On June 12, 1995, the National Assembly of Panama adopted Law No.25 by which Private Foundations are created and regulated. The idea behind the drafting of this new law arose from the popularity and well deserved good reputation of the Liechtenstein Family (and Mixed) Foundations in certain parts of Europe , specially in Switzerland . The law governing foundations is set out in the section “Corporate Bodies”, part two, title 5, of the Liechtenstein Law on Persons and Companies (PGR) of January 20, 1926, LGBI, No.4, 1926.
[box]The enactment of this law by the Republic of Panama is one of the latest steps taken by the Panamanian Government and the legal professional community to ensure the leading role of the country as an Offshore Service Center.[/box]
Though very similar in many respects to the Family or Mixed Foundation of Liechtenstein (“Stiftung”), the Panamanian Private Foundation, presents some essential differences and we believe “improvements” that we will try to indicate throughout this issue. The group of lawyers and financial advisors behind the drafting of the Panamanian project, took also into consideration some of the most recent updates of the legislation on trusts of some Anglo-Saxon jurisdictions mainly from the Caribbean as well as Jersey and Guernsey in order to prepare a most flexible and modern legal instrument.
Concept of the Private Foundation – Main uses
For those readers who are not familiar with the concept of a foundation we will say that it consists in the endowments of a patrimony for a specific purpose (object) determined in a document where the foundation is created and internally organized known as the Act of Constitution or Charter. The pursuance of the object of the foundation is entrusted to an appointed body known as the Foundation Council. The person (s) who creates the endowment is known as the founder and the persons who benefit from the endowment (traditionally the founder and/or members of his family) are known as the beneficiaries.
Once the Foundation Charter is registered in the Public Registry, the property endowed or to be endowed becomes an estate separate and apart from that of the founder by acquiring a Juridical Personality of its own, thus becoming a private foundation.
The information about the names and rights of the beneficiaries of the foundation property is normally given to the Foundation Council by means of a private and confidential document (that is to say a document which does not need to be registered in the Public Registry) known as “the Regulations”.
The private foundation, contrary to the traditional corporation does not have shares, it does not recognizes shareholder nor does the founder acquires such rights in relation to the foundation’s property.
The law does recognizes however the beneficiaries or the persons in whose benefit the foundation is created and which can include the founder.
The possible uses of a private foundation are so broad that we can safely ascertain that practically all of the objectives which can be achieved by the widely used “trusts” can also be achieved by properly structuring a private foundation.
Private foundation are mostly utilized as the ultimate holder of a given patrimony where it can be administered by professionals for the benefit of the founder and/or other appointed beneficiaries and where simultaneously, the founder can plan in advance (in the Regulations) for the transfer of the benefit or the orderly succession of such patrimony in case of his sudden demise.
Foundation Documents
Two main documents constitute a foundation: the Foundation Charter and its Regulations or By-Laws.
The Foundation Charter
As mentioned before, the new Panamanian Law requires that a Foundation Charter be registered at the Public Registry in order for the foundation to acquire juridical personality. As any other juridical person who will have rights and obligations, acquire and own assets of all kinds, the Law demands that certain basic information be given in the Charter in order to validly constitute a foundation. The information is:
1. The name of the foundation in any language with characters of the Latin alphabet, and which shall not be identical or similar to that of any other foundation previously existing in the Republic of Panama, to avoid confusion. The name shall include the word foundation to distinguish it from a natural person or from a different kind of juridical person.
2. The initial capital of the foundation, expressed in any currency of legal tender, and which shall in no case be less than an amount equivalent to $10,000.00.
3. A complete and clear designation of the member or members of the Foundation Council, to which the founder may belong, including their addresses.
4. The domicile of the foundation.
5. The name and domicile of the resident agent of the foundation in the Republic of Panama, who must be an attorney or law firm. The resident agent must countersign the Foundation Charter prior to its registration at the Public Registry.
6. The purposes or objects of the foundation.
7. The manner of appointing the beneficiaries of the foundation, which may include the founder.
8. The reservation of the right to modify the Foundation Charter when deemed convenient.
9. The duration of the foundation.
10. The destination to be given to the estate of the foundation and the manner of liquidating
such estate in the event of dissolution.
11. Any other lawful clauses which the founder may consider convenient.
Regulations
1. All the information which is not required by the law to be stated in the Foundation Charter and which the founder will rather keep confidential can always be written in “the Regulations”. As in Liechtenstein, the Regulations are a private document and, as such, do not need to be registered at the Public Registry or anywhere else. Traditionally then, all the information containing the names of the beneficiaries and their rights over the foundation property are written in the “Regulations”. Consequently, the identity of the beneficiaries and all sucessory dispositions do not have to be revealed to any governmental agency and
not even to the attorneys organizing the foundation.
2. The law places practically no limits whatsoever upon the structuring of the beneficial interests of a foundation. One of the more common scenarios is that the founder will designate himself/herself as a beneficiary for life and provide successive beneficiaries upon his death.
3. The law further enhances the confidentiality of this instrument by creating in article 35 severe sanctions (fines up to US$50,000.00 and imprisonment up to six months) for breach of the duty to maintain the information confidential. The obligation applies to the member of the Foundation Council and of the supervisory bodies if any, as well as to public or private employees, who have any knowledge of the activities, transactions or operations of the foundation.
4. Furthermore, the Regulations may be kept out of the country in the hands of the founder, his fiduciary agent, the protector or any other person or institution vested with the confidence of the founder. For all of the above mentioned reasons and some additional ones which will be explained in other parts of this article, the private foundation has been called the perfect living will. There is no need to open public proceedings if the founder dies and his ideas and desires about the use, transference, and final destination of his assets can be carried out privately by the Foundation Council.
Acquisition of Legal Personality
As a legal entity, a foundation may acquire and own assets of all kinds, incur obligations and be a party to administrative and judicial proceedings.
Contrary to Liechtenstein where the family foundation acquires juridical personality when it is duly constituted, even though it should eventually be “deposited” at the registry, in Panama as is it already mentioned above, the Foundation Charter (not the By-Laws or Regulations) has to be recorded at the Public Registry, just like in the case of the Panamanian corporations.
The drafters of the law, did not consider the distinction between deposit (a figure which is not known in Panama) and registration to be of any major importance, since the confidential information will most likely be written in the Regulations and the law (article 1) allows the founder to act through fiduciary agents when organizing its private foundation.
In addition, the registration of the documents at the Public Registry was considered by the drafters as attaching more responsibility to the parties involved in the constitution of the foundation and more security for those third parties (like banking institutions) dealing with them and their Foundation Councils (whose name also have to be registered in the Public Registry (please see below).
Foundation to Own its Own Assets
The assets of the foundation shall constitute an estate separate from the founder’s personal patrimony. Article 11 further confirms this fact inherent to the concept of a foundation when it provides that the assets allocated to the foundation become a separate estate from that of the founder. Thus, the formation of a foundation makes it possible to separate certain assets from the personal estate of the founder and it ensures the legal autonomy of the assets so allocated. Based upon the foregoing, the creditors of the founder may not attack the foundation’s assets for personal obligations of the founder. Once the foundation has been created, the foundation assets are only available to creditors in satisfaction of the foundation’s own debts and not of its founder or beneficiaries.
Nevertheless, it should be pointed out that the law also protects the creditors of the founder or of a third party if the transfer of assets to a foundation constitute an act in fraud of the creditors. The rights of such creditors shall however be exercised within a three-year period counted from the date of the contribution or transfer (statute of limitations).
Foundation Council
The Foundation Council shall be appointed at the time of constitution of the foundation. It shall be formed by no less than three (3) persons if they are natural persons or only one if it is a juridical person. There is no requisite by law for it to have a Panamanian member.
The powers and responsibilities of the Foundation Council shall be established in the Foundation Charter or in the Regulations.
As a general rule, the Foundation Council shall be responsible for carrying out the objectives of the foundation.
Unless otherwise provided in the Foundation Charter and/or the Regulations, their general obligations shall be the following:
1. To administer the assets of the foundation according to its Charter or its Regulations.
2. To carry out acts, contracts, etc. which are convenient for the attainment of the foundation’s
objects.
3. To inform the beneficiaries of the foundation of its economic status, as provided in the
Foundation Charter or Regulations.
4. To carry out all such acts or contracts permitted by the law and its Regulations.
Please bear in mind that the Foundation Charter and/or the Regulations of a foundation may also limit or expand the powers of the Foundation Council to suit the wishes of the founder. Additionally, the founder might appoint himself as a member of the Foundation Council and require that certain decisions be taken by unanimity.
All their acts may be previously authorized by a protector or any supervisory body. Moreover, the founder may reserve for himself/herself or for any other person the right to remove the members of the Foundation Council. This disposition must also be expressly established in the Foundation Charter.
Purpose or Object of the Foundation
It is important to explain, that as in Liechtenstein, a Panamanian Private Foundation as it is stipulated in Article 3 of the law, can not be simply profit oriented or be used to carry on a particular business.
The private foundation such acts are convenient or advantageous to the foundation and only if the proceeds of such acts are dedicated exclusively to the non-commercial purpose or objectives of the foundation.
Consequently, the purpose of a private foundation shall be to contribute to the cost of upbringing, education, aid as well as general maintenance or other similar aims of one or more members of one or several families as established in the Regulations. In addition to the members of one or several families the foundation may benefit other natural or juridical persons including institutions of any kind and it may take the necessary provisions for the orderly disposition or succession of its patrimony. To achieve its object the foundation is authorized to preserve, administer and invest in an appropriate manner the foundation’s assets, being these assets of any kind, particularly of real estate and participations in other entities and to conclude all business and legal transactions serving the pursuit and the realization of such objects.
Initial Capital Legally Required to Form a Foundation
Article 5 of Law 25 expressly establishes that the initial capital of the foundation that has to be pledged shall be no less than US$10,000.00 (TEN THOUSAND DOLLARS). Unlike Liechtenstein Law, this amount does not have to be paid up in advance. Liechtenstein requires a minimum advanced paid-up capital of Swiss francs 30,000.
In both cases the law provides that the foundation may receive thereafter and privately additional assets from its founder or third parties.
Registration Fees and Taxes. Low Setting-up Costs and Maintance Fees.
All private foundations shall pay registration fees and annual taxes equivalent to those applicable to Panamanian corporations. The Panamanian foundation is then considerably less expensive to set-up, maintain and dissolve than its European counterpart.
The amount of the registration taxes, as it is with corporations, will depend on the original capital of the foundation. The standard minimum of U.S.$10,000.00 will pay a registration tax of U.S.$50.00. The amount will increase as the original capital increases, but such increases are very reasonable. The annual franchise tax is U.S.$ 150.00. The penalty for late payment of the annual franchise tax is U.S.$30.00, applicable if after three months of the registration or, thereafter, the anniversary date of such registration, the annual tax has not yet been paid.
Tax Advantages
Panama, like many other international tax havens, only taxes income produced or generated by economic activities carried out within the country, and even inside the country there are certain incomes which are tax free (e.g., the interests generated by monies deposited in banks in Panama). Consequently, someone who utilizes a Panamanian private foundation outside of Panama will not have to worry about taxes within the country of Panama with the exception of the annual franchise tax mentioned in the preceding article.
Irrevocable
As a general rule, private foundations are irrevocable, unless the Foundation Charter expressly provides otherwise.
In addition to the exception stated above, a Panamanian private foundation may be revoked for the same causes applicable to donations. These causes are stated in the civil Code and, they are, among others, the commission of a criminal act by the beneficiary(ies) against a condition established in the Foundation Charter to enable him/her to receive his/her benefits. Moreover, when a foundation has been created to be effective after the death of the founder, he/she shall have the exclusive and unlimited right to revoke it.
Protector – Supervisory Bodies
The founder may also establish other special arrangements in order to retain control or supervision over the foundation assets during his lifetime. He may appoint protectors, auditors or any other supervisory entity to supervises the acts of the Foundation Council prior to or after his/her death, as article 25 of the law expressly authorizes for the creation of such additional entities or supervisory bodies.
The figure of the protector has been widely used in Common Law jurisdictions when settling a trust. This is yet another innovation of the Panamanian law that further ensures the safety of the instrument and thus makes it even more attractive as an estate-planning instrument.
Forced Heirship Provisions
Following a recent trend adopted in the trust legislations of some Common Law jurisdictions like BVI, Belize, Grand Cayman, Bahamas, as well as Jersey and Guernsey – Panama’s Private Foundation Law (Article 14) specifically provides that forced heirship laws of another country shall not affect the foundation or its validity and shall not prevent the attainment of its purpose as provided in the Foundation Charter or its Regulations.
Moreover, inasmuch as the foundation assets will not be part of the founder’s testamentary estate – they have become legally autonomous – the legal norms of his/her personal law cannot restrict or limit in any way the structuring of the rights of the beneficiaries of his foundation.
Not even the formalities required for the execution of wills shall be applicable to the Panamanian private foundations (article 4).
Due Diligence without Jeopardizing Confidentiality
Joining a worldwide crusade against money-laundering and drug-trafficking activities, the Government of Panama, backed by the private sector, adopted Execute Decree #468 of September 19, 1994 .
In essence, Decree #468 establishes the responsibility of Panamanian attorneys to be informed about their clients. This measure does not jeopardize confidentiality whereas the information shall only be disclosed when requested by the appropriate authority of the Public Ministry (Justice Department) investigating a drug related crime.
Article 34 of the Foundation Law establishes that Execute Decree #468, as well as any other legal disposition aimed at combating drug-related crimes, shall be applied to their operations.
As explained before (see section on “Regulations”), Article 35 of the law establishes the requirement to maintain secrecy not only by the persons involved in the creation of the foundation, but also by public or private employees which might have to deal with the foundation. The article also establishes severe sanctions for breach of this duty.
Arbitration
Article 36 of the Law, makes clear by statutory disposition that any controversy arising in connection with the foundation can be resolved by arbitration, thus avoiding the need to litigate through the Judicial System of Panama. The arbitration can take place in any location and can be subject to any procedure established by the founder or any other authorized body of the foundation.
Continuation: Practical and Flexible
Article 28 of the law expressly establishes that foreign foundations may become subject to the provisions of the Panamanian law and continue their legal existence as Panamanian private foundations.
The Requirements for Continuation of a Foundation into Panama are:
To present a certificate of continuation issued by the person legally entitled according to the internal organizational documents of the foreign foundation to issue the same (most likely the Foundation Council) and which shall contain:
1. The name of the foundation and the date of its constitution.
2. Data about the registration or deposit of the instrument at the registry of the country of
origin.
3. An express declaration of its desire to continue its legal existence as a Panamanian
foundation.
4. The requirements of article 5 of this law for the constitution of Panamanian private
foundations.
5. Copy of the original act of constitution of the foundation which desires to continue as a
Panamanian foundation, together with any subsequent amendment.
6. Power of attorney extended to a Panamanian lawyer to carry out the necessary procedures to effect the continuation of the foundation in Panama.
Once the above mentioned documents, duly protocolized, are registered at the Public Registry the private foundation shall be considered a Panamanian foundation and shall be governed by Law 25 of 1995.
The By-Laws or Regulations do not have to be registered. Therefore, the testamentary dispositions or other information about the beneficiaries can remain confidential.
Effects of a Continuation
(*) The legal existence under a different jurisdiction is obtained, thus taking advantage of all the benefits of this new law.
(*) The legal existence of the foundation is continued. It is not considered a “new foundation”.
(*) Should the original name be available at the Panamanian Public Registry, the foundation may be continued with the same denomination.
(*) All rights and obligations acquired prior to the continuation shall continue in effect. By the same token, all legal actions affecting the foundation – as a plaintiff or a defendant – shall continue.
As expressly provided by Article 32, the Panamanian foundation may also be continued elsewhere. This “flee clause” grants security and flexibility to the instrument.
A rather new legal concept, “the continuation” of a juridical person as a national of another country it has nevertheless been widely used for many years in trust legislations. More recently, the IBC laws of BVI, Bahamas and Belize have adopted this principle. The Liechtenstein’s family and mixed foundations very often contain a “flee clause” of this nature, and now they have another country (Panama) who has expressly issued the appropriate legislation to receive such foundations if for any reason they do decide to migrate.
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