Family Office Malta approach 2024: private family foundations

—  Managing & protecting assets.

—  Controlling distributions.

—  Providing privacy.

—  Tax exemptions.

—  Estate planning for many generations.

—  Avoiding compulsory succession.

—  Avoiding probate: assets fall outside of your estate.

—  Regulated financial industry.

—  Advantageous tax benefits.

—  Option to be tax transparent.

—  Flexibility in legal vehicle that may be utilised.

—  Merger and division provisions.

Existed in Greek and Roman times, at times used to honour deities.

In the Middle Ages, the Roman Catholic Church used foundations for religious purposes.

Around the same time, in Arabia, with the growth of Islam, a pious donation called a “waqf” developed.

Laws and regulations became more sophisticated during the early 20th century.

Liechtenstein was the pioneer with respect to private foundations.

In the early 20th Century it moulded a solid foundations legislation.

Panama followed suit, and also created a strong legislation for Private foundations.

“A foundation is an organisation consisting of a universality of things constituted in writing, including by means of a will, by a founder or founders whereby assets are destined either –

1. For the fulfilment of a specified purpose; or
2. For the benefit of a named person or class of persons, and are entrusted to the administration of a designated person or persons. The patrimony, namely assets and liabilities, of the foundation is kept distinct from that of its founder, administrators or any beneficiaries.”

Art 26 (1) Second Schedule Civil Code Cap 16 of Laws of Malta.

The Founder:

• May be any person, including a body corporate or other business entity.
• May be more than one in a private foundation.
• Details are public on the deed of the foundation.
• May have various powers as per the Deed of the Foundation, including removing the administrator, winding up the foundation and authorising distributions to the beneficiaries.

The Administrator:

• For a private foundation, has to be at least one person.
• Can be a natural person or body corporate.
• Has to be authorised in Malta by the MFSA.
• Has duties akin to a director of a company, albeit having also fiduciary duties.

The Beneficiary:

• Can be an individual or any body of persons (including companies, foundations etc).
• Can be a group of individuals or class of persons.
• Can be appointed in a discretionary fashion by the administrator if so provided in the Deed.
• Can be a person or person who is not yet born.
• Becomes legally a beneficiary when so appointed, notified, and accepts in writing.
• The Deed may provide that the beneficiary may deal in his entitlement, including transferring it to third parties.
• The Deed may provide that the beneficial entitlement in a foundation is inheritable.
• Can remain anonymous on public documents, since a Beneficiary Statement can not be annexed to the Deed.

The Wild Card – The Protector:

• Borrows from trust law, in that a Founder has an option to appoint a Protector or Protectors also known as Supervisory Council.
• Can be an individual, a group of individuals or body corporate.
• The Wild Card – The Protector.
• Borrows from trust law, in that a Founder has an option to appoint a Protector or Protectors also known as Supervisory Council.
• Can be an individual, a group of individuals or body corporate.

Typical assets:

Shares, stocks, bonds, currencies, immovable and intellectual property, art, precious metals, private equity, life insurance policies, etc.

Restriction to Trade:

The Civil code contains a general provision that foundation “may not be established to trade or carry on commercial activities.”

Exceptions to the Restriction:

1. Hold commercial property or a shareholding in a profit making enterprise, franchise, trade mark, or other asset which gives rise to income, including ships (provided it is the passive owner thereof)
2. Act as a collective investment scheme, subject to MFSA licenses
3. Be used for the purpose of securitisation transactions, borrow monies against the issue of bonds and do the relative ancillary acts.
4. Other practical uses:

• Hold terms deposit accounts, bonds, stocks, shares and similar financial instruments
• Jewellery, works of art, fines wines, physical gold and silver, etc.

A detailed meeting held with client in which all the various angles of foundation law are explained, and all the wishes of the client are taken note of in order to draft the Deed of Foundation.

In conjunction with 1, request due diligence documentation on client.

Draft deed of Foundation and beneficiary statement, including also first letter of wishes.

Contents of the Deed of Foundation: (minimum requirements):

• The name of the Foundation.
• Founder/s.
• Registered Address in Malta.
• Purpose or objects.
• Constitutive Assets.
• Composition of the Board of Administrators.
• Legal Representation.
• Term for which it is established, if any.
• Mention of the beneficiary/beneficiaries, though no requirement to actually provide details.

Obtain client approval, and upon such monies of initial endowment. For a private foundation, the minimum initial endowment size is of EUR 1,164.69

Obtain Power of Attorney from Founder to sign on Deed.

Appear in the presence of notary public in Malta an execute Deed.

Deed registered, with other documents and form, with the Malta Business Registry.

Payment of registration fee upon incorporation.

Provided with a registration number (PFLP) and Certificate of Incorporation.

1.  A body corporate is set up having limited liability and separate juridical personality.

2.  Deemed to be registered for one hundred twenty five years, unless a specific clause is provided in the Deed for a shorter term.

3.  The assets and liabilities thereof are distinct from the founder, administrator and beneficiary.

4.  Foundation can be liquidated prior to its term, or else remains legally registered for 125 years.

5.  Requirement to pay annual registration fee, based on the size of the endowment.

6.  No automatic requirement for annual audits – this depends on whether this is included in the deed (and on type of taxation opted to by the Foundation).

7.  Annual accounts are always prepared by the administrator.

—  The Foundation has a very efficient tax setup whereby it can choose to be taxed as a company or a trust.

—  The Administrators have a one time option to choose under which regime the Foundation should be treated.

—  Major tax benefits apply to non-resident persons or persons who are taxed on an arising basis.

Foundation Treated as a Company for Income Tax:

• Taxable on a world-wide basis.
• Headline tax rate is 35%.
• However, may benefit from refund system or participation exemption regime, which may reduce the tax rate to NIL.
• When treated as a company, from the Maltese perspective it may benefit from Malta’s extensive Double Taxation Treaty Network.
• Distributions deemed to be dividends in the hands of the beneficiaries.
• This option not commonly opted for, though may be more beneficial in certain cases.

Foundation Treated as a Trust for income Tax purposes:

• Transparent for tax purposes (only!).
• It need not register for income tax purposes.
• It need not send or deliver any annual tax returns or audited account.
• The Administrator is in duty bound to advise the Beneficiaries about their personal Maltese tax situation in the event that there is any income that is taxable.
• Most common type of tax registration for private foundations.
• For resident persons, also advisable when form of income is subject to a final withholding tax, such as investment income or dividends.

• Important to gauge tax/duty on endowment of certain assets (notably shares or immovables) to foundations.
• Taxability of gain from disposal beneficial interest.

The Civil code has an innovative feature to allow Private Foundations to have Cells.

In such cases it is a single legal, but which has separate compartments, referred to as cells, that essentially ring-fence the assets and liabilities of a cell from other cells within the Foundation. Each Cell has its own beneficiary or potential beneficiary, which may be completely unrelated to the beneficiaries of other cells within the structure.

This feature has been transposed into Maltese Foundations to create a unique wealth structuring opportunity for large High Net Worth Families whose foundation has multiple generations of beneficiaries, each with their own risk profile and investment outlook.

It may be possible to establish multiple cells within their foundation, each catering to a particular beneficiary or group of beneficiaries.

Whilst the segregated cell does not enjoy its own separate legal personality, it is designated its own distinct name and constitutes a distinct patrimony from all other assets and liabilities of the foundation.

Hence the general assets of the foundation or other cells will not be available to settle any liabilities due by a specific cell.

It is also possible in terms of the Civil Code for cells to be able to “migrate” from the component foundation, and become a foundation in its own right with separate juridical personality.