Value through Wealth Planning - Key trends in taxation of private investors. Prof. Pierre-Marie Glauser

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1 Value through Wealth Planning - Key trends in Prof. Pierre-Marie Glauser

2 Introduction (1) Wealth Management & Taxes Funds are Not declared Declared No taxes due Tax planning not necessary Relevant tax topics : Exchange of information (double tax treaties) Criminal (tax) law Money laundering (FATF proposals) Consequences : Tax & criminal consequences for the clients Criminal consequences for the banks / wealth managers Taxes due Return after taxes relevant for the clients Tax planning crucial for wealth management Tax topics : Tax planning through legal means. Additional compliance work for banks (FATCA Rubik Saving Directive) 2

3 Introduction (2) Important Trends in Tax Planning for Private Banking: 1. Choose the right tax jurisdiction a. Tax residency and use of specific tax regimes b. (New) withholding taxes 2. Choose the right products a) Conversion strategies b) Deferral strategies. 3. Choose the right vehicle a) Trusts b) Foundations c) Offshore companies! Tax Law is national law Consider local (tax) qualification rules.! Tax authorities and Tax Courts frequently can requalify transactions (e.g. abuse-of-law Doctrine). 3

4 1. Choose the right Tax Jurisdiction (1) Distinction between: Unlimited tax liability: obligation to pay taxes on worldwide income/net wealth. In general: linked to physical presence in the country (concept of residency). E.g. in Switzerland: 30/90 days. US: linked to nationality. Exception: Domestic law (e.g. CH: foreign real estate exempted) or Double Tax Treaties. Limited tax liability: Tax limited to a specific (economical) presence in a jurisdiction Real estate Permanent establishments. Location of bank account is irrelevant! Change of residency of the tax payer can improve tax situation! 4

5 Choose the right Tax Jurisdiction (2) Distinction between: Ordinary income taxes: taxpayer files a tax return; tax authorities issue a tax bill. Taxes are due by the person receiving the income. Withholding taxes (WHT): taxes due by the debtor paying a specific item. WHT frequent on: Salaries Dividends Interests Royalties. 5

6 Choose the right Tax Jurisdiction (3) Double Tax Treaties (DTT): Overrules domestic law Functions as an allocation tool : which State can tax what type of income? Since 2010: opens broader possibility for exchange of information. Useful for: Avoiding double taxation Reducing double taxation on incomes taxed at source (dividends and interests). 6

7 Choose the right Tax Jurisdiction (4) Taxpayer can move to the most appropriate tax jurisdiction. Key factors: Asset allocation (real estate vs portfolio; capital gains vs other incomes; etc.). Source of income: withholding taxes in source country? Existing DTT? Etc. Age and type of activity: Active / non active Importance of inheritance taxes Tax systems in immigration country: Monaco UK Resident non domiciled system Swiss lump sum taxation Etc. 7

8 Choose the right Tax Jurisdiction (5) WHT can be due by the debtor: E.g. Swiss withholding tax: WHT due by Swiss company distributing dividends or by borrower paying coupon on bond. Location of bank account is irrelevant. Tax planning can be achieved by transferring the taxpayer and structuring investments properly. WHT can be due by the paying agent: interests paid by EU/Swiss banks to EU citizens are subject to the WHT linked to Saving Directive / Rubik. Location of bank account is important. To some extend (FATCA) nature of investments is relevant (e.g. US securities). Tax planning can be achieved by transferring the bank account. 8

9 2. Choose the right products Conversion (1) Capital gains and investment income. Payment made from (i) investment vehicle (dividend, coupon) or (ii) from a third party (buyer of shares/bond)? First case (i): generally speaking: taxable investment income (income tax and Swiss withholding tax if entity is Swiss). Exception: reimbursement of initial investment. For shares: nominal value and paid-in surplus if duly accounted as such. Second case (ii) capital gain. No withholding tax. Capital gains are usually taxed with privileged rates. In Switzerland: capital gains are tax free. 9

10 Choose the right products Conversion (2) Importance of converting investment income in capital gain: Sell shares before dividend distribution. In Switzerland: Investor realizes a capital gain. Buyer can recover WHT on dividends (and is not taxed if it is a corporation). Sell shares to issuing company (redemption) instead of liquidating the company. Sell bonds before payment of coupon or before redemption. But: this type of tax planning strategies is limited by Law and by antiabuse rules of the tax authorities. 10

11 Choose the right products Conversion (3) Examples of legal countermeasures (under Swiss tax law): Repurchase of shares is requalified as a dividend distribution if (i) shares are cancelled (redemption) or (ii) if company acquires more than 10% of treasury stocks. Sale of zero-coupon bonds is considered as a taxable income. Certain type of share deals can trigger a taxable income: Sale of a shelf company; Sale of a cash-rich company with subsequent distribution (socalled indirect partial liquidation); Sale of a company to a self-owned holding company. 11

12 Choose the right products Conversion (4) Example of anti-abuse rules (in Switzerland): Refund of (Swiss) withholding tax only if the person claiming refund is the beneficial owner of the relevant income (see recent case: Federal Administrative Court A-6537/2010). Coupon washing strategy: Non Swiss Investor D-day 1/2 days: sale of shares to Swiss Bank Swiss CO D-day + 1/2 days: sale of shares to investor D-day: payment of dividend Swiss Bank Bank is unlikely to obtain refund of Swiss Withholding tax as it will not be considered as the beneficial owner of the dividend! 12

13 Choose the right products Conversion (5) Insurance wrappers: Client invests in a life insurance. Funds are however invested by the Insurance Company in a specific bank account. Client can influence the investment strategy. If payment is qualified as insurance payment: different tax rates or even tax exemption. Allows to avoid inheritance tax? Allow to avoid withholding taxes (Swiss withholding taxes / Saving Directive) as the owner of the portfolio is the insurance company. But new trends: In certain cases: product considered as transparent: insured person considered as owner of the portfolio. Saving Directive: Discussion to include the insurance wrappers. 13

14 Choose the right products Deferral (1) Moment of taxation Moment of taxation can differ between products and tax jurisdictions. Example: Switzerland usually taxes the investor when he has a firm and irrevocable right to receive the income. Investor is better if he chooses: Growth shares instead of dividend paying shares. Bonds with low coupon (but beware zero-coupon rule). Etc. In Switzerland: most Investment Funds are treated as transparent entities. Income taxed when generated and not when distributed Capital gains are not taxed (under certain conditions). 14

15 Choose the right products Deferral (2) Use of non-transparent entities Use of non-transparent entities Allow to differ income taxation But triggers a (negative) conversion effect and Can trigger additional taxes (corporate income taxes) Beware effective management doctrine! Distributions = dividends Investor 100% Profit tax? Portfolio Company Portfolio: - Investment income - Capital gains 15

16 3. Choose the right vehicle (1) Main question (in Switzerland for Swiss residents): do the investor keep control (directly or indirectly) over the funds? Foundation or Trust 16

17 Choose the right vehicle (2) In case of transfer to a third party (trust / foundation), transfer of ownership is possible but (in Switzerland) is looked at from an effective / economical point of view: Settlor / founder is not a beneficiary of the trust / foundation; Trust (foundation) is irrevocable and discretionary; Tax authorities look at all documents (letter of wishes, etc.). Effective transfer Transfer is not effective (transparency) Transfer is treated as a gift (gift tax); Transferor does not need to report assets / income in his tax return; No inheritance tax. Transfer is not treated as a gift (gift tax); Transferor needs to report assets / income in his tax return; Inheritance tax upon death if vehicle becomes effective at this point of time. 17

18 Conclusion Important trend in private banking: increased importance of (legal) tax planning. Various tax planning strategies: increased complexity. Importance to consider domestic legislation. Significant differences are possible. 18

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