In brief

In brief Editorial Sham trusts and Pugachev, the International Academy of Estate and Trust Law David Russell AM QC and Toby Graham Articles The new Italian special tax regime for High Net Worth Individuals moving to Italy (the Substitute tax regime) and the new Italian tax rules for qualifying carried interest schemes Nicola Saccardo The Italian Budget Law 2017 provides for a special new tax regime for individuals who transfer their tax residence to Italy. This special tax regime was introduced in order to make the transfer of tax residence to Italy appealing and, in particular, to attract high-net worth individuals. More precisely, the Budget Law 2017 introduces an optional regime (‘the Substitute tax regime’), which provides for, amongst other things, a substitute tax on foreign source income and gains, as better explained below under the section entitled ‘The Substitute tax regime’. Furthermore, Law Decree 24 April 2017, No 50, introduced new Italian tax rules for qualifying carried interest schemes. These rules, which are described under the section entitled ‘New Italian tax rules for qualifying carried interest schemes’, will make Italy more attractive for top executives in the private equity industry. This may also facilitate their move to Italy under the Substitute tax regime. The forfait tax regime for High Net Worth Individuals moving to Italy has been clarified through implementing provisions and administrative guidelines. This article describes the forfait tax regime in the light of such clarifications. It further highlights the new Italian tax rules for carried interest schemes: these rules make Italy more attractive for funds managers and facilitate their move to Italy. Usufruct in Quebec Marilyn Piccini Roy As in all civil law jurisdictions, usufruct is a recognized institution of Quebec law. However, unlike most European civil jurisdictions where usufruct is a popular estate planning technique, its use for estate planning has been eclipsed in Quebec by the trust. The principal features of the Quebec usufruct are canvassed in this article, along with the main reasons for the decline in popularity of the usufruct, such as the awkward tax treatment accorded to usufruct as a deemed trust and the mismatch between the deemed tax trust and the civil law trust. As illustrated by examples in the article, serious tax consequences can arise when foreign usufructs are imported into Canada. Usufruct in Colombia: brief comparison with usufruct in the Netherlands Sergio Rodríguez-Azuero This article is based on a paper which was prepared for a panel presentation on usufructs at The International Academy of Estate and Trust Lawyers conference, Chicago, May 2017. Under Colombian legislation it is not possible to conceive the Dutch ‘Use up’ within the deed that established the usufruct, applicable to all kinds of assets, regulated as a limitation to the real right of property. Nevertheless, a similar purpose could be obtained with the so called ‘fiduciary property’, another form of property limitation not foreseen in the European Legislations of the ‘civil law countries’. Cross-border planning for real estate: Spain Florentino Carreño This article deals with the cross-border tax issues resulting from (i) the purchase of real estate, (ii) the holding of this real estate and its renting out to lessees, and (iii) a sale of the real estate at some point in time in the future, as well as (iv) gratuitous transfers through gifts or by way of death, and all of this under the tax laws of Spain. The real estate may be purchased directly or indirectly through the acquisition of shares in a local company holding the real estate. The purchaser of the real estate may be a non-resident company or a non-resident individual. Cross-border planning for real estate: Austria Niklas J. R. M. Schmidt This article deals with the cross-border tax issues resulting from (i) the purchase of real estate, (ii) the holding of this real estate and its renting out to lessees, and (iii) a sale of the real estate at some point in time in the future, as well as (iv) gratuitous transfers through gifts or by way of death, and all of this under the tax law of Austria. The real estate may be purchased directly or indirectly through the acquisition of shares in a local company holding the real estate. The purchaser of the real estate may be a non-resident company or a non-resident individual. Cross-border planning for real estate: UK Bart Peerless This article deals with the cross-border tax issues resulting from (i) the purchase of real estate, (ii) the holding of this real estate and its renting out to lessees and (iii) a sale of the real estate at some point in time in the future, as well as (iv) gratuitous transfers through gifts or by way of death, and all of this under the tax law of the UK. The real estate may be purchased directly or indirectly through the acquisition of shares in a local company holding the real estate. The purchaser of the real estate may be a non-resident company or a non-resident individual. Cross-border planning for real estate: France Line-Alexa Glotin This article deals with the cross-border tax issues resulting from (i) the purchase of real estate, (ii) the holding of this real estate and its renting out to lessees and (iii) a sale of the real estate at some point in time in the future, as well as (iv) gratuitous transfers through gifts or by way of death, and all of this under the tax law of France. The real estate may be purchased directly or indirectly through the acquisition of shares in a local company holding the real estate. The purchaser of the real estate may be a non-resident company or a non-resident individual. Cross-border planning for real estate: Italy Raul-Angelo Papotti This article deals with the cross-border tax issues resulting from the purchase, holding, sale and gratuitous transfers of real estate. These transactions may be carried out either directly or indirectly, by a non-resident company or a non-resident individual, so to give rise to various potential combinations which are analysed in this article. Cross-border planning for real estate: USA Leigh-Alexandra Basha This article deals with the cross-border tax issues resulting from (i) the purchase of real estate, (ii) the holding of this real estate and its renting out to lessees and (iii) a sale of the real estate at some point in time in the future, as well as (iv) gratuitous transfers through gifts or by way of death, and all of this under the tax law of the USA. The real estate may be purchased directly or indirectly through the acquisition of shares in a local company holding the real estate. The purchaser of the real estate may be a non-resident company or a non-resident individual. Perspectives on financial abuse of elders in Canada Timothy C. Matthews This article is based on a paper which was prepared for a panel presentation on ‘Financial Elder Abuse: Fighting the Scourge’ at The International Academy of Estate and Trust Lawyers conference, Chicago, May 2017. Switzerland: fighting the scourge Tina Wüstemann This article addresses the problem of financial abuse of the elderly in Switzerland, which will get worse in the future as the older population grows steadily and the majority of the nation’s wealth is controlled by the elder generation. The problem is exacerbated by the fact that financial abuse of the elderly is not specifically regulated in Switzerland. As a private client lawyer you must be aware of this problem in relation to the estate planning of elderly clients living in Switzerland or clients living abroad with Swiss assets, in particular how to prevent your client from being financially abused and which remedies you have at hand to protect your vulnerable clients. The rights of unmarried cohabitants in Canada Catherine Brown and Kyle T. Gardiner The number of unmarried, cohabitating couples in Canada has increased steadily over the past 50 years. The rights and remedies that flow from these relationships vary widely across Canada’s provinces and territories. The authors survey the laws of four provinces (British Columbia, Alberta, Ontario, and Quebec) as illustrative in three distinct areas: property rights, spousal support, and rights on a partner’s intestate death. Tax issues arising in these three areas are also considered. The property rights of unmarried cohabitants in the USA Carlyn S. McCaffrey The rights of unmarried cohabitants in the USA are determined by the courts of each state. Until the early 1970s, most states gave unmarried cohabitants virtually no rights in the property of their partners. Since then the law has developed rapidly and inconsistently from state to state. This article discusses the principal approaches used to confer rights on unmarried cohabitants. It also discusses the special tax challenges faced by unmarried cohabitants when they transfer properties to each other. Cohabitation in Israel Lyat Eyal and Susanna von Bassewitz This article is based on a paper which was prepared for presentation at The International Academy of Estate and Trust Lawyers conference, Chicago, May 2017. Property rights of unmarried cohabitants in the Netherlands Ineke Koele This article is based on a paper which was prepared for a panel presentation on Cohabitation at The International Academy of Estate and Trust Lawyers conference, Chicago, May 2017. In depth Welcome back stranger: a Canadian perspective on the taxation of privately owned business entities and owners Elie S. Roth This article contains a summary overview of the income taxation of Canadian resident and non-resident owners of privately owned business entities. It commences with a summary of the following business entities typically utilized in structuring privately owned businesses in Canada, and summarizes the characteristics of each and their domestic tax treatment: corporations, unlimited liability companies, general and limited partnerships and trusts. The article then outlines the general scheme in the Income Tax Act (Canada) (the ‘Act’) for taxation of non-residents in respect of investment in Canadian private business entities, including an overview of the Canadian withholding tax regime, issues related to the determination of whether to invest through a Canadian branch or subsidiary corporation, the taxation of certain hybrid entities and a review of capitalization considerations, including the Canadian thin capitalization and interest imputation rules. The taxation of the disposition of shares or interests in Canadian business entities by non-resident investors is then discussed. The article concludes with a summary of the taxation of non-resident beneficiaries of Canadian resident trusts. © The Author (2018). Published by Oxford University Press. All rights reserved. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Trusts & Trustees Oxford University Press

In brief

Trusts & Trustees , Volume 24 (1) – Feb 1, 2018

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Abstract

Editorial Sham trusts and Pugachev, the International Academy of Estate and Trust Law David Russell AM QC and Toby Graham Articles The new Italian special tax regime for High Net Worth Individuals moving to Italy (the Substitute tax regime) and the new Italian tax rules for qualifying carried interest schemes Nicola Saccardo The Italian Budget Law 2017 provides for a special new tax regime for individuals who transfer their tax residence to Italy. This special tax regime was introduced in order to make the transfer of tax residence to Italy appealing and, in particular, to attract high-net worth individuals. More precisely, the Budget Law 2017 introduces an optional regime (‘the Substitute tax regime’), which provides for, amongst other things, a substitute tax on foreign source income and gains, as better explained below under the section entitled ‘The Substitute tax regime’. Furthermore, Law Decree 24 April 2017, No 50, introduced new Italian tax rules for qualifying carried interest schemes. These rules, which are described under the section entitled ‘New Italian tax rules for qualifying carried interest schemes’, will make Italy more attractive for top executives in the private equity industry. This may also facilitate their move to Italy under the Substitute tax regime. The forfait tax regime for High Net Worth Individuals moving to Italy has been clarified through implementing provisions and administrative guidelines. This article describes the forfait tax regime in the light of such clarifications. It further highlights the new Italian tax rules for carried interest schemes: these rules make Italy more attractive for funds managers and facilitate their move to Italy. Usufruct in Quebec Marilyn Piccini Roy As in all civil law jurisdictions, usufruct is a recognized institution of Quebec law. However, unlike most European civil jurisdictions where usufruct is a popular estate planning technique, its use for estate planning has been eclipsed in Quebec by the trust. The principal features of the Quebec usufruct are canvassed in this article, along with the main reasons for the decline in popularity of the usufruct, such as the awkward tax treatment accorded to usufruct as a deemed trust and the mismatch between the deemed tax trust and the civil law trust. As illustrated by examples in the article, serious tax consequences can arise when foreign usufructs are imported into Canada. Usufruct in Colombia: brief comparison with usufruct in the Netherlands Sergio Rodríguez-Azuero This article is based on a paper which was prepared for a panel presentation on usufructs at The International Academy of Estate and Trust Lawyers conference, Chicago, May 2017. Under Colombian legislation it is not possible to conceive the Dutch ‘Use up’ within the deed that established the usufruct, applicable to all kinds of assets, regulated as a limitation to the real right of property. Nevertheless, a similar purpose could be obtained with the so called ‘fiduciary property’, another form of property limitation not foreseen in the European Legislations of the ‘civil law countries’. Cross-border planning for real estate: Spain Florentino Carreño This article deals with the cross-border tax issues resulting from (i) the purchase of real estate, (ii) the holding of this real estate and its renting out to lessees, and (iii) a sale of the real estate at some point in time in the future, as well as (iv) gratuitous transfers through gifts or by way of death, and all of this under the tax laws of Spain. The real estate may be purchased directly or indirectly through the acquisition of shares in a local company holding the real estate. The purchaser of the real estate may be a non-resident company or a non-resident individual. Cross-border planning for real estate: Austria Niklas J. R. M. Schmidt This article deals with the cross-border tax issues resulting from (i) the purchase of real estate, (ii) the holding of this real estate and its renting out to lessees, and (iii) a sale of the real estate at some point in time in the future, as well as (iv) gratuitous transfers through gifts or by way of death, and all of this under the tax law of Austria. The real estate may be purchased directly or indirectly through the acquisition of shares in a local company holding the real estate. The purchaser of the real estate may be a non-resident company or a non-resident individual. Cross-border planning for real estate: UK Bart Peerless This article deals with the cross-border tax issues resulting from (i) the purchase of real estate, (ii) the holding of this real estate and its renting out to lessees and (iii) a sale of the real estate at some point in time in the future, as well as (iv) gratuitous transfers through gifts or by way of death, and all of this under the tax law of the UK. The real estate may be purchased directly or indirectly through the acquisition of shares in a local company holding the real estate. The purchaser of the real estate may be a non-resident company or a non-resident individual. Cross-border planning for real estate: France Line-Alexa Glotin This article deals with the cross-border tax issues resulting from (i) the purchase of real estate, (ii) the holding of this real estate and its renting out to lessees and (iii) a sale of the real estate at some point in time in the future, as well as (iv) gratuitous transfers through gifts or by way of death, and all of this under the tax law of France. The real estate may be purchased directly or indirectly through the acquisition of shares in a local company holding the real estate. The purchaser of the real estate may be a non-resident company or a non-resident individual. Cross-border planning for real estate: Italy Raul-Angelo Papotti This article deals with the cross-border tax issues resulting from the purchase, holding, sale and gratuitous transfers of real estate. These transactions may be carried out either directly or indirectly, by a non-resident company or a non-resident individual, so to give rise to various potential combinations which are analysed in this article. Cross-border planning for real estate: USA Leigh-Alexandra Basha This article deals with the cross-border tax issues resulting from (i) the purchase of real estate, (ii) the holding of this real estate and its renting out to lessees and (iii) a sale of the real estate at some point in time in the future, as well as (iv) gratuitous transfers through gifts or by way of death, and all of this under the tax law of the USA. The real estate may be purchased directly or indirectly through the acquisition of shares in a local company holding the real estate. The purchaser of the real estate may be a non-resident company or a non-resident individual. Perspectives on financial abuse of elders in Canada Timothy C. Matthews This article is based on a paper which was prepared for a panel presentation on ‘Financial Elder Abuse: Fighting the Scourge’ at The International Academy of Estate and Trust Lawyers conference, Chicago, May 2017. Switzerland: fighting the scourge Tina Wüstemann This article addresses the problem of financial abuse of the elderly in Switzerland, which will get worse in the future as the older population grows steadily and the majority of the nation’s wealth is controlled by the elder generation. The problem is exacerbated by the fact that financial abuse of the elderly is not specifically regulated in Switzerland. As a private client lawyer you must be aware of this problem in relation to the estate planning of elderly clients living in Switzerland or clients living abroad with Swiss assets, in particular how to prevent your client from being financially abused and which remedies you have at hand to protect your vulnerable clients. The rights of unmarried cohabitants in Canada Catherine Brown and Kyle T. Gardiner The number of unmarried, cohabitating couples in Canada has increased steadily over the past 50 years. The rights and remedies that flow from these relationships vary widely across Canada’s provinces and territories. The authors survey the laws of four provinces (British Columbia, Alberta, Ontario, and Quebec) as illustrative in three distinct areas: property rights, spousal support, and rights on a partner’s intestate death. Tax issues arising in these three areas are also considered. The property rights of unmarried cohabitants in the USA Carlyn S. McCaffrey The rights of unmarried cohabitants in the USA are determined by the courts of each state. Until the early 1970s, most states gave unmarried cohabitants virtually no rights in the property of their partners. Since then the law has developed rapidly and inconsistently from state to state. This article discusses the principal approaches used to confer rights on unmarried cohabitants. It also discusses the special tax challenges faced by unmarried cohabitants when they transfer properties to each other. Cohabitation in Israel Lyat Eyal and Susanna von Bassewitz This article is based on a paper which was prepared for presentation at The International Academy of Estate and Trust Lawyers conference, Chicago, May 2017. Property rights of unmarried cohabitants in the Netherlands Ineke Koele This article is based on a paper which was prepared for a panel presentation on Cohabitation at The International Academy of Estate and Trust Lawyers conference, Chicago, May 2017. In depth Welcome back stranger: a Canadian perspective on the taxation of privately owned business entities and owners Elie S. Roth This article contains a summary overview of the income taxation of Canadian resident and non-resident owners of privately owned business entities. It commences with a summary of the following business entities typically utilized in structuring privately owned businesses in Canada, and summarizes the characteristics of each and their domestic tax treatment: corporations, unlimited liability companies, general and limited partnerships and trusts. The article then outlines the general scheme in the Income Tax Act (Canada) (the ‘Act’) for taxation of non-residents in respect of investment in Canadian private business entities, including an overview of the Canadian withholding tax regime, issues related to the determination of whether to invest through a Canadian branch or subsidiary corporation, the taxation of certain hybrid entities and a review of capitalization considerations, including the Canadian thin capitalization and interest imputation rules. The taxation of the disposition of shares or interests in Canadian business entities by non-resident investors is then discussed. The article concludes with a summary of the taxation of non-resident beneficiaries of Canadian resident trusts. © The Author (2018). Published by Oxford University Press. All rights reserved.

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Trusts & TrusteesOxford University Press

Published: Feb 1, 2018

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