In October 2008, the States of Jersey approved The Foundations (Jersey) Law 2009 (the ‘Law’) which came into force on 17 July 2009. The Jersey Foundation (the ‘Foundation’) is a new type of entity offered by Jersey’s finance industry and it has features similar to both companies and trusts. The Foundation is more easily understood by those from a civil law background. It offers a degree of confidentiality and control that can be beneficial when considering philanthropic aims and in certain commercial circumstances.
The person who requests for the Foundation to be incorporated is the ‘founder’. The application made to the Companies Registry of the Jersey Financial Services Commission (JFSC) must be lodged by a ‘qualified person’ (meaning a body registered with the JFSC to carry on trust company business). The founder instructs the qualified person to make the application and in doing so, the qualified person lodges a certificate containing various confirmations, the application fee and the ‘Charter’ with the JFSC.
The Charter, which is available for public inspection, must contain information relating to:
- The name of the Foundation (but not the founder).
- The duration of the Foundation and its subsequent winding up and dissolution.
- Any initial endowment and, if appropriate, a statement that it may be endowed further (the Foundation is not obliged to have an initial endowment to be incorporated).
- The objects of the Foundation (Foundations have unlimited corporate capacity apart from holding Jersey property or conducting commercial trading that is not incidental to the objects stated in the Charter).
- The names and addresses of first council members.
The Regulations are a private document setting out the administration of the Foundation and how its objects are to be carried out. These do not need to be filed on the public record. The Regulations will make reference to:
- Establishing a Council.
- Providing for the appointment, retirement, removal and remuneration of council members.
- How decisions are to be made by the Council.
- The identity of the guardian and decisions which require approval from the guardian.
- Provisions relating to the appointment, retirement and remuneration of a guardian.
A Council administers the Foundation and carries out its objects. Each Council must have a qualified member and upon incorporation this will automatically be the qualified person. There is scope to change a Qualified Member following incorporation. The founder can be a member of the Council if this is desired and in keeping with any tax advice taken. The founder can also retain an element of control should he reserve certain powers for himself (this would also more than likely depend on the tax advice taken).
Duties and liabilities
Those persons who are appointed as council members under the Regulations of the Foundation will not owe a fiduciary duty to the beneficiaries. In practice, this will give the founder and the qualified person the ability to draft the constitution of the Foundation in any way they wish.
Unless the Charter or Regulations expressly provide, beneficiaries have no interest in the Foundation’s assets and are not owed any duties by the Foundation Council.
A founder can also be a beneficiary and a Foundation can exist with no beneficiaries.
All Jersey Foundations will be required to have a guardian who will oversee the administration of the Foundation and ensure that the council carries out its functions properly. The founder or the qualified person, but no other council member, may be the guardian. The guardian may be a corporate entity.
A Foundation must include its name and business address on all written communications and maintain certain records at the qualified member’s business address including:
- Register of council members.
- Financial records.
- Names and addresses of those who have endowed the Foundation.
- An annual fee will also be payable to the Companies Registry of the JFSC.
A Foundation is under no obligation to disclose any information to any person unless required to do so by law, so disclosure to beneficiaries is not required unless provided by the Charter or Regulations.
Foundations will be taxed in Jersey at 0% unless there is a Jersey resident beneficiary or it owns real estate in Jersey.
Services provided by JTC
JTC is able to provide the following services to those clients who wish to incorporate or transfer the administration of a Foundation:
- Acting as the qualified person with regards to the incorporation of the Foundation and submitting the relevant documentation to the JFSC.
- Coordinating communications between the Founder and the appointed legal and tax advisers with regards to the incorporation and ongoing administration of the Foundation.
- Carrying out the role of qualified member on the Council of Members and providing other members if required.
- Acting as a guardian to a Foundation when appropriate.
- Administering the Foundation in line with the Charter and Regulations and ensuring that management and control is exercised in Jersey when required by the tax advice provided.
- Preparing the financial accounts of the Foundation in addition to any bespoke reporting.
Potential uses of a Foundation
Foundations will appeal to:
- Clients who are involved with jurisdictions where the concept of trusts is less well known
- Clients who require a greater degree of confidentiality or control
- Global charities who use Foundations for making donations
- Clients who want to use Foundations within commercial transactions, particularly when an ‘orphaned’ special purpose vehicle is required
The Foundation is yet another offering of Jersey’s finance industry which complements the diverse range of vehicles which can be used for international structuring. The Jersey Foundation has been specifically designed in such a way that it differs from Foundations offered in other jurisdictions giving the Jersey model its own unique characteristics such as the ability to merge with other Foundations and other corporate bodies.
This publication is intended to provide an overview of the subject matter and is not comprehensive in nature or to be construed as legal or tax advice. We recommend that clients seek professional advice on any particular matter.