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Copyright © 1995-2013 Robert L. Sommers, All rights reserved.
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Copyright © 1995-2013 Robert L. Sommers, All rights reserved.

Foreign Asset Protection
Introduction   Asset Protection is a concept that has spawned a new sub-specialty within the estate planning community. Foreign Asset Protection involves the creation of one or more entities in a debtor-friendly country to prevent, limit or hinder a creditor's attempt to seize and sell a debtor's assets in satisfaction of a debt owed to the creditor. Usually, the creditor is seeking payment arising from an award of damages obtained in a U.S. lawsuit, although foreign asset protection plan presume to protect against all creditor's claims (taxing authorities, government regulators, spousal property claims), regardless of origin.

Invariably, foreign asset protection plans are dismissed by U.S. courts as shams and offer the debtor no real legal protection.

How Asset Protection Works   Asset protection (including foreign asset protection) changes the character of the assets held by the debtor from one that can be easily seized and sold, to assets that the creditor cannot legally seize and sell. By transferring assets into certain types of trusts or limited liability entities (corporations, limited partnerships and limited liability companies) in which the debtor owns an interest in the entity but not the asset, such as a beneficiary of a trust, stock, partnership interest or membership interest in an LLC, the creditor is restricted to the debtor's interest in the entity.

Domestic asset protection, where the entity formed is located in the U.S. and the transfer of assets is not intended to defraud a known or potential creditor, provides a potential debtor with a solid layer of protection. In fact, the term "asset protection" in this context means taking advantage of the limited liability protections (one is liable up to the amount invested in the entity only) provided to shareholders of a corporation, limited partners of a limited partnership and members of a limited liability company. When a debtor is challenged in court, the debtor has solid statutory and case law supporting the structure and the inquiry inevitably becomes whether there was a fraudulent transfer of assets.

Foreign Asset Protection   With foreign asset protection, entities are formed in a foreign jurisdiction that has favorable debtor laws, effectively preventing a creditor from bringing a lawsuit by supposedly placing debtor's assets beyond the reach of creditors. The concept of foreign asset protection is to place assets outside the jurisdiction of the U.S. court system, thereby depriving a U.S. creditor from enforcing a court award of damages.

There is a "sleaze" factor involved with foreign asset protection - the attempt to hide one's assets foreign -- that is absent from domestic asset protection. Also, with foreign asset protection, the debtor is challenging the jurisdiction of the U.S. court system, a dangerous argument to make before someone with the power to toss you in jail for contempt of court. In short, domestic asset protection recognizes the jurisdiction of the U.S. court and relies on the laws of the state to protect the creditor, whereas, foreign asset protection flouts the court's jurisdiction.

In contrast to domestic asset protection concepts which are grounded in solid U.S. law, foreign asset protection schemes are usually an expensive and worthless exercise in delusion. Attorneys, bankers and foreign countries enrich themselves by convincing naive, paranoid, and often nefarious citizens to spend thousands of dollars creating trusts and companies in foreign jurisdictions which have favorable debtor laws.

In the real world, however, these debtor-friendly foreign laws are essentially worthless. Because the foreign laws are purposely designed to protect debtors by overruling settled trust law, they cannot withstand an attack on public policy grounds. When challenged in court, foreign asset protection trusts have never stopped any U.S. court from taking action against the assets or against the debtor personally. Typically, the debtor is ordered to return the assets to the jurisdiction of the court or be held in contempt of court (and placed in jail) until he or she complies.

Another claim made in favor of asset protection is that the foreign country will not enforce a U.S. judgment against a U.S. settlor (debtor) who creates an foreign asset protection trust. The focus of this argument is misplaced. The critical issue is whether a U.S. court having jurisdiction over the debtor (because he or she is domiciled in the court's  state) will nullify the transfer of assets to an foreign asset protection entity under state law principles or otherwise rule that the transfer of assets to the foreign asset protection entity was invalid or illegal in the first place.

Additional Information   For additional information on foreign asset protection and asset protection techniques in general, see the Tax Prophet's Tax Class on  Asset Protection.

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All contents copyright ? 2008 Robert L. Sommers, attorney-at-law. All rights reserved. This internet site provides information of a general nature for educational purposes only and is not intended to be legal or tax advice. This information has not been updated to reflect subsequent changes in the law, if any. Your particular facts and circumstances, and changes in the law, must be considered when applying U.S. tax law. You should always consult with a competent tax professional licensed in your state with respect to your particular situation. The Tax Prophet(TM) is a trademark of Robert L. Sommers.