When we explain how the Regulator Asset Protection Structure (RAPS) 402b works as a vehicle for offshore investing, most people respond that it sounds too good to be true; why has my advisor never heard of it? Why have I never heard of it? What about a guarantee?
There are a lot of professional service providers involved with pension plans these days, that back in 1986 or indeed in 1974 when ERISA arrived, they just wouldn’t have dreamt of the plans working outside of the USA. It was just not something that people did, but they do now and the second one, is why have my advisors never heard of it, it sounds a bit dodgy… the reason for your advisor to have never heard of it, is because by definition he didn’t have to deal with. Most attorneys don’t need to study this area at all. That’s why there are big firms around that have dealt with Pension plans (onshore) for years and years AND as for a guarantee, well it is all laid out for you, you see by IRS Code, Rulings and Guidelines. If you look at the commentaries on FATCA, you learn that it is specifically recognized; foreign retirement plans are exempt.
The law in H.K. automatically interfaces with the US and EU vis a vis exempting the Hong Kong plans from any reporting at all. They only need to report locally, means the whole cost structure changes. On the technical side of a 402b, if you want to have Americans in a Hong Kong plan with custodian in the USA that is fine, it is exactly what these agreements are all about. With the Regulator Asset Protection Structure there is no smoke, no mirrors, no matter of opinion – there are just straight forward pieces of information imparted that are easily verified.
On IRS Form 3520 (to report transactions with a Foreign Trust) the instructions states under exceptions to filing that it ”does not have to be filed to report an IRC 402(b). This 402(b) Foreign Retirement Plan is a non-qualified deferred compensation Trust. The RAPS 402b Foreign Retirement Plan is a non-qualified deferred compensation plan but a USA non-qualified deferred compensation plan is not the same as a RAPS 402b Foreign Retirement Plan. This 402(b) is reported annually on ”Report of Foreign Bank and Financial Accounts” (FBAR) and is a Foreign retirement plan that is a Qualified Intermediary (not subject to withholding tax) by the Secretary of the U.S. Treasury and is not treated as a reporting Foreign Financial Institutions.
With a RAPS plan the U.S. member reports his account annually on IRS Form 8938 as having Zero Value. Zero Value is reported because it is non-vested. The (PFIC) U.S. Passive Foreign Investment Company rule is irrelevant. Foreign registered Retirement funds are not constrained by S.E.C. Securities law nor do they require an S.E.C. registered broker, dealer or advisor. Investments of a foreign regulated retirement plan are not subject to S.E.C regulations or to U.S. Person investment constraints or restrictions.
We recommend that the best way to learn about offshore investing with a RAPS 402(b), is to schedule a free consultation and invite your tax adviser to join in on the call.