The bill for a renewed Aruban Civil Code is currently pending approval. The bill includes a new Section (2) for a fully refurbished corporate law code, which will replace the outdated Aruban Code of Commerce.
The other Dutch Caribbean Islands Curaçao, Sint Maarten and BES (a conglomerate of Bonaire, Sint Eustatius and Saba) renewed their corporate laws years ago and are spearheading the introduction of new types of legal entities into the Dutch Caribbean corporate law.
The corporate laws of Curaçao, Sint Maarten and BES include a Private Foundation (‘Stichting Particulier Fonds’). Furthermore, as per January 1, 2012, the Trust was introduced in the Curaçao Civil Code in an attempt to attract foreigners into engaging in estate planning in Curaçao.
The Aruban bill also introduces the Trust in Section 3. However, Section 2 of the bill does not include a Private Foundation. This is noteworthy considering the fact that the Foundation and the Trust are both well suited for equity protection, and furthermore considering the fact that the equity is better protected by the Private Foundation than is the case with the Trust.
Curaçao Private Foundation
This article discusses the Curaçao Private Foundation (hereinafter: the ‘Foundation’).
Special purpose vehicle
The Foundation is a special version of a foundation.
A regular foundation is restricted in its right to make distributions. It may only make a distribution provided the distribution corres-ponds with its charitable purpose. This is known as ‘the distribution restriction’.
The distribution restriction does not apply to the Foundation. Therefore the Foundation may be used for estate planning purposes.
The Foundation offers, at the one hand, optimal equity protection against third party claims whilst, at the other hand facilitating tax-free distributions to its beneficiaries. In fact, the Foundation was introduced specifically to meet the demand in the financial market to isolate and protect personal or family equity without a restriction on distributions.
Foundation vs Trust
The Foundation offers optimal equity protection, because it has legal entity status. It possesses both the legal and economic ownership of the equity. This is not the case with the Trust. The Trust does not have legal entity status, and does not own the equity. Legally, the ‘trustee’ has the legal ownership of the equity, whilst the economic ownership rests with the ‘beneficiary’.
The Foundation equity is not owned by the principal nor by the beneficiary. However, mentioned parties are, to a certain extent, entitled to the equity. The equity of the Foundation is therefore also referred to as ‘suspended equity’.
The Foundation is established by means of a notarial deed. For tax purposes, the principal usually remains anonymous. The Private Foundation is incorporated by a third party (the founder). In the bylaws, certain rights are granted to the founder, i.e. the founder’s rights. The rights include among others the appointment of beneficiaries; the conditions under which distributions are made, as well as the approval for amendments to the bylaws. The rights are deter-mined as transferable rights in the bylaws. Subsequently, the rights are transferred to the principal.
Letter of wishes
The principal may appoint benefi-ciaries and set further terms and conditions for distributions in the so-called Letter of Wishes.
The Letter of Wishes is not subject to legal requirements, it does not require a notarial deed and remains confidential. The principal is free to further implement and shape the Foundation as he sees fit.
At incorporation, a decision should be made on whether to opt for the fiscal transparency status or for the fiscal non-transparency status. The choice is irrevocable.
Fiscal transparency means that the Foundation is disregarded for tax purposes. Actions by the Foundation as well as its equity are both attributed to the principle and taxed accordingly.
The following applies to the fiscal non-transparency status:
Inheritance tax at contribution
For inheritance tax purposes, the contribution of the equity into the Foundation is considered a gift. The contribution is subsequently taxed at the rate of 25% of the market value (‘verkoopwaarde’) of the equity. Gifts made by non-residents are exempt.
The other advantage of the Foundation – besides the effective protection of equity – is the tax-free contributions to its beneficiaries.
▪ Gift/inheritance tax
The Foundation may make tax-free distributions to beneficiaries as a gift. After the principal’s death, tax-free distributions may be made to the heirs, provided they are the beneficiaries of the Foundation. Income tax would be levied on the distributions, payable by the beneficiaries.
▪ Transfer tax
The principal may sell and transfer the Foundation’s equity to a third party by appointing the buyer as the beneficiary of the Foundation. There would be no transfer tax due over the sale price. The sale proceeds would not be subject to corporate tax either, provided the sale of equity does not qualify as a commercial undertaking.
Regular foundations may perform commercial activities and are subject to 25% corporate tax. The Foundation may not perform commercial activities, and is not subject to corporate tax, provided its activities do not qualify as commercial activities.
The passive management of equity would not qualify as a commercial activity.
The exploitation of real estate, e.g. the collection of lease income could qualify as a commercial activity and taxed accordingly.
When the Foundation acts as a holding company, it would not be subject to corporate tax provided it holds less than 50% of the shares or voting rights in the subsidiary.
The Foundation may also grant loans and make investments, as long as the loans are low risk and the investments are of a passive nature.
Distributions by the Foundation to beneficiaries/individuals residing in Curaçao are subject to income tax as of January 1, 2012. In case the distribution is made in connection with a cultural, scientific or other benevolent purpose, income tax is not levied in case taxation would have an unfair outcome.
The option for a fiscally transparent Foundation has the following con-sequences. The contribution of the equity into the Foundation is not subject to inheritance tax. Tax-free contributions to beneficiaries are no longer possible, however.
▪ Contributions made as a gift or inheritance would be subject to inheritance tax to the rate of between 2% and 6%, depending on the amount of the distribution.
▪ 4% transfer tax would be due in case the equity is transferred to a third party.
▪ Capital gains on investments are not taxed with income tax in case the equity is attributed to the principle.
On a final note, the principle is required to enclose the financial statements of the Foundation to the income tax return at filing.
The Netherlands and Aruba
The Netherlands introduced laws to prevent Dutch tax avoidance using Antillean SPF’s. For Dutch tax purposes, the Foundation is deemed an ‘isolated private equity’ (IPE), ‘afgezonderd particulier vermogen’ (APV). The Foundation is disregarded, and the equity is attributed to the principle and taxed accordingly.
In order to avoid adverse Dutch tax consequences, there is the option to subject the Foundation to the Curaçao corporate tax at a rate of (at least) 10%.
The fiscal Council of appeal (de Raad van beroep in belastingzaken van Aruba, Curaçao, Sint Maarten en BES) has decided that the Foundation may be disregarded for Aruban tax purposes in case the equity is not deemed sufficiently separated from the principle.