Not the cheesy movie or re-makes.
In the red corner, we have the Supreme Court of India and in the blue corner we have the government of India.
http://www.legallyindia.com/201101201702/Bar-Bench-Litigation/black-money-pil-government-dilly-dallies-wont-do-anything-says-divan and http://www.thehindu.com/news/article1103263.ece
Ram Jethmalani, a noted lawyer and honorable Member of Parliament, and former Law Minister, and others filed a petition for the government to release names of suspected tax dodgers who have alledgedly parked their money with LGT Bank and UBS outside India (and retrieve that money I guess).
Thus far, the govenerment has said it can't due to obligations under tax treaties. The Court's response: "It is a pure and simple theft of the national money. We are talking about mind-boggling crime. We are not on the niceties of various treaties,"
WOW!
The government also tried to limit the scope of the petition to information on LGT Bank only but was asked: “Why are you limiting the matter to the Liechtenstein Bank?” Pointing out that nothing would stop or preclude the court from expanding the scope of the writ petition in the public interest, he [Justice S.S. Nijjar] said, “All we want is that you give all information about the money deposited in the foreign banks by Indians. You cannot confine the petition to one bank.” DOUBLE WOW!!
Friday, January 21, 2011
Monday, January 17, 2011
Dead Men Tell No Tales?
For all you successful and wealthy men and women out there, particularly those with children and loved ones, one of the greatest things you can do before you go (and unfortunately, most of us don’t know when we might go) is to get your affairs in order.
There are countless cases where your heirs, your executor, your trustee...is left with the excruciating problem of how to deal with your assets. Who gets what? When? How? Etc. Families have splintered and become sworn enemies because of your failure to make things crystal clear. Sometimes there will be guesswork, sometimes there will be long bitter fights which not only help to make the lawyers rich but also may end up unintended or undesirable results.
A lot of Asians, particularly the older generations have relied on “secret trusts” or nominee relationships to effect wealth transfers, wealth holding, probate/transfer tax avoidance, etc.. Sometimes gifts are gifts, sometimes they are not. Sometimes loans are loans, sometimes loans are not. Sometimes bequeaths are bequeaths, sometimes, they’re not. This isn’t a great issue when the patriarch/matriarch is alive, but it becomes a mess when he/she dies. No one else knows the “truth”.
A recent Singapore case highlights some of these issues [Wong Chong Yue v Wong Chong Thai [2011] SGHC 3]. Not a great case by any means (but some nice Asian flavour) and just to show how where these cases usually end up. The short of it was that Father made some transfers of the family business company’s shares to the children. One child claimed it was an “express trust” in favour of him. The other siblings disagreed. Had Father made some (better and more) explicit declarations, say a Deed of Gift or Loan Agreement or a formal trust, there would probably would be no argument as to his intentions. [Of course nothing prevents people from challenging anything but with less merits or less uncertainty, the sooner frivolous or fraudulent claims can be laid to rest.] Instead, we the courts having to decide. And in the absence of good compelling evidence, the courts could easily get it wrong.
But dead men can tell tales…..only if you do it before you die. Get your affairs in order by leaving no questions unanswered. Otherwise your heirs will be burning money, not as an offering to you but as legal fees.
[Update 26 Jan: I see HK/Macau gambling tycoon Stanley Ho Hung-sun (何鴻燊) took my advice.....hasn't gone totally smoothly and you can see all the ruckus it is causing....but since he is alive (and apparently has full mental capacity despite his recent stroke), he should be able to squash any "uncertainties" over his desired wealth splitting. The TV appearance was a nice touch. We can only imagine the years of litigation [tough luck HK lawyers!] it might have took to settle his estate had he chosen not to make this bold step. Your turn. ]
There are countless cases where your heirs, your executor, your trustee...is left with the excruciating problem of how to deal with your assets. Who gets what? When? How? Etc. Families have splintered and become sworn enemies because of your failure to make things crystal clear. Sometimes there will be guesswork, sometimes there will be long bitter fights which not only help to make the lawyers rich but also may end up unintended or undesirable results.
A lot of Asians, particularly the older generations have relied on “secret trusts” or nominee relationships to effect wealth transfers, wealth holding, probate/transfer tax avoidance, etc.. Sometimes gifts are gifts, sometimes they are not. Sometimes loans are loans, sometimes loans are not. Sometimes bequeaths are bequeaths, sometimes, they’re not. This isn’t a great issue when the patriarch/matriarch is alive, but it becomes a mess when he/she dies. No one else knows the “truth”.
A recent Singapore case highlights some of these issues [Wong Chong Yue v Wong Chong Thai [2011] SGHC 3]. Not a great case by any means (but some nice Asian flavour) and just to show how where these cases usually end up. The short of it was that Father made some transfers of the family business company’s shares to the children. One child claimed it was an “express trust” in favour of him. The other siblings disagreed. Had Father made some (better and more) explicit declarations, say a Deed of Gift or Loan Agreement or a formal trust, there would probably would be no argument as to his intentions. [Of course nothing prevents people from challenging anything but with less merits or less uncertainty, the sooner frivolous or fraudulent claims can be laid to rest.] Instead, we the courts having to decide. And in the absence of good compelling evidence, the courts could easily get it wrong.
But dead men can tell tales…..only if you do it before you die. Get your affairs in order by leaving no questions unanswered. Otherwise your heirs will be burning money, not as an offering to you but as legal fees.
[Update 26 Jan: I see HK/Macau gambling tycoon Stanley Ho Hung-sun (何鴻燊) took my advice.....hasn't gone totally smoothly and you can see all the ruckus it is causing....but since he is alive (and apparently has full mental capacity despite his recent stroke), he should be able to squash any "uncertainties" over his desired wealth splitting. The TV appearance was a nice touch. We can only imagine the years of litigation [tough luck HK lawyers!] it might have took to settle his estate had he chosen not to make this bold step. Your turn. ]
Tuesday, January 11, 2011
Oh my Piggy-wiggly boo poo ga-ga........
Tony has a mushy love video to help with his appeal over Nina Wang's estate: http://www.thestandard.com.hk/news_detail.asp?we_cat=11&art_id=106932&sid=30868118&con_type=1&d_str=20110111&fc=1
Continuation of the saga http://trustprofessioninasia.blogspot.com/2010/02/hey-tony-chan-what-say-buddha.html
Continuation of the saga http://trustprofessioninasia.blogspot.com/2010/02/hey-tony-chan-what-say-buddha.html
New Year’s Resolution
Not so much a resolution but a wish list:
1. I wish trust people would learn to say: “I don’t know”. Not “don’t know” when they should know…..like a trustee should know what’s in the trust fund….they should always know that, but rather people should start saying “don’t know” when they reasonably need not or should not know. There are plenty of things in law and tax where there are no good answers. There’s a very dangerous trait of try to impress clients by spewing out all sorts of horsesh*t that might be mistaken for knowledge. There is an insane fear of appearing not to know everything. Nothing good can come from pretending to know something. We have salemen who think they are advisors because they have LawInContext. Ahem…you have LawInContext because you “don’t know”. And not to knock LawInContext but you certainly won’t reach enlightenment even if you memorized everything they have in the database. We have banking lawyers drafting dispositive powers when it’s clear after 10 words, they don’t have (or have never bother to read) a drafting/precedents book in their library. They “don’t know”. We have some Channel Islands refugee in Singapore talking about Mexican tax and the wonders of New Zealand trusts who shouldn’t have attempted to answer questions as all it did was establish clearly to the audience that he really “didn’t know” much about New Zealand or Mexico or Singapore. There is absolutely no shame in not knowing everything. And for you clients, don’t expect one or even a few people to have all the expert answers. Just consider how many doctors do you have? A Dentist, an Optometrist, A GP, A ObGy, etc. How many places do you get investment/market advice from? A few bankers? Some Analysts and Brokers? Bernie Lo? The fish monger at the wet market? Show some respect to those that say they “don’t know”. At the end of the day, they may be the better advisor. But what do I know…..
2. Am I the only one not getting kickbacks from the BVI? I fail to see why some many damn bankers in Asia thinks a VISTA trust is the optimal solution especially when it is used just to cover a bank account (sales targets and bonuses aside of course). Bank accounts have a life span of a fruit fly. Remember all those Liechtenstein/Panama foundations some of the banks pushed onto their (namely Indian and NRI) clients years ago and are now scrambling to get them off their books now? I see the same blind-leading-the-blind exercises except now it’s a little more ruthless and pointless. Let’s see, there wouldn’t even be a BVI BC in the picture if you hadn’t “sold” the client to protect his bank portfolio by transferring it into a BC in the first place? So now we have a different set of succession issues. What did you tell him? Avoid probate? Well (potentially) avoiding probate or succession issues on 1 bank account isn’t going to do much when the client still has other assets outside the trust. Let’s see, does the client want control? That’s like asking if kids want candy. Things like tooth decay, chronic obesity and diabetes are conveniently forgotten by most. Unfettered control, especially among the second or third generations is something many conveniently or ignorantly forget to advise upon. Look forward to helping you unwind that VISTA of yours in a few years.
3. Start training. Think of everything issue that has popped up in the past year. How many were preventable? What if the Trust Sales had taken the time to really work through the settlor’s requirements instead of trying to meet his 10 trust per week target? What if your Investment Committee actually discussed investments with the settlor instead of getting a risk/investor profile form? What if you knew something about the duty to monitor? What if you insisted on this or that? What if you knew that big transaction was coming weeks before hand? Who knew that 50% of your intellectual capital was tied up in that one Manager that CitiTrust just poached from you. Probably 80% or more of the problems you’ve faced were self-inflicted. Only by training people to know what can and can’t be done, training people on what to expect, only by sharing knowledge will you stop being “blindsided”.
1. I wish trust people would learn to say: “I don’t know”. Not “don’t know” when they should know…..like a trustee should know what’s in the trust fund….they should always know that, but rather people should start saying “don’t know” when they reasonably need not or should not know. There are plenty of things in law and tax where there are no good answers. There’s a very dangerous trait of try to impress clients by spewing out all sorts of horsesh*t that might be mistaken for knowledge. There is an insane fear of appearing not to know everything. Nothing good can come from pretending to know something. We have salemen who think they are advisors because they have LawInContext. Ahem…you have LawInContext because you “don’t know”. And not to knock LawInContext but you certainly won’t reach enlightenment even if you memorized everything they have in the database. We have banking lawyers drafting dispositive powers when it’s clear after 10 words, they don’t have (or have never bother to read) a drafting/precedents book in their library. They “don’t know”. We have some Channel Islands refugee in Singapore talking about Mexican tax and the wonders of New Zealand trusts who shouldn’t have attempted to answer questions as all it did was establish clearly to the audience that he really “didn’t know” much about New Zealand or Mexico or Singapore. There is absolutely no shame in not knowing everything. And for you clients, don’t expect one or even a few people to have all the expert answers. Just consider how many doctors do you have? A Dentist, an Optometrist, A GP, A ObGy, etc. How many places do you get investment/market advice from? A few bankers? Some Analysts and Brokers? Bernie Lo? The fish monger at the wet market? Show some respect to those that say they “don’t know”. At the end of the day, they may be the better advisor. But what do I know…..
2. Am I the only one not getting kickbacks from the BVI? I fail to see why some many damn bankers in Asia thinks a VISTA trust is the optimal solution especially when it is used just to cover a bank account (sales targets and bonuses aside of course). Bank accounts have a life span of a fruit fly. Remember all those Liechtenstein/Panama foundations some of the banks pushed onto their (namely Indian and NRI) clients years ago and are now scrambling to get them off their books now? I see the same blind-leading-the-blind exercises except now it’s a little more ruthless and pointless. Let’s see, there wouldn’t even be a BVI BC in the picture if you hadn’t “sold” the client to protect his bank portfolio by transferring it into a BC in the first place? So now we have a different set of succession issues. What did you tell him? Avoid probate? Well (potentially) avoiding probate or succession issues on 1 bank account isn’t going to do much when the client still has other assets outside the trust. Let’s see, does the client want control? That’s like asking if kids want candy. Things like tooth decay, chronic obesity and diabetes are conveniently forgotten by most. Unfettered control, especially among the second or third generations is something many conveniently or ignorantly forget to advise upon. Look forward to helping you unwind that VISTA of yours in a few years.
3. Start training. Think of everything issue that has popped up in the past year. How many were preventable? What if the Trust Sales had taken the time to really work through the settlor’s requirements instead of trying to meet his 10 trust per week target? What if your Investment Committee actually discussed investments with the settlor instead of getting a risk/investor profile form? What if you knew something about the duty to monitor? What if you insisted on this or that? What if you knew that big transaction was coming weeks before hand? Who knew that 50% of your intellectual capital was tied up in that one Manager that CitiTrust just poached from you. Probably 80% or more of the problems you’ve faced were self-inflicted. Only by training people to know what can and can’t be done, training people on what to expect, only by sharing knowledge will you stop being “blindsided”.
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