SPF; Private Foundation
SPF; Private Foundation Private Foundation (Private Foundation) To the attractiveness of the Netherlands Antilles as a financial center to maintain and possibly aggravate the legislature created an entirely new legal end of 1998 the foundation “Private Fund” ( “SPF ‘); in English “Private Foundation”. The SPF provides among other things for the Dutch and European tax practice very interesting uses. Our collaborative Trust office would therefore like to further inform its clients in this area through this bulletin about this new legal concept. In mid-2000 there were more than 3000 SPF’s registered in Curacao; a highly successful formula. The SPF is by our office in Barcelona, in front of a notary resident established, after which it is registered in the Foundation Register of the Chamber of Commerce. Immediately after the establishment is designated by internal rules (not a public document) one or more beneficiaries in the ability of the foundation. HVH Trust S.A. acts as director of SPF and requires all directions, by giving the recipient to follow. The ability of the foundation is fully protected. The Netherlands Antilles impose any gift tax if the donor lives outside the Netherlands Antilles. The foundation capital gains remains outside the tax. All this makes the SPF an ideal instrument to include the holding of shares in a Dutch BV fiscal substantial interest shares, the investment of funds, holding shares in a Netherlands Antilles NV or another offshore company, parking and shielding power and / or property, evasion of inheritance, settling family law matters capital and inheritance matters, etc. the SPF is also widely used by Dutch people living abroad and wishing to return to the Netherlands. After this first follow brief descriptions of the new foundation form of the fiscal position and a number of characteristics of this legal concept.
Then shows the differences with the old style foundation .. followed by a comparison with the Anglo-Saxon trust. And finally, some applications are discussed. SPF SPF is a special form of legal concept foundation. The recently introduced legislation in the Netherlands Antilles is partly designed to examples from Austria, Liechtenstein and Panama. At one material respect the SPF of the common foundation: The ordinary foundation may make distributions for an idealistic or social purpose. The law prohibits the making of distributions to founders and third parties on other grounds. SPF This distribution prohibition does not know. However, an SPF should drive no business or enterprise for profit. However, it is clearly stipulated by the legislator that operate as an investment company or holding company is not regarded as driving a business or enterprise. Whatever its purpose, the SPF can use its resources for doing all kinds of investments. Tax position The SPF is not subject to Dutch Antilles profits tax. Distributions by the SPF to a third party on the Netherlands Antilles exempt from gift tax. And input into the SPF on the Netherlands Antilles also exempt from gift tax. The latter is different from the person who contributes resident in the Netherlands Antilles. It should also be borne in mind that in some cases the contributor in the country where he or she is resident will have to pay gift tax. However, the fact is the SPF itself completely exempt from all Netherlands Antillean taxes. Features The legislator founder offers a very wide discretion to organize the SPF in the manner desired by him. There are very few restrictions. One requirement is that the SPF is established by notarial deed. It further holds that the SPF should be entered in the register of foundations. The statutes should also determine how directors are appointed and dismissed. Further, the founder substantially free in the determination of the organization of the SPF. So may provide that directors are appointed by the Board. But it is also possible to determine which appointment is made by the founder or by a third party. To the board can be very specific and binding instructions regarding distributions of the assets of the SPF. But vice versa is also possible the board herein precisely to give a very broad discretion. The objects clause in the articles of association is only so important whether or not it gives the power to do certain benefits administration. Those designated persons may, however, either individually or as a group to which object clause derive a claim against the SPF. The SPF can be established for an indefinite period or for a certain time. This is different from the trust. A so-called perpetual trust is not possible. A certain time may be a period that ends when a specific event occurs. The Board may decide to liquidate the SPF and destination of the surplus upon liquidation. To this end, however, can also be given a different arrangement. If the founder is also possible to give the authority to liquidate the SPF. Moreover, the statutes require only certain particular in the law areas shall contain a scheme. In an internal regulations that, unlike the association is not public, a more comprehensive regulation may be included. The SPF client must have a driver based in the Netherlands Antilles or agent. In most cases, the trust company will perform this function for the client. Difference from a ‘normal foundation’ completeness’ sake, it is good to point out that the application of the ordinary Dutch Antillean foundation with the introduction of the SPF is not exhausted. The best known application of the foundation is perhaps that of trust. The foundation then hold the shares of a company / legal entity and gives purpose to third parties certificates. These third parties may thus be regarded as the beneficial owner of the shares. The foundation / trust is the legal owner. Also continues to determine the possible to the ordinary foundation in the statutes that will accrue the surplus upon liquidation of the founder.Applications The SPF can be used in situations where it is desired and consumer and family wealth or to separate into an entity that is subject to a favorable tax regime, the SPF instance, can play a role in estate planning. It is a tool to allow power according to the wishes of the owner transferred to future generations or other legal successors without them directly get the full power of disposal. Under circumstances by using an SPF also avoid multiple charging of gift and inheritance tax. This could especially be given to the SPF as the owner of shares in a family company. The SPF can also be a more flexible alternative to foundation trust. Also of interest are applications associated with a donation to a hand over the SPF. Furthermore, an SPF can be used as an instrument of asset protection when protecting family and ondememingsvermogen against political risks (expropriation), criminal risks (kidnapping), economic risks (excessive appeals product liability) and other risks (gambling compulsion family). Another possible application is the so-called art foundation. But it is also, for example very well possible to use the SPF as an investment company. In such use, the SPF can be a good alternative to the Dutch Antilles public company. Naturally will especially fiscal aspects of a contribution to a SPF and targeted distributions from an SPF each case must be thoroughly examined. But it is clear that the SPF will prove a useful tool to have in the international financial planning. Source: www.e-zonecuracao.nl/stichting private fund / accessed September 10, 2015.
