Offshore Company Formation Vanuatu: Professional offshore incorporations and offshore banking services

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• 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

• Offshore Company Formation: Tax haven rankings

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• Examples for the legal reduction of corporate taxes

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• Company formation Vanuatu: Geography

• Vanuatu DTAs

All Vanuatu companies, other than International Companies, are governed by the Companies Act, which is itself based on the UK Uniform Companies Act 1948, which has been used as the basis for company law in most Commonwealth countries.

To establish a company requires the approval of the Minister of Finance; information to be supplied includes:

• the company's name;
• whether it is to be limited by shares, guarantee or unlimited;
• whether it is to be a local or exempted company (see below);
• the location of the registered office (which must be in Vanuatu);
• the names, occupations, addresses and nationality of the first directors;
• the names, addresses, occupations and nationality of those making the application and their relationship to the company; and
• details of others owning an interest in the company where the application relates to an entity wishing to conduct banking, financing or insurance business.

A company must be incorporated within six months of obtaining approval from the Minister.

Vanuatu 'Local' Limited Company

'Local' companies are companies operating domestically; they may be limited by shares, by guarantee, or may be unlimited. Companies may be public or private. They have the following characteristics:

• Public companies must have at least two directors, one of which must be resident in Vanuatu;
• Private companies must have at least one director who must be a Vanuatu resident;
• All companies must have a secretary;
• Private companies restrict the right to transfer shares, may have no more than fifty shareholders, and the public may not be invited to subscribe to the shares;
• Companies must hold annual meetings and file annual returns;
• Audited financial statements are required if annual turnover exceeds VT 20 million;
• Every company must have Memorandum and Articles of Association;
• Annual registration fees (at the time of writing) are required ranging from VT 30,000 on authorised capital up to VT 35m, up to VT 250,000 on capital over VT 300m.

Vanuatu Exempted Company

Companies formed under the Companies Act may be 'exempted' (from public disclosure requirements) if they do not:

• conduct business in Vanuatu other than in pursuance of their international business;
• offer shares to the public in Vanuatu; or
• own an interest in any non-exempt companies operating in Vanuatu.

Exempted Companies which carry on the businesses of banking, insurance, trusteeship or selling securities must file the same documents as Local Companies and file audited accounts.

Other Exempted Companies need not be audited nor file annual accounts, and the Annual Return is simpler. There is no public file for Exempted Companies.

The Registrar’s Office cannot show documents in respect of any Exempted Company except under a Court Order, or at the written direction of the Exempted Company.

Annual registration fees (at the time of writing) are required ranging from VT 50,000 on authorised capital up to VT 50m, up to VT 250,000 on capital over VT 300m.

Exempted companies are the usual form of choice for offshore financial institutions, since International Companies (see below) cannot hold banking, trust or insurance licenses, although they can hold the shares of Companies Act companies with such licenses.

Vanuatu International Company

The "International Company" is the most commonly used offshore entity. The law governing International Companies is set out in the International Companies Act No 32 of 1992. With the passage of this Act, most offshore companies elect to be 'International Companies' and most exempted companies have now converted to International Companies. International Companies are administered by the Vanuatu Financial Services Commission.

Companies that offer their shares to the public, hold banking, trust or insurance licenses, or operate within Vanuatu may not be registered as International Companies and must register under the Companies Act.

The International Company can normally be established within one day, as no permit application, or details of beneficial owners or operations, are required. To register, the company must file with the Commission only its constitution, which need contain only the company's name, its purposes (which can be general), its registered office and agent (which must both be in Vanuatu), and whether it is limited by shares or guarantee.

The following are the key characteristics of an International Company (IC):

• An IC must have a registered office and a registered agent in Vanuatu;
• The company's constitution (governing document), registered office and registered agent are available on public file;
• There is no minimum capital; the capital can be expressed in any currency;
• Shares can be in registered or bearer form, can be with or without par value, can have full, partial, conditional or no voting rights, and can be convertible, common, preferential or redeemable;
• An International Company needs a minimum of one shareholder (can be a nominee) and one director; corporate directors are permitted;
• A corporate secretary is not required but is permitted, and the secretary does not have to be located in Vanuatu;
• An IC does not have to keep or file accounts nor is it required to file an annual return;
• There are no restrictions or requirements on the holding of an annual meeting.

An International Company may not conduct business in Vanuatu, own an interest in real estate in Vanuatu except the lease of premises from where it conducts its international business, offer shares to the public, hold a banking, trust or insurance licence, or solicit the public to deposit with or lend money to the company.

The International Companies Act imposes a solvency test on ICs - directors are responsible for ensuring that any distribution leaves the IC able to meet its liabilities, and can be personally liable for any shortfall.

At the time of writing, the incorporation fee is $150 and the annual registration fee is $300. An International Company is exempt from all forms of taxation for 20 years from the date of registration.

Vanuatu Overseas Company

A Overseas Company is a company incorporated in a foreign jurisdiction which has re-registered in Vanuatu under the Companies Act. Such a company must nominate two Vanuatu residents who can accept notices on its behalf. It must lodge an annual return along with audited accounts. There is an annual fee of VT 30,000 (at the time of writing).

Foreign companies (including International Business Companies from other jurisdictions) can migrate to Vanuatu by way of continuation if that is not expressly forbidden by their home company law. The reverse process is also permitted.

Vanuatu General Partnership

Partnerships are governed by the Partnership Regulation 1975 which is virtually a copy of the English Partnership Act 1880.

A business partnership must have a license under the Business Licenses Act and must register its name under the Business Names Act.

General partnerships do not have to register or pay annual fees. General partners are jointly and severally liable for the partnership's obligations.

Vanuatu Limited Partnership

Limited partnerships are also formed under the Partnership Regulation 1975. There must be at least one general partner and at least one limited partner; there may not be more than 20 partners in total. The general partner(s) are jointly and severally liable for the partnership's obligations. The limited partners are liable only to the extent of their capital contributions. Limited partnerships must register with the Registrar of Companies and pay an annual fee (at the time of writing) of VT 100,000.

Vanuatu Trusts

Vanuatu trusts are formed under UK legislation that applies directly in Vanuatu, including the Trustee Act 1925, the Variation of Trusts Act 1958, and the Law of Property Act 1925. Vanuatu legislation on Trusts includes the Perpetuities and Accumulations Regulation 1974 and the Succession Probate and Administration Regulation 1972. The maximum perpetuity period for a Vanuatu trust is 80 years.

Vanuatu is in the process of constructing more modern trust legislation which will allow for purpose trusts, specific asset protection rules, disapplication of forced heirship rules etc.

Vanuatu trusts do not have to be registered and there are no reporting requirements; trustees do not have to be resident. Trust documents need stamping at VT 7,500 (at the time of writing).