If you have an offshore trust or have been entertaining the idea of having one, recent news may have scared you off. The Pandora Papers revealed the inner workings of what’s been dubbed a “shadow economy” benefiting the wealthy and well-connected. But that doesn’t mean all offshore accounts are a sign of fraudulency.
An offshore company owned by Czech Republic’s prime minister paid for a $22 million French Riverian chateau. One of Guatemala’s most powerful families tucked $13 million into a South Dakota trust. The King of Jordan owns three Malibu beachfront mansions worth $68 million through offshore companies. These and other revelations were made through the discovery of secret records known as the Pandora Papers.
“The leaked records come from 14 offshore services firms from around the world that set up shell companies and other offshore nooks for clients often seeking to keep their financial activities in the shadows,” reports the International Consortium of Investigative Journalists, the group that spent two years sifting through 11.9 million confidential files to create the report.
The news seemed to paint everyone with an offshore trust, account, or company as a criminal. But that’s not the case.
“It is perfectly legal and the right of any U.S. taxpayer to establish an irrevocable trust in an offshore jurisdiction that can offer legal arrangements that are not available or considered to be as reliable in the United States,” says Forbes contributor Alan Gassman, a board-certified estate planning and trust attorney.
As we’ve reported before, it’s difficult to set up offshore accounts for the purpose of legally reducing taxes. In fact, the U.S. is considered a major international tax haven itself because U.S. taxes are relatively lower than many countries. Gassman explains other legitimate reasons an offshore trust can be a good idea, even for those of us who aren’t notoriously famous and wealthy.
A top purpose is asset protection from inconsistent state-by-state differences in trust laws. Countries including Nevis, Belize, or the Cook Islands have regulations to help ensure that individuals from anywhere in the world can establish a trust that is protected from future creditors.
Then there’s the privacy that offshore and domestic trusts alike are meant to provide. Putting assets into a trust can help you avoid the public disclosure of those assets through the probate legal process. Of course, the Pandora Papers shattered that perception of privacy, at least for big asset management firms and famous people. Still, trusts remain a top vehicle recommended by asset management professionals to keep assets out of the court system and moved into the hands of heirs relatively discretely.
Asset protection and privacy aren’t the only reasons to store money abroad. Americans often open offshore banking and other financial accounts to allow for easier international spending and investing (including in real estate) and money transfers, perhaps to friends or family abroad or for regular foreign business interactions or travel purposes. Those who work or have worked abroad (or even for a company based outside the U.S.) may have offshore retirement accounts like a foreign trust instead of an IRA or foreign annuities instead of a pension plan.
Now, all that being said, significant penalties and other problems can arise with an offshore account when its assets and activities aren’t extensively disclosed to the IRS. Fail to fill out the proper forms—including IRS Form 3520, IRS Form 3520-A, and Treasury Department FinCEN Form 114 (FBAR Form)—and you may land yourself in hot water. As Gassman points out, those with extensive assets abroad—including some subjects named in the Pandora Papers— will set up a foreign trust company as a co-trustee with a domestic company to avoid the need to file many of these IRS forms. But those arrangements aren’t for the faint of heart. They must navigate successfully through several U.S. Treasury criteria, including a Court Test, Control Test, and Safe Harbor rule.
If you hold assets in an offshore trust or another foreign account or are considering doing so, don’t assume you’re automatically at odds with the IRS. Instead, consult a tax professional knowledgeable about international tax laws to ensure you’re following the rules.
