Who Needs An Offshore Corporation?
“The question I get more than any other?” Lief Simon asked the audience at his Global Asset Protection and Wealth Summit in Belize last week.
“That’d be: ‘What structure should I use?'”
“Right,” added attorney and fellow panelist Joel Nagel. “That’s probably my most frequently asked question, too.
“People make an appointment to see me, and then they show up at my office with a file folder in their hands,” Joel continued.
“‘I just came back from a vacation in the Cayman Islands,’ they tell me. They’re smiling. They’ve got nice suntans. And they’ve got these file folders…
“‘While I was there,’ they continue, ‘I set up this corporation. Now I’m wondering,’ they say, ‘what should I do with it?’
“I give them the only answer I can, which is: I have no idea.
“In almost every one of these cases, the client set up the structure because he thought it was a cool thing to do or somebody told him it was something he ought to do. His golf buddy at the country club has an offshore corporation, and he thinks he needs one, too.”
“Right,” Lief interjected, “when in fact, this should work the other way around. You should start with a purpose. Have a goal in mind first, then go out and find the structure and the jurisdiction that serve that purpose.”
Which gets to the real question:
Why would anyone want an offshore corporation?
One of the most common reasons to establish a foreign corporation is because you’re buying a piece of property overseas. A foreign corporation can be the best way to take title.
“I’ve bought real estate in maybe 25 countries at this point,” Lief explained, “and I own property right now in more than a dozen. Each purchase has been handled differently. Sometimes I’ve taken title in my own name, sometimes I’ve formed an entity to take title. Sometimes I use the same entity to hold a second or third piece of property, sometimes when making a new purchase I form a new entity.
“Why make it so complicated? In fact, my objective is to simplify. However, I’m balancing simple against two other overriding agendas—mitigating taxes and planning for probate.
“The piece of property we own in Croatia, for example,” Lief continued, “is held in our own name. This is for tax purposes. You have no capital gains tax liability in Croatia when you sell real estate you’ve owned for three years or longer, as long as the property has been held in your name. If it’s been held in a corporation, you are liable for capital gains tax whenever you sell.
“In other cases, holding a piece of property in a corporation is the best choice for local asset protection or local probate,” Lief told the group. “Again, it just depends. There’s no one-size fits-all structure strategy.”
“Yes, exactly,” Joel interjected. “Moreover, not only is there generally more than one right way to structure your holdings, but there are also, in every case, many, many wrong ways.
“In any conversation on this topic, there are competing agendas. The real estate agent you’re working with for a property purchase, for example, his agenda is straightforward. He just wants to close the deal. So he’ll recommend the quickest-possible way to take title. That won’t necessarily be the best way for you. What makes sense for you, as Lief suggested, is the strategy that balances tax liabilities with estate-planning and asset-protection benefits.”
“Here’s the place to start this thinking,” Lief picked up.
“Start by assuming that maybe you don’t need a structure at all.
“I have a great story for this,” Lief said, “that I’ve been writing about for a couple of years. The woman whose story it is got in touch recently to say that she was going to start charging me a royalty every time I retold her story.
“She was kidding, I think, so here goes…
“Years ago, this woman made a trip to Panama because her friends told she should check it out. Her friends also told her that she needed a Panama corporation…that she ‘had to have’ a Panama corporation. So, when she traveled to Panama for vacation, she set up a Panama corporation.
“I met her three or four years later at a conference. Her first question to me was, ‘What should I do with this Panama corporation I set up four years ago?’
“‘Dump it,’ I told her after talking through her current situation. She had no need for a Panama corporation and never had. Why pay the annual fees to keep it current? There was no point.
“Which is why, again, I say: Start with the goal. Have an objective in mind and then set out to find the structure and the jurisdiction that meet it. Don’t put the cart before the horse.
“I started doing this 17 years ago,” Lief continued. “I didn’t know a lot 17 years ago. I’ve learned by doing, which means I’ve made mistakes. I’ve got some structures I don’t need and some others that aren’t optimized. I’ve been working for the past few years to clean things up…to simplify.
“If I could go back 17 years and give myself one piece of advice, it would be this:
“Try to think long term. It’s hard when you’re starting out, and harder, too, the younger you are. With decades of living and investing ahead of you, how can you predict objectives or challenges? You can’t really, so you have to stick with the very big picture.
“Start by having a conversation with yourself, your spouse if you have one, and your attorney. Talk through what you’re most concerned about, what you’re trying to avoid, and what you’re trying to build. Are your heirs a priority? Or is your priority a concern over someone slipping on the stairs in one of your rental properties and suing you for everything they can get their hands on?
“Try to think as much of this through as you can from the starting line, especially when forming entities to hold property you’re purchasing overseas. It’s possible to retitle a piece of property, into the name of another or a new entity, but retitling comes at a cost. Transfer fees can range from 1% to 10%. It’s not as simple to retitle property overseas as it can be in the United States. And it definitely can get expensive…”
Kathleen Peddicord
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