Just came over the wire (probably fiber optic now but...) India and Singapore have revised their double tax treaty:
http://www.thehindu.com/business/Economy/article2132285.ece
The Protocol to be ratified (hence not effective today): http://www.iras.gov.sg/pv_obj_cache/pv_obj_id_FFCB86402606AD1BB409F254BEDF0EBCE7D40000/filename/Protocol%20amending%20Singapore-India%20DTA%20(Not%20in%20force)(24%20June%202011).pdf
This Protocol replaces Article 28 on Exchange of Information of the existing DTAA with the current OECD-model wording (paragraphs 4 & 5 to be more exact). Read carefully: “In no case shall the provisions of paragraph 3 be construed to permit a Contracting State to decline to supply information solely because the information is held by a bank, other financial institution, nominee or person acting in an agency or a fiduciary capacity or because it relates to ownership interests in a person.”
When researching this, I used the Google search engine. Now I noticed something unusual about the search results. Great Googly-Moogly, virtually all the hits were from India or Indian news/business websites. You would be hard pressed to find this news on Singapore news feeds. Hmmmmmm
Do you own search. Draw your own conclusions.
Sorry gotta run, many wire transfer forms to fill out.
Monday, June 27, 2011
Monday, June 13, 2011
EX-rated Stuff
For us trustees, we like exculpatory clauses as much as anyone else and God knows we need them, here is an interesting "real" world application. It's not trust-related but I'm sure we'll all be thinking of what this judgment may mean to the way we do business.
For all you bank in-house counsels out there, this is a must read – time to secure your job for the next 12-months by doing a comprehensive review of account opening documentation and procedures.
For all you that book business into banks (like us trustees), this is also a must read – who knows, you may qualify to get back some of those trading losses or “exorbitant fees” yourself. Hire a bank account statement reader ASAP!
For you bank OPs guys, here comes another nightmare project.
Steven Chong, nice one!
EFG, back to the drawing board. In hindsight, they should have paid the measly restitution, got a gag and avoided looking "unconscionable" among other things.
Tony? Well’s he’s teaching at Nanyang Poly I understand
MAS? Hello? You there?
Jiang Ou v EFG Bank AG [2011] SGHC 149
http://www.singaporelawwatch.sg/remweb/legal/ln2/rss/judgment/12554.html?utm_source=web%20subscription&utm_medium=web&title=Jiang%20Ou%20v%20EFG%20Bank%20AG %5B2011%5D%20SGHC%20149
At the heart of the matter were some 160 transactions EFG did on the non-discretionary account of a customer. EFG practised their “craft” and managed to successfully lose some US$2.4M of the customer’s money (some 45% of the total value) as well earn some US$1M in transactional fees. Turns out the transactions weren’t authorised, therefore EFG tried to rely on shifting the burden to the customer, under those nasty "conclusive evidence" provisions that say if you didn’t object to your bank statements and do so in a timely manner then all’s well and you can’t sue us, nah-na-na-nah.
For all you bank in-house counsels out there, this is a must read – time to secure your job for the next 12-months by doing a comprehensive review of account opening documentation and procedures.
For all you that book business into banks (like us trustees), this is also a must read – who knows, you may qualify to get back some of those trading losses or “exorbitant fees” yourself. Hire a bank account statement reader ASAP!
For you bank OPs guys, here comes another nightmare project.
Steven Chong, nice one!
EFG, back to the drawing board. In hindsight, they should have paid the measly restitution, got a gag and avoided looking "unconscionable" among other things.
Tony? Well’s he’s teaching at Nanyang Poly I understand
MAS? Hello? You there?
Jiang Ou v EFG Bank AG [2011] SGHC 149
http://www.singaporelawwatch.sg/remweb/legal/ln2/rss/judgment/12554.html?utm_source=web%20subscription&utm_medium=web&title=Jiang%20Ou%20v%20EFG%20Bank%20AG %5B2011%5D%20SGHC%20149
At the heart of the matter were some 160 transactions EFG did on the non-discretionary account of a customer. EFG practised their “craft” and managed to successfully lose some US$2.4M of the customer’s money (some 45% of the total value) as well earn some US$1M in transactional fees. Turns out the transactions weren’t authorised, therefore EFG tried to rely on shifting the burden to the customer, under those nasty "conclusive evidence" provisions that say if you didn’t object to your bank statements and do so in a timely manner then all’s well and you can’t sue us, nah-na-na-nah.
Sunday, June 5, 2011
Welcome to The Jungle
Collas Crill (who?) - a small 15-partner Guernsey law firm is about to open an office in Singapore. (yawn!) http://www.law.com/jsp/tal/PubArticleAL.jsp?id=1202495434828&Channel_Islands_Firm_to_Launch_in_Singapore&slreturn=1&hbxlogin=1
Now I would think with the opening of the listing rules for Guernsey companies on the HK Stock Exchange would mean more legal work in HK than Singapore but what do I know?
The point I picked up on is that CC partnership owns a Guernsey trust company, aptly named "Guernsey Trust Company"! Now you know where (else) to go to should you need a Guernsey trust.
The Channel Islands have never been a top trust destination for Asian clients. When given a choice, virtually no one wants a CI administered trust. The only people that promote Guernsey or Jersey trusts are the banks that have a trust center there. With the exodus of trust companies/business from the CI, it seems no one else is either.
Now I would think with the opening of the listing rules for Guernsey companies on the HK Stock Exchange would mean more legal work in HK than Singapore but what do I know?
The point I picked up on is that CC partnership owns a Guernsey trust company, aptly named "Guernsey Trust Company"! Now you know where (else) to go to should you need a Guernsey trust.
The Channel Islands have never been a top trust destination for Asian clients. When given a choice, virtually no one wants a CI administered trust. The only people that promote Guernsey or Jersey trusts are the banks that have a trust center there. With the exodus of trust companies/business from the CI, it seems no one else is either.
What’s Mine is Mine, What’s Yours is Also Mine
If there’s anything as surreal and contemptuous or disrespectful of the “law” it’s taxes. Coming a close second is matrimonial or family law, actually the divorce courts to be more correct. Consider the recent UK case of Whaley v Whaley [2011] EWCA Civ 617. Husband who was not the settlor nor beneficiary of a trust had the courts rule that the trust assets were part of the matrimonial assets and therefore ex-wife was going to get her “fair” share (even though she was not a beneficiary herself). It would appear that the courts considered the Trustees were accustomed to giving/acting according to whatever the Husband wanted.
Just goes to show, leave us trustees alone, let us make the decisions or else your continued meddling and “control” will leave your asset protection plans to waste.
But if you do it "right", then trusts can and do work. In particular, note the Judges comment in [9] of AQT v AQU [2011] SGHC 138: http://www.singaporelawwatch.sg/remweb/legal/ln2/rss/judgment/12520.html?utm_source=web%20subscription&utm_medium=web&title=AQT%20v%20AQU %5B2011%5D%20SGHC%20138
http://www.familylawweek.co.uk/site.aspx?i=ed83679
Court of Appeal regards ‘dynastic trusts’ as matrimonial property
Husband’s appeal dismissed in Whaley v Whaley
The Court of Appeal has dismissed the appeal of Athelstan Whaley the owner of a Spanish hotel chain, who had sought to overturn Baron J's award of a lump sum of £3m to his former wife, Belinda Whaley. For the full judgment see Whaley v Whaley [2011] EWCA Civ 617.
The Whaleys married in 1987 after two years of cohabitation and separated in 2008. The husband, aged 60, and wife, aged 47, have four children aged from 12 to 20. The parties lived between England and Spain.
The dispute between the couple focused largely upon the status of two dynastic trusts. The husband argued that these should be regarded as non-matrimonial property. On that basis, he claimed that the matrimonial assets amounted to just over £3 million net after legal costs whereas the wife puts the assets at over £11 million net after legal costs.
Baron J had found that there was just over £10 million available to the parties of which nearly £7 million was made up of assets in the two trusts. The judge accepted the wife's case that the trust assets should be seen as resources likely to be available to the husband. The assets which the parties had outside of the trusts had a value of nearly £4 million net of debts. In summary, the judge ordered the husband to pay the wife a lump sum of nearly £3 million by 10 months after the date of the order and in the interim to the wife periodical payments at £40,000 per annum. Provision was also made for school and college fees etc. The judge calculated that the order would leave the wife with some 36% of the net assets, on top of which her debts net of bank balances in the sum of £331,000 would have to be met for her. The judge's departure from equality took account of the husband's pre-marital wealth and wealth supplied by his parent's via the trust funds.
In the Court of Appeal the husband argued, inter alia, that Baron J's order could not be satisfied without his having recourse to trust assets in order to meet his most basic needs, such as housing. Leading and junior counsel for the husband sought to persuade the Court of Appeal that the judge's order put "improper pressure" on the trustees of the trust which would require them, against their stated intentions and ignoring their duties to other beneficiaries, to realise assets at a time that would be unpropitious commercially in order to make a payment to the wife, who was not a beneficiary of the trust, in a way that would represent a departure from the previous history of dealings between the trust and the husband, and in disregard of the fact that the husband was not himself the settlor of the trust. It was also argued by the husband that it was wrong of the judge to take any account of a golf course (valued at £2.38 million) because it was held within a trust of which the husband was not a beneficiary.
The Court of Appeal rejected the husband's arguments and stated that the judge had asked herself the proper questions and arrived at the unassailable answer that the trustees were likely to make available such resources as the husband requests. Given that the husband had access to the trust funds, the arguments that there had not been a fair division of the "copper-bottomed" assets and illiquid assets also failed.
Just goes to show, leave us trustees alone, let us make the decisions or else your continued meddling and “control” will leave your asset protection plans to waste.
But if you do it "right", then trusts can and do work. In particular, note the Judges comment in [9] of AQT v AQU [2011] SGHC 138: http://www.singaporelawwatch.sg/remweb/legal/ln2/rss/judgment/12520.html?utm_source=web%20subscription&utm_medium=web&title=AQT%20v%20AQU %5B2011%5D%20SGHC%20138
http://www.familylawweek.co.uk/site.aspx?i=ed83679
Court of Appeal regards ‘dynastic trusts’ as matrimonial property
Husband’s appeal dismissed in Whaley v Whaley
The Court of Appeal has dismissed the appeal of Athelstan Whaley the owner of a Spanish hotel chain, who had sought to overturn Baron J's award of a lump sum of £3m to his former wife, Belinda Whaley. For the full judgment see Whaley v Whaley [2011] EWCA Civ 617.
The Whaleys married in 1987 after two years of cohabitation and separated in 2008. The husband, aged 60, and wife, aged 47, have four children aged from 12 to 20. The parties lived between England and Spain.
The dispute between the couple focused largely upon the status of two dynastic trusts. The husband argued that these should be regarded as non-matrimonial property. On that basis, he claimed that the matrimonial assets amounted to just over £3 million net after legal costs whereas the wife puts the assets at over £11 million net after legal costs.
Baron J had found that there was just over £10 million available to the parties of which nearly £7 million was made up of assets in the two trusts. The judge accepted the wife's case that the trust assets should be seen as resources likely to be available to the husband. The assets which the parties had outside of the trusts had a value of nearly £4 million net of debts. In summary, the judge ordered the husband to pay the wife a lump sum of nearly £3 million by 10 months after the date of the order and in the interim to the wife periodical payments at £40,000 per annum. Provision was also made for school and college fees etc. The judge calculated that the order would leave the wife with some 36% of the net assets, on top of which her debts net of bank balances in the sum of £331,000 would have to be met for her. The judge's departure from equality took account of the husband's pre-marital wealth and wealth supplied by his parent's via the trust funds.
In the Court of Appeal the husband argued, inter alia, that Baron J's order could not be satisfied without his having recourse to trust assets in order to meet his most basic needs, such as housing. Leading and junior counsel for the husband sought to persuade the Court of Appeal that the judge's order put "improper pressure" on the trustees of the trust which would require them, against their stated intentions and ignoring their duties to other beneficiaries, to realise assets at a time that would be unpropitious commercially in order to make a payment to the wife, who was not a beneficiary of the trust, in a way that would represent a departure from the previous history of dealings between the trust and the husband, and in disregard of the fact that the husband was not himself the settlor of the trust. It was also argued by the husband that it was wrong of the judge to take any account of a golf course (valued at £2.38 million) because it was held within a trust of which the husband was not a beneficiary.
The Court of Appeal rejected the husband's arguments and stated that the judge had asked herself the proper questions and arrived at the unassailable answer that the trustees were likely to make available such resources as the husband requests. Given that the husband had access to the trust funds, the arguments that there had not been a fair division of the "copper-bottomed" assets and illiquid assets also failed.
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