Offshore lending and financing: A practical and legal by Vaumini Amin

By Vaumini Amin

Written for the overseas banking and monetary providers group, their advisors and offshore businesses, this can be the 1st publication comprehensively to deal with the rules and perform of financial institution lending to offshore tax haven entities. hugely functional in its research of lending issues through this secretive area, it additionally encompasses a comparative learn of legislations and perform in key offshore jurisdictions.

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T h e Regulations do not specify what may or may not represent adequate evidence o f identity; however, the Guidance Notes (at paragraphs 5 1 - 5 9 ) set out what might reasonably be expected of banks and building societies with effect from 1 April 1994. T h e Guidance Notes state that: • records o f supporting evidence and methods used to verify identity must b e retained for five years after the account is closed or the business relationship is ended; • the b a n k or building society should establish to its satisfaction that it is dealing with a real person (natural, corporate or legal) and verify the identity o f those persons w h o have power to operate any bank or investment account (see also Chapter 4 ) ; 32 O f f s h o r e l e n d i n g and f i n a n c i n g • the best identification documents possible should b e obtained from a prospective customer and it should b e assumed that no single form of identification should b e relied upon as representing correct identity, so that an appropriate verification procedure should involve a cumulative process in which a person's address should b e separately verified as the current permanent address; and • in connection with joint accounts where the account holders have different surnames and/or addresses, the bank's records and procedures should include and verify the name and address of all account holders.

2 . 3 . 3 T h e c o n v e n i e n c e o f t h e legal s y s t e m It may b e advantageous to have a legal system which, in its application, practice and procedure, is familiar to the lender and borrower. This may lead to a selection o f the applicable law o f the jurisdiction in which the credit or lending assessment is made rather than, for example, that o f the lending or booking office, although in such a case it is necessary to consider the impact o f the law of the place where the account is maintained with the possibility that a legal opinion will b e required.

1 T a x avoidance and t a x evasion In so far as the borrower's concern may b e to identify and use an offshore centre which is a low tax jurisdiction, the lender may, not least for the purposes o f the all crimes money laundering issues discussed in the next chapter, require to determine that the transaction to which the lender is to b e a party is o n e that does not offend against any o f the systems o f fiscal law to which the parties are subject. In this context, it is important, in the first instance, to draw a distinction between tax evasion and tax avoidance.

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