Guernsey and Jersey - Super offshore jurisdictions for SA Businesses, investors and Entrepreneurs

Guernsey and Jersey - Super offshore jurisdictions for SA Businesses

, investors and Entrepreneurs

Why is it that whenever I tell people that I've spent three years in the Channel Islands, the first thing they say is, "oh,that place where the rich hide their money". Although I accept that such elements do exist, and always will, as in all global offshore jurisdictions, Guernsey and Jersey do not deserve to be branded in that context. Governments and political parties have during the global financial crisis demonstrated a clear lack of understanding of how these islands function and the benefits they provide to the wider global economy. They should be blamed for the public's ignorance. The Channel Islands' high regulatory and supervisory standards actually deserve a fair recognition.

Imposition of regulation on offshore jurisdictions is sought by those only who do not truly understand how they actually operate. They have no understanding of the beneficial role these jurisdictions play when it comes to promoting investment and growth in the wider global economy. Their continued positive rankings of compliance with major international regulatory standards reflect their ability to compete with the best.

Both islands are widely recognised as two of the worlds premier international finance centres. Working on three transactions a month in my first six months as a lawyer ranging from 100 Million upwards was apparently not extraordinary.

No tax is payable on non Guernsey and non Jersey income. There are no capital gains tax, no exchange control regulations, which allows for free and easy transfers and no inheritance tax.

The finance industry on the islands comprise of banking services, investment funds, corporate and trust services and insurance. The islands each hosts approximately 50 international banks with head offices in the UK, Switzerland, France, Canada, Germany, Netherlands, USA and South Africa. The Channel Islands Stock exchange, providing services to both Guernsey and Jersey, is based in Guernsey.

Currently, banking deposits in Guernsey stands at 117 Billion, funds under management at more than 224 billion, and more than 300 Billion worth of assets are under trust management. In the insurance sector there are gross assets of 21 billion, a net worth of 7.1 Billion and premium written of 3.3 billion. Banking deposits in Jersey stand at 166 billion, funds under management at 175.9 billion and funds under investment management at 20.2 billion. No data is collected on trust assets under management but the Jersey Financial Services Commission estimate that it could exceed 200 billion.

Unwarranted political attacks and misinformed criticism have repeatedly been directed at the islands during the global financial crises. Being tax havens and secrecy jurisdictions for shady figures in the international business community are just some of the accusations unfairly directed at them. They have partly been blamed for the shortcomings in the financial markets. However, in my view, I would say, a remarkable unfair one-sided debate to date.

Statistics have shown that there is massive stream of capital which flows between the islands and the UK. These capital flows have increased market liquidity and investment in the UK and is a reflection of the beneficial mutual relationship which exists between them. Research has shown that at the end of June 2009, amid the financial crisis, UK banks had net financing from Guernsey alone of $74.1 billion. According to a recent Treasury Review the islands make a significant contribution to the UK economy. Together they provided net financing to UK banks of $332.5 Billion in the second quarter of 2009. This represent funds being made available from Guernsey and Jersey subsidiaries to their head offices in the UK and are deposits collected by banks like Lloyds Banking Group, Royal Bank of Scotland, Barclays, HSBC, Santander and a number of building societies. A large amount of these funds are generated from jurisdictions other than the UK which is then indirectly made available to the UK for Investment purposes and Liquidity.

Professor James Hines from the University of Michigan has conducted an investigation into the relationship between offshore jurisdictions and world economy. His report revealed that investment opportunities through offshore jurisdictions lead to increased domestic investment and employment. They create not only jobs in the offshore world but also in domestic economies.

Even those who work in the financial markets have denied that the offshore centres have played a role in causing the global financial crisis. The treasury select committee has found that Guernsey did not contribute to the economic crises. On the contrary, it is argued with substantive proof, that the islands have played a significant role in UK economy during the financial crisis.

Unsubstantiated allegations have also suggested that the islands engage in harmful tax practises. The Foot Review has concluded that the loss of tax for the UK to the lower tax jurisdictions were minimal. The Deloitte Report commissioned by the treasury at the time of the Foot Report showed that potentially only 2 billion and not 25 Billion, as originally estimated, is lost per annum in tax to the islands. The real figure could even be less said the Foot report. Anyone would agree that the 2 Billion lost in tax is minimal compared to the somewhat $332.5 Billion of capital upstream that was made available to the UK from Channel Islands subsidiaries.

It follows from the above that capital provided by savings of one country can be made available for investment needs of borrowers in another. However, it needs some careful consideration as this could be viewed as an appearance of foreign investment where the capital is recycled through an offshore centre. This would also inevitably lead to attraction of favourable tax treatments. Countries like China and India have removed tax breaks for foreign investment to combat these practises but it has lead to reduction of inward investments.

Furthermore, the islands have received a positive assessment in meeting its recommendations on anti money laundering and terrorism finance by a Financial Action Taskforce. They signed up years ago to anti money laundering conventions and apply the European Savings directive which is aimed at curbing tax evasion in the European Union. When compared with major countries such as France, Italy, the US or even the UK, it has been shown that islands like Jersey and Guernsey perform better in fighting financial crime. Guernsey and Jersey both believe they will benefit from a cracking down on rival centres. Both islands have signed Tax Information Exchange Agreements with several countries.

The collapse of Iceland's banking system which affected British taxpayers has led to a debate that the Crown dependencies are fiscally unsustainable. The Foot report once again came to the rescue as it reported that concerns over the fiscal sustainability were over emphasized. It has shown that over the last couple of years Guernsey and Jersey have amassed large surplus budgets while diversifying their tax budget base. An important discovery by the Foot report was that none of the Crown Dependencies have taken on significant levels of borrowing.

Despite these attempts to destroy their reputation Guernsey and Jersey have remained unscathed.

The financial services industry in Guernsey and Jersey has flourished for almost 50 years due to their uniqueness. Their close proximities to Europe, access to the Tokyo markets before they close and then for trading on Wall street well into trading time offer both location and time zone benefits.

For many decades, these jurisdictions have provided a stable platform for global international businesses to prosper and grow, to have access to a wide variety of international lenders, institutional and individual investors, to raise capital, whether by private equity or public and being able to operate in the Greenwich Mean Time zones. Apart from low tax, no exchange controls, no capital gains tax and no inheritance tax, the islands also offer a first class infrastructure, stable economy, a transparent, comprehensive, sophisticated, modern and pragmatic law system, easy access to courts, efficient company registries with cutting edge technology and established relationships with the United Kingdom which goes back a number of years. They are a phenomenal home for business.

Guernsey, the second larger of the two islands, covers about 70 square kilometres and is located in the Gulf of St Malo, 90 kilometres southwest of Britain and about 45 kilometres west of Northern France. The main town is St Peter Port which has the character of a traditional fishing village. It has a population of just over 60 000 people. English is the main language although French is widely spoken and Norman Patois in the country side. It is a self governing crown dependency. Its Unemployment is low and stands at less than 1% of the workforce. The Island also boasts light industrial and services sectors. The gross domestic product is 27,871 per head of population.

Jersey, on the other hand, at 118 square kilometres is the largest of the Channel Islands. It is located 135 kilometres south of mainland Britain and 22 kilometres form the coast of France. The population is approximately 90 000. The main town is St Hellier. English is the main language spoken with an accent which is freighting similar to South Africa's. The gross domestic product is 36000 per head of population.

The natural beauty of the islands attracts a lot of tourism which add in many respects to the buoyant finance industries. The currency of both jurisdictions is sterling.

The Guernsey and Jersey Financial Services Commission is the regulatory bodies for the finance sectors. The Commissions' primary objectives are to uphold their international reputation as first class finance centres. They regulate and supervise financial services in Guernsey and Jersey with integrity and efficiency in order to maintain their high rankings as superior regulated offshore centres.

In South Africa foreign investment is controlled by exchange control regulations. Natural persons are allowed for investment purposes to invest up to R4 million outside South Africa annually. Before transfer of any funds an authorised dealer will require a tax clearance certificate issued by the South African Revenue Service. Income earned abroad and own foreign capital introduced into the Republic may be transferred abroad provided satisfactory documentary evidence is exhibited. All applications which fall outside this dispensation must be referred to the Financial Surveillance Department ("FSD") with full explanatory details.

Loans with a limit of R1000 000 per applicant per year may be transferred by an individual to persons resident outside South Africa.

Typical offshore structures take the form of a trust who owns the shares in a Guernsey or a Jersey company. The Guernsey/Jersey Company can invest in a broad range of assets which range from equity portfolios to property or to acquisitions of other businesses. Many high net worth families in the world hold quoted and/or unquoted investments through these types of structures. Trusts are excellent asset protection vehicles. It also provides for the continuity of family wealth by avoiding forced heirship provisions and imposing provisions on the use and distribution of the funds within the trust.

For larger corporations there are many forms of investment vehicles that can be used depending on the needs of a corporation. The structure of directors of a company is important to ensure the company is not brought onshore for tax purposes. The same applies to the management of an offshore Trust.

Many UK properties are owned through offshore structures. The benefit is non payment of UK Land Tax Stamp Duty (similar to transfer duty in SA) when the shares in the Guernsey or Jersey company is sold on. This allows bargaining power when selling the property and no capital gains are payable.

Private, public and listed companies wishing to make bona fide new outward foreign direct investment where the costs of such investments do not exceed R500 million per company per year may do so with out prior approval of the Financial Surveillance Department ("FSD") subject to the provision of certain information to authorised dealers. Where authorised dealers are in doubt, such requests must be referred to the FSD. For transactions exceeding R 500 Million prior approval of the FSD is required.

Foreign finance may be raised on the strength of the applicant company's South African balance sheet to finance foreign acquisitions. Corporate asset or share swap transactions may also be utilised in order to fund such investments or to repay existing offshore debt. Requests for share placements and bond issues offshore will also be considered.

Companies which have existing approved offshore subsidiaries are allowed to expand such activities offshore without prior approval of the FSD provided that such expansion is funded by foreign borrowings, without recourse to South Africa, or the employment of profits earned by that subsidiary, subject thereto that the expansion being in the same line of business and the benefit to South Africa can be demonstrated. Dividends repatriated from abroad, between 26 February 2003 to 26 October 2004, automatically form part of domestic funds and may be allowed to be retransferred abroad for refinancing of approved foreign direct investments or approved investments. Dividends declared by offshore subsidiaries of South African companies after 26 October 2004 may be retained offshore and used for any purpose without any recourse to South Africa. All of this is however subject to reporting requirements to the FSD.

Loans by South African corporates to non residents are subject to the approval of the FSD which will usually only be given if the loan is related to an approved foreign investment by a company.

The limit on foreign portfolio investment by institutional investors is applied to an institution's total retail assets. Foreign exposure of retail assets may not exceed 20% in the case of retirement funds and underwritten policy business of long term insurers. Collective investment scheme management companies, investment managers registered as institutional investors for purposes of exchange control and the investment linked business of long term insurers are restricted to 30% of total retail assets in under management.

With the continuation of low borrowing interest rates available in the vast international lenders market and access to private international and institutional investors, offshore investment in Jersey and Guernsey could provide a whole new dimension to South African businesses who are looking to grow and expand globally, whether that would be through a merger, acquisition of other businesses, sale or even for re-investment back home when new opportunities surfaces.

Exchange controls in South Africa offer enough flexibility to allow South African businesses to gain advantages from direct foreign investments and to benefit from international business. Whilst the world is recovering from the global financial crises now is the right time to plan, set up a good platform and to build on it. While some businesses may dwell on the current financial restrains others see it as an opportunity at the right time to get a foot in the door.

Everyone's needs and tax consequences are different and should always take professional advice. The information in this article is for information purposes only and specialist advice should be taken on each and every transaction.

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