Offshore company

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The British Virgin Islands Companies Registry. British Virgin Islands Companies Registry (2).jpg
The British Virgin Islands Companies Registry.

The term "offshore company" or "offshore corporation" is used in at least two distinct and different ways. An offshore company may be a reference to:

Contents

The former use (companies formed in offshore jurisdictions) is probably the more common usage of the term. In isolated instances, the term can also be used in reference to companies with offshore oil and gas operations.

Companies from offshore jurisdictions

In relation to companies and similar entities which are incorporated in offshore jurisdictions, the use of both the words "offshore" and "company" can be varied in application.

The extent to which a jurisdiction is regarded as offshore is often a question of perception and degree. [3] Classic tax haven countries such as Bermuda, British Virgin Islands and the Cayman Islands are quintessentially offshore jurisdictions, and companies incorporated in those jurisdictions are invariably labelled as offshore companies. Thereafter, there are certain small intermediate countries or areas such as Hong Kong, Singapore and Mauritius (sometimes referred to as "mid-shore" jurisdictions) which, whilst having oversized financial centres, are not zero tax regimes. Finally, there are classes of industrialised economies which can be used as part of tax mitigation structures, including countries like Ireland, the Netherlands and particularly the United Kingdom, in commentary relating to corporate inversion and the use of British Overseas Territories for this purpose. Furthermore, in Federal systems, states which operate like a classic offshore centre can result in corporations formed there being labelled as offshore, even if they form part of the largest economy in the world (for example, Delaware in the United States).

Similarly, the term "company" is used loosely, and at its widest can be taken to refer to any type of artificial entity, including not just corporations and companies, but potentially also LLCs, LPs, LLPs, and sometimes partnerships or even offshore trusts.

Classifying offshore companies

Historically, offshore companies were broadly divided into two categories. On the one hand were companies which were statutorily exempt from taxation in their jurisdiction of registration, provided that they did not undertake business with persons resident in that jurisdiction. Such companies were usually called International Business Companies, or IBCs. Such companies were largely popularized by the British Virgin Islands, but the model was copied widely. However, in the early 2000s the OECD launched a global initiative to prevent "ring fencing" of taxation in this manner, and many leading jurisdictions (including the British Virgin Islands and Gibraltar) repealed their International Business Companies legislation. But IBCs are still incorporated in a number of jurisdictions today including Belize, Seychelles, BVI Anguilla and Panama.

Separately from IBCs, there are countries which operate tax regimes which broadly achieve the same effect: so long as the company's activities are carried on overseas, and none of the profits are repatriated, the company is not subject to taxation in its home jurisdiction. Where the home jurisdiction is regarded as an offshore jurisdiction, such companies are commonly regarded as offshore companies. Examples of this include Hong Kong and Uruguay. However, these tax regimes are not limited to conventional offshore jurisdictions: the United Kingdom operates on broadly similar principles in relation to taxation of companies.

Separately, there are offshore jurisdictions which simply do not impose any form of taxation on companies, and so their companies are de facto tax-exempt. Historically the best example of these countries were the Cayman Islands and Bermuda, [4] although other countries such as the British Virgin Islands [5] have now moved to this model. These could arguably fit into either of the previous two categories, depending on the fiscal point of view involved.

To the Offshore Company [6] definition, applies five (non-cumulative) limiting conditions: (1) The government in the country of incorporation does not levy an indirect tax on the OAC (however, the OSC must pay an annual fee to the government). (2) Separate laws and regulations apply. (3) The OSC doesn't have its own physical office (address), personnel, means of communication etc. This means that the OAC must have a representative (registered agent) and office address (registered office) in the county of the incorporation. (4) The OSC must be managed and governed by (an employee of) a local trust or law office. (5) There is an instance of elements that benefit anonymity such as bearer shares and no or limited filing obligations. [7]

Characteristics of offshore companies

Chart of an offshore company structure Chart of an offshore company structure.jpg
Chart of an offshore company structure

Although all offshore companies differ to a degree depending upon the corporate law in the relevant jurisdiction, all offshore companies tend to enjoy certain core characteristics:

The absence of taxation or regulation in the home jurisdiction does not exempt the relevant company from taxation or regulation abroad. For example, Michael Kors Holdings Limited is incorporated in the British Virgin Islands, but is listed on the New York Stock Exchange, where it is subject both the U.S. taxation and to financial regulation by the U.S. Securities and Exchange Commission.

Another common characteristic of offshore companies is the limited amount of information available to the public. This varies from jurisdiction to jurisdiction. At one end of the scale, in the Cayman Islands and Delaware, there is virtually no publicly available information. But at the other end of the scale, in Hong Kong companies file annual returns with particulars of directors, shareholders and annual accounts. However, even in jurisdictions where there is relatively little information available to the public as of right, most jurisdictions have laws which permit law enforcement authorities (either locally or from overseas) to have access to relevant information, [9] and in some cases, private individuals. [10]

In relation to flexible corporate law, most offshore jurisdictions will normally remove corporate fetters such as thin capitalisation rules, financial assistance rules, and limitations on corporate capacity and corporate benefit. A number have also removed or watered down rules relating to maintenance of capital or restrictions on payment of dividends. Beyond the common themes, a number of jurisdictions have also enacted special corporate provisions to try to attract business through offering corporate mechanisms that allow complex business transactions or reorganisations to occur more smoothly. [11]

Uses of offshore companies

Offshore companies are used for a variety of commercial and private purposes, some legitimate and economically beneficial, whilst others may be harmful or even criminal. Allegations are frequently made in the press about offshore companies being used for money laundering, tax evasion, fraud, and other forms of white collar crime. Offshore companies are also used in a wide variety of commercial transactions, from generic holding companies, to joint ventures and listing vehicles. Offshore companies are also used widely in connection with private wealth for tax mitigation and privacy. The use of offshore companies, particularly in tax planning, has become controversial in recent years, and a number of high-profile companies have ceased using offshore entities in their group structure as a result of public campaigns for such companies to pay their "fair share" of Government taxes. [12]

Detailed information in relation to the use of offshore companies is notoriously difficult to come by because of the opaque nature of much of the business (and because, in many cases, the companies are used specifically to preserve the confidentiality of a transaction or individual). It is a commonly held view that most uses of offshore companies are driven by tax mitigation and/or regulatory arbitrage, although there are some suggestions that the amount of tax structuring may be less than commonly thought. [13] Other commonly cited legitimate uses of offshore companies include uses as joint ventures [14] financing SPVs, stock market listing vehicles, holding companies and asset holding structures, and trading vehicles.

Popularity of offshore company jurisdictions

In the three-year period from 2017 to 2019, the following jurisdictions saw the following numbers of new company registrations: [15]

Approx. No. of New Company Registrations 2017-2019
JurisdictionNo. of New Company Registrations
Hong Kong436,000
Cayman Islands42,000
BVI96,000
Ireland68,000
Isle of Man5,600
Singapore185,000
Mauritius26,446

See also

Related Research Articles

Corporate haven, corporate tax haven, or multinational tax haven is used to describe a jurisdiction that multinational corporations find attractive for establishing subsidiaries or incorporation of regional or main company headquarters, mostly due to favourable tax regimes, and/or favourable secrecy laws, and/or favourable regulatory regimes.

<span class="mw-page-title-main">Offshore bank</span> Bank located outside the country of residence of the depositor

An offshore bank is a bank that is operated and regulated under international banking license, which usually prohibits the bank from establishing any business activities in the jurisdiction of establishment. Due to less regulation and transparency, accounts with offshore banks were often used to hide undeclared income. Since the 1980s, jurisdictions that provide financial services to nonresidents on a big scale can be referred to as offshore financial centres. OFCs often also levy little or no corporation tax and/or personal income and high direct taxes such as duty, making the cost of living high.

<span class="mw-page-title-main">Shell corporation</span> Company with few, if any, actual assets or operations

A shell corporation is a company or corporation with no significant assets or operations often formed to obtain financing before beginning business. Shell companies were primarily vehicles for lawfully hiding the identity of their beneficial owners, and this is still the defining feature of shell companies due to the loopholes in the global corporate transparency initiatives. It may hold passive investments or be the registered owner of assets, such as intellectual property, or ships. Shell companies may be registered to the address of a company that provides a service setting up shell companies, and which may act as the agent for receipt of legal correspondence. The company may serve as a vehicle for business transactions without itself having any significant assets or operations.

<span class="mw-page-title-main">Offshore fund</span>

An offshore fund is generally a collective investment scheme domiciled in an offshore jurisdiction. Like the term "offshore company", the term is more descriptive than definitive, and both the words 'offshore' and 'fund' may be construed differently.

Offshore investment is the keeping of money in a jurisdiction other than one's country of residence. Offshore jurisdictions are used to pay less tax in many countries by large and small-scale investors. Poorly regulated offshore domiciles have served historically as havens for tax evasion, money laundering, or to conceal or protect illegally acquired money from law enforcement in the investor's country. However, the modern, well-regulated offshore centres allow legitimate investors to take advantage of higher rates of return or lower rates of tax on that return offered by operating via such domiciles. The advantage to offshore investment is that such operations are both legal and less costly than those offered in the investor's country—or "onshore".

An international business company or international business corporation (IBC) is an offshore company formed under the laws of some jurisdictions as a tax neutral company which is usually limited in terms of the activities it may conduct in, but not necessarily from, the jurisdiction in which it is incorporated. While not taxable in the country of incorporation, an IBC or its owners, if resident in a country having “controlled foreign corporation” rules for instance, can be taxable in other jurisdictions.

<span class="mw-page-title-main">Harney Westwood & Riegels</span> Global offshore law firm

Harney Westwood & Riegels is a global offshore law firm that provides advice on British Virgin Islands, Cayman Islands, Cyprus, Luxembourg, Bermuda and Anguilla law to an international client base that includes law firms, financial institutions, investment funds, and private individuals. They have locations in major financial centers across Europe, Asia, the Americas and the Caribbean.

The offshore magic circle is the set of the largest multi-jurisdictional law firms who specialise in offshore financial centres, especially the laws of the British Overseas Territories of Bermuda, Cayman Islands, and British Virgin Islands, and the Crown dependencies of Jersey and Guernsey.

<span class="mw-page-title-main">International Business Companies Act</span>

The International Business Companies Act, 1984 was a statute of the British Virgin Islands which permitted the incorporation of International Business Companies (IBCs) within the Territory. The Act played in a huge role in the economic and financial development of the Territory in the 1990s. It has been called "the most important piece of legislation in BVI history since the emancipation".

<span class="mw-page-title-main">BVI Business Companies Act</span>

The BVI Business Companies Act is the principal statute of the British Virgin Islands relating to British Virgin Islands company law, regulating both offshore companies and local companies. It replaced the extremely popular and highly successful International Business Companies Act. It came into force on 1 January 2005.

Taxation in the British Virgin Islands is relatively simple by comparative standards; photocopies of all of the tax laws of the British Virgin Islands (BVI) would together amount to about 200 pages of paper.

A tax haven is a term, sometimes used negatively and for political reasons, to describe a place with very low tax rates for non-domiciled investors, even if the official rates may be higher.

<span class="mw-page-title-main">Offshore financial centre</span> Corporate-focused tax havens

An offshore financial centre (OFC) is defined as a "country or jurisdiction that provides financial services to nonresidents on a scale that is incommensurate with the size and the financing of its domestic economy."

<span class="mw-page-title-main">British Virgin Islands company law</span>

The British Virgin Islands company law is the law that governs businesses registered in the British Virgin Islands. It is primarily codified through the BVI Business Companies Act, 2004, and to a lesser extent by the Insolvency Act, 2003 and by the Securities and Investment Business Act, 2010. The British Virgin Islands has approximately 30 registered companies per head of population, which is likely the highest ratio of any country in the world. Annual company registration fees provide a significant part of Government revenue in the British Virgin Islands, which accounts for the comparative lack of other taxation. This might explain why company law forms a much more prominent part of the law of the British Virgin Islands when compared to countries of similar size.

<span class="mw-page-title-main">Base erosion and profit shifting</span> Multinational tax avoidance tools

Base erosion and profit shifting (BEPS) refers to corporate tax planning strategies used by multinationals to "shift" profits from higher-tax jurisdictions to lower-tax jurisdictions or no-tax locations where there is little or no economic activity, thus "eroding" the "tax-base" of the higher-tax jurisdictions using deductible payments such as interest or royalties. For the government, the tax base is a company's income or profit. Tax is levied as a percentage on this income/profit. When that income / profit is transferred to another country or tax haven, the tax base is eroded and the company does not pay taxes to the country that is generating the income. As a result, tax revenues are reduced and the government is disadvantaged. The Organisation for Economic Co-operation and Development (OECD) define BEPS strategies as "exploiting gaps and mismatches in tax rules". While some of the tactics are illegal, the majority are not. Because businesses that operate across borders can utilize BEPS to obtain a competitive edge over domestic businesses, it affects the righteousness and integrity of tax systems. Furthermore, it lessens deliberate compliance, when taxpayers notice multinationals legally avoiding corporate income taxes. Because developing nations rely more heavily on corporate income tax, they are disproportionately affected by BEPS.

<span class="mw-page-title-main">Bermuda Black Hole</span> Corporate tax avoidance strategy

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The Republic of Panama is one of the oldest and best-known tax havens in the Caribbean, as well as one of the most established in the region. Panama has had a reputation for tax avoidance since the early 20th century, and Panama has been cited repeatedly in recent years as a jurisdiction which does not cooperate with international tax transparency initiatives.

<span class="mw-page-title-main">Conduit and sink OFCs</span> Classification of tax havens

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A regulatory haven is jurisdictions that have light financial regulation system. They often associated with having more lenient tax regulation which allows them to function as a tax haven, and for having financial secrecy. Regulatory havens can be a state, country, or territory which maintains a system of financial secrecy and little or no financial regulation. Some of the countries that are considered to be regulatory havens include Cayman Islands, British Virgin Islands, Singapore and Hong Kong. They are used by some financial firms to avoid strict financial regulation and is a form of regulatory arbitrage.

James R. Hines Jr. is an American economist and a founder of academic research into corporate-focused tax havens, and the effect of U.S. corporate tax policy on the behaviors of U.S. multinationals. His papers were some of the first to analyse profit shifting, and to establish quantitative features of tax havens. Hines showed that being a tax haven could be a prosperous strategy for a jurisdiction, and controversially, that tax havens can promote economic growth. Hines showed that use of tax havens by U.S. multinationals had maximized long-term U.S. exchequer tax receipts, at the expense of other jurisdictions. Hines is the most cited author on the research of tax havens, and his work on tax havens was relied upon by the CEA when drafting the Tax Cuts and Jobs Act of 2017.

References

  1. "Definition: offshore". Investopedia. Retrieved 6 September 2014.
  2. T.J. van Koningsveld, 2016. De Offshore Wereld Ontmaskerd. Kerckebosch.
  3. "Identifying tax havens and offshore financial centres" (PDF). Tax Justice Network . Retrieved 6 September 2014.
  4. Bermuda does, however, impose payroll tax on employees who actually work in Bermuda.
  5. "What are the most popular offshore jurisdictions?". OIL (incorporations and corporate services).
  6. "Offshore company in Mauritius - Sunibel Corporate Services". Sunibel. 2020-05-24. Retrieved 2022-05-30.
  7. T.J van Koningsveld, 2016. De Offshore Wereld Ontmaskerd. Kerckebosch.
  8. Classic offshore jurisdictions are very fond of the phrase "light touch" regulation, although in practice many offshore centres are witnessing increasingly invasive regulation. This is probably reflective of the global trend towards greater regulation of the financial system rather than a change within the offshore financial world in particular.
  9. See for example, in the British Virgin Islands, the Mutual Legal Assistance (United States of America) Act, 1990.
  10. See for example Anton Piller orders, which are available in most common law offshore jurisdictions.
  11. See for example: British Virgin Islands company law - Reorganisation and restructuring.
  12. "How we can make global companies pay their fair share of tax". Financial Times . 22 May 2013. Archived from the original on 2022-12-10.
  13. In Offshore 2020 , a publication of market research published by Offshore Incorporations Limited, a leading offshore fiduciary services provider, recent surveys of industry practitioners suggest that the proportion of their work which is tax driven structuring is decreasing: from 15.9% in 2012 ( "Smoke, Mirrors and Offshore Regulation". China Offshore. 3 April 2013. Retrieved 9 July 2014.) to 10.3% in 2013 ( "Offshore 2020. Perception and Reality: Forces driving the offshore industry Report". Economic-s. 28 November 2013. Retrieved 9 July 2014.). These figures need to be treated with caution as these are marketing reports, not systematic analyses.
  14. For example, the Anglo-Russian oil joint venture, TNK-BP, was incorporated in the British Virgin Islands as a neutral third jurisdiction.
  15. "Hong Kong Company Registration - Timothy Loh Corp Services". www.timothylohcs.com. Retrieved 2021-01-28.