Jeffrey N. Zisselman writes about using forigen asset protection to your advantage

Foreign Asset Protection

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Foreign Asset Protection Planning

by Jeffrey Zisselman

 

ADVANCED INTERNATIONAL PLAN

In addition to the financial planning and asset protection features of the Family Limited Liability Company, there are a few International opportunities you should consider to further enhance your overall planning objectives. The International arena provides the highest level of asset protection, and it can also provide significant income tax saving opportunities for someone in your position. This section of the memorandum will introduce some of the primary vehicles and techniques used in international planning.

A. International Limited Liability Company

Similar to the above FLLC analysis, we also recommend that you consider implementing a mirrored structure in an international jurisdiction that offers even greater asset protection advantages. Whereas charging orders have been pierced in the U.S. (although infrequent and under bad facts), we are unaware of any piercing in an offshore jurisdiction like Nevis or Anguilla.

B. International Asset Protection Trust

One of the most important pieces to any sophisticated asset protection plan is the international asset protection trust (IAPT). An IAPT can offer the highest level of asset protection available under current law, and enables an individual to establish a “start-over” fund in the event of unforeseen misfortune.

This level of asset protection is achieved through a variety of components found in certain foreign jurisdictions. In particular, certain foreign jurisdictions:

  • Permit the creation of a “Self-Settled Spendthrift Trust” that is exempt from the Settlor’s claims;
  • Do not recognize U.S. court judgments;
  • Do not allow U.S. attorneys to prosecute claims in the foreign jurisdictions;
  • Do not recognize contingency fee arrangements;
  • Require a significant bond upon filing a claim;
  • Require the losing party to pay the victor’s legal fees;
  • Mandate secrecy regarding client information, with a significant criminal penalty for any violations;
  • Have more lenient fraudulent conveyance rules and will bar any claims in which a creditor failed to bring the action within 1-2 years from the date of the transfer; and,
  • Allow flight provisions which permit the trustee, and the “Trust Protector,” to monitor the trust assets and immediately move them to a similar protective foreign jurisdiction in the event it appears that the assets are threatened in any way.

Consequently, a judgment creditor has little hope of ever actually attaching to the assets placed in an IAPT. We recommend that you consider establishing an IAPT as a repository for a portion of your assets. The IAPT can be effectively funded with almost any type of asset.

The IAPT can be effectively funded with almost any type of asset. For simplicity of transfer and reporting, we recommend that it be funded with cash, securities, and/or insurance. As a general rule, we recommend that this be funded with an amount substantially less than fifty percent of the individual’s net worth. This will increase the likelihood that the IAPT will be upheld as a legitimate means of providing for your family as part of a well-developed estate plan, as opposed to a device designed to deter future creditors. Nonetheless, the IAPT may not be a practical alternative for you as an IAPT is usually more costly to set up and maintain than its domestic counterpart, and may trigger withholding requirements under the Foreign Investments in Real Property Tax Act (FIRPTA) and other Code provisions upon a transfer of U.S. real property.


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