Cash shells in the Plus Markets Exchange in London

The PLUS Markets is a London based stock exchange aimed at small and mid-cap companies looking to raise capital and gain international exposure with a flexible regulatory environment compared to the traditional capital markets.

PLUS offers the same advantages of AIM such as the ability to raise funds, increase company profile and tax advantages for investors but with the added benefits of lower costs and a more flexible regulatory regime.

 

Cash shells are companies with a stock market quote, board of directors and money in the bank but no active business.

Generally set up as an „investment vehicle‟, the entrepreneurs and shareholders of a cash shell are looking for a business to fund.

Rather than going through the traditional Initial Public Offering (IPO), a company looking for capital is „acquired‟ by a cash shell, known as a „reverse takeover‟. A reverse takeover can be a quicker and more certain route to a public quotation compared to a standard IPO with the added benefit of a known quantity of available capital.

you can find more information about the Plus Markets Exchange on:

http://www.Braxton-co.com

Private Foundation in Guarnsey

Background

Much of Guernsey's economic success over past decades
has been largely due to its adaptability and flexibility to react
to changing market situations and conditions. This
adaptability is no better illustrated than by the Island's
willingness to amend and review legislation to ensure that it
retains its position within the increasingly competitive
market place of international finance and over recent years
there have been many examples of this.

Following the revision of the Guernsey Trust Law - which
was approved by the Guernsey parliament in July this year
and now awaits approval by Privy Counsel - the Island is
now planning to introduce legislation to allow the
establishment of Foundations. This innovation will add a
useful new tool to the Island's current financial product mix
and will help ensure that Guernsey remains able to offer a
highly flexible spectrum of financial services to its global
client base.

The Foundation

Foundations have been created under the laws of other
jurisdictions from as early as 1926 (Liechtenstein). More
recently Panama introduced legislation in 1995, Netherlands
Antilles in 1998 and the Bahamas in 2004. Foundations over
this period have become increasingly popular across the
globe but particularly in civil law jurisdictions where the
concept of the Anglo-Saxon Trust is less well known and not
always wholly understood. In certain situations Foundations
can offer a viable alternative to the trust for commercial
structures, estate planning and for charitable purposes.
Whilst there is no single definition of a Foundation, there are
a number of common features and some interesting
comparisons to be made with trusts and companies alike.

Unlike a trust, a Foundation is a distinct legal entity and has
its own legal personality. It can hold assets, sue (or be sued)
in its own name, may enter into agreements with third
parties but unlike a company it has no shareholders. Since
some Foundations are established for charitable purposes,
they may or may not have beneficiaries.

A Foundation is formed by a Founder (either an individual or
corporate body) who provides the assets to be administered
by the Foundation under contractual rather than fiduciary
principles – giving a degree of comfort to those clients
unfamiliar with equitable principles. Beneficiaries of a
Foundation therefore have contractual rights rather than
proprietary rights in its assets. A key attraction is the ability
for the Foundation to reserve powers to its Founder. A
Founder may retain more control than is usual with a Settlor
of a trust. Commonly reserved powers include those relating
to such issues as investment strategy, the appointment and
removal of beneficiaries or even the power to revoke the
Foundation.

The Potential Guernsey Foundation

It is proposed that a Guernsey Foundation would be
established by Charter and run by a Council responsible for
fulfilling the Foundation's purpose as defined in the Charter
– which would also include the Foundation's name, details
of all Council members its registered office (which would be
in Guernsey) and the Foundation's purpose.
tself may be quite generic - for example "estate planning", or
may be something quite specific. It is envisaged that at least
one member of the Council will be a corporate body. The
Foundation would be entered on the public register however
details of the beneficiaries (if any) would remain confidential
as with a Trust subject only to the pre-existing rules
regarding disclosure in proper cases.

The provision of Council members or administrative services
to Foundations will be, a regulated activity as are trustee
services at present ensuring that the interests of clients and
the reputation of the Bailiwick is upheld.

Over and above the Charter, there will normally be a set of
Rules governing the mode of operation for the Council -
whose members would be subject to duties similar to those
of company directors. Unlike the Charter the Rules would be
a private document and not on the public registry.

It is not proposed that a Guernsey Foundation will be
restricted in terms of the type of assets it can hold. Therefore
whilst it is not envisaged that they will be used for purely
commercial purposes, they will potentially be able to hold
shares in a company carrying on commercial activities.
Filing requirements are likely to be limited to changes in
registered office and Council members and changes to the
Charter all of which would need to be registered immediately
the changes occur. If this is the case it's unlikely that an
annual return be required. The filing of audited financial
statements would be subject to the same exemptions
applicable to Guernsey companies meaning many of them
would fall outside the audit requirement. This will ensure that
pricing can remain competitive.

It is also proposed that the tax treatment of Foundations be
similar to that of Trusts with Guernsey trustees.
A Foundation can also have an Adviser whose role would be
set out in the Foundation Charter and Rules. This is largely
similar to the role of Protector within a Trust structure both
having powers such as to appoint or remove Council
members and beneficiaries, or the Adviser's consent may be
required before the Council carries out certain acts.
It should also be possible for a Guernsey Foundation to
migrate to another jurisdiction if so required and equally for
a Foundation established elsewhere to migrate into the
Island, a long as it fulfils requirements under the Guernsey
legislative framework.

An interesting possibility is to establish structures using both
Foundations and Trusts. Private Trust Companies ("PTCs")
are very much in vogue. These are companies established
for the sole purpose of acting as trustee for one trust or, say,
one family. One issue that often concerns advisers is as to
the identity of those who will own the PTC. Often a purpose
trust is established to hold the shares in the PTC but as
Foundations need not have any beneficiaries it is possible
that they will be used as trustees themselves; a Private Trust
Foundation?

Conclusion
The introduction of Guernsey Foundations will offer the
Island's clients an excellent alternative structure assisting
with wealth management and will provide further choice and
flexibility to the Island's fiduciary sector.
The Foundation combines the flexibility of a trust with the
greater degree of transparency of a company. Given the
ability of a Founder to retain a certain amount of control and
the existing market demand for the Foundation structure
from civil law jurisdictions in particular, the Foundation can
only enhance the Island's competitive position in the market
place.


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http://internationaltax1.blogspot.com
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http://proteccionactivos.wordpress.com
http://proteccionbienes.blogspot.com

Hybrid entities and reverse hybrid entities

International tax planners often refer to "hybrid entities" and "reverse hybrid entities." 

From a U.S. tax perspective, a hybrid entity is an entity that is "fiscally transparent" for U.S. tax purposes but not fiscally transparent for foreign tax purposes.  In general, an entity is fiscally transparent if the entity's current year profits are currently taxable to the owners of the entity, regardless of whether the entity made any distributions to its owners during that year. 

 Partnerships are typically fiscally transparent entities.  Corporations are typically not fiscally transparent entities.  Limited liability companies and various types of foreign entities may or may not be fiscally transparent.

 Flexibility in international tax planning may be accomplished by the use of a foreign entity that is a corporation in its country of origin, but has the ability to check the box and elect its classification under Federal tax rules. This article presents a primer on establishing and planning for the use of such "hybrid" entities.

Final entity classification regulations--the "check-the-box" (CTB) rules issued in December 1996(1)--allow taxpayers to elect to treat most business entities (including foreign business entities) for Federal tax purposes as corporations, partnerships or (if the entity has one member) disregarded entities. While specified foreign business entities are excluded from the elective system and are treated per se as corporations, they are generally limited to publicly traded-type entities (e.g., U.K. PLCs, German AGs and French SAs; a list is contained in Regs. Sec. 301.7701-2(b)(8)). Despite the apparent restrictions imposed by the per se list, typically, at least one entity in any given country is viewed as a corporation under local law, but is eligible to check the box (e.g., the U.K. Limited Company, German GmbH and French SARL). Further, Regs. Sec. 301.7701-2(d)(1) grandfathered certain business entities on the per se list in existence on May 8, 1996, allowing them to retain their previous partnership or branch status. The CTB elective regime replaced the former four-factor approach under Regs. Sec. 301.7701-2 for classifying entities, which was cumbersome to apply and sometimes generated uncertainties, particularly for foreign entities.

The final CTB regulations ushered in a new era of flexibility in international tax planning for U.S. persons. However, IRS actions since the issuance of the final CTB regulations have eroded some of the rules' flexibility. This article will discuss establishing a foreign hybrid under the new CTB regime and planning opportunities.

For Federal tax purposes, taxpayers may elect to treat a foreign business entity as either a corporation or as a flowthrough entity, regardless of the foreign country's classification, if the entity type is not on the per se list. (An entity type on the list is automatically treated as a corporation for Federal tax purposes). Thus, a foreign entity taxable as a corporation in its country of incorporation can choose to be treated as a partnership or a branch for Federal tax purposes; such an entity is generally known as a "hybrid" Conversely, an entity classified as a partnership (or other type of flowthrough entity) in its country of formation or residence can choose to be treated as a corporation for Federal tax purposes; such an entity is generally known as a "reverse hybrid."

 A reverse hybrid entity is the "reverse" of a hybrid entity in that the entity is fiscally transparent for foreign tax purposes but not fiscally transparent for U.S. tax purposes.  Entities that are treated the same for U.S. and foreign tax purposes are not "hybrid" entities.

 The use of domestic reverse hybrids in cross-border financing continues despite the issuance by the Internal Revenue Service (IRS) of regulations designed to shut down abuses in the area. These devices, if structured correctly, may enable taxpayers to enjoy double-dip tax benefits with respect to interest expense and reduced withholding under US income tax treaties.

 

More articles about International Tax on

http://international-tax-lawyer.blogspot.com/

International law in Venezuela: the PE

International law in Venezuela: the PE

Court cases dealing with the notion of PE are virtually non-existent in Venezuela. The only example the reporters are aware of where there was a very limited reference to the PE concept was the Geoservices case.8 The case related to a controversy regarding the qualification of certain technical assistance payments for purposes of the Venezuela-France tax treaty. SENIAT claimed that the payments received by Geoservices Anonyme from technical assistance services rendered to its Venezuelan affiliate Geoservices SA should qualify as royalties under article 12 of the Venezuela-France tax treaty. Geoservices SA contested SENIAT's claim on the grounds that absent a special inclusion of technical assistance payments within the royalties definition of the treaty the technical assistance fees should be considered as business profits under article 7 of the treaty not subject to tax in Venezuela in the absence of a PE in the country. The court decided the case in favor of the taxpayer and concluded that the technical assistance payments were not taxable in Venezuela under article 7 of the tax treaty since Geoservices Anonyme did not have a PE in the country.

Unfortunately, the court failed to support the conclusion that Geoservices Anonyme did not have a PE in Venezuela with a reasoned analysis. However, the case could be interpreted as a ratification that under a standard PE definition the rendering of services per se should not create a PE for the taxpayer. Also, it should serve to ratify that SENIAT has the burden of proof to show that non-resident taxpayers have a PE in Venezuela.

Perhaps the most detailed analysis of the basic rule PE definition up to this date is contained under SENIAT private letter ruling no. DCR-5-8675-1350, dated 28 March 2001. The case dealt with the treatment of payments from an engineering, procurement and construction (EPC) contract between a Venezuelan partnership ( sociedad en comandita simple, which was the contractor) and a Venezuelan limited liability corporation (the client) (the Partnership ruling).

Although it does not expressly state so, the wording of the Partnership ruling is a clear indication that SENIAT followed the explanation of the OECD commentary, since the rationale is identical to paragraph 2 of the commentary on article 5, paragraph 1.

The partners of the Venezuelan partnership were a US resident corporation and a Venezuelan limited liability corporation. Under Venezuelan law, a partnership is subject to limited transparency rules under which taxable income is determined at the level of the partnership and thereafter the income is proportionately allocated between each partner on the basis of their participation. The matter under discussion was whether income allocated to the US partner was subject to tax in Venezuela under the USA-Venezuela tax treaty. SENIAT concluded that payments received by the US partner under the EPC contract constituted business profits under article 7 of the treaty. Consequently, the existence of a PE became the central point under analysis.

Upon analyzing all the distinctive elements of the PE definition, the Partnership ruling concluded that all the elements for a PE to arise were met since the activities of the partnership were carried out through material means, facilities and premises in a fixed geographical location, with a certain degree of permanence that was adequate to the activity being performed and with the possibility for the enterprise to avail itself of the elements necessary to properly perform its business activities.

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