Pure/Common-Law/Non-Statutory/etc Trusts

[The Operative]

No, you are subject to the laws of a government because you are in a place where the government can enforce its laws.

Putting it quite bluntly, if you are in a place where the US Marshals can seize you, then you are subject to the laws of the United States.

It's really that simple.

I get it that you like being told what to do, but I don't. I'm subject to the laws mentioned on the article 29 of the UDHR.

(2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

I suggest that you read that carefully. Many laws are for the general welfare of the society or to maintain public order. So, according to that, you are subject to all of those laws. BTW, income tax laws are considered for the "general welfare" of the society.

[Pottapaug1938]

Many laws also deal with morality -- those dealing with drugs and vice, to name but two.

[wserra]

How do you explain the fact that the current U.S. income tax sysytem was enacted in 1913, while the Social Security Act was not passed until 1935?

DMVP's time machine.

[fmmcosta]

Ok, in my country it is different in relation to the UDHR.

Article 16
(Scope and interpretation of fundamental rights)
1. The fundamental rights enshrined in the Constitution shall not exclude any others set out in applicable international laws and legal rules.
2. The constitutional precepts concerning fundamental rights must be interpreted and completed in harmony with the Universal Declaration of Human Rights.

I think we all agree that anyone as a individual citizen has to pay income tax and is subject to statutory law.

The point is, does a trust have a distinct legal personality or not?

As I showed in a previous post, in my country the parties of a legal transaction (contract, trust, etc.) can choose the governing law of the contract/trust.

IF the law chosen is some other law, i.e. common law, does the trust pay income tax and other taxes?

Please keep in mind that I don't need to be the grantor of the trust where "my" property is held.

[Pottapaug1938]

OK, fmmcosta -- which country is that?

[fmmcosta]

OK, fmmcosta -- which country is that?

Portugal.

[Prof]

Ok, in my country it is different in relation to the UDHR.

Article 16
(Scope and interpretation of fundamental rights)
1. The fundamental rights enshrined in the Constitution shall not exclude any others set out in applicable international laws and legal rules.
2. The constitutional precepts concerning fundamental rights must be interpreted and completed in harmony with the Universal Declaration of Human Rights.

I think we all agree that anyone as a individual citizen has to pay income tax and is subject to statutory law.

The point is, does a trust have a distinct legal personality or not?

As I showed in a previous post, in my country the parties of a legal transaction (contract, trust, etc.) can choose the governing law of the contract/trust.

IF the law chosen is some other law, i.e. common law, does the trust pay income tax and other taxes?

Please keep in mind that I don't need to be the grantor of the trust where "my" property is held.

WHAT COUNTRY DO YOU RESIDE IN?
IN WHAT COUNTRY DO YOU DENY YOUR ARE A CITIZEN?

IF YOUR COUNTRY IS NOT THE US, WHY ARE YOU ASKING US QUESTIONS?

[Prof]

Portugal has never been a common law country, AFAIK. Why do you think common law has any application to Portugal? Why do you think the laws of the US apply in Portugal?

[fmmcosta]

Portugal has never been a common law country, AFAIK. Why do you think common law has any application to Portugal? Why do you think the laws of the US apply in Portugal?

What do you think this Article means?

ARTICLE 41
(Obligations arising from legal transactions)
1. The obligations arising from legal transactions, as well as the very substance of it, are regulated by the law that the subjects have appointed or had in view.
2. The designation or reference of the parties may, however, fall on law whose applicability corresponds to a serious interest of the "parties" or is in connection with some of the elements of the legal transaction justifiable in the field of private international law.

Isn't it clear?

[fmmcosta]

and also

Article 42
(Criterion supplementary)
1. In the absence of determining the applicable law, is taken into account, on unilateral legal transactions, the law of the habitual residence of the "party" and on contracts, the law of the parties' common habitual residence.
2. In the absence of common residence, applies in charitable contracts, the law of habitual residence of that which gives the benefit and in the remaining contracts, the law of the place of celebration.

[Prof]

Absolutely not. The article, which you say is in force in Portugal as substantive law, says two things:

1. The obligations arising from legal transactions, as well as the very substance of it, are regulated by the law that the subjects have appointed or had in view.

This statement means that the legal transactions are governed by either the law the parties choose (this is called a "choice of law" provision in a contract) or by the law the parties "had in view" which is to say the law of the jurisdiction in which both reside. However, while parties to transactions can select the law to be applied, many legal events are not transactions, such as crimes, for obvious reasons. One party to a contract may not select the law to be applied -- that must be by agreement with all other parties. Also, real estate titles, wills, and similar matters are governed by the law of the location (so called in rem jurisdiction. In other words, parties to a real estate sale cannot say that the law of Portugal applies to a real estate title transfer in Michigan.

2. The designation or reference of the parties may, however, fall on law whose applicability corresponds to a serious interest of the "parties" or is in connection with some of the elements of the legal transaction justifiable in the field of private international law.

This second provision merely elaborates on paragraph 1, limiting choice of law to "law whose applicability corresponds to a serious interest of the parties in or a connection to the law chosen, all as is common in or "justifiable" in "private international law." Private international law is the successor to the "law marchant" of the early modern period. You will find the elements of private international law in the INCOTERMS and other publications of entities such as the International Chamber of Commerce. These are standard contract terms, shipping terms (e.g., COD) and similar stuff, like arbitration clauses.

In other words, the quoted article does not say what you think it does.

Also, section 42 says what I just said.

[Judge Roy Bean]

...

You are subject to the statutory laws of the government because you enjoy/benefit from the government.

Wrong again. You're subject to them because you live here.

Just curious, are you really a judge?

What do you mean by that? Are you saying that the statutory laws are somehow imposed to me? How? Who/What gave them that right? Do they own the land, the geographical area?

Elaborate please.

I assumed at that time you were alive/living in the United States.

Yes, with the exception of certain immunity situations established by formal treaties, if you are here in the U.S., the statutory laws are imposed on you as a consequence of your entry - including state laws.

How? By statute.

Who/what gave "them" that right? The passage of laws as established by the constitution.

Do they own the land, the geographical area? With certain exceptions, ownership of the land by "they" (the government) is irrelevant as to jurisdiction.

[fmmcosta]

First, let me thank you for your time.

This statement means that the legal transactions are governed by either the law the parties choose (this is called a "choice of law" provision in a contract) or by the law the parties "had in view" which is to say the law of the jurisdiction in which both reside. However, while parties to transactions can select the law to be applied, many legal events are not transactions, such as crimes, for obvious reasons. One party to a contract may not select the law to be applied -- that must be by agreement with all other parties.

Agreed.

Also, real estate titles, wills, and similar matters are governed by the law of the location (so called in rem jurisdiction. In other words, parties to a real estate sale cannot say that the law of Portugal applies to a real estate title transfer in Michigan.

Agreed but allow me to add the following article from the Code of Civil Process.

ARTICLE 65. -A
(Exclusive jurisdiction of the courts of Portugal)
The jurisdiction of Portuguese courts is exclusive:
a) In the case of actions relating to real or personal rights of enjoyment of immovable properties located in Portuguese territory;
b) For the special processes of recovery and bankruptcy of the company in respect of persons resident in Portugal or legal persons or companies whose headquarters are situated in Portuguese territory;
c) For actions relating to the validity of the Memorandum or the decree of dissolution of legal persons or companies having their headquarters on Portuguese territory, as well as those designed to assess the validity of the resolutions of their organs;
d) For actions that have as main purpose the determination of validity of registration in public registers of any rights subject to registration in Portugal.

Doesn't "of enjoyment" imply equitable title/right of use/benefit?

This second provision merely elaborates on paragraph 1, limiting choice of law to "law whose applicability corresponds to a serious interest of the parties in or a connection to the law chosen, all as is common in or "justifiable" in "private international law." Private international law is the successor to the "law marchant" of the early modern period. You will find the elements of private international law in the INCOTERMS and other publications of entities such as the International Chamber of Commerce. These are standard contract terms, shipping terms (e.g., COD) and similar stuff, like arbitration clauses.

In other words, the quoted article does not say what you think it does.

Also, section 42 says what I just said.

Yes, I'm familiar with the "law merchant" or lex mercatoria.

Does the applicability of Private International Law correspond "to a serious interest of the parties" regarding the usage of trusts for business/legal transactions or whatever?

[Thule]

ARTICLE 41
(Obligations arising from legal transactions)
1. The obligations arising from legal transactions, as well as the very substance of it, are regulated by the law that the subjects have appointed or had in view.
2. The designation or reference of the parties may, however, fall on law whose applicability corresponds to a serious interest of the "parties" or is in connection with some of the elements of the legal transaction justifiable in the field of private international law.

Isn't it clear?

Would you mind giving a link to the original?

Edit: and the translation would be nice as well.

[Thule]

Doesn't "of enjoyment" imply equitable title/right of use/benefit?

Not really. Since you´re translating from a latin language to english, words usually gets twisted.

[fmmcosta]

Would you mind giving a link to the original?

Edit: and the translation would be nice as well.

http://www.confap.pt/docs/codcivil.PDF

sorry but I can't find an english version

[Paul]

I used the search and read several threads and my "original" questions arose and are yet unanswered.

Must be something in the water around here. I could swear that, about 4 hours after you claimed that the article you linked to in your first post said that "all trusts are taxable," I posted a quote from the article saying just the opposite and asked you how you reached your conclusion. You've never tried to answer, but I don't think it's anything to do with the water. I just think you never actually read the article.

[Thule]

http://www.confap.pt/docs/codcivil.PDF

sorry but I can't find an english version

I'm not surprised, finding accurate translations of law is hard. Especially since a translated word might keep some of the original meaning, but lose other, equally important meanings. But you seem to have a translation on hand, where did that come from?

[fmmcosta]

http://www.confap.pt/docs/codcivil.PDF

sorry but I can't find an english version

I'm not surprised, finding accurate translations of law is hard. Especially since a translated word might keep some of the original meaning, but lose other, equally important meanings. But you seem to have a translation on hand, where did that come from?

I did it myself, the best I could.

[Pottapaug1938]

OK, fmmcosta -- which country is that?

Portugal.

Thanks! Now, I find myself imagining myself driving from Lisbon to Oporto and getting stopped by the police for some traffic law violation. How successful would I be if I cited the UDHR as justification for driving as I please? I don't think that I'd be any more successful than I would be over here, because I'm sure that the Portuguese police and courts care about keeping Portugal's roads safe for everyone.