Are you looking to incorporate a Joint Venture (“JV”) Offshore with a business partner?
Certainly, in many cases, there are a lot of benefits in incorporating a JV Offshore (Check this previous article which explains why: https://offshoreincorporate.com/how-to-set-up-a-joint-venture-tax-free-offshore/ )
So what entity are you going to use to hold your/your partners shares in the JV Company?
If you are looking to incorporate a Joint Venture Offshore – and you’ve done your research – then you’d know that the best possible holding entity is most likely a Private Foundation.
Why?
Because unlike a Trust (or a Holding Company) a Private Foundation is presumed at law to be both the legal owner AND the beneficial owner of any asset it holds. This can get you around CFC rules and, when combined with Offshore Management, (ie where Management & Control of the Company is seen to be taking place from Offshore – which can potentially be achieved via deployment of a nil tax jurisdiction based “Nominee’ Director) can lead to a result whereby you may only have to declare and pay taxes locally on profits/income actually received by you from the Company.
In a joint venture scenario (ie where 2 parties are coming together to form a Trading or Investment Company), whilst shares could potentially be held in each partner’s personal name, ideally each partner should set up/have his/her own holding entity.
Your holding entity is your alter ego, ie it will hold your shares in the JV Company.
Ideally, for tax planning reasons, your holding entity would be incorporated in a nil tax jurisdiction.
That entity could be a Company or it could be a Foundation (or it could be a Company owned by a Foundation).
The latter scenario is commonly deployed by clients who want to have options in terms of how they might go about selling their interests in the JV Company. For example (depending on where the JV Company is incorporated) it might be cheaper in items of stamp duty for somebody wanting to buy your shares in the JV Company to acquire your Holding Company instead. Plus, it would be cleaner and easier for you to sell a Company than to sell a Foundation.
Assuming your business partner is also tax resident in a jurisdiction that has a CFC law he/she will certainly want to have a Foundation at the bottom of his/her family/ownership tree.
Could you just set up one Foundation to begin with to hold both your shares in the JV Company?
Potentially you could do that, but it could get really messy. One would assume you’d both be nominated as beneficiaries of the Foundation. But the problem there is, unlike say a Unit Trust, beneficiaries in a Foundation do NOT have separately divisible/recognizable interests. If there’s only one Foundation but with 2 business partners as beneficiaries you can’t say with any clarity “Hey I am the beneficial owner of X% of the JV Company”. And you’d face big problems should you and your partner decide to split in a scenario where one partner decides he wants to continue the JV Company. If there’s only 1 Foundation owing the JV Company how do you value the exiting partners interests in the JV Company?
Usually Private Foundations are deployed as Family asset holding vehicles, one per Partner/Family. Like a Family Trust. (Eg Our typical client is a 50 year old + plus career entrepreneur with a spouse and kids. Usually, he/she sets up a Foundation and nominates himself his spouse and children as beneficiaries of the Foundation).
To summarize, when two parties are coming together to form a JV Company (and in particular where both partners are based in a country which has CFC rules) ultimately each partner ideally should set up/have his/her own Foundation.
And where 2 Foundations are formed to own the issued shares in a JV Company its always prudent for each Foundation/partner to agree on and sign off on a Shareholder’s Agreement (like a Pre-nuptial agreement for business partners!).
Would you like to know more? Then please Contact Us:
info@offshorecompaniesinternational.com
DISCLAIMER: OCI is a Company/Trust/LLC/LP/Foundation Formation Agency. We are not tax advisers or legal advisers. You are advised to seek local legal/tax/financial advice in regards to your local reporting/tax requirements before committing to set up or use an Offshore Company or other entity.
