The Future of Offshore Banking, Corporations and Foundations

First it needs to be stated that no one has a crystal ball which predicts the future. These thoughts are just opinions and should be taken as such not as legal or tax advice. We will try to show the political positions of the countries that are not in favor of the tax haven offshore jurisdictions and the position of the tax haven countries. The countries most outspoken against offshore banking and offshore corporations are Australia, UK and USA.

Today there is a great outcry from these and other countries about the tax saving benefits afforded to citizens of certain countries by going offshore. These countries claim that their constituents are cheating them out of billions of dollars of taxes by going offshore. The offshore jurisdictions that are considered the tax havens say that is a nice allegation but we are not your collection agency and do not ask us to change our bank and corporate privacy laws because your constituents do not want to pay taxes, this is your problem not ours. The actual amount of taxes that are avoided unlawfully is a figure that one can only take a guess at. Many people set up offshore structures to do business outside of their home country and are not in violation of any laws the way they conduct their business affairs. Many people live in other countries and need to own offshore bank accounts, offshore corporations, offshore real estate, etc. Many people use offshore privacy to protect themselves from identity theft, kidnapping, blackmail, and possible extortion.

Let me use an analogy to make a point. In Latin America there is an organization of five states called Mercosur. Mercosur consists of Argentina, Brazil, Paraguay, Venezuela, and Uruguay. Mercosur also has associate members which are as follows: Chile, Bolivia, Peru, Columbia and Ecuador. The Mercosur countries engage in free trade and easy border controls with no passports, just national identity cards for border crossings. Mercosur recently issued a statement that they would in the future strive to resist any further attempts to get them to spend more resources on narcotics enforcement that stems from the UN. The UN says its member countries must enact certain kinds of laws to control narcotics and states these laws and insists on enforcement policies. The Mercosur spokesperson stated that this was an irrational policy since it has not worked for over a quarter of a century and it was severely draining the resources of their countries. Essentially they said they were sick and tired of the United States which is the nation driving these policies through the UN, making their problems, the problems of other countries and they were going to collectively attempt to legalize narcotics in their own nations to free themselves from this heavy burden of narcotics enforcement. This has already begun to happen in Bolivia, Paraguay, Argentina and Venezuela with the abundant legal availability of cocoa leaf. The cocoa leaf has cocaine alkaloids (real cocaine) and is commonly used as a chew like chewing tobacco leaf or made into tea leaves. Street cocaine is perhaps 30 times as potent and is diluted with harmful substances like turpentine, ether, etc. Cocoa leaf is a natural plant product used for centuries as a stimulant by people living in the high altitudes of Bolivia, farm workers etc. One can now see coca tea being sold freely on the internet but I would strongly advice you not to order any because you may get charged with narcotics importation, seriously because it can be lab tested to contain cocaine. So my point is a lot of countries have said ok enough is enough when it comes to narcotics. It is not working leave us alone, take care of your own problem. So Mercosur countries are now worrying about their own problems more and less about the narcotics issues in the USA and other nations. I think you will see more of the same type of thinking when it comes to offshore banking, offshore corporations, offshore foundations, offshore stock brokerage accounts etc.

Offshore jurisdictions have to go through all sorts of compliance that is not needed in say the USA or the UK. One offshore formation agent went to the USA and was able to open eight USA bank accounts in one day. In Panama a bank account can take five days after you collect and submit the reference letters and documents. In the USA and UK no bank reference letters are required to open a bank account, neither are any professional references required. In the USA and UK they do enforce money laundering protective measures strictly. One can buy USA corporations or UK corporations without any of the due diligence requirements that are required from offshore jurisdictions. So the playing field is not exactly level yet these countries are screaming for more controls not on themselves but on other countries. It seems that the offshore jurisdictions will scream enough is enough if any further controls are imposed on them and resist them. Of course one wonders what further controls they could come up with that they haven’t already imposed.

Let’s look at history a little to see how things deteriorated in the past regarding offshore privacy and offshore banking. Most of the older offshore tax havens are also tourist destinations such as Cayman Islands, Nassau, Bermuda, Grenada, Belize etc. These countries usually have little if any natural resources and need to bring in everything they consume. While some of them avoid income taxes instead they impose taxes on goods imported. These countries got heavily involved in tourism as a way to keep their economies moving. A cruise ship docking at these ports usually carries 2500 people. Each person probably spends an average of $100 a day when in this ports buying t-shirts, duty free liquor, tobacco, jewelry etc. many spend a good deal more. That is $250,000 per cruise ship. These jurisdictions get from 3 ships per week, to 40 ships per week docking there. The money from the cruise ships exceeds what would be earned from their previous offshore banking and incorporation activities. Remember a bank that controls hundreds of millions of dollars of deposits can only have 50 or so employees. A thriving cruise ship port can have thousands of employees working in the shops, restaurants, as tour guides, taxi drivers etc. So more jobs are at stake in the tourism business. We also have to take into account the resorts these countries have which create even more jobs and generate revenue in the form of a hotel room tax built into the rates. These countries also charge a head tax on every person coming into their country. Bottom line is there is much more money in the tourism business than there is the offshore business for the government of these jurisdictions. The governments of these countries don’t make much off of a bank account for instance, actually nothing. They have no income or capital gains tax. The offshore corporations would pay a few hundred dollars a year in taxes but that was it. The banks would pay a few thousand dollars a year for their licenses. So these countries sold out on offshore privacy to protect their tourism. If they did not do so the countries allowing tax free importation from these countries of tourist bought items might go away. Tourists returning from these countries by ship or air might find themselves stuck in long lines while they are searched and interrogated by authorities of various affected countries which would quickly and seriously discourage tourism to these countries. Other countries like Switzerland, Lichtenstein, and Luxembourg sold out due to pressure from the EU. But now we are seeing a reversal in position regarding the EU, not much of a reversal but at least a sigh of OK enough is enough.

In recent months the USA was exposed by the New York Times Newspaper in a scandal whereby they were monitoring SWIFT wire transactions for some years. SWIFT is a private company that enables banks to communicate with each other securely including sending wire transfers. SWIFT machines require a separate terminal and line so as to make them most secure. The USA served a court order on the SWIFT people in New York to turn over all the data they requested and gag ordered them to not mention what was going on. It went on for two years. This got the EU nations most upset. While they have not actually prosecuted the SWIFT people for violating the banking laws of the various European nations affected, there was serious talk of it. Whether or not obeying a USA court order to violate the banking laws of other nations is a viable defense has never been tested in any court, yet anyway. The EU position on this was they must get the USA to understand their banking laws call for privacy. This of course is not exactly giving ground for more privacy invasive laws which is what we mean by a reversal.

Today the most privacy oriented jurisdiction in the world is Panama. Panama has 400,000 corporations registered there. Panama requires corporation formation agents to be lawyers and their know your client rules are strict and call for criminal penalties if not followed. Panama banks follow tight anti-money laundering laws as well as know your customer laws. Panama does still allow for anonymous bearer share corporations which do not require the entry into any registry of any ownership names or identities. The anonymous bearer share corporations combined with Panama bank secrecy laws make for the best privacy in the world today. Panama foundations are also anonymous with no owners, beneficiaries or protectors names appearing in any registry or database. Panama is also in no tax treaty with any other country and is fairly unique in this regards. Of course one can ask the question if Panama can sustain their practices under pressure from other nations.

First off Panama does follow the FATF (Financial Action Task Force) practices. Secondly Panama does not exactly have a lot of tourism, actually it has quite a small amount of tourism and most of their tourism comes from Latin America not the EU or USA. This means there is no meaningful tourism that can be taken away. Panama is a small country and 15% to 20% of the workforce is employed by the international banks. Panama has 400,000 corporation registered there who each pay $300 in annual corporate taxes. This comes to $120,000,000 dollars and this is for a country of 2.9 million people. Also consider these corporations are paying for resident agents, nominee directors etc. Then we get into Panama Foundations which also collect $300 in annual taxes each year plus nominee council member fees. Panama will and has resisted attempts to compromise banking secrecy and corporate secrecy.

Again let us look towards history to see what we can learn, this time focusing on anonymous bearer share corporations. The issue with anonymous bearer share corporations is that when the international wires are monitored it is impossible to tell who the natural persons are behind the bearer share corporations sending or receiving the wires. The British Virgin Islands used to offer anonymous bearer share corporations. A few years ago they gave in to pressure from the UK and stopped issuing new bearer share corporations but they did make allowances for the existing bearer share corporations to remain anonymous for 10 years. After that time they would need to dissolve or operate in a non-anonymous mode. If we want to look on the dark side we can consider Panama doing the same if international pressure ever built up sufficiently to force a change. So of course those owning an existing bearer share corporation would be unaffected for ten years and these corporations would probably go up significantly in value on the secondary market. We have absolutely no indications subtle or otherwise that anything is going to change in Panama.

It is also a possibility that some other nations may enter into the bank secrecy arena in the near future and some other nations may return to bank secrecy as well. Only time will tell. Nothing we see gives any inkling of an idea that Panama will reverse on its position of bank and corporate privacy and it appears that things may have already sunk to an all time low and offshore banking and corporate privacy may actually soon start to improve, first with the wire transfer system and later on in other areas.