Category Archives: Company- Management

We are often asked What is the process for the hiring of a Lawyer by a (tax free) Offshore Company?

For the purposes of this article we will assume that your Company structure includes a Nominee Director.

Say your tax free Offshore Company (IBC) is doing business in the UK and needs to hire a UK Lawyer to read over a contract.

The first thing you would need to do here is explain  to the Company Administrator/s why your Offshore Company needs a UK/Onshore Lawyer.

Then the process would be:

1. The Company Director will ask you (say you’re based in the UK) to go shop for a UK Lawyer.
2. You would provide a report to the Director of which Lawyers or Law Firms you’ve interviewed. Your report would include a recommendation (and you would need to explain why you recommend that particular Lawyer or law firm).
3. A board meeting would be called to discuss and approve by resolution the appointment/engagement of the said Lawyer or Law Firm.
4. A minute would be drawn and signed by the Director formally noting the motion so passed.
5. Any service agreement between the Lawyer and the Company ideally should be signed Offshore by the Company (Nominee) Director.

 I’m often asked “What are the steps in setting up an Offshore Company?”

I can’t speak for other firms but when you incorporate a Company with OCI here are the steps in the process:

(a)    To set up a Company we need, via email, a signed order form + CDD docs (ie proof of your ID and residential address) per the requirements. First up you should advise us of your preferred company name/names. We will check and advise (for free) whether your preferred Company etc name is available.

(b)    Once you’ve indicated you wish to incorporate with OCI we will email you an order form (+ a guide which explains how to complete the order form) + the CDD requirements. We will also email you a banking questionnaire to complete. The answers you provide therein will give us a snapshot of you, your business and your banking requirements such as should enable us to recommend a/the bank (or banks) most likely to meet your needs.

(c)    You should complete a draft of the order form and email it to us for checking + you should email us the banking questionnaire duly completed. (At the same time you should be organizing certified copies of your CDD Docs ie your passport and a document proving your residential address)

(d)    We will review the draft order form. We will email you advising you how to complete the order form or (if there are questions in the order form that you can’t answer) we will advise of available conference times and then explain to you in a phone/video conference how to complete the order form/s

(e)    Once we’ve received the completed banking questionnaire we will email you detailed info regarding the banks which we feel are most likely to meet your needs.

(f)     You should then email us the final signed order form + your CDD docs. Once that’s received we will check all is in order and (assuming all is in order) we will email you an invoice which can be paid by bank/wire transfer, card, paypal account or Bitcoin

(g)    Once we have confirmation of payment we will prepare the incorporation request and we will email you a bank account instruction sheet

(h)    Once we have confirmation of incorporation (which for an IBC should be within 1 to 5 days max of us lodging the incorp request) we will email you the details including Company number and date of incorporation.

(i)      Once the company is incorporated we will prepare the Incorp pack docs (they should be ready for delivery within 2 to 3 days of incorporation) and arrange for Notarised/Apostilled copies of the Corporate docs to be obtained as/if required by your preferred bank. We will email you copies of all the Corporate docs. (And we will courier you the original Corporate docs as/if requested).

(j)      We will then (assuming you’ve emailed us the completed bank account instructions sheet) finalise and email the bank account application forms to you/the Director/ the account signatory for signing

(k)    Once signed we will check and submit the corporate account application to the bank. At the same time we will supply the bank with copies of the Corporate documents (depending on the bank you may also need to courier the bank the original signed Corporate Account Application + your proof of ID/Residency docs)

(l)      We will then follow up the bank (liaising with you to answer any questions they may have along the way) until the account is opened

What constitutes Hong Kong sourced profits?

The Hong Kong Inland Revenue Ordinance provides that tax will be payable in Hong Kong only on profits arising in or derived from carrying on a trade, business or profession in Hong Kong. Profits tax is not applicable to profits whose source is outside of Hong Kong. This rule of thumb does not distinguish between residents and non-residents. You might be resident in (or a Company Incorporated in) Hong Kong but if your profits are derived elsewhere (ie from OUTSIDE of HK), you will not be liable to pay any tax in HK on those profits.

General guiding principles in determining source of profits

The question of what constitutes source of profits is contentious and uncertain. Whether profits arise in or are derived from within Hong Kong depends on the nature of the profits and the transactions that give rise to such profits. In other words, the question of source of profits is a matter of fact and no universal rule applies to every scenario. However, the HK Inland Revenue Department has provided certain guiding principles based on various court rulings. The guiding principles in determining the source of profits include:

• Identifying the operations that produced the profits in question and determining where those operations took place. In determining whether profits from a business are liable for profits tax in HK, the place where the profits originate must be established. In other words, it is important to determine from where the particular activity that generated the profits was conducted. If the operations that produced the profits were carried ou in Hong Kong, the profits will be subject to tax in Hong Kong.
• Taking into consideration the place where only those business activities that directly produce gross profits take place. For example, general administration activities do not qualify as profit generating activities.
• Considering the place where the day-to-day investment/business decisions take place. The place where to day-to-day investment decisions are taken does not generally determine the source of profits.
• Taking into account the principal place of business. If an entity’s principal place of business is located in Hong Kong and there is no business presence overseas, profits earned by that entity are likely to be considered as Hong Kong sourced.

Guiding principles in determining source of specific types of profits

In addition to the broad guiding principles in determining the source of profits, the HK Inland Revenue Department has laid down certain guidelines for determining the source of specific types of profits such as trading profits, manufacturing profits, and commissions.

Guiding principles in determining source of trading profits

An important factor that helps determine the source of profits that arise from trading in goods and commodities, is the place where the contracts for purchase and sale are effected. Note that the term ‘effected’ does not exclusively refer to the legal execution of a contract but is wider in scope and covers the negotiation, conclusion and execution of the contract terms.

In determining the source of trading profits, a wider approach needs to be adopted. The ‘totality of facts’ must be taken into account before determining the source of profits. In other words, all relevant facts have to be considered. It is not simply a question of determining the place of purchase and sale of goods. Factors such as how the goods were procured and stored, how the sales were effected, how the goods were shipped, how the payment was made etc., play an important role in determining the locality of profits. The determining factor is the cause and effect of such activities on profits. Facts that are not directly related to trading activities such as renting office space, recruiting staff, etc., are considered irrelevant in determining the locality of profits.

The Inland Revenue Department has summarized various circumstances under which trading profits are subject to tax:

• If the contract of purchase and contract of sale is effected in Hong Kong, the profits are subject to tax in Hong Kong.
• If the contract of purchase and contract of sale is effected outside Hong Kong, the profits are non-taxable in Hong Kong.
• If either the contract of purchase or contract of sale is effected in Hong Kong, the initial presumption is that the profits are subject to Hong Kong tax. However, the totality of facts will have to be taken into account in order to determine the source of profits.
• If a sale is made to a Hong Kong customer/client, the sales contract is usually considered as being effected in Hong Kong.
• If the commodities or goods are purchased by a Hong Kong business from a Hong Kong supplier or manufacturer, the purchase contract is usually considered as being effected in Hong Kong.
• If the effecting of purchase and sales contracts requires no travel outside Hong Kong, but is carried out in Hong Kong via telephone, fax or Internet, the contracts will be considered as having been effected in Hong Kong.

Note that in order to prove that a contract is effected outside Hong Kong, a company must submit to the Inland Revenue Department, travel details, accommodation details and traveling expenses of its employees, in respect of each transaction occurred. If fully accredited overseas agents effect contracts, a company must provide agency agreements or other documentary evidence to prove that the agents are fully accredited.

Guiding principles in determining source of manufacturing profits

The place of manufacture of goods is the key factor in determining the source of profits for a manufacturing business. Profits that arise from the sale of goods that are manufactured in Hong Kong are subject to tax in Hong Kong. The place where the manufactured goods are sold is irrelevant.

If the process of manufacture has taken place partly in Hong Kong and partly overseas, then the profits will be apportioned on an equal basis. The portion of profits that relate to the manufacture of goods outside Hong Kong will not be regarded as being sourced in Hong Kong and thus will not be taxable in Hong Kong.

Guiding principles in determining source of sales and purchase commissions

If a business earns commissions by securing buyers for products or by securing suppliers of products required by customers, the source of commission income is the place where the activities of the commission agent are performed (regardless of whether the commission agent is based in Hong Kong). If the activities that generate commission income are performed in Hong Kong, the income is sourced in Hong Kong. Factors such as the place where the principals are located, how they are identified by the commission agent and the place where incidental activities are performed before or after earning the commission are of no consequence in determining the source of commission income.

Guiding principles in determining source of other profits

The Inland Revenue Department has listed certain tests that determine the source of certain types of profits:

• Rental income: Rental income derived from leasing property is taxable in Hong Kong only if the property is located in Hong Kong.
• Profits from the sale of property: Profits that arise from the sale of property are subject to tax in Hong Kong only if the property is located in Hong Kong.
• Profits from the purchase and sale of listed shares: Gains derived from purchasing or selling listed shares are liable to tax in Hong Kong, provided the stock exchange where the shares are bought or sold is located in Hong Kong.
• Profits accruing to a business (other than a financial institution) from the sale of securities issued outside Hong Kong and not listed on an exchange: Such gains are taxable in Hong Kong only if the contract of purchase or sale is effected in Hong Kong.
• Service fees: Service fees are subject to Hong Kong tax if the services are provided in Hong Kong.
• Interest accruing to a business (other than a financial institution): Interest income is taxable in Hong Kong only if the loan transaction takes place in Hong Kong.
• Royalties on intellectual property received from Hong Kong by a non-resident: Royalty income is taxable in Hong Kong only if the intellectual property is used in Hong Kong.

Conclusion

As discussed, there is no universal rule to determine the locality of source of income. According to the HK Inland Revenue Department, the broad guiding principle is that one needs to examine what the taxpayer has done to earn the profit in question. As there is no universal legal test that can determine the source of profits, each case needs to be considered based on its circumstances.

The Companies Act 2014 (the “Act”) came into effect in Ireland on 1 June 2015 and has introduced significant reforms to Company Law in Ireland.

Under the Act, an existing private company limited by shares (EPC) has to decide, within a transition period of 18 months from 1 June 2015 (ending on 30 November 2016), whether to opt into the new regime for private companies limited by shares (LTD) or to opt out by 31 August 2016 by becoming a designated activity company (DAC).Alternatively the EPC may become some other type of company that the Act permits.

A DAC is a new type of private company and is the company type under the Act that most closely resembles the existing private company limited by shares.

This limited company type is applicable to those companies who wish to outline and define a specific type of business in their Constitution, rather than have unlimited powers as per the LTD company type. Consequently, the doctrine of ‘Ultra Vires’ still applies. DAC ‘s retain Memorandum & Articles of Association as part of an overall Constitution document.

It is important to note that Part 16 of the Companies Act 2014 governs Designated Activity Companies, however most of parts 1 to 15 of the Act also apply with certain provisions disapplied, modified or supplemented by part 16.

The principal points applicable to this company type making it different from the LTD company are as follows:

Key Features:

• The DAC is a private limited company
• The constitution of a DAC comprises of two separate documents namely a memorandum of association and articles of association (ie it retains a constitution document that contains a Memorandum & Articles of Association)
• The memorandum of association must set out the objects of the DAC and that the DAC has the capacity to do any act or thing stated in the objects
• The name of a DAC must end in “Designated Activity Company” (ie to replace what would currently be “Limited” at the end of the company name) or the Irish language equivalent but it may apply for an exemption
• The DAC must have a minimum of two directors and a person may not be a director of more than 25 companies
• The DAC can have from 1 to 149 members
• The Act allows for the DAC to have debentures admitted to trading and all private companies that were previously permitted to list debentures can continue to do so by converting to a DAC
• A DAC can be Limited Liability with a Share Capital or a Company Limited by Guarantee
• A DAC with one member has the right to dispense with an AGM but if the DAC has two or more members it does not have that right (ie unlike the New Limited Company Type, it cannot dispense with the requirement to hold an AGM unless it only has one shareholder/member)
• The law relating to DACs applies to all existing private companies limited by shares until they re-register as another company type or up to the end of the transition
•  A DAC can file and obtain audit exemption and dormant company audit exemption
• Must have an Authorised Share Capital

The companies that will likely avail of the DAC format of company are:

• Companies Incorporated to complete a specific or sole purpose that for legal reasons wish to have the company powers restricted (e.g. a Joint Venture)
• Existing Limited Companies that fall under regulation to trade in specified markets (e.g Financial Regulation) & Companies that have published an offering document and list securities
• Companies that wish to be Limited by Guarantee whilst having a share capital
• Certain Trustee companies and Special Purpose Vehicle (SPV) Companies
• Companies with shareholders that have a strong preference to be incorporated as a DAC

A new IBC Act has just been passed in Seychelles. It will come into force on signing by the President and publication in the Gazette. The Seychelles government brought forward the enactment of the new legislation because it is currently being assessed by the FATF (Financial Action Task Force) and the assessment will only cover legislation in place as at end July.

New Act commencement will be deferred for some time (we await clarification), to allow a grace period for CSPs to update their IBC standard template memorandum and articles, etc. A final copy of the Act is yet to be released – though we understand minimal changes have been made to the last draft circulated to all CSPs (version 30.6.2016).

Main changes affecting clients under the new Act include:

• A new requirement for an IBC to keep a Register of Beneficial Owners at its registered office in Seychelles (alongside its Register of Directors and Register of Members) – 1 year compliance grace period;
• A new requirement for an IBC to file a copy of its Register of Directors with the Registrar – 1 year compliance grace period;
• Obligatory requirement, if an IBC has created a charge over any of its assets, for the IBC to keep a Register of Charges at its registered office in Seychelles – 1 year compliance grace period;
• While registration of a charge over an IBC’s assets will remain optional, registration under the Act will determine the ranking of creditors having security over the same secured assets; therefore (as in BVI) lenders will typically insist on registration of charges created on or after the Act commencement date.

Retention of key attractive features from the former Act

• Cost-effectiveness – No change to the low ($100) Seychelles government IBC incorporation and annual fees;
• Privacy – no filing with Registrar and no public access to details of shareholders or beneficial owners; and
• Ease of administration – no requirement to prepare or file annual accounts and no requirement to appoint an auditor.

Transitional

• With effect from the Act commencement date every IBC incorporated under the IBC Act 1994 (former Act company) is deemed to be automatically re-registered as a company under the new Act. The Registrar is required to issue a certificate of re-registration to the company if the company, acting through its Registered Agent, makes a written request to the Registrar for the issue of a certificate of re-registration. No fee is payable to the Registrar in relation to a certificate of re-registration.
• It will not be mandatory for a former Act company to amend or replace its memorandum or articles to comply with the new Act but to the extent of any inconsistency between a former Act company’s memorandum or articles and the new Act, the new Act shall prevail.
• While it is not mandatory it is nevertheless desirable to replace the memorandum and articles of a former Act company so that its memorandum and articles is fully up-to-date and compliant and reflects the requirements of the Act. To encourage voluntary replacement of IBC memorandum and articles, FSA have waived memorandum and articles amendment / replacement filing fees for 2 years.

In the UK there are four types of limited companies that you could form . These are:

• A Private Limited Company (limited by shares)
• A Private Limited Company (limited by guarantee)
• A Private Unlimited Company
• A Public Limited Company

The difference in name of each Limited Company suggests their distinct features. Other forms of business set-ups such as the Sole Trader and General Partnership are not called ‘companies’ because they are not legal entities.

A Private Company Limited by Shares:

• Only 1 member (ie shareholder) is needed
• Liability is limited to amount owed on unpaid shares (if any)
• Issues shares
• Is legally distinct/separate from members
• Is managed by a Board of Directors

A Private Company Limited by Guarantee:

• Only 1 member (ie shareholder) is needed for Limited Liability Company Corporation
• Members serve as guarantors and contribute to the Company’s assets in the event of winding up
• Is legally distinct/separate from members
• Does not issue shares

A Private Unlimited Company:

• Liability of members is unlimited

A Public Limited Company:

• Is authorised to sell shares to the general public
• May be listed on a/the stock exchange after limited liability company formation
• Liability is limited to value of unpaid shares of each member
• May or may not have share capital for limited liability company registration

As regards which kind of UK Company you should form that depends largely on your commercial goals. If you’re not 100% sure as regards which kind of UK Company you should form you should seek (ideally UK + local) legal and or financial advice.

We are often asked how do I close down my Hong Kong Company?

There are two ways to close down a Hong Kong Company:

(a)   De-registration;  and

(b)   Winding Up

Although both procedures will result in the dissolution of the company, the processes involved with each are significantly different.

Certainly of the two the simpler (and less expensive) option is Deregistration and that is the option that we will be examining in this article today.

The first thing to note is that the Deregistration option is only available if the company doesn’t owe any money to outside parties.

To be able to proceed with de-registration there are a number of conditions that must be fulfilled:

1. The De-registration application must be agreed to by ALL shareholders

2. The company must never have commenced business OR ceased business operation for more than 3 months immediately before the de-registration application

3. The company must have no outstanding liabilities (e.g. accounts payable, amounts due to third parties etc.)

4. The company must have no outstanding returns required to be filed with government (e.g. Annual Return, Business Registration fee & Tax Return etc.)

5. The company is not a party to any legal proceedings

6. The company’s assets must not consist of any immovable property situated in Hong Kong

7. If the company is a holding company, none of its subsidiary’s assets must consist of any immovable property situated in Hong Kong

8. The company must not be a company specified in section 749 of the Companies Ordinance (ie as stated below):

(a) a public company

(b) an authorized institution under Banking Ordinance (Cap 155)

(c) an insurer under Insurance Companies Ordinance (Cap 41)

(d) a corporation licensed under Part V of Securities and Futures Ordinance (Cap 571)

(e) an associated entity under Part VI of Securities and Futures Ordinance (Cap 571)

(f) an approved trustee under Mandatory Provident Fund Schemes Ordinance (Cap 485)

(g) a company registered as a trust company under Part VIII of the Trustee Ordinance (Cap 29)

(h) a company having a subsidiary that falls within item 1-7 above OR

(i) a company that fell within item 1-7 above at any time during the 5 years immediate before the application for de-registration

The good news is you do not need to visit HK during the whole procedure – everything can be done via email and courier.

The whole process takes around 6 months to complete after original documents are submitted to the relevant government agency (ie assuming no objection is received by the government during the de-registration process)

Important to Note:

•          once the company is dissolved, all property (including credit balances in bank accounts, motor vehicle, landed property, etc.) and rights vested in or held on trust for the company immediate before the dissolution is vested in the HK government as bona vacantia

•          If your HK Company has a Bank Account you’d be well advised to ensure that you properly close your Company’s account directly with the relevant bank (to begin the process you will need to present a board resolution to the bank formally authorising the account to be closed).

•          Following deregistration, you will need to keep company records for at least 10 years.

OFFSHORE COMPANIES INTERNATIONAL LTD.

www.offshoreincorporate.com

30.10.2016

The Seychelles Foundation law was drafted by a former business partner and ex law school classmate (1984 to 1988) of the Founder of OCI.

The OCI Founder also reviewed the final proposed provisions of the new/draft law in his then capacity as head of the Seychelles Offshore Practitioners Association (“SAOPRA”) Legislative Review Committee.

Armed with that knowledge what we can tell you is that the Seychelles Foundation Law embodies many of the key features of the Nevis Foundation Law (many of which were borrowed from the Panama Foundation Law) but with a number of additional (in our view, very attractive) features including:

• In Seychelles the key powers usually held by the Foundation Council can be reserved to the Founder PLUS the rights so reserved to the Founder of a Seychelles Foundation can be assigned. This enables you to remote control your Foundation with complete privacy because normally the Founder’s name appears in the Charter (which is publicly filed as part of the registration process). However with a Seychelles Foundation you can use a Nominee Founder (who then immediately following registration assigns his rights to you via a private Deed of Assignment)
• The Seychelles law specifically states that the Foundation is both legal and beneficial owner of any assets it holds. This is (a) a fantastic tax planning feature because traditionally onshore tax authorities have taxed such entities on the basis that the beneficiaries are the beneficial owners of the entity. It also means (b) when opening bank accounts or incorporating subsidiaries that you can avoid having to declare to the bank etc the names of the beneficiaries of the Foundation (which are usually you/your immediate family).
• The Seychelles law also states that the beneficiaries are owed no fiduciary duty by the Foundation Council (which bolsters the above proposition ie that it is the Foundation which owns the assets/income for tax purposes)

The Seychelles law also provides additional asset protection provisions eg:

• It specifically says that a transfer of property to a Seychelles Foundation, shall not be void, voidable, liable to be set aside or otherwise defective in any manner by reference to a foreign rule of forced heirship or any other written law of a foreign jurisdiction
• It also says that a transfer of property to a Seychelles Foundation, shall not be voided by the founder’s bankruptcy or by the liquidation of the founder’s property; or by any action, proceedings or other claims against the founder brought by any creditor of the founder ie Per sections 71 to 74 of the Seychelles Foundations Act (these asset protection provisions don’t appear in the Nevis law)
• A Seychelles Foundation can be capitalized with as little as $1. A Nevis Foundation’s minimum authorised capital is $10,000.
• Seychelles permits registration of a Purpose Foundation ie one where no beneficiaries are named – in the Charter you simply state that the Foundation is being set up to achieve a specific (usually charitable) purpose (eg to feed street kids in India)

Online Trading is an activity which lends itself well to an Offshore Corporate Structuring Plan.

No matter whether you trade forex or metals or commodities or oil/petroleum or futures or options a tax free Offshore Company or IBC (International Business Company) can assist you to minimize the amount of tax you would otherwise have to pay at home.

To summarise how it would work is:

• You set up a zero tax International Business Company (“IBC”)
• The IBC opens an account with a Broker
• You are appointed as the IBC’s authorised trader (ie you place the buy and sell orders on behalf of the company)
• For all intents and purposes the IBCs trading profits are generated in a nil tax environment tax free/offshore (ie provided the IBC is structured in a certain way)
• When you need some living/spending money the IBC pays you a wage, or consulting fees or a commission (eg a percentage of trading profits generated)
• That living/spending money can be paid to your local bank account (which means it would be assessable income wherever you are ordinarily resident for tax purposes though you should also be able to claim a sizeable amount of allowable deductions eg for home office, car, equipment, insurances, travel, stationary etc etc to reduce the amount of your “taxable” income at home)
• If you don’t want the authorities to know how much money you are earning by way of wages you could use an anonymous ATM or Debit/VISA card to withdraw your wages from an Auto Tele Machine
• The majority of trading profits could be banked or reinvested Offshore potentially tax free.

As always local laws can have an impact. So be sure to seek local legal and financial advice before you commit to establishing an Offshore Trading Company.