PRIVATE CLIENTS RESIDENT IN CHILE

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1 PRIVATE CLIENTS RESIDENT IN CHILE BASIC ISSUES JUNE 2012 ARTURO GARNHAM

2 Index Basic tax rules. Types of tax deferral IT Systems and Privacy Credit Card Cases & LGT Bankers: Birkenfeld, Liechti, Schaffner & Weiss Tax Havens Tax Haven Defense Chilean Bank Secrecy & Exchange of Information New Tax Bill on Banking Information Chilean Tax Treaties & Exchange of Information Private Banking s Political Base

3 Basic Income Tax Rules First Level of Business Profit Taxation Business Profits/Corporate Tax 17% (proposed 20%) Second Level of Business Profit Taxation 35% Dividend Withholding Tax for non-residents Surtax Brackets Marginal Rate 40% for resident individuals, on profit distribution made to them. Integration of two levels of business profit taxation Corporate Tax Creditable Against 35% Withholding or Surtax. No local anti deferral rules No cross-border anti deferral rules (CFC)

4 Deferral is the name of the game Total Income Tax Burden: 35% for non-residents Up to 40% for resident individuals (intra-company dividend not taxed) Local Personal Holding Companies may shelter Chilean HNWI from the 40% marginal rate of Surtax. Offshore entities may shelter Chilean HNWI from Chilean income taxation. Surtax in the case of local income, and Chilean income taxation in the case of offshore income apply only on amounts distributed to HNWI for consumption.

5 Deferral Type 1 Foreign Holding Company Offshore Assets CLIENT Local Holdco Chile Abroad 17% Tax Rate at Holdco Level Fully Compliant Local Assets

6 Deferral Type 2 Foreign Holding Company Chile Abroad CLIENT Foreign Entity Offshore Assets Local Assets Tax Rate on Offshore Assets 0% Tax Rate on Local Assets 35% + In many cases non-compliant

7 Deferral Type 3 Dual Structure Foreign Entity Offshore Assets Abroad CLIENT Local Holdco Local Assets Chile Tax Rate on Offshore Assets 0% until distribution. Tax Rate on Local Assets 17% until distribution In some cases only local structure is compliant

8 Deferral Type 4 Local Holdco CLIENT Local Holdco Foreign Entity Offshore Assets Local Assets Abroad Tax Rate on Offshore Assets 0% until distribution to Holdco, then 17% (less available foreign tax credits). Tax Rate on Local Assets 17% until distribution to Client. Fully compliant

9 Chilean IRS went digital long time ago. e-tax filing Databases & Software E-Reporting to the Chilean IRS Banks, mutual funds, stock brokers, etc. Corporations, companies, employers, etc. Registrars, notaries, customs, police, etc. Bank secrecy weakened in 2009 Law Result? Information flows. BIG BROTHER KNOWS ALL.

10 Chilean Double Tax Treaties & Exchange of Information In force: Argentina, Belgium, Brazil, Canada, Colombia, South Korea, Croatia, Denmark, Ecuador, Spain, France, Ireland, Malaysia, Mexico, Norway, New Zealand, Paraguay, Peru, Poland, Portugal, United Kingdom, Sweden, Thailand, Switzerland. Signed (Congressional approval pending): Russia, United States, Australia. Negotiation Concluded: South Africa.

11 ESTATE & GIFT TAX MAIN PROBLEMS High marginal rate Strict Forced heirship rules. Gift tax applies with same marginal rates. Traditional Estate Tax Planning Techniques Paleolithic or Barbarian? Some Estate Tax Planning Tools currently in use Dissemination through wills ( inheritance tax ) Life Insurance Corporate reorganizations Is there some space for Trusts & Private Foundations?

12 ESTATE & GIFT TAX Chilean Estate Tax A Problem with Numbers: Chilean Business Profits Tax Revenue vs. Chilean Personal Tax revenue (Surtax). Chilean Business Profits Tax Revenues vs. Chilean Estate Tax Revenue. Why these numbers represent Immortality, tax exemptions or shrewd tax planning? Could Trusts be useful to solve this contradiction? Could Private Foundations solve the riddle?

13 ESTATE & GIFT TAX Trusts & Chilean Legislation Absence of Chilean Trusts Absence of institutions similar to Trusts Trust Characterization Chilean or foreign law characterization? Are all trusts the same vis-à-vis Chilean law? Should we use foreign law or foreign tax law? Settlor vs. Chilean Gift Tax Trustee vs. Chilean Gift Tax (or income tax?) Beneficiaries vs. Chilean Gift Tax (or income tax?)

14 ESTATE & GIFT TAX International Estate & Gift Tax Provisions General Rule: only the Estate of Chileans is subject to Tax No International Gift Tax Provisions. Same as Estate Tax? Does Chilean Gift Tax apply to: Assets located abroad when there is a Chilean party? Transactions entered into abroad when they affect, directly or indirectly Chilean assets or when the settlor, donor or beneficiary are Chilean resident or nationals? Deferred Gift? Deferred Inheritance? Is if possible for Private Foundations to solve these issues?

15 THANK YOU

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