1) Definition of an Offshore Company
To understand the definition of an offshore company, we should first understand what a “company” is and what is meant by “offshore”. We can then better focus on comprehending an offshore company in detail and how incorporating an offshore company relates to the financial industry.
We can define a company as any legal entity engaging in legal business activities, such as a proprietorship, partnership, or corporation (either public or private). Companies have various rights under the law. Offshore is a term that means outside of your own jurisdiction (i.e. offshore jurisdictions). Being across water is not necessary to provide individuals with the tax benefits of security that come with managing money with such companies. Generally, offshore companies are situated in a foreign country/ other countries with low or non-existent tax.
An offshore company structure is a legal offshore entity established in a particular jurisdiction, tax haven, or offshore financial center being protected by specific legislation which guarantees all the benefits of full tax exemption, except for a small yearly license fee, and generally a high level of privacy. It is an entity or company registered or designed specifically to be used by non-residents only.
2) Legal restrictions for setting up and incorporating an Offshore Company
The legal restrictions that offshore companies are subjected to generally prevent them having a fixed establishment in the country in which they were incorporated. For this reason, they are mostly used for activities which are not tied to a specific geographic location. They are also often used as holding companies or as asset protection or investment vehicles for their owners, mainly because of their simplicity of administration, as in most jurisdictions it is not required to file annual reports or accounts.
An offshore company may be a company which is incorporated outside the jurisdiction of its primary operations regardless of whether that is an offshore financial center or a non-resident company. It is also any company, resident or non-resident, incorporated in an offshore financial center. For any of these companies, Offshore Company law may apply. Most offshore company incorporation is to take advantage of: tax planning purpose, confidentiality, annual returns, cost, and legal protection. Most of legitimate uses are: international trading, asset protection, captive insurance, yacht registration, and legal tax avoidance, protection of intellectual property, succession planning or confidentiality.
3) Benefits of an Offshore company
By utilizing an offshore company, it may be possible to secure a number of advantages. There are different criteria to determine how and where a jurisdiction is acceptable for the incorporation of a legal entity, which are summarized briefly in the following:
1. Favorable Fiscal Regime: An offshore jurisdiction should not have a repressive tax collecting authority and its main contributor to the income of the country should not be the collection of income tax or companies' profits taxes. The following taxes are not subject to imposition in most Tax Havens:
– Income tax on foreign income source
– Capital Gains tax
– Capital Tax
– Tax on interest banking income
2. Strict Anonymity Policies: it is widely considered that at an acceptable offshore jurisdiction the disclosure of the financial or corporate secrets of the company that is incorporated, should result in the wrongdoer being punished or fined.
3. Stable Government Policies: An offshore company should be in a stable place of business. It should be completely democratic and its rules on corporations must be stable. Also, there should be established protectionist policy relating to foreign investors.
4. Modern Communication Structure: A country that intends to attract offshore business or operations should have an attractive internet, financial and governmental communication structure. This is to ensure that a person abroad should have full access to their operations.
5. Easy to Incorporate: The corporations or foundations found in an offshore jurisdiction should conform in less than four business days.
II – MAIN OFFSHORE JURIDICTIONS
There exist many jurisdictions that are deemed suitable to carry out offshore business, nevertheless, based on our criterion, we will mention only the ones we consider the most important and the most widely used.
1. Panama: The Panama Corporation is governed by the Panama Corporation Statute Law 32 of the 1927 Commercial Code.
Panama enjoys favorable tax laws, operating a territorial tax system under which residents and non-residents are taxed based on income sourced in Panama. The taxable income includes all income derived from business activities in Panama, and there are less expenses incurred wholly and exclusively in the production of assessable income or the conservation of its source. Regarding the company structures, the liability of the shareholders of a Panama Corporation is limited up to the unpaid amount of the shares they hold. The minimum number of shareholders of a Panama Corporation is 2 and the maximum is unlimited. There is no restriction on the residence of the shareholders of a Panama Corporation. Panama Corporation' shareholders can be individuals and/or legal persons.
2. Seychelles: The International Business Companies Act, 1994, governs the operations of offshore companies.
Seychelles International Business Company (IBC) is the most popular and versatile type of offshore corporation available in Seychelles. Similar to other classic offshore companies, Seychelles IBC is designed to engage in international business. Being an IBC, it is subject to minimum red-tape. While being obliged to keep internal records and registries in good order, a Seychelles IBC does not nave to submit any financial reports to public file. There is also no mandatory audit requirement. A Seychelles IBC, by the definition of the law, is not subject to any tax or duty on income or profits. A shareholder of a Seychelles IBC is also not subject to any tax on his income derived from the IBC. In order to qualify as an IBC, a Seychelles company must satisfy the following criteria:
- It may not carry on business in Seychelles.
- It may not own real estate in Seychelles.
- It may not conduct banking, insurance and registered agent business without a special license.
3. Cayman Islands: Cayman Islands Exempted Companies are governed by the Cayman Islands Companies Law
The Caymans offer a number of tax-free incentives and little financial regulation and oversight. The Cayman Islands do not levy corporation tax, capital gains tax or any other direct tax on companies. The most common type of Cayman Company used for offshore activities is the Exempted Company. The service(s) it provides is to be carried on outside of the Islands. It cannot trade in the Islands with any firm, corporation or person unless furthering its business offshore.
4. British Virgin Island: British Virgin Islands Business Company (BVI BC) is governed by the BVI Business Companies Act 1984 (as amended):
"A British Virgin Islands Business Company is exempt from the BVI income tax, the same exemption applies to all interest, rents, dividends, royalties, compensations and other amounts paid by a company, and all capital gains realized with respect to any shares, debt obligations or other securities of the company. No estate, succession, inheritance, or gift tax is payable with respect to any debt obligations, shares, or other securities of a BVI BC. All transactions and instruments relating to transfers of any type of property of assets, debt obligations, shares, or securities to or by a BVI BC are exempt from the stamp duty, with land-ownership transactions in the British Virgin Islands being the sole exception, in which case stamp duty is still payable."
5. Hong Kong: The Hong Kong Private and public Limited Liability Company is governed by the Hong Kong New Companies Ordinance which came into effect on 3 March 2014.
Setting up an offshore company in Hong Kong is an excellent way to house a company's global corporate profits while minimizing taxes. If there is no trade conducted within Hong Kong, companies will be legally tax exempt if their activities are outside of Hong Kong. Generally, only Hong Kong Source income is subject to Hong Kong profits tax. Incorporation requires only 1 director and 1 shareholder and both can be of any nationality.
6. Singapore: The Singapore Private, Private exempted and Public Limited Liability Company are governed by the Singapore Companies Act.
Holding companies in Singapore are typically registered as private limited companies. Individuals and business entities seeking to establish a holding company as a private limited company must meet the following basic requirements:
– At least one shareholder and one director that is a Singaporean resident.
– A company secretary who is a Singaporean Resident
– The minimum paid-up capital (share capital) for the registration of a Singaporean company is S$1.
– A physical local address must be provided as the registered address of the company. The address may not be a Post Office Box, and must be approved by the Urban Redevelopment Authority. Residential properties can only be used under the Home Office Scheme.
A company is considered to be tax resident in Singapore if its management and control is exercised in Singapore. Singapore tax resident companies are taxed on all income generated or remitted in Singapore whereas non-Singapore tax resident companies are taxed only on income generated or accrued in Singapore.
7. Bahamas: The Bahamas International Business Company (BIBC) is governed by the International Business Act 2000 and the International Business Companies (Amendment) Act 2004.
The Bahamas are one of the most popular of the Caribbean tax havens. Bahamas International Business Company is the most popular versatile type of offshore corporation available in Bahamas. BIBC can conduct business with Bahamians and may also own Bahamian real estate, but local exchange controls and stamp duty will apply in these cases. The Bahamas does not levy corporation tax. Indeed, A Bahamas International Business Company is exempt from the Bahamas income tax, the same exemption applies to all dividends, interest, rents, royalties, compensations and other amounts paid by a company, and all capital gains realized with respect to any shares, debt obligations or other securities of the company.
8. Isle of Man: The Isle of Man Limited Company is governed by the Companies Act 2006.
Offshore companies in the Isle of Man could be holding investment, e.g. portfolios, commercial property and other companies ‘shares; a Holding intellectual property since the Isle of Man is a signatory to the Paris Convention on Patents and Trademarks. Isle of Man tax resident companies are taxed on their worldwide income whereas non-Isle of Man tax resident companies are taxed only on income generated in the Isle of Man. Tax Advantages of the Isle of Man are as follows:
- 0% corporate income tax dependent on certain circumstances
- Dividends made to non-residents are taxed at 0%
- No capital gains tax
- No stamp duty
- No inheritance tax
- Double tax relief is available for foreign tax paid
9. Bermuda: The Bermuda Exempted Company is governed by the Companies Act 1981, as amended 2006.
The Bermuda Exempted Company (BEC) is the most popular type of offshore corporation available in Bermuda. A Bermuda Exempted Company is prohibited from:
- Trading within Bermuda.
- Owning real estate in Bermuda.
- Undertaking the business of banking, insurance, assurance, reinsurance, fund management, collective investment schemes, rendering investment advice or any other activity.
Bermuda does not levy any taxes on profits, income or dividends, nor is there any capital gains tax, estate duty or wealth tax. In addition, under the Exempt Undertakings Act of 1976, an Exempted Company in Bermuda can obtain protection from any newly enacted taxes on income or capital gains until 2035.
10. Switzerland: Corporation (AG), limited liability company (GmbH) and branch of foreign company are governed by the Swiss Code of Obligations.
Officially Switzerland is not an offshore jurisdiction, but due to its tax incentives and taxation system it obtains the features of the offshore zone and becomes very attractive for the offshore companies' formation. Switzerland has agreements with more than 100 other states for the avoidance of double taxation treaties. Tax system in Switzerland is different for every canton, so it is possible to register a company at the canton which offers the lowest taxation. At the moment Schwyz and Zug are the most attractive cantons for the offshore company formation.
Switzerland tax resident companies are taxed on their worldwide income (except profits from foreign branches and foreign immovable property) whereas non-Switzerland tax resident companies are taxed only on income generated in Switzerland.
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