Download Diapas Home Journal, International Real Estate

Diapas Home Journal, International
Real Estate
In our recent articles we examined the different types of companies, and ‘can
be in different US states. In this article we will face the legal institute
examination of the Foundation and, in particular, the Private Interest
Foundation ( “PIF”) incorporated in Panama: a legal entity that represents a
security vehicle of its assets and a structure component “Tandem “for
investment in the US.
In general, the PIF is a tool designed to protect medium and large capital or
to plan the estate. Born from the donation of an asset for a predetermined
purpose (which must necessarily be indicated in the articles of the
Foundation), they can be revocable or irrevocable and, for the purposes of
their constitution, and ‘necessary that one or several persons, natural or
juridical, to prepare a document, called the ” Founding document “, which is
registered in the Public registry of Panama.
A foundation is revocable when the founder has full power and decisionmakers, like the ” Board of Trustees “, may appoint and / or remove the
discretionary beneficiaries of the Foundation, with the approval of the
Protector, if any. In addition, the Founder’s name must necessarily be made
​known. In contrast, a Foundation and ‘irrevocable when the founder has no
authority; in this case, therefore, and ‘the Foundation Council alone hold
the power to appoint and / or remove the Beneficiaries discretion (subject to
the prior approval of the Protector, if any), as well as to have full powers
of administration of the Foundation. Unlike the provisions for the Foundation
revocable, then, the founder’s name should not be stated.
As a general rule, a foundation can not carry out activities for profit.
Nevertheless, and ‘it provided that it can carry out commercial activities
“occasionally”, which means it can perform commercial operations, noncontinuous, with no need’ to that end is made up of a corporate structure or
that it obtained a specific license or authorization commercial. Cosi ‘, will
receive the proceeds from the sale of real property or sporadic will
occasionally give money as a loan, and may also make investments, provided
that the profits are used only for the purposes of the Foundation.
Not only that, the Foundation may also hold shares, interests or have the
property of private companies, in which case it acts as a “society holding “,
allowing, thus, to the private company engaging in commercial activities
without any restrictions.
Under current rules Panamanian, a Foundation does not need to be formally
recognized by any administrative authorities, with the exception of
registration in the Public Registry, which, as and ‘easy to understand, is a
major attraction in the world of jurisdictions ” offshore ” .
As regards, then, the investments in the United States, has been over the
years adopted an investment model known as Tandem structure. This structure
provides that a foreign company owns a US company, which, in turn, owns
property in the US. As mentioned in our previous articles on the subject (see
article “Investing in the United States, part IV), the Tandem consists of a
transparent foreign entities (which can be the foundation) and a local
company is transparent, from the fiscal point of view, one of the options /
combinations are more favorable for investors because it ‘allows you to take
advantage of the benefits provided for in fiscal matters and successions; so,
if the final beneficiary of the Foundation and ‘a natural person, that will
be required only to pay the tax on long-term capital gains (capital gains
from the sale of property held by individuals for more than a year), with a
maximum rate of 23.8%, and it will not be subject to inheritance tax it ‘to
the state income tax in Florida.
A foundation can be created for different purposes, among which include
mainly:
the protection of vulnerable persons such as minors, incapable or, in
general, people are not able to manage a business;
the protection, preservation and continuity of family businesses;
obtaining benefits from institutions with scientific, humanitarian, etc
.;
in lieu of marriage contracts or wills;
the protection of property in the face of various adverse situations,
such as, for example, the payment of excessive fees for residents in the
place where these assets are located or any claims of creditors;
being able to act as a holding company and have investments in other
legal entities.
In this regard, it is important to clarify that if the goods are transferred
to the Foundation for the sole purpose of defrauding creditors, the latter
have the right to challenge the transfer, provided that they meet two
requirements: (i) the contribution must be a fraud of creditors, and this has
to be proved in court, and (ii) must not be more than three years of the
transfer.
All that said, a Foundation consists of the following organizations:
1. 1. Founder . The founder may be a natural or legal person and can
also act through persons designated by him, which can be officers
or agents ( “special agents”). In this regard it is important to
emphasize that ‘statutory obligation to maintain the
confidentiality of private matters of the Foundation; obligation of
confidentiality that applies not only to individuals who make up
the Foundation, but for all public servants or private employees,
and for the violation of which and ‘foreseen the penalty of
imprisonment up to six months and a fine equivalent to fifty
thousand dollars ( US $ 50,000.00). The only exception to that
requirement is configured when the request for disclosure of
confidential information comes from a competent Panamanian
authorities, the need for criminal investigations or in the
presence of the money laundering offense. Now, if the founder has
full powers, adopt and amend the Rules of the Foundation, appoint
and dismiss the Foundation Council, the Protector and the
Beneficiaries, as well as move the residence of the Foundation or
dissolve it. Still, weighing on Founder obligation to make a
donation that is the initial assets of the Foundation (and which
may not be of an amount less than ten thousand dollars, US $
10,000.00), even if there and ‘any given period by law for making
such devolution.
2. 2. Board of Trustees . The Foundation Board has an obligation to
administer the Foundation and is’ responsible for the realization
of the intended purpose, as well as being accountable for
everything the protector (if any) and the Beneficiaries. And ‘it
composed of at least three members, whether they are natural
persons (regardless of nationality) or, alternatively, by a legal
person. If the administration of the Foundation, the Foundation
Council does cause damage, loss or deterioration for fraud or gross
negligence, the parties that are a part can be held accountable for
the harm caused by their own personal wealth.
3. 3. Protector . The Protector is a monitoring body whose task is to
oversee the activities of the Foundation and, more specifically,
the Board of Trustees, and thus avoid the misuse of the purpose set
out in the articles of the Foundation. It can consist of natural or
legal persons of any nationality and his appointment is not
mandatory.
4. 4. Beneficiaries . Finally, the Beneficiaries, which, like the
aforementioned bodies may be natural or legal persons of any
nationality. They have the right to receive the assets of the
Foundation and may also require the Board of Trustees a report
about the work of the same.
In conclusion, we understand how to set up a Foundation to be a good
decision, not only for the preservation of assets, but also if it is seen as
an investment vehicle that brings with it ‘tax benefits, thus creating’ an
incentive for those who wish invest in an interesting company structure.
Usual, and ‘very important to always seek the advice of an expert to not
overlook any details in completing that decision.
This article contains general information and not in any way replace the
services of a lawyer. We suggest you consult a professional for further
information and assistance. The hiring of a lawyer is an important decision
that should not be based solely on advertising. Before you decide, ask us to
venture further written information free of charge according to our
qualifications and experience. The company Piero Salussolia PA, founded in
1994 by Piero Salussolia, provides specialized assistance and customized to
an international clientele in International Tax Law and National and Asset
Planning, Corporate and Real Estate Law, Intellectual Property, Commercial
and Contractual Law, Maritime Law and Immigration law. Born in Alice
Castello, Italy, Piero Salussolia exercising the legal profession in the
United States and is a member of the Order of Lawyers of Florida since 1985
and California since 1984. Piero Salussolia was a member of the International
Law Section and Tax Section Florida (where he held the position of Vice
Chairman of the Tax Committee Abroad 1989-1992). Piero Salussolia was a
founding member of the Italian-American Chamber of Commerce South East
Chapter, where he held the position of Executive Vice President. Piero
Salussolia has a degree in Political Science from the Università Degli Studi
di Torino, a Masters in Political Science at San Francisco State University,
a law degree from the University of San Francisco and a master’s degree in
tax law from New York University. The Salussolia Lawyer began his career at a
prestigious Miami law firm; later joined the local branch of an international
world-renowned law firm, where he became an international partner focusing on
International Tax Law. For services rendered to the Italian community, he was
honored with the title of Cavaliere della Repubblica. Piero Salussolia fluent
in Italian, Spanish, French and English.