Paradise Papers – Seeing the Wood for the Trees

logoThe now infamous “Paradise Papers” contain personal data obtained from Appleby’s Bermuda office via an illegal hack. This data in part details the utilisation of International Finance Centres (IFC), by high net worth persons and corporates, for tax mitigation purposes. This post makes no comment on the legality or otherwise of using such data. Nor, is it a commentary about tax havens vs IFCs, the ethical considerations of society, and the freedoms for legal persons to engage in trade or invest in or through an IFC. Our focus instead is the failings that Trustees, Foundation Officials, Directors and Employees in Financial Services Businesses (FSB) must learn from in the wake of this saga. We do not purport to be a tax experts and so have not commented on the validity or otherwise of any advice given whether regarding tax or structuring. Our intention is to look at the compliance and “good business practice” considerations at the heart of good corporate governance. With offices in Guernsey, Jersey and having experience of  working in Bermuda we believe analysis of legal and regulatory frameworks by jurisdiction offers a less valuable insight than a clear understanding of the general principles and terms of good corporate governance.

 
Tax Advice
In order for Trustees, Foundation Officials and Directors to fulfil their responsibility and work in the best interest of their clients they must understand and follow the professional tax advice received. They must evidence that they are compliant with this advice and periodically, depending on the type of arrangement they are administering or controlling, ensure that they have up-to-date tax advice on file. They must also evidence that these arrangements remain legal and all tax liabilities are settled when due. The following are instances where those responsible may find that they have failed to attain an appropriate standard:

• Legal arrangements over time becoming tax non-compliant;
• Legal arrangements set up with draft tax advice without the advice ever being formalised;
• Legal arrangements undertaking new activities outside the scope of the original tax advice;
• Failure to follow tax advice fully, e.g. the non-repayment of a commercial loan arrangement;
• Tax advice provided by those who are not appropriately qualified;
• Tax advice held by the client but never shown to the Trustees, Foundation Officials and Directors.

Control
To ensure tax and legal compliance the Trustees, Foundation Officials and Directors must exert control. Here again to fulfil their responsibilities they must clearly document evidence that they have overarching control of the activities of the legal arrangement. The following are instances where those responsible may find that they have failed to attain an appropriate standard:

• Beneficiaries committing the legal arrangement to a business arrangement without due consideration and approval of the Trustees, Foundation Officials and Directors in the first instance;
• Those responsible acting without due consideration;
• Those responsible committing the legal arrangement to business activities which do not accord with the arrangement’s rationale;
• Those responsible lack sufficient independence from the client;
• Those responsible are unable to evidence their control of the assets and/or activities of the arrangement.

Investments
The Paradise Papers have also raised questions regarding the suitability and legality of investments undertaken by legal entities. Trustees, Foundation Officials and Directors must ensure that the investments or business activities undertaken by the entity are in line with its intended purpose. Those responsible must also ensure the legality of any investment or business activity does not breach any international sanctions. Though investments or business activities do not require due diligence to the same standard of beneficial ownership due diligence, sufficient research and evidence must be attained to ensure such activity is in the best interest and in line with the objective of the legal arrangement. At the same time sufficient checks must be undertaken to ensure legal compliance and suitability with its objectives both at initiation and on an on-going basis thereafter. The following are instances where those responsible may find that they have failed to attain an appropriate standard:

• Investing or engaging in a business relationship with legal entities related to a sanction regime or jurisdiction;
• Not undertaking sufficient due diligence to ensure that the investment or business engagement does not involve sanctioned legal persons or sanctions breaches;
• Investing or business relationships that are out of line with the entity’s purpose.

Source of Wealth and Funds
Trustees, Foundation Officials and Directors must ensure that they have sufficient understanding and evidence of their clients’ Source of Wealth and Funds (commensurate with their risk classification) to prevent and detect criminality and terrorist financing. Understanding the origin of assets and their usage assists those responsible in forming a picture of the true beneficial ownership, intention and nature of the relationship. This also allows those responsible to have sufficient transparency and enable effective reporting required by international regulatory and legal bodies.

 
Ethics of Doing Business
Those responsible must ensure that they have given ethical consideration to the activities of any legal arrangement. Ethical considerations must accord with the documented risk appetite and it must be understood that legal arrangements engaged in aggressive tax mitigation or higher risk industries pose a higher reputational risk to the Trustees, Foundation Officials and Directors, their business and those of the jurisdictions in which they are active. As such, these relationships must be properly understood and documented as they may be open to future challenge.

 
The ethics of doing business must also consider whether sufficient knowledge, qualifications and experience are inherent in those responsible. Trustees, Foundation Officials and Directors must document and evidence their consideration of whether a business relation, either new or continuing is within their realm of knowledge, understanding and experience. Where this is not the case they should remove themselves from responsible positions or obtain suitably experienced individuals as their replacement.

 
The integrity and professional actions of those responsible will ultimately be assessed by the authorities to ensure that the best interests of stakeholders have been met at all times. This responsibility includes timely reporting of non-compliance with appropriate authorities.

 
Compliance
While the Trustees, Foundation Officials and Directors remain responsible and accountable for both and their own and the legal arrangements activities, a suitably resourced compliance function is required to assist and advise. Compliance must be a proactive force within a FSB rather than merely a tick box exercise. It must assist in ensuring that the business has attained appropriate tax and legal advice as well as ensuring it is understood and followed. Those responsible must demonstrate the required control and oversight of activities undertaken for and on behalf of the legal arrangement. Findings and recommendations must be reported back to those responsible and any remediation must be tracked to ensure that the business can demonstrate compliance, integrity and appropriate levels of knowledge and understanding of the entity’s activities.

 
Data Security
The Paradise Papers also clearly highlight the importance of implementing suitable and sufficient data security controls to protect stakeholders. These controls are not just IT system-focussed and must include effective staff training to reduce the risk of an unintentional data leak. Data security systems and processes must be monitored, tested and kept up-to-date. It goes without saying that failure to implement an efficient and effective control environment may lead to a catastrophic loss of data with disastrous reputational consequences for all stakeholders. FSB’s must also be aware and ensure that any 3rd parties who hold data do so effectively and have the necessary safeguards and review processes.

 
Conclusion
Compliance monkeyIFCs adhere to international standards and best practice. While recent data hacks have revealed that there are practitioners out there who have not abided by these requirements, the vast majority are conscientious and highly professional.

However, the current political backdrop is unfavourable to offshore jurisdictions and we should expect greater scrutiny in our professional activities for the foreseeable future. Applying the highest standards of corporate governance is our best path to a successful future.
If you have any concerns or would like to know more please either contact myself or Redwood Offshore

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What doesn’t kill us only makes us stronger

drift drivingOne cylinder shut down due to a malfunctioning regulator and now my other regulator had started to malfunction, I realised that the situation was now extremely serious and the next decisions would be the most important of my life. As I drifted there at thirty eight meters, unlikely to successfully survive a dash to the surface I took a deep breath trying not to choke on the seawater as it came into my mouth, I focused on the task at hand and dismantled my switched off regulator and signalled to my buddy to put up a surface marker.

We all have to make decisions, the regulations force us to make decisions for the protection of our customers ourselves and our jurisdictions. We demonstrate this by risk assessments, an exercise that can be seen as pointless and only for the sake of the regulations. By engaging with the assessment process and thoroughly reviewing and demonstrating the potential areas of risk that we face we are able to understand, minimise and hopefully withstand potential events that may and will occur. It goes without saying that any risk assessment needs to be monitored and assessed regularly as environments and situations change, it also allows us to be more alert and able to detect and deal with new or unknown risks and risk areas as and when they arise.

I knew my focus was narrowing and it had become darker, my fingers replaced the membrane in the regulator and I screwed it together, I moved to the valve of my cylinder and slowly turned on the air, nothing happened and no air escaped. Slowly pressing down I purged the regulator it worked, thank God, and I put it in my mouth and tasted the sweet air. By no means was this a fix, more a patch as within seconds it started to leak again. I looked up to be greeted by two huge eyes of my dive buddy who had just released the surface marker, with a smile I signalled it was time to depart to the surface and I put my fingers round the line attached to the surface marker as we began our leisurely ascent.

At eighteen meters the patch was failing, at seventeen meters the regulator was finished and I put in to my mouth the other semi working regulator and felt air and cool salt water, at sixteen meters I could see the sun shimmering and new that the odds of them both working to a lifesaving capacity to the surface was not in my favour, it was time to change the plan to meet the situation and I signalled to my buddy. At fifteen meters with my buddy’s emergency octopus and air filling my lungs we gently continued our ascent to the surface. At the surface we were both smiling and greeted by our safety boat.

We had addressed the known risks by our planning and checks pre dive, during the dive we had calmly and successfully dealt with a worst case scenario, assessing the situation and assigning tasks to create a better situation. The ascent had been undertaken in a control manner avoiding the potential of the bends and though it had required a change to meet the situation we had accomplished the task successfully. The risk had morphed but we had successfully dealt with the new and unknown risk due to good training, assessment and management.

Risk assessments are not pointless or just for regulators or governing bodies to review and assess but are vital. Life and business is about risk, just make sure that you have realised and assessed them initially and then periodically, fate has a nasty habit of striking when you least expect it as history and the present time shows us, make sure you can survive.

When things go wrong review, understand, remediate and enhance, I know that is what I will be doing, it wont be pointless and will make me stronger.

Diving in to Compliance

Entering the waterMy weekends are spent reviewing overarching risk assessments and analysing specific risk assessments as well as undertaking the compliance review of policies and procedures, finishing with the review of performance of the systems and controls.  I am not taking work home with me nor am I moon-lighting or taking on further roles, I am though a qualified Diver and a qualified Solo Diver.

Diving can be a high risk pursuit and can lead to death even at shallow depths. My joy and passion is to go deep, exploring wrecks and reefs of the Channel Islands below 30 meters or 100ft and seeing the beauty and fragility of the alien world below illuminated in beautiful colours with its abundance of life.  The chance of swimming to the surface and surviving without any injury after a total gear failure or panic attack are slim at best, at these depths. The choices I make are calculated and risks are mitigated using similar principles that a Financial Services Business (“FSB”) would utilise.

I start every dive season off with an overarching risk assessment, looking at the risk I am prepared to take, what I want to achieve and the factors affect me. This is not overly different to the Anti-Money Laundering and Combatting Terrorist Financing (“AML/CTF”) Business Risk Assessment for any FSB in Guernsey.  My overarching risk assessment is where I look at what I want to achieve and the risks that I am prepared to take in essence what my risk appetite is, and it does vary year to year.

For a FSB the AML/CTF Business Risk Assessment looks at the risks posed by its products and services and its customers. In my case these translate to the types of diving I want to engage in, my planning and who I dive with.  My mitigation of the risks faced would be my diving gear and its set up and my overall health to make the dive.

I then put into action a monitoring programme taking into account my overarching risk assessment.  A full review of my diving gear is essential as is my fitness, this will involve servicing both gear, body and mind and reviewing them on a periodic basis.  This is similar to the provision of management information to the Directors of a FSB. They require to know the state of health of their policies, procedures, systems and controls, to ensure that they are maintained and remain in good condition and fit for purpose in order to mitigate the risks their business face. Knowing that my gear is in good condition and works is essential for whatever dive I do while the health of my body and mind will dictate the dive that can be undertaken safely. Resources must be put to where areas of concern are noted to ensure that the potential for errors or incidents are reduced to a minimum.

drift drivingThen it all comes down to the day, where I undertake a specific risk assessment of myself, the conditions, the type of dive to be undertaken and who I am diving with or if I am going solo. In a sense this is similar to the customer risk assessment that FSB’s undertake for each customer, in order to identify the risk they pose to the FSB and whether the risks are acceptable.

FSB’s by appreciating the risk posed and faced by the customer can decide whether they are prepared to engage in a business relationship with a customer.  In some cases when I have dived I have been satisfied with the risk I face and have dived but I have also be known to decide that the risks are too high or that my systems and controls are not up to the task and have declined the dive or undertaken an easier dive.  I always work on the idea that it is better to be on the surface wishing you were diving then being in trouble under the water away from help and wishing you were on the surface.

Due to the higher risks I take my systems and controls are tailored to me and include as a minimum two independent air cylinders.  I implement my systems and controls by dividing my body in to two halves, one side has computers connected to one cylinder and the other side has old-fashioned gauges connect to my other cylinder, the idea being that should one side fail I can rely on the other as back up.  It also means I can monitor the performance of my systems and controls effectively ensuring that any false readings or dangerous situations are detected early and evasive action taken.

The last thing I do after every dive is to review my systems and controls obtaining data from my computers, analysing this to ensure my policies and procedures remain fit for purpose.  I then assess my overarching risk assessment making changes if required. This has similarities to the quarterly and annual reviews that are done by management and Directors of a FSB to ensure that their businesses are meeting the regulatory framework and mitigating the risks that they face, in essence it’s just good corporate governance.

Diver OKThings do go wrong and no matter how good your policies, procedures, systems and controls are.  I have been in situations where I have had to shut down one side of my systems and controls due to sudden failure of a hose or regulator as well as having to rely on my old-fashioned gauges, watch and mental arithmetic when my computer has failed. It does not come down to luck that I am here writing this but that my risk assessments and planning have taken these situations into account.  My compliance monitoring has reduced these incidents and malfunctions to a minimum and I have put resources to the risks I face ensuring I am suitable trained and able to deal with incidents of this nature.

FSB’s that have a good corporate governance culture, a suitable compliance framework and a compliance monitoring programme that meets their needs and provides the required management information effectively, have in general survived the financial crisis and have adapted to business and regulatory changes with ease.  Where issues have surfaced they have been able to deal with them effectively and/or report at the earliest opportunity where required to the regulatory authorities or Financial Intelligence Unit.

(Pictures by kind permission of Colin Peters)