Ontario Global Research

The mechanisms of secrecy

The US state has been named the worlds most opaque teritory in a major new survey of financial secrecy

4/24/2014

 

You're a billionaire but you don't want anyone, least of all the taxman, to know. What do you do? Head for a palm-fringed island paradise or a snow-covered Alpine micro-state?

Wrong. The world's most opaque jurisdictions – the ones that will best shield you and your cash from the light – are mostly in the heart of the most sophisticated and powerful global financial centres.

London, Luxembourg and Zurich are in the top five most secretive jurisdictions, according the first comprehensive index of financial transparency ever compiled. Yet top of the pile, beating the British Virgin Islands, Belize or Liechtenstein as the best place to hide wealth, is Delaware.

Delaware was the first of the thirteen states, which drafted the  Federal Constitution, to ratify it and is thus known as "The First State".

Located midway between New York City and Washington D.C.,  Delaware which is one from the last in population, sits among one third of the  entire population of the US and has excellent access to major domestic and  export markets by highway, train, air and sea. The infrastructure is highly  developed and has deepwater berths at Port Wilmington on the Delaware River,  just 60 miles from the Atlantic Ocean shipping lanes.

In October of 1992, Delaware law recognized Limited Liability  Companies (LLC's). The LLC combines the best aspects of the Corporation and the  Limited Partnership without many restrictions.

Delaware is well known for the Delaware General Corporation Law  which is said to be the friendliest in America. Also the dedicated court called  The Chancery Court, which adjudicates on matters of Delaware Company Law, is  fast and efficient. The trials are by appointed judges (not a jury), who issue  written and well thought-out decisions. All this means is that you know the  rules from a stable legal system when you incorporate in Delaware.

Delaware is the home to 50% of corporations listed on the New  York Stock Exchange

One of the smallest states in the US, it offers the best protection for anyone who does not want to disclose their identity as a beneficial owner of a company. That is one very good reason why the East Coast state hosts 50% of the US's quoted firms and 650,000 companies – almost equivalent to one company per Delaware resident.

The Financial Secrecy Index took 18 months to compile, was researched by senior academics, accountants and investigators under the banner of the Tax Justice Network, and runs to 1,800 pages. It uses findings from the Financial Action Task Force, the high-level global body combating money laundering and terrorist finance, and the International Narcotics Control Strategy Report, as well as 12 key indicators involving bank secrecy rules, disclosure of beneficial ownership and trust law.

It finds that Delaware – the political power-base of the US vice-president, Joe Biden – offers high levels of banking secrecy and does not make details of trusts, company accounts and beneficial ownership a matter of public record. Delaware also allows companies to re-domicile within its borders with minimal disclosure, and allows the existence of privacy-enhancing "protected cell" or "segregated portfolio" companies, among many other stratagems useful for protecting the identity of those who do business there.

The only financial privacy indicator on which Delaware scores positively is that it is party to a large number of international tax information sharing agreements, but this is because those agreements are signed by the United States.

Delaware state officials say it is not the ability to protect identities that attracts so many companies and individuals to register businesses; rather, it is the state's sophisticated judicial system, which has evolved, they say, into the top corporate dispute resolution centre in America.

To enjoy the US tax free benefit, it is advised that the LLC have two or more members.

Features of a Delaware Limited Liability Company

  • A Delaware LLC may be formed by one or more organizer or member. For tax purposes, non-resident legal entities (such as companies or Corporations) who are members of the LLC may cause the IRS to classify the LLC as a branch of a foreign company in the US, and the LLC will be taxed on its worldwide income. It is therefore recommended that the non-resident members of Delaware offshore companies be physical persons.
  • An LLC does not issue shares and therefore does not have shareholders. The owners of an LLC are referred to as members.
  • A Delaware LLC is a legal entity, registered with the state, and is treated separate from its members.
    • The Delaware LLC is recognized anywhere in the world as a legally registered US company.
  • Because of the Limited Liability status, the law protects the members (owners) from the debts and other obligations of the LLC.
  • After Delaware offshore incorporation, the risk to an owner of a Delaware offshore LLC is to the extent of his investment in the LLC, and all his personal assets are protected.
  • A Delaware Limited Liability Company may be fully owned by non-resident aliens

 

But lawyer Jack Blum, a former US Senate staff attorney who has worked on high-profile fraud cases, including the BCCI investigation, says: "Secrecy in Delaware has been a massive problem and has been for sometime. They have a lot of rules that… make it so advantageous to be there that it is breathtaking." And, he adds, requests for legal assistance from other countries fall on deaf ears. "The requests pile up in district courts. It's beyond embarrassing. It's a disgrace."

Delaware's top position in the index will be greeted with raised eyebrows in Switzerland, which has just emerged from a bitter two-year legal dispute with the US over Swiss bank UBS's role in facilitating tax evasion on a vast scale.

Both jurisdictions are joined in the top five by the UK. Though Britain does not have many of the features of a secrecy jurisdiction – for instance, accounts are publicly available and companies cannot change their domicile without trace – London has been dragged into the list because of its sheer scale as a financial centre and its capacity to facilitate money-laundering and terrorist finance.

In a devastating appraisal of the UK's financial investigation powers, the Financial Action Task Force, in its most recent assessment two years ago, stated: "There are not adequate measures in place to ensure that there is adequate, accurate and timely information on the beneficial ownership and control of legal persons that can be obtained or accessed in a timely fashion."

Not surprisingly, representatives from the Caymans and Luxembourg, which made it into the top five, are aggrieved at their inclusion. Anthony Travers, chairman of Cayman Finance, the islands' business representative body, says: "Anybody who claims to have evidence that Cayman is opaque hasn't read the IMF and Financial Action Task Force reports nor the US version from the General Accountability Office... [This] report [has a] selective bias and [is] totally discredited, and will be seen as such by everybody in the financial world."

Luxembourg's Association of Banks & Bankers (ABBL) takes a similar line: "The ABBL does not consider Luxembourg to be a 'secrecy jurisdiction'. In both penal and fiscal matters, Luxembourg already co-operates more fully on an international basis than 80% of countries in the world."

But John Christensen, a director of Tax Justice Network and a joint author of the report, says: "The secrecy jurisdictions are found in North America, the former British empire and Europe. These are the regions which have driven the neo-liberalisation project that has skewered financial markets and turned them into criminogenic markets. They can attract capital with no questions asked. What this reveals is the massive hypocrisy of OECD states."

The world's most powerful countries will aim to clamp down further on offshore tax havens at the G20 finance ministers' meetings in Scotland later this month. The question of whether they should extend the measures they take to their own jurisdictions will not, in all likelihood, be on the agenda.

Delaware is recognized for its General Corporations Law which provides a stable legal platform. There is a Chancery Court which adjudicates on corporate matters. The courts do not use juries, so decisions are issued as written opinions and litigation is not settled by the emotions of a jury, but on stable law.

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