Global Policy Forum

How Tax Shelters Brought Trouble


By Glenn R. Simpson

Wall Street Journal
July 31, 2006

In 2001, Dallas billionaire Sam Wyly picked from a Christie's catalog a pocket watch once owned by Franklin D. Roosevelt. But Mr. Wyly, who keeps the watch at his home, doesn't own it. Instead, it is owned by a tax-exempt company in the Isle of Man called Audubon Limited -- which Mr. Wyly says he neither owns nor controls. Audubon paid $41,125 for the watch at Mr. Wyly's suggestion, a lawyer for the businessman says, and then lent it to him.

Audubon is part of a network of companies and trusts established on the Isle of Man to park large parts of the Wyly family wealth, a move that shields the money from U.S. taxes and lawsuits. To critics, the ability of the Wylys to enjoy benefits from assets that they don't own illustrates what's wrong with the huge offshore tax-avoidance industry.

Representatives of the Wyly family say the Wylys believed their financial arrangements were entirely legal. A family lawyer, William Brewer, says all the Wylys' offshore structures either are detailed as accepted practices in the American Bar Association's manual on "asset-protection strategies" or were explicitly deemed legal by Congress.

Isle of Man entities connected with Sam Wyly and his brother, Charles, also own expensive jewelry worn by family members and property in an exclusive enclave near Aspen, Colo., called Little Woody Creek. The entities have made loans to Wyly family members, according to documents and Mr. Brewer, and in some cases they pay the brothers stipends known as annuities. Another Isle of Man company paid £154,000 (about $287,000) for a 1910 painting called "Noonday Rest" by British realist John William Godward, which wound up at the home of Kelley Wyly, Sam's daughter.

The Isle of Man is a misty, quasi-independent republic of 75,000 people in the sea between England and Ireland. Much of the Wylys' network was set up from a medieval village at its southern tip by a British businessman known locally for greeting clients with a macaw perched on his shoulder. Ronald Buchanan long worked at an 18th-century mansion known as Lorne House, which was also the name of his business.

One of Mr. Buchanan's main associates working on Wyly trusts was an ex-stockbroker who is now wanted on fraud charges in South Africa. A review of court records, legal opinions and Wyly family memorandums, as well as interviews with lawyers and regulators, shows that the two men helped the Wyly brothers set up more than two dozen offshore companies and trusts over the past 15 years.

The Wyly trusts will be examined tomorrow at a hearing by a U.S. Senate panel called the Permanent Subcommittee on Investigations. The panel's senior Democrat, Sen. Carl Levin of Michigan, has been probing offshore tax evasion and money laundering for several years. The panel is also looking into how the elite New York law firm Cravath, Swaine & Moore LLP provided legal advice on offshore tax shelters to wealthy individuals, people familiar with the probe say.

U.S. prosecutors and regulators already are targeting people who promote offshore tax-avoidance plans. One former lawyer for the Wyly family is now in prison on tax and fraud charges involving work for other clients, while another is under investigation by the Internal Revenue Service. The Wyly family's affairs are now the subject of a federal grand-jury investigation in Dallas.

The Wylys' Isle of Man holdings were largely funded with profits from stock options issued during the 1990s. Most of the options came from the Michaels Stores Inc. craft-store chain, which the brothers acquired control of in 1983. Two investor lawsuits allege some of the Michaels options were improperly granted or dated by the Michaels board. Last month a federal grand jury subpoenaed documents from Michaels, which is one of dozens of companies ensnared in recent investigations into stock-option grants.

The Wyly brothers -- Charles, 72 years old, and Sam, 71 -- have enjoyed a storied life in business as pioneers in computer software, hedge funds and retail. They have been top donors to the campaigns of President George W. Bush. Born at the height of the Great Depression in Lake Providence, La., they grew up in a hardscrabble farm town called Delhi and excelled at Louisiana Tech University, where Charles was a football star and Sam was student-body president.

After working for International Business Machines Corp. in the early 1960s, Sam founded University Computer Co., an early business-computing company, in 1963 and was joined there a year later by his brother. Over the next three decades the pair started or acquired many successful businesses including Bonanza Steakhouse. In 1990, they started Maverick Capital Ltd., an early hedge fund. Richard Hanlon, a former Wyly employee who is on the Michaels board, says Sam Wyly "has always had that combination of the analytical skills you would associate with an astute investor with the innovative thinking of an entrepreneur."

In the early 1990s, Sam went through a high-profile divorce from his first wife, Victoria, and paid a large settlement. That instilled a desire to protect his privacy and assets in the future, says his lawyer, Mr. Brewer. He sent a longtime family employee to a seminar put on by a lawyer named David Tedder, who ran an organization called the Institute for Asset & Lawsuit Protection.

Mr. Tedder also was chief counsel for personal-finance guru Charles Givens, who became famous in the 1980s for airing get-rich-quick infomercials. In 1990, The Wall Street Journal disclosed in a page-one article that Mr. Givens was the subject of fraud investigations by the IRS and the Securities and Exchange Commission. Mr. Tedder was soon defending Mr. Givens in court from disgruntled investors. He also continued giving financial seminars.

In June 1991, the family employee wrote a 26-page memo detailing strategies proposed by Mr. Tedder, whose messages she summarized as "never let a creditor get your asset" and "wherever possible reduce income tax." By early 1992, the Wylys were working directly with Mr. Tedder on a plan to shift offshore tens of millions of dollars in warrants and options from Michaels and another firm, Sterling Software Inc. (The Wylys sold Sterling to Computer Associates, now called CA Inc., in 2000 and became a major CA shareholder.)

Mr. Tedder supplied a 16-page opinion declaring it "more likely than not" that the Wylys could transfer the assets to offshore companies in exchange for regular annuity payments without paying capital-gains tax on the appreciated securities. The letter did warn that "this approach is rather novel." A lawyer for Mr. Tedder, who is in federal prison on unrelated tax and money-laundering charges, said he wasn't available for comment. Some aspects of the transactions were also reviewed by the law firm of Wyly family lawyer Michael French.

J. Richard Duke, a tax lawyer in Birmingham, Ala., who doesn't do business with the Wyly family, says the structure promoted by Mr. Tedder appeals to investors who own a property that has greatly appreciated. "The purpose is to stretch the gain out over your life, and if you die prematurely, the gain is not included in your estate," says Mr. Duke. He adds that he doesn't recommend the structure because it is subject to attack by the IRS.

The IRS requires that for a private annuity to be legal, an investor has to truly surrender control over the asset to someone in a foreign country. But any attempt to add legal protections to ensure that the foreign holder doesn't simply pocket the money could lead the IRS to call the whole thing a sham. "You cannot legally control the structure if it is an offshore structure," says Mr. Duke. "But most Americans are control freaks."

In 1992, the Givens organization began to collapse amid civil-fraud suits. Mr. Tedder moved to Florida to work nearly full time helping Mr. Givens transfer some $50 million in assets to offshore tax havens, including the Isle of Man, so they would be out of the reach of creditors, Mr. Tedder later testified in a federal bankruptcy case. Mr. Givens, who settled many of the fraud cases without admitting wrongdoing, died of cancer in 1998.

The Wyly family began to deal with a Tedder legal associate, Michael Chatzky, and with the Lorne House proprietor, Mr. Buchanan, and his associate, Keith Leslie King, according to correspondence from the period. By 1994, this team was working on a set of trusts to hold still more stock options, primarily from Michaels.

Trusts are commonly used to make charitable bequests, provide for heirs or even provide for one's own future. For tax purposes what matters is whether control of the assets is transferred to someone else. If so -- and if the trust is overseas -- then gains on the assets aren't subject to U.S. tax. (U.S. citizens do have to pay tax on income earned overseas, including income from a foreign trust that they bring back to the U.S.)

Mr. King set up four new foreign trusts for the Wyly brothers and their top family lawyer, Mr. French. The beneficiaries included Wyly family members and Sam Wyly. Mr. King wrote letters to the Wyly brothers saying he was establishing each of the trusts with $25,000 of his own money "to show my gratitude for your loyalty to our mutual ventures and your personal support and friendship." The letters were designed to show that the trusts, as required by the IRS, were established by a foreign individual, Mr. King. However, according to Lorne House records, Mr. King actually put only $1 into each trust. He then put in four promissory notes for the other $99,996, which was never paid.

Isle of Man regulators have since alleged that Mr. King was draining funds from other clients and that he was "involved in a conspiracy to defraud the South African Reserve Bank utilizing forged documents." Mr. King, who is the target of a South African arrest warrant, couldn't be reached for comment.

The Wyly brothers didn't know that Mr. King had failed to pay the full $100,000, says their lawyer, Mr. Brewer. "The Wylys have always attempted to surround themselves with appropriate legal, tax and financial-management professionals," says Mr. Brewer. "Unfortunately, in a few instances, certain individuals may not have been quite as they originally appeared." The brothers vetted the financial products they bought from Mr. Tedder and his associates with better-known practitioners such as a London-based lawyer at the law firm Morgan, Lewis & Bockius and accountants at Ernst & Young. In a 1994 opinion, the Morgan Lewis lawyer endorsed the theory that the trusts established by Mr. King for the Wylys could be used to largely shield gains in assets from U.S. federal taxes.

Many trusts invest their assets conservatively in stocks and bonds. But the Isle of Man trusts took their Wyly money and used it to establish a company in the Cayman Islands that would market offshore annuities to other investors. The result was Scottish Annuity & Life, which was set up and run by Mr. French, the Wyly lawyer, and included both Wyly brothers on its board from 1998 to 2000. Scottish Annuity, since renamed Scottish Re Group Ltd., was eventually taken public on the New York Stock Exchange. It has expanded into the business of reinsuring life-insurance policies issued by other companies and has $12 billion in assets.

This year, Scottish Re disclosed it had received an SEC subpoena regarding transactions early in the company's history by the Wylys and Mr. French, now the company's chairman.

In December 1995, Mr. King was formally banned by Isle of Man regulators from acting as a corporate director due to "concerns regarding honesty and integrity," regulatory documents state, forcing him to resign as a director of Lorne House. Over the next several years, Mr. King's legal troubles were chronicled in the offshore trade press, but the Wyly brothers say their advisers didn't inform them.

In 1996, more trust transactions involving options from Michaels were engineered for the Wyly brothers by Mr. Chatzky, who had parted ways with Mr. Tedder. Mr. Chatzky gave the Wylys a 20-page legal opinion decreeing it "more likely than not" that the deals would be largely shielded from income taxes. He did warn that the IRS "might view the transactions that are the subject of this memorandum in a manner differently than you or I would view them." The Justice Department and the IRS now allege in court filings that at the time, Mr. Chatzky was selling questionable offshore tax shelters to dozens of other wealthy Americans. Mr. Chatzky didn't respond to requests for comment.

The Wyly family continued shifting assets offshore. The trusts established by Mr. King bought real estate, artwork and jewelry used by the Wyly family. Documents show that longtime Wyly family employees in Dallas and the Cayman Islands formed a "protectorates committee" advising the trusts what to buy.

For instance, in 1996 Sam Wyly successfully bid at Sotheby's for the painting by John William Godward. Shortly thereafter, an accountant at another Wyly-founded company in the Cayman Islands sent a letter to Mr. Buchanan at Lorne House stating that the protectorates committee recommended buying the painting.

Mr. Buchanan responded a few days later by questioning whether the painting was a wise investment. The trustee was duty-bound to ensure that the trust's assets were invested wisely. Mr. Buchanan said the painting cost more than double the preauction estimate and was by an artist with a less than top-level reputation.

He quickly received a stern letter from Mr. French. "We need to resolve this issue at once," he wrote, insisting Mr. Buchanan had no legal grounds to question the transaction. Then Sam Wyly himself sent Mr. Buchanan a letter encouraging him to buy the painting. Mr. Buchanan then apologized to Mr. French for appearing "excessively obdurate" and bought the painting.

Trust specialists say it is not illegal for an offshore trust to buy a painting or other valuable object and allow someone in the U.S. to use it, and the trustee can even consider suggestions from the U.S. recipient about what to buy. But the trustee ultimately must make independent decisions.

Bob Davis, who represents Mr. French in the grand-jury and Senate inquiries, says his client isn't a tax lawyer and had a minimal role in setting up and managing the trusts. Mr. French ended his ties to the Wyly brothers in 2000, according to Mr. Davis, and the following year Mr. French's Isle of Man trust was unwound.

Problems surfaced only in 2004, when Bank of America Corp. informed the Wylys it had received a subpoena for information about their bank accounts from Manhattan District Attorney Robert Morgenthau.

In February of this year, Mr. Buchanan died of heart problems. He was described as a respected philanthropist and civic booster in his obituary by the Isle of Man newspaper. "Locally, Ronnie may be better remembered by the people of Castletown for his trips into town with his macaw, Sasha, perched on his shoulder," the notice said. A lawyer for Lorne House declined to comment on the Wyly affair.

Legal experts such as Mr. Duke say the extensive involvement of the Wyly family and their business associates with trusts legally controlled by people offshore may prove to be a legal Achilles' heel. "The legal owner cannot be told what to do," by the Wylys or their agents, says Mr. Duke. Otherwise, courts will likely rule that "he is not being treated as a legal owner. He is a patsy."

Mr. Brewer, the lawyer for the Wylys, says they acted in good faith. "For a period of more than a decade, Sam and Charles have spent more than $10 million to obtain professional advice and oversight concerning asset preservation and estate-planning arrangements," he says. "They expected and understood that all of their actions were in full compliance with the law."

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