Offshore Company Formation

Basic Considerations regarding the Formation of Companies in „Zero-Tax Havens“ i.e. in countries that have not entered into Double Taxation Agreements with other countries

Countries, such as Belize, BVI, Cayman Islands, Nevis etc... have not entered into Double Taxation Agreements with other countries, no judicial assistance or Mutual Legal Assistance (MLA) Agreement exist nor do extradition treaties for fiscal offences exist and such countries often do not maintain public commercial registers.  In addition, as a rule these countries do not tax income that has been generated outside of the country (exempted companies, offshore companies / corporations). The presumptive advantages can, however, turn into a "tax trap", if specific prerequisites are not met.

To begin with many countries (USA, Germany, EU countries, Switzerland etc...) have laws for the prevention of “tax evasion” i.e. define laws which give the state the right to impose taxes domestically.  In the case of doubt, the „suspected tax evader“ must provide evidence, that the purpose of a foreign entity is not solely that of tax evasion (reversal of the burden of proof), which has the following consequences in most countries :

- Provision of proof, that an orderly place of business has been installed for a company located in a foreign county (e.g. Belize, BVI, Cayman Islands etc...). In most cases, this includes an office, a serviceable postal address and the foreign-based company must be reachable by telephone, and a lease must be entered into between the foreign company and a lessor.   A mere „Post Office Box“ or a „Registered Office“ does not constitute an orderly place of business and quickly leads to the assumption of a “bogus firm”. 

- The proof, that in a foreign country (zero-tax-haven) the personnel prerequisites are given, to even be able to conduct and realize the businesses activities of the company.   In the event, normally or comparably, for example a company would need 10 employees, to be able to conduct business activities, and the company does not have any employees at all, naturally the tax authority will pose the question - how is the foreign company able to discharge its business. The same applies with regard to the necessary employee qualifications. 

- The proof, that the foreign company has an employed Managing Director (Managing Director Agreement, Earnings Statements). It is indeed quite „odd“, if a foreign company only invests 200 USD per year in its purported Managing Director (place of business supervision as place of the permanent establishment).   In this context the question is legitimate, as to which Managing Director is willing to accept consideration of only approximately 14 USD per month. 

One can deviate from this, in the event a production site has been installed in a foreign country (zero-tax haven), construction works, which last for more than 12 months or a site for the exploitation of mineral resources.  In this event – it is always operations in a foreign country, independent of the “place of managerial supervision”.

One can deviate from this, if for example the official Managing Director of the foreign company is a resident of Denmark, and provides proof, that he is routinely present overseas (seat of the foreign country) to execute the managerial supervision of the business.  In the case, for example of a mere holding company, the “managerial supervision” is not so extensive that the permanent presence of a Managing Director would be required at the foreign company.   In this case, it would be credible, if the client (in this example, a Danish citizen) for example traveled to the country in which the foreign company is located once a month, to discharge the required managerial duties.

-If required, provide proof that the company actively transacts business abroad. 

The screening effects of a Double Taxation Agreement do not apply

Germany and the US, as well as other countries, maintain "taxation of fictitious distributions" statutes in their tax legislation provisions.  In the event an individual or a company holds more than 50% interest in a foreign company (the so-called “controlling financial interest”) and in the event the foreign company is established in a low tax country and only generates “passive income” (for example: pure services), then the profit after taxes (dividends) will also be taxed domestically, in the event the dividends are not distributed.  Many countries even tax dividends applying the full income tax rate (to the extent a person is a shareholder) and not with the otherwise applicable reduced tax rate.   However, the European Court of Justice has deemed this practice to be illegal with regard to European companies, i.e. not compatible with the principles of freedom of establishment. Example: A German is a shareholder in a company located in Cyprus, with an interest of greater than 50%. The company in Cyprus only generates passive income. According to the German add-back taxation, the dividends from the Cypriote company, would be taxed at the full income tax rate applicable to a German shareholder, and not taxed with the 25% final withholding tax, because Cyprus is a low tax country.  Due to the fact, that the German add-back taxation is illegal in the EU, the 25% final withholding tax applies, to the extent the dividends are distributed to Germany. In the event, the dividends are not distributed, in that case they are not taxed.  Another example: The same example as above, with the exception the German holds interest in a company in Belize.  In this case the “taxation of fictitious distributions” has full effect.  

In what situation does the formation of a company in a zero-tax haven (Non-DBA-Situation) makes sense?

Of course, in those situations in which the disadvantages listed above do not occur or play a subordinate role in the overall context.   In the event, for example a company is formed on the Cayman Islands, where all characteristics of an ordinary permanent establishment are met (orderly place of business, employed Managing Director etc…), the company actively transacts business and for example a German Stock Corporation holds interest in the company, in this case the place of business is taxed in the Cayman Islands (i.e. no taxation). The distribution of dividends to Germany (shareholder) are not subject to tax collection at the source and the German Stock Corporation, subject to 5% taxation of inter-corporate dividends,  may collect such dividends tax free (domestic German tax law, other countries apply similar provisions).

Formation of a Company in a Zero-Tax-Haven as a mere Tax Model

We discussed the risks above. However, the principle applies „Where no plaintiff, No judge”. If the Tax Authority, located in the state of the client (founder), cannot identify a connection between the offshore company and the actual "beneficiary", in that case such constellations remain undiscovered. The issue is however „the utilization of the dividends”.  If the dividends flow into the home state of the client / founder, a relation to the foreign company quickly becomes evident. In this event, the dividends should either remain in the foreign country or for example flow into a Swiss account.  It is possible to employ an intermediary in the form of a Lichtenstein Institute as a shareholder of the foreign company in the tax-haven state.  The foreign company, or the Liechtenstein Institute, then transacts worldwide investments, purchases for example a house on Lake Constance.  If the client / founder needs money, then he can "pick up" the money in Switzerland or in Liechtenstein. This remains undiscovered, to the extent a maximum of 10,000 Euro is picked-up (Money Laundering Acts of the Countries).  Of course, in most countries this type of „behavior” is deemed to be “tax evasion”, but the risk of discovery is usually low, to extent certain factors are stringently observed:

-No direct money flow from the „zero-tax-haven” into the home country of the client/founder.

-All documents (Trust Agreements, Stocks, Bearer Shares, Account Documents) should, for example, be kept in a safe-deposit box in Switzerland or in Liechtenstein.

- The “impression is to be avoided”, that the “managerial supervision “ is actually “in truth” in the state in which the client resides, a stock of goods or merchandise (warehouse), a representation or a permanent agent may not be installed outside of the zero-tax haven.

On the basis of the described factors, the formation of a company in a zero-tax-haven as a "pure tax model", as a rule is only suited for specific business areas, for example "Internet businesses” (downloading of specific files for fees, gambling, gaming etc…).

Alternatives to the Zero-Tax Haven

As described above, the formation of a foreign company makes more sense for most clients in countries with Double Taxation Agreements and / or in countries in the European Union. The client profits from the „screening effect“ of the Double Taxation Agreements and /or from the effect of the EU-Parent-Subsidiary-Directive and / or the EU Freedom of Establishment.

In some cases, it is better to pay a little tax and to act in a legal manner, than to pay no taxes and live in constant fear of possibly being indicted for tax evasion.

To this point, there are true tax-havens located within the European Union: Cyprus with only 10% income tax, the EU-special economic zones Madeira and the Canary special economic zone with approx. 5% income tax or for example England with 19% income tax for small to medium sized enterprises.   Even Switzerland entices with low taxes, for example: 15.5% in the Canton of Zug.

Which offshore country is the right one?

First, it must be checked (compare to the above discussion) if an offshore company (Definition: Not a DBA-Situation, Zero-Tax-Haven) is in fact, the right legal form for the client. In the vast majority of cases, this question must be answered with a NO, with regard to fiscal practice.  Accordingly, EU companies (Cyprus, England, Madeira etc…) or companies with DBA-Situation (for example: Switzerland) are much more suitable. In the event, however, one comes to the conclusion that an offshore company is a suitable option, then various considerations play a role in the selection of the location.

• Are exempted companies offered, i.e. companies which only conduct business outside of the country the company is located in and as such are tax-free?
• Total Fiscal Situation: Income taxes, corporation income tax, capital gains tax, withholding tax, gift tax or inheritance tax for individuals and companies?
• How robust is bank secrecy, is this anchored in the constitution?
• Have Mutual Legal Assistance (MLA) Agreements, agreements regarding information exchange in tax matters been entered into? (In the case of US citizens or US companies only Nevis can be considered)
• Are bearer shares permitted, to the extent the client wishes to issue bearer shares?
• Is there a publicly accessible commercial register?
• In the case of actual plant relocation / immigration: What are the conditions for foreigners (Prerequisites, Visa etc…), are there minimum wages, social security insurances, how high are the unit labor costs, are subsidies available for the establishment of new business?

Advantages and Disadvantages of Tax Locations in the Caribbean and the Bermudas