A Jersey Foundation in overview

Since the introduction of Foundations in Jersey in 2009, they have become more and more popular with over 380 having been registered as at December 2019.

Jersey Foundations are unique and do not have an exact equivalent in other jurisdictions but do offer certain benefits of traditional companies and trusts, whilst being constructed to eliminate some of the key constraints. It is similar to a company in that it has separate legal personality and has a Council to administer its business, just like a board of directors.

Unlike a company, a Foundation does not have shareholders and contrary to the position of a trust, there are no beneficiaries who have an interest in the Foundation’s assets or who are owed a fiduciary duty. Consequently, a Foundation does not have any owners and is regarded as an ‘orphan entity’.

What are they used for?

Private wealth management structures/philanthropy
Over a third of those established so far are understood to have charitable purposes

Asset protection/succession planning
Families can use Foundations to ring-fence certain assets, avoid forced heirship rules or succession challenges and make provision for how family wealth should be disseminated

Maintenance of corporate control
Family businesses are often led by elder members of the family and it can be beneficial for succession planning purposes to ensure the continuity of the family businesses that they be held by independent vehicles, such as a Foundation

What are they used for?
Since the introduction of Foundations in Jersey in 2009, they have become more and more popular with over 380 having been registered as at December 2019.

Ownership of private trust companies
As an alternative structure to family businesses being owned and directly held in a Foundation, the Foundation could instead own the shares in an SPV trustee company (“PTC”) which would, in turn, own the family businesses through a conventional trust arrangement. This may also assist with the tax status of the PTC

Separate ownership
The Foundation is a useful option as an ‘orphan’ entity for structures that require an SPV with no connected ownership, including securitisation. Foundations are also registered and
identifiable where required for third party certainty (as opposed to trusts which are unregistered)

Pensions/employee benefits
The benefit of a Foundation in this area can be the ability to own assets in its own name but also not have to overlay trusts concepts to the holding of assets and beneficiaries

Flexibility

They are very flexible in terms of their structure and internal arrangements as the
Law permits a substantial degree of bespoke adaptation

Corporate personality

They have legal personality and may contract or sue in their own name and the
doctrine of ultra vires does not apply to Foundations

Clear position for ownership/ beneficiaries

No fiduciary duties are owed to beneficiaries, the beneficiaries have no interest in the Foundation’s assets and Foundations are not bound by trusts or corporate case law. They need not have beneficiaries and can be established for a beneficial (particularly charitable/philanthropic) purpose

Corporate Style Duties

The Council members have duties that are similar (albeit not identical) to that in corporate law but those duties are owed to the Foundation itself (not beneficiaries). Constitutional documents can also provide for exoneration of Council members save where liability arises out of fraud, wilful misconduct or gross negligence

Control/Reservation of Powers

A significant degree of control and involvement can be retained as an alternative to a trust

Familiarity

As Foundations have their origins in civil law jurisdictions, they can be more familiar to those operating in those jurisdictions, particularly continental Europe

Corporate Certainty

Foundations have adopted certain useful corporate aspects such as the ability to migrate, continue, merge and wind up as well has having an indefinite existence if required (i.e. no fixed term). A Jersey company can also convert to a Foundation

Control of Information

The founder can restrict the flow of information regarding the Foundation
and its property to beneficiaries. As they are private structures and although they require registration, only a very limited amount of information needs to be
placed in the public domain (with only the limited charter being filed, the operative regulations remaining private – distinct from companies where memorandum and articles of association must be filed publicly) although a Foundation has a level of visibility / public record which can be required commercially

Single or Depreciating Assets

Where the assets include planes, boats, volatile assets or certain types of family businesses, sometimes they do not sit comfortably within normal trusts law constraints and parameters, including traditional trustees’ duties or the
Foundation can assist with managing issues such as competing family interests with less risk of challenge by beneficiaries

Foreign Law Firewall

The law governing Foundations has been drafted to prevent foreign law being used
to circumvent Jersey law determination on matters relating to Jersey Foundations

Oversight

A Foundations have a guardian to ensure
the Council carries out its functions with related potential sanctions

A Foundation will generally be taxed at 0% in Jersey and by concession, usually non-Jersey resident receiving an income distribution from a Jersey Foundation will not be taxed in Jersey. Tax may be payable by a Jersey resident individual who receives income from the Foundation. Tax advice should always be taken for individual circumstances.

Foundations do have certain restrictions as regards directly holding immovable property in Jersey or engaging in commercial trading that is not incidental to the attainment of its objects (albeit it could through an underlying company potentially) and advice is recommended in respect of those activities.

 

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