Monaco and other non-EU European states agree to exchange information automatically. The Swiss are loth to do so unless Singapore (home to a booming trust industry) and other wealth-management centres sign up too. Customers in search of lax regimes can move elsewhere. But even the most ingenious legal arrangements are no use without a bank account. Proposed anti-money-laundering rules in the EU and America could make banks apply stiff ゛know your customer゛rules to trusts and foundations. Politicians and regulators continue to squable over the details, but the political push behind tax transparency is beginning to look irresistible. Together, the EU's directive amendaments and FATCA would amount to the biggest overhaul of the legal treatment of trusts and similar legal arrangements since trust law was first developed in the 12th century, for Crusader knights wanting to safeguard their assets while they were away in the Holy Land. The other side is short of champions.
