Why Bearer Shares are a Bad Idea
Mark Nestmann over at Asset Protection Blog had this post on the use of bearer shares as asset protection devices. Bearer shares are like grocery store coupons, they belong to whomever possesses them. The supposed lure of these shares is that there is no record of who owns the shares so they can't be traced back to the owner.
As the blog post notes, most jurisdictions no longer permit bearer shares. Nestmann's post is mostly about offshore jurisdictions because in the U.S. bearer shares are pretty much extinct. Colorado corporations cannot have bearer shares, as the name of the person to whom the share was issued must be on the share certificate. (Colo.Rev.Stat. 7-106-206). Even if a share is transferred from the original owner to someone else, a Colorado corporation is required to keep a list of known shareholders. There used to be a big deal made from the idea that Nevada allowed bearer shares, but Nevada hasn't allowed bearer shares since 2007.
By the way, the links in the previous sentence is to some operations by a former Colorado attorney named William S. Reed who was suspended from the practice of law because of his failed attempts to transfer his own assets in order to avoid paying creditors. He was later barred by the Federal Trade Commission from marketing asset protection.
Nestmann's post notes several problems with the use of bearer shares, especially if they are used to avoid paying taxes. Bill Reed's history and Nestmann's post both support what I regularly teach (and preach) about asset protection. Asset protection is not about keeping secrets and it's not about tax avoidance. Legitimate asset protection structures do not rely on hiding assets in order to avoid paying taxes on them. Legitimate asset protection structures do not rely on hiding assets at all. Hiding assets doesn't work because you must reveal your assets when asked about them in a deposition, court document or hearing. If you don't reveal your assets in those situations, you commit perjury and risk jail time -- just ask Martha Stewart.'
Legitimate asset protection is about structuring your assets well in advance of a creditor attachment in a way that your assets are difficult, if not impossible, for a creditor to attach. Placing assets beyond a creditor's easy reach can be accomplished in a number of ways, although some of those ways also mean placing the assets out of your easy reach as well. After all, if you can reach them you can also be ordered to give them to your creditor.
Beware of anyone who tries to tell you that there are simple and cheap solutions to "bulletproof" asset protection. About the only bulletproof asset protection structure was Mother Theresa's -- literally have no assets that you own OR control. Asset protection is a spectrum. There are simple and easy ways to increase your asset protection a little, and complex and expensive ways to increase it a lot. But there's no bulletproof asset protection at all, much less any that is simple and cheap.
As the blog post notes, most jurisdictions no longer permit bearer shares. Nestmann's post is mostly about offshore jurisdictions because in the U.S. bearer shares are pretty much extinct. Colorado corporations cannot have bearer shares, as the name of the person to whom the share was issued must be on the share certificate. (Colo.Rev.Stat. 7-106-206). Even if a share is transferred from the original owner to someone else, a Colorado corporation is required to keep a list of known shareholders. There used to be a big deal made from the idea that Nevada allowed bearer shares, but Nevada hasn't allowed bearer shares since 2007.
By the way, the links in the previous sentence is to some operations by a former Colorado attorney named William S. Reed who was suspended from the practice of law because of his failed attempts to transfer his own assets in order to avoid paying creditors. He was later barred by the Federal Trade Commission from marketing asset protection.
Nestmann's post notes several problems with the use of bearer shares, especially if they are used to avoid paying taxes. Bill Reed's history and Nestmann's post both support what I regularly teach (and preach) about asset protection. Asset protection is not about keeping secrets and it's not about tax avoidance. Legitimate asset protection structures do not rely on hiding assets in order to avoid paying taxes on them. Legitimate asset protection structures do not rely on hiding assets at all. Hiding assets doesn't work because you must reveal your assets when asked about them in a deposition, court document or hearing. If you don't reveal your assets in those situations, you commit perjury and risk jail time -- just ask Martha Stewart.'
Legitimate asset protection is about structuring your assets well in advance of a creditor attachment in a way that your assets are difficult, if not impossible, for a creditor to attach. Placing assets beyond a creditor's easy reach can be accomplished in a number of ways, although some of those ways also mean placing the assets out of your easy reach as well. After all, if you can reach them you can also be ordered to give them to your creditor.
Beware of anyone who tries to tell you that there are simple and cheap solutions to "bulletproof" asset protection. About the only bulletproof asset protection structure was Mother Theresa's -- literally have no assets that you own OR control. Asset protection is a spectrum. There are simple and easy ways to increase your asset protection a little, and complex and expensive ways to increase it a lot. But there's no bulletproof asset protection at all, much less any that is simple and cheap.



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