Stephen M. S. Lai & Co CPA Ltd. Warning: Don't go out and find other offshore formation services websites until you have read this, and we do ensure that you will find invaluable information and knowledge for your offshore business operations !
What is an offshore company ?
In all jurisdictions, it is absolutely impossible to find the definition of the word “offshore company” in their Company Acts or Company Ordinances or Rules. Each country has her definition of the type of companies according to her laws. You may come across a lot of words such as Llc or Inc in USA, Limited or Ltd in UK, Sarl in France, Srl in Italy, Gmbh in Germany, etc. They may classify companies in terms of local company or overseas company, group company or individual company, listed company or unlisted company, limited company or unlimited company, private company or public company, holdings company or subsidiary company. In fact, offshore company can be found only in common practice for those professionals who provide offshore services for international business. From our understanding, offshore company is a company registered in other jurisdictions in which the local authority of your country has no ruling powers. Ruling power means government cannot enact such laws to control or rule over other territory of another jurisdiction. In you find from encyclopedia, you can see that an offshore company is defined as a company which is incorporated outside the jurisdiction of its primary operations.
Why go offshore ?
Many international businessmen prefer to register an offshore company instead of registering local companies, there are indeed some advantages. Some of which are outlined below:
a) Tax benefits - if the business operations are arranged carefully the profits from the operations may become zero profits tax or a little profits tax.
b) Simplified set up procedure and requirements – some offshore companies can be registered within the same day, other offshore companies may require only one person registered.
c) Public undisclosure – some offshore companies allow public search, other offshore companies cannot get public search.
d) Costs and the fees – some offshore companies cost a little money, only a hundred of dollars, other offshore companies may cost thousand of dollars.
e) Reporting requirements – some offshore companies require periodic financial reports being filed, other offshore companies need not filing anything at all.
f) Limited liabilities – almost all offshore companies are private limited company in nature, the investors who subscribe the shares of the offshore company are limited to contribute up to this amount (of the shares), and no more.
However, there are some drawbacks which must not be overlook.
a) Financing – offshore companies are difficult to get lending from their local bankers even they are profitable or provide pledge of personal assets and personal guarantee.
b) Opening an offshore bank account – as the public records are not available, it is difficult to open an offshore bank account. Some bankers even say that they will not open bank accounts for offshore companies.
c) Types of business being done – offshore companies are common formed for such businesses as consulting, international trading, holding shares of other companies; but some nature of businesses are not allowed using offshore companies such as finance company, insurance compnay, trust company, etc.
Which jurisdictions are suitable for offshore companies ?
There are many jurisdictions they claim suitable for offshore companies, some are listed below:
Anguilla, Barbados, Belize, Bermuda, British Virgin Islands (BVI), Brunei, Cayman Islands, Cook Islands, Guernsey, Hong Kong, Malaysia(Labuan), Marshall Islands, Mauritius, Nevis, Samoa, Seychelles, Singapore, St.Kitts, St. Lucia, St. Vincent and the Grenadines, Switzerland, Turks & Caicos Islands, Delaware (USA), UK, Vanuatu.
How to choose offshore company ?
There are in fact many jurisdictions for offshore companies, some may share common features. The common features are as below:
a) Set up documents – there must have Memorandum and Articles of Associations (M & A) which write down, briefly speaking, the powers and responsibilities of directors and shareholders, and how the internal structure of the offshore company is managed and operated.
b) Certificate of incorporation (CI) – it is the document which proves the company in existence and is in a legal entity, in legal term.
c) Registered agent or secretary – it is a common requirement that an offshore company must appoint a local agent or secretary responsible for dealing with all official communications or correspondings.
d) Registered office – it is also a common requirement that an offshore company must have a registered office and informs to Companies Registry that it is a legal address to receive all official correspondings.
e) Shareholders as owners of the company – in the initial M & A and other formation documents, the shareholders will subscribe and pick up the shares of an offshore company and become the owners of the company. There status is only an investor; they will not involve the management and operations of the offshore company.
f) Directors as managers (or employees) of the compnay – in the initial M & A and other formation documents, the directors will be appointed by the shareholders to manage and run the business of the offshore company. They are not owners of the company, nor investors. They are in law employees of the company.
g) Statutory records are required to be kept - the company law or rules require the company to keep updated statutory records of internal structure of company details such as the details of shareholders and their changes, the details of directors and their changes, the details of secretary and their changes, the share capital details and their changes, etc.
h) Annual renewals - almost all jurisdictions require their offshore companies to do annual renewal of licenses or keep updated filings, either internally or externally.
All jurisdictions will share the same features listed, but we think that the following are more common, in our opinion.
Belize, British Virgin Islands, Cayman Islands, Hong Kong, Marshall Islands, Mauritius, Nevis, Samoa, Seychelles, Delaware (US) and UK.
Which ones are the best ?
Belize, British Virgin Islands, Cayman Islands, Hong Kong, Marshall Islands, Mauritius, Nevis, Samoa, Seychelles, Delaware (US) and UK share the same advantages, disadvantages, or in common features. However, we have met some cases, you might be one of them in the future, one of them is listed below in regarding to the serious problem for offshore company.
Mr. Simon is a smart businessman. He runs international trading business. He made a lot of profits. At first, he came to Hong Kong and registered an offshore company using BVI as an offshore company and opened an offshore bank account, a couple of months later, the bank suspended his corporate bank account without a reason, but only sent a letter to him and explained that your money is suspected in our record. The bank required Mr. Simon to prove how the money he got ? Mr. Simon came to Hong Kong and talked to the bank manager and explained that it is the money from my trading business. The bank manager asked for business proof., and said, “Do you have recorded proofs ?”. Mr. Simon explained that my business is done overseas, there is not required to keep any business record at all, my overseas agent hasn’t asked me to file accounts to BVI Companies Registry ? The bank manager said, “Sorry, I can’t help you”, you have no proof, we have to suspend your accounts until further noticed. Mr. Simon found a lawyer and suited the bank but at last got nothing. After the financial crisis, I heard from our clients that such things are now happening in other countries such as U.S.A, Western Countries, European Countries and EVEN IN such offshore islands such as BVI, Belize, , etc themselves.
Why ? ....... Are you now talking offshore gets NO benefits ? Are you asking me to register local company instead ? My own country charges me 50% profits tax ? USA company charges higher. Even France company, UK company, Canada company, .... etc. How can I do ?
We have read a lot of offshore information, they seldom read out this serious problem, namely “How can you protect your money in offshore bank accounts from your offshore business”. Remember, if you do offshore business, it comes out only two results, good business result or bad business result. Being good business result means that a coupe of periods later your offshore bank account will have a lot of money. How if I transfer all money to my local bank account ? Or transfer to other offshore bank accounts ? Think about it ? Is it safe ? I know that some governments rule out to their bankers that if they find significant bank movements or transactions, they are required in law to report to them. As given by international rules against money laundering or tax evasion, the local or international bankers are more cautious of the transactions of offshore bank accounts. How I can do ?
Don’t worry. We recommend one jurisdiction to you. It is the most safe.
We recommend you to register Hong Kong company.
Why Hong Kong Company ?
Hong Kong is in international city, and in fact so many investors prefer to register Hong Kong company as their offshore company and run offshore business. In addition to the above benefits, I would like to highlight some you may not know:
1. Hong Kong economy system is opened and market oriented with a little government intervention. Investors can choose what businesses they do. In fact, from global statistics records, Hong Kong is No. 1 economy freedom.
2. The capital flows of money between Hong Kong and other countries are freedom, and without controls or restrictions. All currencies such as US$, GBP, Japanese yen, etc are remitted freely between Hong Kong and other countries.
3. Offshore business activities are 100% tax free. The Hong Kong tax law has confirmed that only local business is subject to profits tax, overseas business registered in Hong Kong is offshore business and so is not subject to Hong Kong profits tax. For example, if the international businessman engages in international trading in such as way that he buys goods from China and sells to UK or USA. If both buying activities and selling activities are not happened in Hong Kong, then the profits from that trading business are regarded as offshore profits, and are not subject to Hong Kong profits tax.
4. Low tax rate. Even the business is done in Hong Kong, the tax rate is only 16.5% of net profits. The tax rate is absolutely low, with no other tax systems such as VAT, business tax, capital gains tax, etc.
5. Formation requirement is very simple. An overseas person can be appointed as the shareholder and director of a Hong Kong company, he only finds local professional firms to provide appointment of secretary and provide registered office address.
6. No capital investment is required. The shareholder is only required to sign up the M & A to declare that he will contribute capital to the company, and he doesn’t require to pay money to the company.
7. Free use of company name. In other countries, some names are not freely used such as Holding, Group, International ...., etc. However, in Hong Kong, the name is freely used, provided that they are not registered in Hong Kong.
8. It is easy to open an offshore bank account with using Hong Kong company, the investor is required to provide his address proofs, passsport copy, Hong Kong company formation documents and a general description of his business. Many international bankers can accept the above documents and can open an offshore bank account with multi-currencies and internet banking facilities included within a couple of days, or even in some cases the same day.
9. Legal system is using common law and equity that applied in UK and other Commonwealth countries.
10. The common form of Hong Kong company is private limited company. It is private in nature and limited in liability for shareholders.
11. Corporate structuring is allowable. An overseas company can be appointed as corporate shareholder and director of Hong Kong company. For example, a BVI company can be apponinted as a director and shareholder of Hong Kong company.
12. Trust law is applicable in Hong Kong. If the investor, for his personal reasons, wants his status being hidden, he can do so with a trust arrangement that the trustee holds the shares for him (as a beneficiary) and he holds the trust deed which proves him a real owner of the shares. The trust law is applicable in Hong Kong. Remember trust documents or such laws are not enforceable, ineffective, invalid or void in other countries such as China.
13. Accounting records are required to keep, and annual statutory audits are required to file to Hong Kong Tax Departments.
Please note this final point. It seems a disadvantage. However, it is an advantage too. This point is also the reason why we suggest choosing Hong Kong company as an offshore company. Before understanding more, please read some Hong Kong key laws.
In IRD (Inland Revenue Department of Hong Kong) law, S.51 has clearly required Hong Kong Company to keep proper records and accounts for all businesses so as to ascertain the true figures of incomes, losses or expenses.
S.14 of IRD law says that the profits are chargeable to Hong Kong profits tax if the business activities are done in Hong Kong. In other words, if the business activities are not done in Hong Kong, the profits are not chargeable to Hong Kong profits tax. .The strong leading cases such as Hang Seng Bank case and HK-TVB have ruled out that offshore profits are tax free. Hong Kong only charges local profits tax, not offshore profits tax.
S.121 of Hong Kong Company law also requires the Hong Kong company to keep proper books of accounts so as to produce annual financial statement. S.131 of Hong Kong Company law requires an auditor to be appointed annually to audit the financial statements and issue an auditor report.
What is the purpose ? First, the audited reports are required to lay down before the Annual General Meetings (AGM) for sharehoders to discuss and get approval; secondly, the most important for the investors, it is required to file to the IRD (Inland Revenue Department of Hong Kong) and reported to the IRD that the Company has done business and has made a lot of profits and now request to claim exemption of profits tax. Under the general procedure works, the IRD will give notice to you an evidence that the profits are not subject to Hong Kong profits tax. Government has your proven records that your huge money comes from legal business.
In fact, it is the procedure I never find in other countries that:
1) the offshore company keeps accounts and records;
2) Appointment of auditor to do the audit and issue an auditor report;
3) hold AGM and approve an audited account and file to IRD;
4) file relevant documents to IRD and claim offshore profits;
5) the IRD confirms that your company is not required to pay tax (Sample of such letter you can see under the page of Order Form Section).
How wonderful, isn’t it ? You, as international investors, do international business, and you only find a good offshore professional to handle all the paper works for you, and do annual accounting, auditing, and tax filing, and claim offshore profits. It means you pay zero tax, even you made million, or billion of dollars.