The Middle Eastern investors who are trying to take over Financial General Bankshares of Washington have assembled a chain of international holding companies that could enable them to avoid paying at least three-quarters of the taxes that foreign investors usually pay on American profits.
Instead of the 30 percent United States tax usually levied on dividends paid to foreign investors, the Arab shareholders to Financial General potentially could pay as little as 5 percent in U.S. taxes and no more than 7.4 percent in total taxes because of the corporate structure they have built.
A corporation on the Caribbean Island of Curacao, its subsidiary in The Netherlands, a Grand Cayman Island holding company and a bank in London have been linked by the three Middle Eastern millionaires trying to gain control of the Washington bank holding company.
Taxes are the most obvious reason for constructing such a complex corporate chain, say Washington lawyers in and out of government who are familiar with international finance. Even the best informed outsiders admit they cannot fathom all the aspects of such a difficult deal, and insiders flatly refuse to discuss it.
The complex transoceanic corporate structure indicates the growing sophistication of Arab businessmen, who have sometimes been portrayed as niave about American business methods.
The Arabs may lack experience in American takeover fights, but they've help. Their American representatives include Bert Lance, the former director of the Office of Management and Budget; Stuart Symington, the former senator from Missouri; and Kidder, Peabody & Co., the big New York investment banking firm.
Kidder, peabody - a major investment banker in the Middle East and one of the only big Wall Street firms with an office in Cairo - is the dealer-manager in the Financial General takeover fight. Lance is the Arabs' go-between linking them with Kidder; he regularly shuttles the Atlantic on the Concorde.
The Arabs' effort to buy the Washington banking company is fraught with what one person familiar with the takeover bid called "enormous technical problems." Even Kidder, Peabody, with its legions of MBAs, has had to call in outside specialists to handle some of the more arcane aspects of an international takeover fight involving corporations on four continents.
Lask winter, the Arabs, with the help of Lance, secretly purchased about 20 percent of the stock of Financial General, the $2.2 billion Washington bank holding company that owns Union First National Bank of Washington, First American Bank of Virginia, American Bank of Maryland and other banks.
The would-be bankers ran afoul of the Securities and Exchange Commission for not publicly reporting that they were trying to take over Financial General. To settle a civil complaint filed by the SEC, the group agreed to make a public tender offer of at least $15 a share of all of Financial General's outstanding stock.
Financial General is waging a costly legal battle aimed at preventing the tender offer from succeeding. Evidence introduced in that lawsuit and recent reports to the SEC describe the corporate structure that has been assembled to make the offering.
The three Arab businessmen involved in the offer are Sheik Kamal Adham, former head of Saudi Arabia's intelligence agency; Faisal Saud al Fulaij, former chairman of Kuwait Airways; and Abdullah Darwaish, financial adviser to the ruling family of ABu Dhabi. Each of the three owns about 5 percent of the common stock of Financial General. A fourth investor who also owns about 5 percent of FG's stock, Sheikh Sultan bin Zaid al Nahyan, the crown price of Abu Dhabi and commander of that countrys military forces, has withdrawn from the venture.
Adham, al Fulaij and Darwaish told the SEC they plan to transfer their FG stock to Credit and Commerce American Holdings N.V. (CCAH), a Netherlands Antilles corporation, in exchange for shares in CCAH. The investors said they will not control the CCAH shares themselves, but will assign them to Symington as trustee with full voting power.
CCAH then will transfer ownership of the FG shares to a wholly owned subsidiary in the Netherlands called Credit and Commerce American Investment B.V. (CCAI). CCAI is owned by Adham, al Fulaij, Darwaish and Intercontinental Credit and Commerce (Overseas) Ltd., a Grand Cayman island corporation known as ICIC. ICIC is a major owner of Bank of Credit and Commerce International, a London bank incorporated in Luxembourg.
The FG stock itself will not actually move from Washington to Curacao to Holland; it will remain in the vaults of American Security Bank in Washington, where it is now.
The Dutch company - CCAI - is the firm that will make the tender offer for the remainder of Financial General's shares and will own the Washington banking company if the offer is successful. If the Arabs do take over the bank they - like other investors - will receive dividends on their stock. The dividends will be paid to CCAI in the Netherlands and CCAH in the Netherlands Antilles.
American shareholders pay income tax on their dividends, but overseas owners of American stocks pay a different levy called a withholding tax. The withholding tax rate is nominally 30 percent of the dividend. But special tax treaties negotiated many years ago with many countries provide for lower withholding rates for stockholders from some favored nations. The withholding rate drops to 15 percent in some cases, and to as little as 5 percent in certain instances.
Among those who qualify for the 5 percent tax rate are persons or corporations in the Netherlands and the Netherlands Antilles who own at least 95 percent of the stock in an American business.
The Netherlands Antilles levies sometaxes on dividends, but tax attorneys said the maximum rate would amount to no more than 24 percent. The tax advantages of Netherlands Antilles corporations are well known among international finance specialists, and are neither illegal nor unusual.
American income taxes are frequently the biggest taxes foreign investors pay in the profits of their American holdings and sometimes the only ones. Most Middle Eastern countries have no income tax, supporting their governments from oil revenues. The Netherlands does not tax most profits paid into that country from the Netherlands Antilles. Grand Caymen has no significant taxes on corporate income.
The tax advantages probably are more important in the Financial General case than the corporate secrecy provided by the business laws of the countries involved in the case. The Netherlands Antilles allows stock in some companies to be issued to the bearer, thus avoiding registration of the identity of the stock's owner. Grand Caymen has corporate secrecy rules that protect the identity of investors as effectively as Swiss bank regulations hide the names of account holders.
However, before CCAI can make the tender offer for Financial General, it will have to register as a bank holding company with the Federal Reserve, which requires full disclosure of the ownership of banking companies. Representatives of CCAI already have held preliminary talks with Fed bank regulators.
Another reason for the complex structure apparently is to isolate CCAI from Bank of Credit and Commerce International in London. It was through BCCI that the Arab group first became involved with Financial General BCCI officials were introduced by Lance to some major stockholders in Financial General and negotiated purchase of some of the stock bought by the Arab investors.
BCCI cannot participate directly in the takeover because of U.S. bank holding company laws. The London bank is owned in part by San Francisco's Bank of America; the Fed prohibits even indirect ownership of one U.S. bank holding company by another U.S. bank holding company.
BCCI has been kept out of the corporate chain, but part of the stock of the Netherlands Antilles company is owned by ICIC, which is believed to be the biggest shareholder of BCCI. ICIC itself is reported to be owned by Middle Eastern investors, including the ruling families of several oil-rich states. The identity of those owners is shielded by Grand Caymen's corporate secrecy rules, but may have to be revealed to the Federal Reserve before the Financial General tender offer is made.