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Offshore company

The term offshore company is ambiguous. It may refer to either:
  1. A company which is incorporated outside the jurisdiction of its primary operations regardless of whether that jurisdiction is an offshore financial centre (sometimes known as a non-resident company) i.e. a Canadian company may be 'offshore' for the purposes of a USA citizen ; or,
  2. Any company (resident or otherwise) incorporated in an offshore financial centre, i.e. offshore jurisdictions
Typically the requirements for company registration under the relevant provision for non-resident status (as in the former of the two options above) will be pursuant to some or all of the following criteria in a strict legal sense according to Offshore Company Law:Theory, Regulations& Operation(By Zhang Shiwei, China Law Press, 2004):
  • Must be incorporated under Offshore Company Laws and regulations of offshore jurisdictions
  • Must be incorporated by non-residents of offshore jurisdictions
  • Must not trade within the offshore jurisdictions; and/or,
  • Must meet nominal tax expenses levied by the offshore jurisdictions.

Management and control

It is worth mentioning at this juncture that taxation of a company somewhere other than its place of incorporation is not by any means an exclusively offshore concept. By way of example consider a UK incorporated company which traded exclusively in France. If the board of directors of this company were based in France there would be no doubt that the company would be subject to French tax.
Consider also a US citizen running a Bahamas company from the US, there is no doubt that the activities of that company are subject to taxation in the US.
The same principle extends to regulations also.

Benefits

Offshore companies have the following features which may be beneficial:
  • Taxation - In most jurisdictions authorities will not seek to tax companies which they treat as non-resident, save perhaps for a nominal fee -$350 BVI, £320 Isle of Man etc.
  • Simplicity and Reporting - except for regulated businesses, such as banks or other financial institutions, some jurisdictions make it relatively simple to set up and maintain companies especially with reference to lesser reporting requirements than so-called onshore jurisdictions - the level of information required by the registrar of companies varies from jurisdiction to jurisdiction.
  • Legal and asset protection - some jurisdictions have stricter provisions for allowing a court to pierce the corporate veil, and in many cases corporate governance rules require the laws of the jurisdiction where the corporation is chartered - rather than where it is sued - to apply. For example Gibraltar makes it illegal for the trustee of an Asset Protection Trust to surrender its assets to a creditor of the settlor and in Switzerland it is illegal to disclose banking information.
  • Fees - some jurisdictions impose much higher fees to incorporate than other jurisdictions. They may also impose much higher maintenance fees on a corporation's yearly renewal of its charter. This will vary from service provider to service provider and will be significantly based on the cost of local disbursements.
  • Anonymity - by carrying out transactions in the name of a private company, the name of the underlying principal may be kept out of documentation, since the company is a separate legal entity. Having said that, current anti-money-laundering regulations often require banks and other professionals to look through structures. This will always be the case for any reputable bank but it does not render ineffective the use of corporate structures, rather it ensures they remain legally compliant.
  • Financial assistance - offshore companies are usually not prohibited from providing "financial assistance" for the acquisition of their own shares, which avoids the needs for "whitewash" procedures in certain financial transactions.
  • Cost of operation - In many cases, i.e. where a self employed consultant provides services to a number of jurisdictions and travels frequently, it is a matter of choice where he chooses to incorporate. In this case the fact that companies in an offshore financial centre are considerably cheaper than buying or renting premises, arranging to engage accountants, receptionists, IT providers etc. would be.

Practical uses of offshore companies

Offshore companies are beneficial for many purposes including at least some of the following:
  • Consultancy, Professional Services, Agency
Professionals, consultants, artists and many self-employed individuals decide to incorporate a business representing their services to gain substantial advantages by working as employees or external consultants of offshore companies of which they may be the sole shareholders and, if they want to, the sole directors.
  • Employment of Expatriate Staff
Expatriates working overseas frequently benefit from being employed through an offshore employment/consultancy company. By not remitting the full salary it can minimise tax and avoid exchange control difficulties in the country of temporary residence. This arrangement is sometimes attractive for expatriates working in politically unstable countries.
  • Property Owning Companies
There are often significant advantages in using an offshore holding company for the purpose of holding property. The advantages of such an arrangement include the avoidance of inheritance tax, capital gains tax and the ease of sale which can be achieved by transferring the property owned by the company and reduction of property purchase costs to the onward purchasers.
  • Investment Companies
Funds accumulated through investment companies set up in offshore areas can be invested or deposited throughout the world. Whilst generally returns or interest payable in respect of these funds will be subject to local taxation, there are a number of offshore areas in which funds may be placed as bank deposits where the interest and/or the capital gains are paid and kept gross. To invest in global securities including mutual funds not available to "local" citizens. Offshore jurisdictions are typically less invasive allowing for aggressive and unrestrained Free Enterprise.
  • Copyrights, Patents and Trademarks
Offshore companies can purchase or be assigned the right to use copyright, patent or trademark. Royalties can then be accumulated offshore although often royalties may suffer withholding taxes at source. An interposing holding company in some cases may allow a reduction in the rate of tax withheld at source.
  • Privacy
A high net-worth individual can save professional fees and unwanted publicity by owning property or other assets through an offshore company. Many jurisdictions require company accounting records to be published, but jurisdictions can offer privacy if they do not require offshore companies to publish accounting records, and the name and details of their shareholders.
  • Protection
To file first position liens against assets and property closing the door to predatory litigation before it begins. To segregate high-risk investments from other more secure holdings. To protect retirement funds from possible bankruptcy. To provide for the transfer of assets for the next generation in an efficient and discreet fashion. Nominee directors and officers can allow you to conduct business transactions for your benefit while you remain anonymous. To access your funds with corporate debit or credit cards thereby maintaining absolute confidentiality.

Disadvantages

  • Offshore companies are usually prohibited from conducting business or retaining employees in their jurisdiction of incorporation though this very much depends on the jurisdiction in question and type of company.
  • For regulatory reasons, there are often certain restrictions on the type of business which an offshore company can engage in without the need for a licence. In practice this is no different from trading 'onshore' since the majority of banks have offshore operations and the majority of the world's insurance companies are offshore captive insurance companies.
  • Due diligence in reputable offshore centres tends to be more strict than most onshore areas.[4] For example, to open a bank account in the name of an offshore company, to comply with relevant anti-money laundering regulations, the bank will normally require documents verifying the identity of the signers on the account to be notarised and may require one or more professional reference letters from an attorney, accountant and/or banker who has known you.
  • Certain countries have "anti-tax haven" legislation which makes it difficult to conduct business in those countries using an offshore company. For example, capital markets regulations in France prohibit using offshore companies as bond issuing vehicles.
  • Where a shareholder of an offshore company dies, it is usually necessary to have the will admitted to probate in the offshore jurisdiction as well (or, if intestate, to have the letters of administration re-sealed in that jurisdiction), which can add to cost, delay and inconvenience in administering the deceased's estate.

Legitimate uses of offshore companies

  • International trading, especially where the owner has no fixed residence
  • Asset protection
  • Captive insurance
  • Yacht registration
  • Tax avoidance
  • Protection of intellectual property
  • Succession planning
  • Confidentiality (non-criminal)

Illegitimate uses

Historically the activities of offshore companies have included activities that were or have become illegal. These include
  • The finance of terrorism
  • Money laundering
  • Tax evasion
  • Fraud (including investor fraud)
  • Protection from current or future creditors (including taxation authorities and spouses)
  • Irregular trading practices (such as increasing margins on deals by interposing clandestinely controlled offshore companies as apparent third parties)
The situation has much improved since the 1970s and 1980s largely due to increased regulation and general changes in commercial practice. The leading offshore financial centres are now more compliant with the Financial Action Task Force on Money Laundering's '40+9' recommendations than many onshore financial centres. However some traces of these abuses persist today both in offshore and onshore jurisdictions.

Importance of choosing a legitimate jurisdiction

Many offshore jurisdictions are regarded by banks, the OECD and other bodies in the finance industry as being regulated either as effectively as or better than their onshore counterparts whilst others are known to be areas of dubious legitimacy.
Unfortunately gone are the days (if ever they existed) where the distinction between onshore and offshore equated to legitimate or illegitimate. The current position is that there is no correlation between legitimacy of jurisdiction and tax status. For example Nigeria would not be regarded as offshore but perpetrates much of the world's advance fee fraud whereas Switzerland would be regarded as a highly respectable jurisdiction.
It is no longer possible for illegitimate jurisdiction to operate in light of the OEDC and the FATF as well as current and pending US legislation (13/06/09). It is very much in the interest of most offshore jurisdictions to ensure their house is in good order as this failure to comply and subsequent sanctions could lead to the total economic collapse of a country dependent upon its international reputation.

Features of offshore companies

  • Memorandum and articles of association or bylaws - these documents are fundamental to the existence of the company. The Articles detail the rights of the members, the objectives of the company and the internal processes of the company and the Memorandum states the type of Company and its capital.
  • Certificate of Incorporation - this is issued by the Registrar of Companies or their equivalent, and is serves as proof that the company has been brought into existence. Other information may be necessary to prove that the company has not been liquidated or struck off such as a certified of incumbency or good standing.
  • Registered Agent - it is often the case that an agent must be appointed in the jurisdiction in which the company is incorporated for the purpose of dealing with official communications with the registrar. The Agent will have to be licensed and will assume some level of responsibility for the company's activities.
  • Registered Office - this is the official address of a company, to which official documents are sent and legal notices received. It is normal for the registration agent to provide a registered office. A company may have other business and correspondence addresses.
  • Shareholders or other members - these are the legal owners of the company. For administrative simplicity, or for anonymity, a corporate service provider may supply nominees who will hold shares on behalf of a beneficial owner, and act on his instructions.
  • Directors, Managers or their delegates - the individuals who manage the day-to-day affairs of company. In many jurisdictions it is possible for companies to be directors of other companies. Corporate service providers in offshore jurisdictions will often provide directors, provided they are able to control, and be satisfied with, the activities of the company. The company is generally considered to be resident for tax purposes at the place where the decisions are made. In many cases if a person is acting as a director they will be considered de facto to be a director in spite of not having recorded this with the relevant body.
  • Shadow directors - in some cases, it has been shown that the formally appointed directors merely act as the alter ego of others, blindly following their instructions. In these cases, the courts have considered that those instructing the named directors really control the company, and that the named directors merely rubberstamp decisions. Companies managed in this way will be tax resident in the jurisdiction where the shadow director is resident.
  • Company Secretary - this is the person or body corporate who is responsible for ensuring that the company meets its statutory obligations. Corporate service providers usually provide this service.
  • Statutory Records - a company is obliged to maintain registers setting out certain information about the company. The mandatory records vary from jurisdiction to jurisdiction, as does the level of public access to the information contained in the records. Many jurisdictions require that the records are kept within the jurisdiction in which the company is incorporated. The records required may include minutes of meetings, registers members, directors, officers and charges.
  • Bookkeeping - directors are generally required to keep proper records. They may be required to prepare audited accounts. Specific requirements vary between jurisdictions and may depend on the nature of the company's activity. For example all banks will need to prepare audited accounts, whereas a private investment.

Types of companies

Examples of offshore companies include the International Business Company (IBC). More recently new legislation has been enacted in a number of Jurisdictions, such as the British Virgin Islands, to replace the IBC type of company with the Business Company (BC).
The following types of company are common in both onshore and offshore jurisdictions:
  • Company having a share capital - these companies issue shares. Once the initial cost of a share (capital and premium) has been paid, the shareholders have no further obligation to the company. The shares may, subject to the rules of the company, be sold or transferred, and the shareholders have the right to enjoy the profits of the company or any proceeds of a liquidation. The liability of the shareholder is therefore limited to the amount invested. Shares are assets.
  • Company limited by guarantee - the members of the company agree to pay up to a maximum limit in the event that the company becomes insolvent. They may acquire certain rights against the company, such as the rights to a dividend and the specific rights will be set out in the rules of the company. Membership may terminate on death, and guarantee companies have been used for not for profit organizations. There are also sophisticated estate planning schemes which make use of guarantee companies. Membership is a liability.
  • Hybrid - a combination of the above two classes - i.e. a company have bother liability class shares and asset class shares.
  • Protected cell companies - some jurisdictions permit cellular companies, where particular assets and liabilities are segregated into "cells", in such a way that the assets of one cell cannot be used to satisfy the liabilities of another. Cell companies are particularly used for umbrella mutual funds or unit linked insurance bonds. In this instance the separate cells are effectively distinct legal entities.
It is important to note though that the above is a gross oversimplification of the near infinite variety of types of company most sophisticated jurisdictions permit. Shares themselves come in many different types with the rights in respect of dividend, preference, voting etc. being determined by the constitution of the company to which they relate. Also, it is by no means uncommon for companies to utilise many different classes in particular when they are soliciting for investment from third-parties.
However, many offshore jurisdictions offer increasingly specialised forms of companies (as well as specialised trusts and partnerships) seeking to increase their share of the market. Examples include limited duration companies, unlimited liability companies, companies limited by guarantee and with a share capital, restricted purpose companies and hybrid entities such as limited liability partnerships, which are more akin to companies to actual partnerships, and foundations, which are nominally trusts but are more akin to companies than trusts.

Merger

The traditional method of merging companies is for one company to acquire the assets of a subsidiary on its liquidation. This sometimes creates contractual difficulties, and requires third parties to accede to the transfer of obligations from the liquidated company. Some jurisdictions have tackled this issue by permitting companies to merge, forming a new combined entity, which represents a continuation of the businesses of each former company.

Relocation of companies

Some jurisdictions permit companies to redomicile. They may do this to take advantage of particular features of the new jurisdiction, such as merger legislation, or tax treaties with other countries. The law in both the old and new jurisdictions must permit redomiciliation. The business of the company is deemed to continue without interruption on redomiciliation.
This is usually not a complicated process, but it might be slow and involve some paperwork; it can be used when the cost of the transfer of domicile is less than the tax consequences of transferring the assets of the company in question to a company newly incorporated in the desired new jurisdiction.

Offshore jurisdictions

It is possible to incorporate offshore companies in many jurisdictions. In some onshore jurisdictions, such as the UK and New Zealand, there are particular types of companies which offer many of the advantages of typical offshore structures. The following list is not exhaustive.