Foreign Asset Protection Trust (FAPT)

Also known as: Offshore Asset Protection Trust (OAPT), International Estate Planning Trust (IEPT), and most commonly and simply, Offshore Trust

The Foreign Asset Protection Trust (FAPT) exists by virtue of spendthrift trust statutes in the offshore jurisdictions that specifically allow these trusts to be self-settled. Additionally, these trust statutes provide a variety of other statutory provisions meant to deter and defeat creditors, including shortened Statutes of Limitations that make proving fraudulent transfers nearly impossible, and flight clauses allowing the trustee to move the trust elsewhere if things get too hot in the original jurisdiction.

FAPTs are a very, very strong asset protection tool – so long as you are prepared to flee the U.S. to join your assets. For U.S. judges in several landmark cases have demonstrated that they despise FAPTs and will do whatever is in their power to unwind them so that U.S. creditors can see their judgments satisfied, including sending the settlor to jail for literally years for contempt.

Foreign Asset Protection Trust Statutes

All of the offshore debtor havens have some form of asset protection trust legislation, and we do not seek to study each and every statute. Suffice it to say that the Cook Islands and Nevis typically represent the cutting-edge of offshore trust legislation, at least as it relates to legislation geared towards U.S. persons, so their very-similar statutes are worthy of study.

• Cook Islands Asset Protection Trust Statute

• Nevis Asset Protection Trust Statute

Foreign Asset Protection Trust Cases

The litigation history of the Foreign Asset Protection Trust is often intentionally or negligently misrepresented by promoters selling their cookie-cutter offshore trust structures. Follows are a list of the cases in chronological order (based on the date of the most important decision in the case), and a summary of their results. Additional and substantial information relating to each case is available by clicking on the links.

• In re Colburn, 145 B.R. 851 (Bkrpt E.D.Va. 1992), did not involve incarceration for contempt, but the bankruptcy debtor who did not disclose his interest in a Bahamas trust was denied his discharge and the court suggested that the debtor had engaged in fraud.

• Brown v. Higashi (Bkrpt Ak. 1995), involved an Alaska CPA who with his wife set up a Belize trust and then later was hit with a tort judgment. Although the case didn’t involve incarceration for contempt, it did consider whether the assets of the Belize trusts should have been included in the bankruptcy estate, and the court ruled that those assets were in fact included. The court included the following unflattering language about FAPTs: “The fact that the trusts were established in Belize, a country notorious for its anti-creditor policies, rather than Alaska or Washington, indicates an intent to hinder, delay or defraud on the part of the defendants.”

• In re Portnoy, 201 B.R. 685 (S.D.N.Y. Bkrpt. 1996), involved a debtor, Portnoy, who entered into personal guarantees with a Bank to benefit his business, but then shortly before those personal guarantees were called by the Bank he set up a trust in the Isle of Jersey off the French coast and transferred nearly all his wealth to the trust. Soon thereafter, Portnoy filed for bankruptcy and filed a motion for summary judgment seeking to discharge the Bank’s claims. However, the bankruptcy judge stated that he simply did not believe that Portnoy had any control over the Jersey trust (regardless of what the language of the trust said), and denied Portnoy’s motion, suggesting in his opinion that Portnoy had made potentially fraudulent misrepresentations in his filings.

• FTC v. Fortuna Alliance (1997), was a harbinger of things to come. The FTC while tracking an alleged pyramid scheme was able to get a U.S. District Court to issue arrest warrants for those running Fortuna Alliance, after which the defendants immediately agreed to return approximately $5 million from their Antigua offshore trust accounts. But because the case was a settlement and not reported, it was simply ignored by the offshore trust pundits.

• Riechers v. Riechers, 679 N.Y.S.2d 233 (1998), involved a physician who tried to cheat his wife (who had helped him get started in his practice) out of her portion of $4 million of their marital assets by forming (ostensibly to protect against potential medical malpractice claims) a Colorado limited partnership that was owned by a Cook Islands trust. The New York state court said that although the wife could and should purse the assets in the Cook Islands, that the $4 million was part of the divorce estate and the wife would thus be awarded $2 million satisfied by both the trust and other marital assets in the U.S.

• Westrate v. Westrate (1998), was a Florida divorce case where the husband transferred almost 90% of the couple's wealth to a Cook Islands Trust some four months after he first met with a divorce lawyer. The case quickly settled when the judge in the case found sufficient facts to invoke the crime-fraud exception to attorney client privilege between the husband and his lawyers and ordered those lawyers to answer interrogatories.

• In re Brooks, 217 B.R. 98 (D.Conn. Bkrpt. 1998), involved a husband who transferred certain stock shares to an offshore trust formed in the Isle of Jersey by his wife, ostensibly for estate planning purposes. A year later, the husband was forced into bankruptcy. The bankruptcy court considered the self-settled nature of the Jersey trust, and found (after an extensive discussion of the subject) that it was incompatible with Connecticut law that forbid such trusts. The bankruptcy court then simply deemed the stock shares to be a part of the bankruptcy estate. This case is an excellent example of how a U.S. court can simply ignore the existence of an offshore trust for purposes of determining ownership to assets in the United States.

• FTC v. Affordable Media, LLC, 179 F.3d 1228 (9th Cir. 1999) (a/k/a “Anderson case”), was the first case where the intense dislike by federal judges of foreign asset protection trusts finally bubbled over, and resulted in the Andersons, a couple who were pursued by the Federal Trade Commission for their participation in a telemarketing scheme, being incarcerated for six months after they claimed that they could not comply with a repatriation order from the federal court to bring back to the United States certain assets they had sent to their Cook Islands foreign asset protection trust. Later, the Andersons’ trust company paid a $1 million settlement to the Andersons, and the Federal Trade Commission continues to pursue the Anderson for the balance of the judgment against them. Although the FAPT pundits would later claim that this case is a “bad facts make bad law” situation, they overlook that the Andersons formed and funded their offshore trust a year before the Andersons even got involved in the telemarketing scheme.

  Because the Andersons spent only six months in jail, a theory quickly developed that six months was the longest that the court could hold the settlor of an offshore trust in contempt. Also, the Anderson case was seen by some planners as an anomaly – a case from the “liberal 9th Circuit” that was unlikely to be repeated. The next case, the Lawrence case, answered the issue regarding contempt and showed that the Anderson result was the way that FAPTs would henceforth be treated by the federal courts.

• SEC v. Brennan, 230 F.3d 65 (2nd Cir. 2000), involved a Gibraltar trust that was formed in 1994 and funded with $5 million by a notorious securities fraud artist. Later, when Brennan filed for bankruptcy in 1995, the foreign trustee exercised the flight clause in the trust and moved it first to Mauritius in the Indian Ocean, and then to Nevis in the Caribbean. Brennan did not include the trust assets in his initial bankruptcy petition, but later (apparently fearful of criminal bankruptcy fraud) amended his petition to include the offshore trust assets. The U.S. District Court then ordered Brennan to repatriate the trust assets back to the U.S. under penalty of contempt, but Brennan appealed to the U.S. Court of Appeals for the Second Circuit on the technical issue that the District Court’s order violated the automatic stay provision of the bankruptcy laws, and won on a narrow 2-1 decision. Before anything further could happen in the case, Brennan was convicted of bankruptcy fraud and sent to jail for a very long prison term for bankruptcy fraud not related to the offshore trust (such as claiming that he had no assets while maintaining a box in a Las Vegas casino that held $500,000 in chips). From an asset protection perspective, the Brennan case thus resolved nothing other than showing that FAPTs could and would be used by hardened securities fraudsters to hide their ill-gotten gains.

• SEC v. Bilzerian, 131 F. Supp. 2d 10 (D.C. 2001), like the Brennan case also involved a notorious securities fraudster. Bilzerian, a one-time corporate raider who had been convicted of insider trading, also tried to hide his assets from the SEC, and sought protection under the bankruptcy laws, but his discharge was denied by the District Court and affirmed the Eleventh Circuit, In re Bilzerian, 153 F.3d 1278 (11th Cir. 1998). Thus, the SEC’s pursuit of Brennan’s asset continued, and the District Court issued a broad order to Bilzerian to present financial information on the numerous “Bilzerian entities”, including his family trust formed in the Cook Islands. Although Bilzerian argued that under the trust documents he had no power to obtain the financials, and the Cook Islands trustee refused to present them, the District Court ordered Bilzerian incarcerated anyway.

• In re Stephen J. Lawrence, 279 F.3d 1294 (11th Cir. 2002), involved a derivatives trader who had suffered a margin call from Bear, Stearns securities resulting from the 1987 market crash. Only weeks before the results of his arbitration with Bear, Stearns was announced, Lawrence sent most of his wealth to an offshore trust. After the arbitration went against him, Lawrence continued to litigate against Bear, Stearns, but eventually (apparently weary of the costs) filed a voluntary petition in bankruptcy. After discovering the offshore trust, the bankruptcy court obtained an order compelling Lawrence to turn over the trust assets. When Lawrence refused, the federal bankruptcy judge ordered him incarcerated, and eventually the 11th Circuit (known for being very conservative, unlike the 9th Circuit) affirmed the incarceration. Lawrence’s Writ of Certiorari to the U.S. Supreme Court was later denied, and as of August, 2003, Lawrence was attempting to argue that his contempt was really criminal in nature, thus entitling him to a jury trial to attempt to get out of jail.

  The Anderson and Lawrence cases are “1-2 punch” that knocked out the (in retrospect, ridiculous) belief that U.S. courts would wilt in impotence against foreign asset protection trusts even when they had the settlors within their powers. Even today, the Anderson and Lawrence cases are an extremely sore spot with the planners who then championed FAPTs as the ultimate weapon against creditors, and who were later severely discredited when these cases turned out precisely opposite of how they had predicted.

• BankFirst v. Legendre (2002), involved a Florida businessman who set up an offshore trust with the assets managed by Paine Webber. After being sued by BankFirst, Legendre filed for bankruptcy, but the U.S. bankruptcy judge order to him to jail for contempt and after only five days in the pokey, Legendre saw the light and according to press reports, “the businessman actively is assisting in unraveling the financial details of the Yawn Trust and Master Works, and turning the assets over to trustee Henkel for disbursement to creditors -- including, presumably, BankFirst.”

• J.W. v. Allvest, Inc., (Alaska Sup. 3rd Dist. No. 3AN-97-7192-CIV, 2002) involved a bizarre and stupid attempt by a person who ran a private prison and had lost an inmate lawsuit to engage in a series of transfers to drain the corporation which had suffered the judgment of its assets by way of bogus transfers to a series of shell companies, and then to transfer the assets to an offshore trust. When the plaintiff in the underlying lawsuit sued everybody involved in the transfers, including the owner of the private prison, the trust, the Alaska Trust Company, and even the attorneys who created this planning abortion, for civil conspiracy and fraud, the case reportedly settled for 100 cents on the dollar. A stellar example of how asset protection can be wrongly used to defraud legitimate creditors, and the remedies that a plaintiff can employ to stop such illegitimate subterfuges.

• Bank of America v. Weese, 277 B.R. 241 (D.Md. 2002), involved debtors who in a brazen attempt to defraud their creditors established a Cook Islands trust and transferred their assets to it, and later were forced into an involuntary Chapter 7 liquidation after which a settlement of $12 millon was paid to the creditors.

• Breitenstine v. Breitenstine, 2003 WY 16, 62 P.3d 587 (Wyo. 2003), was the Wyoming Supreme Court’s consideration of a Bahamas FAPT that the Husband attempted to use to shield marital assets from his wife. The Court allowed a marital division based on the assets in the offshore trust, commenting in a footnote that “the use of such trusts to avoid alimony, child support, and a fair division of marital property upon divorce is reprehensible to us.”

• Nastro v. D'Onofrio, 263 F.Supp.2d 446, 50 UCC Rep.Serv.2d 888 (D.Conn. 2003), involved an attempt by a debtor to transfer certain stock shares and other assets to a trust in the Isle of Jersey. The court entered an injunction preventing the transfers to prevent creditor fraud, and held that the fact that the court could not assert personal jurisdiction over the offshore trustee would not keep the action from going forward.

• Eulich v. U.S., (N.D.Tex. Case No. 99-CV-01842, August 18, 2004), involved a Bahamas offshore trust that was created a by a U.S. Settlor who later was investigated by the IRS. When the IRS served a formal request for documents from the trust, the Settlor refused to provide the documents and claimed that he had no control over the trust and had exhausted his powers to try to get the documents. The District Court disagreed, holding that the Settlor could still attempt to get the documents from the trust by appointing new administrators and by filing a lawsuit in the Bahamas. At any rate, the Court stated, it was not going to recognize the Settlor’s “impossibility defense” because the impossibility was self-created, i.e., the Settlor’s own drafting caused the impossibility. The Court found the Settlor in contempt and imposed a fine of $5,000 per day on the Settlor, to be increased to $10,000 per day after 30 days, and then after 45 days the Court would consider incarcerating the Settlor until the documents appeared.

• U.S. v. AmeriDebt, Inc., 373 F. Supp. 2d 558 (D. Md. 2005), involved a defendant who was already under investigation by the Federal Trade Commission for running a credit counseling scam. Shortly after discovering information of the investigation set up, defendant started transferring assets to a series of foreign asset protection trusts. Citing the Anderson case (FTC v. Affordable Media), the Court ordered the defendant under penalty ofcontempt to repatriate the assets to the U.S. so that they could bemarshalled by a receiver.

• U.S. v. Grant, S.D.Fla. (W.Palm Case No. 00-CV-8986), 2005, dealt with the tax liability of the settlors of offshore trusts created over 20 years ago. The court entered the repatriation order anyhow, stating that the trust assets must be returned to satisfy the tax assessment.

Foreign Trust Opinions

There have been a number of opinions of foreign courts, such as the Cook Islands and Nevis, relating to foreign asset protection trusts involving U.S. persons or assets. Most of the opinions rather predictably validate the trust laws of those jurisdictions (it would be very bad business not to), but a few exceptional cases are worth mention:

• Grupo Torras S.A. and Culmer v. Al Sabah and Four Others,
  (Bahamas, 06/13/2003) (pdf)

• 515 South Orange Grove Owners Assoc. v. Orange Grove Partners,
  208/94 (Cook Islands 1995) (a/k/a “Orange Grove case”).

• Grupo Torras S.A. v. Sheik Fahad Mohammed Al Sabah,
  (Bahamas, 1995). (pdf)

Self-Settled Trusts

If you create a trust for your own benefit, you have established a “self-settled trust”. If the trust instrument contains provisions that prevent your creditors from reaching your interest in trust assets, the trust is known as a “self-settled spendthrift trust” (or, more commonly, an “asset protection trust”).

For many hundreds of years, the provisions of self-settled spendthrift trusts designed to protect trust assets from creditors of the settlor/beneficiary were ineffective. Beginning in the 1980’s, certain offshore jurisdictions enacted specially-drafted trust laws overriding this long-standing rule of trust law. Foreign asset protection trusts quickly became popular. In 1999, the rush to form offshore trusts slowed a bit after Michael & Denyse Anderson were jailed for several months for their refusal (or inability, depending on the side from which one views the case) to return funds from their Cook Islands asset protection trust. Foreign asset protection trusts became even less attractive the following year when Stephen J. Lawrence was imprisoned for his refusal to turn over assets from his Mauritius asset protection trust. Lawrence was jailed in August, 2000, and remains jailed today.

In the late 1990s, Alaska led the charge of bringing self-settled spendthrift trusts to the U.S., Delaware, Nevada and a few other states soon adopted similar domestic asset protection trust (DAPT) legislation hoping to attract trust business to their states.

In the last few years, DAPTs appear to have overtaken offshore trusts as the asset protection product du jour, largely because of heavy marketing by trust companies. The popularity of DAPTs is surprising because their benefits are purely theoretical, There have been no cases validating them., The laws of most states, including those of the most populous states, prohibit self-settled spendthrift trusts. Indeed, we and many others have predicted that these trusts have little chance of working for debtors in non-DAPT states.

The heavy marketing of DAPTs had the effect that marketing usually has on asset protection strategies – it attracted the attention of the press, and then, the attention of legislators. Although many bankruptcy reform bills bounced around the halls of Congress for several years none of them contained provisions relating to asset protection trusts. This year, however, while the Act was being debated on the floor of the Senate, the New York Times ran an article about DAPTs and how the rich would be able to protect vast amounts of wealth in these trusts while decades-old bankruptcy protections were stripped away from the poor.

The accuracy of the New York Times article was questionable as the bankruptcy courts had in several previous cases involving the foreign variant simply considered the trust to be an agency arrangement instead of a bona fide trust, thus including trust assets in the bankruptcy estate. Nonetheless, just before passage of the Act, the Senate tacked on an amendment offered by Missouri Senator Jim Talent which may kill the DAPT business just as it was starting to gain momentum.

Section 548 of the Bankruptcy Code relates to “Fraudulent Transfers and Obligations”. Prior to the New York Times article, the Senate had only slightly modified Section 548 by changing the limitations period from one year to two years and some other minor changes. After the article, the Talent Amendment adds a new subsection (e) to Section 548 as follows:

(e)(1) In addition to any transfer that the trustee may otherwise avoid, the trustee may avoid any transfer of an interest of the debtor in property that was made on or within 10 years before the date of the filing of the petition, if--

(A) such transfer was made to a self-settled trust or similar device;

(B) such transfer was by the debtor;

(C) the debtor is a beneficiary of such trust or similar device; and

(D) the debtor made such transfer with actual intent to hinder, delay, or defraud any entity to which the debtor was or became, on or after the date that such transfer was made, indebted.

Since this provision deals what appears to be a fatal blow to asset protection trusts, it is worthy of more detailed discussion.

The 10-year period is measured from the date of the filing of a bankruptcy petition, and there is no grandfather provision for existing trusts. This is a very significant change from previous law, since the ordinary bankruptcy limitations period was only one year (increased to two years by the new Act), and most states have four-year limitations periods for challenging fraudulent transfers.

Next, this 10-year limitations period only applies to self-settled trusts “or similar devices”. The term “self-settled trust” is easy: It is a trust that you create for your own benefit. Asset protection trusts are typically self-settled trusts, as are living trusts.

But what about “similar devices”? Could a bankruptcy trustee use the new Section 548(e) to set aside transfers to trusts that are settled by the debtor, in which the debtor has a limited interest, such as a charitable remainder trust or a qualified personal residence trust? If a transfer to a charitable remainder trust were set aside, the (non-dischargeable) tax consequences to the debtor could be disastrous. Depending on the circumstances, the original deduction could be disallowed, and interest and penalties could apply retroactively.

Another concern of “or similar device” goes to certain types of insurance products, such as “Swiss Annuity” type products and variable universal life insurance products that give their purchasers some investment control, access to cash value, and have only the minimum amount of pure life insurance necessary to satisfy IRS requirements. A sophisticated creditor might make a convincing argument that these arrangements are in the nature of self-settled trusts and are colored with insurance only for technical tax purposes, and thus are within the “or similar device” orbit. With the overt marketing of some financial products, such as private placement life insurance, as asset protection tools, it is not difficult to imagine a court accepting an interpretation of Section 548 by a creditor or trustee to set aside transfers involving some of these types of products.

We are not concerned with ordinary life insurance and annuity products falling into the “or similar device” trap, where they clearly are insurance contracts governed by state insurance codes whose issuers are regulated by state insurance commissioners,. However, our musings here illustrate the vagueness of the “or similar device” language of Section 548(e) and the potential for its interpretation to encompass many asset protection strategies. It may be some time before we have sufficient case law to be able to say with any certainty that particular strategies fall into or avoid that trap.

It is clear that that the language of Section 548(e) protects future creditors, not just creditors existing at the time of the transfer. Section 548(e)(1)(D) refers to to existing creditors and to those who became creditors “on or after the date that such transfer was made.” Congress clearly intended that Section 548(e) apply for the benefit of creditors who appeared only after the transfer occurred. Nonetheless, many promoters falsely proclaim that there is no fraudulent transfer risk if there are no current creditors’ claims.

While the fact that a person has no claims against him at the time of a transfer certainly is favorable, it is not dispositive. Indeed, the same language referring to future creditors appears in (unchanged) Section 548(a)(1). Similar provisions appear in the Uniform Fraudulent Transfer Act, which expressly protects future creditors in many circumstances.

There have been some suggestions that the “actual intent” language means that a transfer to a self-settled trust can only be set aside if the debtor confesses that he intended to defraud creditors. Of course, no sober debtor would make such an admission if significant wealth was at risk. Thus, Congress used the exact same phrase that appears in Section 4(a)(1) of the Uniform Fraudulent Transfer Act: “actual intent to hinder, delay, or defraud.” The same phrase appears in Section 548(a)(1)(A) and is part of the principal fraudulent transfer provision of the Bankruptcy Code, that was unchanged by the new Act.

Under both the UFTA and Section 548(a)(1)(A), it is clear that “actual intent” does not require a confession by the debtor. To the contrary, “actual intent” long has been proved by circumstantial evidence consisting of certain factors (the “Badges of Fraud”) that would indicate the debtor’s fraudulent intent. So even if a debtor professes innocence and points to substantial non-asset protection reasons for making transfers, the court may still find that the debtor had the “actual intent to hinder, delay, or defraud” if the circumstances tend to indicate that to the judge.

There is also a new subsection (e)(2) that makes it clear that subsection (e)(1) also applies to transfers in anticipation of a judgment or fine, etc., arising from a violation of state or federal securities laws, or “fraud, deceit, or manipulation in a fiduciary capacity or in connection with the purchase or sale of any security”. Some have misread subsection (e)(2) to infer that the new 10-year limitations period for self-settled trusts applies only to securities fraud or breach of fiduciary duty, etc., but the “includes” language of (e)(2) is purely supplementary and not limiting.

It is important to keep in mind that the bankruptcy courts were in the habit of considering self-settled trusts to be in the nature of agency relationships, and thus were including self-settled trust assets in the bankruptcy estate anyway. There is no 10-year statute of limitation for this, so even those with “old and cold” asset protection trusts may be sadly disappointed in bankruptcy if their overall arrangement gives (direct or, as is the norm, indirect) control over the distribution of trust assets to the settlor/beneficiary.

If settlors of old and cold APTs clearly do not have control over the distribution of trust assets to themselves, the assets of such trusts would not be included in their bankruptcy estates. However, this presupposes at least two things: first, that there are APT settlors who truly have no direct or indirect ability to compel a trustee to make distributions to them; and second, that a bankruptcy trustee and/or judge would resist a likely urge to disregard the trust as an agency relationship in any event.

The effect of new Section 548(e) is that if asset protection trusts were not dead before, they should not now be used as anything like an ordinary asset protection technique. In more circumstances than not, it may now be the precipice of malpractice to recommend an asset protection trust to a client. The rare exception will be for those who establish foreign asset protection trusts and who are willing and able to flee the U.S. before the court enters the inevitable repatriation order.

So ends our survey of what asset protection planning tools will not work under the new Bankruptcy Act. Now we’ll look at what still does work.

Foreign Asset Protection Trust Terms

• Cook Islands Trust
  See Foreign Asset Protection Trust, below.

• Doctrine of Disbelief
  This doctrine holds that since no sane person would transfer all of their assets to a foreign trustee and risk the assets disappearing, it then stands to reason that they still retain some hidden control over the assets whether they admit to such control or not.

• Domestic/Offshore Trust – See “Killer Rabbit Trust”

• Fleeing Trust – See “Killer Rabbit Trust”

• Flight Trust – See “Killer Rabbit Trust”

• Foreign Asset Protection Trust (FAPT)
  A self-settled spendthrift trust formed in a foreign debtor haven jurisdiction.

• Killer Rabbit Trust
  An asset protection trust created initially as a domestic trust, with the idea that if a serious problem arises the trust will migrate to an offshore jurisdiction where its assets will be protected from creditors. Planners who form these trusts theorize (perhaps “wish” is a better term) that U.S. judges will treat these trusts better than foreign asset protection trusts that were formed offshore in the first place. The somewhat derisive but apt nickname for this type of trust derives from the scene in Monty Python’s The Holy Grail where King Arthur’s men confront a harmless bunny rabbit, and then flee shouting “Run Away! Run Away!” when the bunny turns vicious. Also sometimes referred to as a “Flight Trust” or “Fleeing Trust” or “Domestic/Offshore Trust (DOT)”.

The efficacy of foreign asset protection trusts and their planning limitations

Walking on Thin Ice - and Falling Through
The Perils of Offshore Trusts (FTC v. Affordable Media LLC) pdf

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