How to Run Offshore Management Companies and Funds with Substance and Corporate Governance

Transcription

1 White Paper Series: How to Run Offshore Management Companies and Funds with Substance and Corporate Governance This white paper series by Laven Financial Services discusses how hedge fund businesses should run offshore management companies and funds with good corporate governance and resulting substance. The series aims to provide best practice guidance to fund managers with offshore business structures, which is also now a prerequisite to pass any compliance assessment in line with new regulations and due diligence for investors. Laven Financial Services is the Laven group s offshore consultancy servicing fund managers and their funds in Caribbean jurisdictions. Introduction 2. How Good Corporate Governance Can Help Mitigate Tax Risks Our last white paper (The Idea of the Offshore Management Company) discussed the reasons for setting up an offshore management company and touched upon some of the main elements of how such a company should be managed from an operational and fiscal point of view. We noted that to ensure the proper operations of the offshore management company and so as to keep it outside of the tax framework of the onshore entity, -- the offshore management company should have substance. This essentially means it should not operate as a so-called shell or a mailbox company. We also pointed out that the following factors are commonly considered by tax authorities with regard to what conduct is sufficient evidence that the central management and control of a company is in the country of incorporation and not onshore where some principals may be living: where the actual activities of the company take place; where meetings are convened and decisions for day-to-day operations are carried out; where the directors are tax resident or located normally; whether the directors operate independently or at the request of a person onshore; where the shareholders holding a majority stake are tax resident or located. This white paper will look in more detail at the operational practices that all offshore companies should follow in order to mitigate any tax risks.

2 Offshore Corporate Governance in Practice Under English or Swiss law - the leading hedge fund centers which we shall use by way of example - it is important that any offshore company has its central management and control in its jurisdiction of incorporation, or that this is at least not carried out from the UK or Switzerland. Central management and control refers to the board of directors or management committee of the company. This is relevant to many other countries, including France as evidenced in the case studies included in our previous White Paper. Should the tax authorities deem that the central management and control of an offshore company is actually being undertaken in or from onshore, the company may become liable to relevant onshore tax. Directors The company should consist of a board with non-onshore based directors. If this is not possible, then at least a clear majority of the directors of the company should be offshore persons. If a majority of directors are however onshore because of reasons of convenience (e.g. time zone), then it would be pertinent that they are not in the same country so that the domicile of the relevant company remains where it was intended to be. Further, if there is an onshore director, it is best that they are not appointed as chairman of the board as often the chairman will have a casting vote or some overall authority which should not be brought onshore. It should also be noted that there are usually no specific rules under any law in relation to these general principles and therefore the approaches taken by tax authorities are on a case-by-case basis, and very much dependent on other factors as further discussed below. Board Meetings In general, the number of board meetings should be at the very least four per year to give any sense of actual commercial work being carried out. It is recommended that the agenda and minutes for the board meetings are prepared and distributed from offshore and should not be prepared under the direction of an onshore person or director. It is imperative that board meetings are convened outside the onshore jurisdiction and that they are a genuine forum for discussion. In general, the types of discussions and decisions the directors should make include, but are not limited to, the following: the declaration of dividends; the approval of accounts; the appointment of a director, banker, auditor, advisors, agents and if relevant, senior employees; the company s strategy and a review of financial performance, including clientele (in the case of the hedge fund industry, typically therefore the fund, or other managed accounts); the review of and entry into substantial transactions including but not limited to reviewing negotiation, funding, final approval of documents, authorising execution of documents and reviewing profitability of the relevant transaction;

3 the disposal of assets; and the repayment of borrowings at the end of a transaction. Each director should be furnished with all the relevant materials to reach an informed decision on the business to be discussed at the meeting. If there are onshore directors, information (such as invoices from service providers) must not be sent to their onshore addresses and cannot exclusively be provided to them as this can be construed by tax authorities as evidence of control being exercised by the onshore directors over the other directors irrespective of whether the onshore directors are in the minority. The discussions of the meetings should be recorded in the form of minutes in as much detail as possible with supporting evidence of any discussions and decisions. Ownership of Voting Shares Depending on the general structure, the (voting) shares of an offshore management company are often held by another offshore company or trust, or an individual shareholder who is usually offshore domiciled. Onshore directors and persons may hold voting shares but this should be avoided as it will be deemed to add to the control that is exercised onshore. With regard to the UK, as of 1 January 2013, new rules on Controlled Foreign Companies were introduced which brought about the need for any UK businesses with overseas subsidiaries to understand the relevant legislation as it may now have a direct fiscal impact on the group overall. In short, the rules on Controlled Foreign Companies determine whether a non-uk company is controlled by a UK person/company (whether by virtue of legal, economic or accounting control) and therefore a charge should be applied on its profits.. Irrespective of this new law, for many UK based managers it is still common for UK resident directors to hold controlling interests in offshore companies that are linked to asset management responsibilities. This is probably very likely to lead to the UK tax authority to re-qualify the domicile of the offshore companies. In practice, this happens especially if all the other considerations demonstrate control from the onshore jurisdiction. Transfer Pricing Well controlled and exercised corporate governance should also include an assessment of transfer pricing, where relevant. Offshore businesses (e.g. offshore management companies) and onshore service providers (e.g. onshore sub-managers) that are connected parties (for example due to links of ownership and/or common management) will need to consider issues which relate to the value of the services provided from onshore to offshore. A documented assessment should be carried out for the purpose of determining a fair price for the services and in support of the transactions between the parties. This process should establish an understanding of what is market practice for similar services and to limit therefore any potential for queries by tax authorities in relation to the transactions.

4 Any assessment should respect the application of the arm s length principle prescribed in The Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations published by the Organisation for Economic Cooperation and Development (OECD). The OECD Guidelines provide that an appropriate method must be selected to evaluate the arm s length nature of intercompany transfer prices. These assessments should be well evidenced taking into account contracts of a similar nature, and should be done regularly as it would stand to commercially benefit an independent company in all cases. Specialist analysis skills and legal knowledge may help to carry out the assessment and demonstrate independence which is important. Offshore Operations beyond Corporate Governance In our introduction we also pointed out that one of the factors tax authorities consider is where the actual activities of the company take place. It is therefore clear that for a management company, what was covered above so far is not sufficient to operate and carry out its true business activities. A real management company would most certainly be expected to do more than organise four board meetings a year with offshore directors. In instances where investment activities are delegated to an onshore sub-manager (the case for most structures), a number of other operations can and should still be conducted by the management company. These may include liaising with service providers such as the administrator and the auditor, carrying out risk monitoring of the fund(s), and reviewing investment compliance. For example, if the administrator requires the NAV to be approved by a manager, this should be done by the offshore management company and not by the onshore sub-manager. It is also worth considering whether the management company is otherwise being managed like any other business, for example does it produce regular accounts which are reviewed and approved by management? In our experience, some offshore companies do not even have accountants, nor do they produce any financial records. Additionally, sometimes invoices for offshore companies, especially when it comes to their local onshore lawyers, are addressed by local lawyers to c/o the onshore company. This is a classic point of evidence that the offshore company is likely to be a shell. Such practice, without wishing to state the obvious, would not support the argument that an offshore company is resident in its place of incorporation. In terms of recent developments, the Alternative Investment Fund Managers Directive (AIFMD) entered into force on 22 July 2013 and introduced the Letter-Box Entity provisions which are relevant, for example, to structures where an offshore manager delegates certain activities to an onshore sub-manager. Where an offshore manager is deemed a letter-box entity, it can no longer be considered as the manager of the fund in question and would therefore not be compliant with the AIFMD. This may help the tax authorities determine that any income offshore justified through purported activities of management companies are no longer qualifiable as such. The tax authority will likely find Article 82 of the AIFMD a useful guide in determining what an offshore company should be doing. Our assessment of Article 82 thus far is that it makes it likely that all the sub-managers in Europe

5 will be AIFMs thus defeating the tax planning any will have had in mind when establishing asset managers offshore. In order to avoid becoming a letter-box entity, the offshore manager in question must: Have necessary expertise and resources to supervise the delegated functions and manage any associated risks; Retain the power to take decisions which are senior management s responsibility and perform senior management functions, e.g. implementation of investment policy and strategies; and Perform investment management functions and any delegated investment management cannot exceed by a substantial margin the investment management carried out by the manager itself. It is therefore clear that an offshore management company which wishes to be compliant with the AIFMD must have certain essential functions out of tax as well as regulatory necessity. Conclusion At the last G8 Summit in Northern Ireland in June 2013, the economic theme of the meeting was said to have been trade, tax and transparency. The beginning of the Summit saw 10 British Overseas Territories (including the Cayman Islands) sign a Convention on Mutual Administrative Assistance in Tax Matters and the Summit ended with an announcement by the G8 that said: Tax authorities across the world should automatically share information to fight the scourge of tax evasion. With the tightening grip of tax authorities around the world - some of which is legitimate - and now new regulatory requirements in relation to delegated activities, all hedge fund businesses should proactively assess their structures. The days where a company could have one offshore director without the need to care too much about corporate governance (not to mention operations) are gone. They went with Madoff and Weavering Capital - two cases of notable fraud with lax independence at the level of the offshore companies used. The days also went with the financial crisis and the G8 Summit in London that followed, which declared that its main aim was to increase tax transparency. Businesses are facing further tightening provisions from UK law, the AIFMD, and every G8 Summit since The changes should not be feared but rather embraced. At Laven, we feel that this is an opportunity to ensure structures are not only set up for fiscal reasons, but also that they underline strong ethics and a high-end risk management culture. This will lead some of the legitimate offshore managers (and there are many) to consolidate their affairs and, through the demonstration of a strong corporate governance culture and operational soundness, attract even more investors.

6 This white paper series on How to Run Offshore Management Companies and Funds with Substance and Corporate Governance is produced by Laven Financial Services, a consultancy providing substance and control services in the Caribbean across traditional hedge fund structures, such as management companies in the Cayman Islands and the British Virgin Islands. Laven Financial Services offers corporate governance, international compliance and operational support services, as well as directorships to offshore management companies. The series draws on the Laven group s experience in corporate governance and fund formation but also its expertise through compliance and tax specialists and operational due diligence consultants. The white paper series is also offered as useful guidance for any investors on how they may view corporate governance of offshore fund structures when carrying out any operational due diligence or manager selection. For more information, please visit Disclaimer This material has been prepared by Laven Financial Services Limited for informational purposes only and should not be construed as legal, tax or other professional advice. You should consult with your own independent legal, tax and other professional advisors before taking any action on the basis of this information. The information provided in the material is based upon sources believed to have been reliable by Laven Financial Services, but Laven Financial Services has not taken any steps to verify the accuracy or completeness of the information. Neither Laven Financial Services nor any of its officers, employees, agents, affiliates or advisers make any representation or warranty as to the accuracy or completeness of the material or are under any obligation, express or implied, to update the information to correct any inaccuracies it may contain or to reflect any changes that may occur in the future. This material is confidential and may not be disclosed to any person other than the intended recipient without the express written approval of Laven Financial Services. No part of this material may be (i) copied, photocopied, or duplicated in any form, by any means or (ii) redistributed, without Laven Financial Services prior written consent. August 2013 Laven Financial Services Limited All rights reserved, and all moral rights are asserted and reserved.