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Trusts & Trustees Advance Access originally published online on May 14, 2009
Trusts & Trustees 2009 15(5):279-288; doi:10.1093/tandt/ttp041
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© The Author (2009). Published by Oxford University Press. All rights reserved.

The Foundation as a trust substitute under US federal tax law

Anthony Viegas-Haws*

*Anthony Viegas-Haws, Baker & McKenzie Zurich, Zollikerstrasse 225, 8034 Zurich, Switzerland. Tel: +41 44 384 1414; Fax: +41 44 384 1284; Email: anthony.viegas-haws{at}bakernet.com; Website: www.bakernet.com

The vehicle commonly referred to as ‘the common law trust' is often misunderstood in civil law jurisdictions. Civil law jurisdictions have their equivalent institutions, most notably the foundation. Although the foundation may fulfil similar planning objectives, there are several important distinctions between foundations and common law trusts. These distinctions make it difficult from a US federal income tax perspective to classify the foundation as either a business entity or a trust. Despite the difficulty, the proper US federal income tax classification of the foundation could have severe consequences for beneficiaries, founders and certain third parties with US connections.


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