23 PLACING YOUR ASSETS OFFSHORE AND AVOIDING FRAUDULENT TRANSFERS

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There are several types of fraudulent transfers, none of which

you want to get caught doing, even unknowingly. Laws

against fraudulent transfers intend to protect the creditor

under civil law, “the people” under criminal law, and a trustee

under bankruptcy law. It may not be easy for any of them to pursue

a person who has fraudulently transferred assets; in fact, it would

have to be f inancially motivating to make it economically worthwhile.

The cost of pursuit could easily outweigh the benef its. Assets

taken out of your home country are difficult to attach, especially

once put into a corporate, trust, or other structure. But, there

could be severe civil and criminal penalties if transfers were determined

to be fraudulent. And, individuals fraudulently transferring

assets could be undermining their own plans to securely place

assets offshore.

Therefore, a person’s reason for transferring assets must have a

proper motive, such as legal tax planning, estate planning, legitimate

business plans, or other logically perceived reasons. This will create a

better argument for why assets were taken offshore if ever challenged.

But the hope should be that no creditors or bankruptcy court are

looking in the first place. Your solvency is the pivotal test of whether a

transfer was fraudulent.

Under two civil law systems, the Uniform Fraudulent Conveyances

Act (UFCA) and the Uniform Fraudulent Transfers Act (UFTA),

creditors have certain remedies and protections. To prove fraud, one

must prove intent to defraud. This is not so easy, but case law and the

UFTA provide the option of proving fraud by showing a badge of

fraud. There are 11 badges of fraud, and an indication of just one

106 BUILDING A SOLID OFFSHORE FINANCIAL FORTRESS

would raise a red flag and the possibility of fraudulent intent. A

badge of fraud is easier to determine than intent to defraud.

In constructive fraud, there is lack of fair value or consideration in

exchange for the asset being transferred. And unlike actual fraud,

there is no requirement to prove intent to defraud nor is a badge of

fraud required.

You should carefully determine your situation with potential creditors,

including spouses, and understand the structure and laws of the

country where you propose to transfer assets. These laws will vary by

country, including statutes of limitations. Get advice from a professional

if you have any doubts.