G8 proposals on beneficial ownership - how the wheels came off for David Cameron

After all the hype, what really was agreed by the G8 regarding tax and transparency?

David Cameron went to the summit all fired up to crack down on tax cheats, and made the creation of public registers of beneficial ownership one of his cornerstone aims.  The rhetoric in the British press on the subject of tax avoidance has become so toxic (not to mention inaccurate - of which more later) that only a few brave souls dare mutter anything in opposition to the ever more strident calls for "something to be done" - no matter how bonkers the proposals or how inaccurate the information on which they are based.  

So it might have come as something of a surprise to the PM to find that not all of the G8 members were on the same page as him at all.

Russia, Canada and the US all opposed the idea of public registries of beneficial ownership.  And quite right too.  Having a register which is available to tax authorities or government agencies is one thing, but what on earth is the justification for giving every Tom, Dick and Harry who is nosey enough to look, details of people's private affairs?  What business is it of my next door neighbour what assets I own?  Since when did the UK become a country which decided that a legitimate right to privacy was not something we cared about?  This surely is a step too far and one which I am pleased did not get rail-roaded through the G8.

You might think that Obama stood up to David Cameron on the issue in order to safeguard the right to privacy for his citizens.  But then of course he isn't exactly a champion of an individual's right to confidentiality - he has his own tricky situation to deal with back at home regarding the huge scale covert tracking of private communications which has recently come to light courtesy of a whistle-blower.  No, the reality is that the US is one of the worst offenders when it comes to facilitating tax avoidance and lack of transparency - Delaware has a tax avoidance business the size of which would make most people's eyes boggle, something with Obama often seems to forget when in finger-wagging mode talking about such dens of iniquity as Cayman and the BVI.  I suspect that protecting Delaware's competitive position had much more to do with Obama's stance at the G8 than the idea of standing up against a huge erosion of the rights on individuals to legitimate privacy.  But whatever his reasoning, at least it has helped prevent the David Cameron juggernaut from making such ill-thought-out changes.

So what did the G8 actually agree then? The final communique offered little more than support for an existing review being carried out by the Financial Action Task Force (FATF), which is certainly not wedded to the idea of a central register of beneficial ownership, and a statement that each G8 nation would  commit to their own "action plans" on this issue. The UK is leading the charge and has said it will  set up a central registry of beneficial owners, and will consult on whether this should be made publicly accessible.  The US, on the other hand, is to leave the decision on how to proceed to individual states - so don't expect  Delaware to be making changes any time soon. 

So the reality is that, despite the less than rapturous reception from the G8 members to the proposals, the UK is going to plough ahead and has brow-beaten the  British overseas territories into publicly supporting it.  Surely that therefore means that big changes are afoot for them and that their businesses?  Far from it.  Because in fact what the press tend not to report is that many of the offshore centres are far more proactive in this area than the onshore countries which like to preach on the subject. For example, Jersey already holds a central register of beneficial ownership of companies. The UK does not. In addition Jersey regulates those who form and administer companies and trusts, and requires them by statute to maintain up-to-date and accurate information on the ownership of those for whom they act.  The UK does not.  In fact, all the information held in the Island is available to tax authorities and law enforcement agencies on request - something which the UK cannot claim. The truth is that the move towards central records of beneficial ownership will be much more burdensome for the UK than for the majority of the British overseas territories. 

There is a legitimate and mature debate to be had about tax avoidance and transparency but at the moment it is not being had.  Instead we are getting knee jerk reactions and government policy being formed in response to tabloid headlines.  The quality of reporting is woeful - for a great example see http://www.jerseyfinance.je/ceo-blog/yes--we-have-no-bananas#.UcG_rue1x8E and the main protagonists are on the one hand moralising about tax avoidance and on the other hand promoting their own versions of it.  These are complex issues which need a much more informed and thoughtful debate than is currently being permitted.

EC Trust has licence revoked by regulator

EC Trust (Labuan) Bhd, a trust company which was more than 20 years old, has had its licence revoked by the Labuan Financial Services Authority, apparently for failures in the way the businesses was conducted.  Specific details of the failures have not been given.

The firm, which had 5 lawyers on its staff (3 Malaysian and 2 Australian) has had it's licence revoked with effect from 11th June and Peter Kent Searle has personally been disqualified from acting as a director.

KPMG has been appointed to take control of the business and all clients are being asked to make contact with KPMG as soon as possible.

Jersey's finance industry on the up

In what come as a surprise to many given the levels of anti-offshore rhetoric at the present time, it seems that Jersey’s finance industry is buoyant.

Data released yesterday showed that the value of funds under administration have reached a four year high, with the total NAV of funds under administration in Jersey showing a quarterly increase of 6.5%, to stand at £205.3bn. 

Bank deposits also grew for the second consecutive quarter – by £3bn, or 2% – to £155.1bn, although they still remain significantly below the 2007 peak.  It is thought that the Island may have benefited to some extent from the Cypriot banking crisis, with deposit-holders fearing that if they hold deposits in EU member states they could lose their cash in the event of a bank collapse.

Accountant successfully sued for £1.4 million for NOT advising client to avoid tax

I don't often have cause to feel sorry for accountants, but this week I have to express a twinge of sympathy for them.

Over the last couple of years the accountancy profession has been trying to adjust to a “new morality” which seems to be sweeping across the world, which blurs the line between tax avoidance and tax evasion, and increasingly deems both to be morally repugnant.  In the face of this, the use of entirely legal schemes which to keep tax bills to a minimum can result in clients and their advisers being hauled before parliamentary committees to be given a metaphorical public flogging. Given this climate and the impact of the recently enacted GAAR, one might have thought that accountants holding themselves out as advising on tax mitigation would start to become rarer than hen’s teeth.

But just as we were starting to adjust to an apparently new paradigm, a High Court judge has thrown a spanner into the works, by finding that an accountancy firm were negligent for not advising a client how to mitigate his tax bill by using a highly artificial offshore structure.

Hossein Mehjoo is a UK resident “non-dom” who built up a multimillion-pound fashion business in Britain.  After selling his business, he successfully sued his local accountancy firm for £1.4 million for failing to advise him to enter an offshore tax avoidance scheme known as the Bearer Warrant Scheme, which was at the time available (it is no longer) and which enabled non-doms to avoid paying capital gains tax on the sale of companies.

Mr Justice Silber, said that  “The defendants had a contractual duty to advise the claimant that non-dom status carried with it potentially significant tax advantages” and went on to say that if the firm itself did not have the expertise to advise on the scheme, then it should have referred the client to another firm which did, in much the same way as a GP would refer a patient with complex medical needs to a specialist.

Using this logic, an accountant advising a firm on how to structure its intellectual property rights (Google/Amazon etc) would have a duty to advise them that structuring business through somewhere like the Netherlands or Ireland could well save a small fortune in tax.  But then that very same accountancy firm can fully expect to be publicly berated for carrying out his legal duty of care to his client.  It does seem to be something of a no-win situation.

Many directors have been vocal about the fact that they too have a duty to the shareholders of their company to keep the level of tax that they pay to the lowest amount permissible by the law, and that subjective views on what it ethical and what is not cannot override that duty.  It would seem that Mr Justice Silber would agree.

Not surprisingly, yesterday’s judgment has got Richard Murphy et al up in arms, demanding that something must be done to protect accountants who act ethically.  But the whole issue of trying to blur the lines between illegality and immorality is opening up an enormous can of worms.  If governments around the world want to stop certain types of tax avoidance then they need to make it illegal.  Having it as legal, publicly and political unacceptable, and a professional duty all at the same time leaves companies and their advisers in a complete Catch 22 situation – damned if they do, and sued if they don’t!

Sanne Group completes acquisition of State Street's capital markets corporate admin business

Sanne Group's acquisition of State Street Jersey's capital markets corporate administration business (formerly part of the Mourant International Finance Administration business) has completed.

The financial aspects of the deal, which was accomplished with financial backing from Inflexion, which invested in Sanne earlier this year, are not being disclosed. 

The addition of the new staff will take the Sanne Group to over 200 employees in Luxembourg, London, Dublin, Dubai, Hong Kong and Shanghai as well as the Channel Islands, making it one of the larger independent fiduciary businesses.

Sanne Group chief executive Dean Godwin will be very familiar both with the newly acquired business and the 40 staff moving to Sanne, having been managing director at State Street until his move to Sanne last year.

HgCapital sells ATC to Intertrust for €303 million

HgCapital has today announced the sale of ATC to Intertrust (the trust company backed by PE firm Blackstone) for an enterprise value of €303 million.  

This realisation represents an investment multiple of approximately 2.2x original cost and a gross IRR of 37% over the two year investment period - an excellent example of a highly successful collaboration between a PE firm and a fiduciary services business. 

Hg acquired a majority stake in Amsterdam-based ATC in March 2011.  ATC had been independent since 1893 and HgCapital was the first external investor in the business. ATC provides fiduciary, management and administration services to multinational corporations, financial institutions and fund managers.  

The sale of ATC is expected to formally complete in September 2013 following regulatory approval.