Cayman Islands Company Formation

Company Formation Cayman Islands

• Tax planning via a network of international tax advisers and attorneys
• Why form a company in a foreign country with a tax accountant specialized in international tax law?
• 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
• Examples for the legal reduction of corporate taxes
• DTA permanent establishment concept – Our services and fees
• Parent companies and their subsidiaries in the European Union
• Beware of cheap founders!

Company Formation Cayman Islands:

Company Formation Cayman Islands- Services provided by our Law Firm – or our Partner Network:

• Formation of the company, Apostille, upon request certified translation of the formation documents
• Certificate of Incorporation: The certificate of incorporation is an official document that confirms the name of a registered company, as well as the registration number.
• Certificate of Good Standing
• Ranging from Registered Office to maintaining a business office
• Upon request: Nominee Director (attorney acts as a trustee and acts as the Director of the company during the formation phase) and / or Nominee Shareholder (natural person or legal entity – Law firm acts as a trustee in the form of the shareholder of the company)
• Upon request:  Permanent Nominee Director (Attorney acts as trustee in the capacity of Director of the company during the entire term of the agreement)

Clarification:

A production site, a site for the exploitation of mineral resources or construction works whose duration is greater than 12 months always constitutes the establishment of a place of business in the country of the company’s seat (for example: Belize, BVI, Cayman Islands, Nevis etc….), independent „of the place of managerial supervision” (analogous to Article 5 OECD_Model Convention). Otherwise the taxable permanent establishment is defined via the „place of managerial supervision”.  As a rule this implies, that a person who maintains his ordinary residence in the country of the company’s seat must act as the Director of the company. Either the client or an agent relocates his ordinary residence to the country of the company’s seat and he, himself, acts as the Director of the company or our Law Firm in the country of the company’s seat provides a Nominee Director. Alternative: For example: The Danish client / founder acts as the Director of the company and establishes credibility that he is present in the country of the company’s seat within the course of carrying out the required managerial supervision. Due to the fact that as a rule tax havens (Belize, BVI Cayman Islands, Nevis etc…) do not maintain a public commercial register, the installation of a “Nominee Director in the formation phase” is possible and not necessarily a “permanently present Nominee Director”.

– Upon request: Bearer shares

– Upon request: Liechtenstein Institute as the shareholder of the company

Clarification:

The shareholder or the shareholders are the „Owner” of the company. It can be individuals or companies.  Bearer shares, nominee shareholder or for example a Liechtenstein Institute as a shareholder serve to conceal the true ownership relationships.  Which constellation is best suited, is dependent upon different prerequisites. We would welcome the opportunity to discuss this with you in a personal setting.

– Opening of an account in the name of the company, incl. Online banking and VisaCard (in the case of bearer shares the opening of an account is often only possible, if the client / founder is not present at the opening of the account)

– Upon request: Investment account in Switzerland (Minimum deposit 10,000 CHF)

– To the extent it is a requirement of domestic law: Provision of proof of the exempt status to the authorities (most tax havens differentiate between offshore and onshore companies. Onshore companies are taxed normally, offshore companies – i.e. companies which transact business outside of the country are not taxed. The Cayman Islands is the exception: Real zero-tax haven)

Company Formation Cayman Islands: Law

The Companies Law 1961 (as amended, chiefly in 1990 and 1995) is based on English law and is the main law governing companies in Cayman. There are four company types which are commonly registered in Cayman under the Companies Law: Ordinary Resident Company, Ordinary Non-Resident Company, Exempted Company and Exempted Limited Duration Company.

The Companies Law, true to its English origins, permits companies limited by shares, companies limited by guarantee, and unlimited companies; but in practice only companies limited by shares are used. Incorporation and registration of limited companies takes a day, and it can be less. Shelf companies are available but are unusual.

There is a Registrar of Companies, and registration involves submission of the Memorandum of Association; for companies limited by shares the Articles of Association can follow – ‘Table A’ applies if no Articles are registered.

There needs to be one shareholder of record (of any nationality); there are no rules regarding minimum capital, par value etc. There is no statutory requirement for audit or for annual filing of accounts. All companies must maintain registered offices in Cayman.

However, pressure from the OECD and other international bodies on the Cayman Islands to take steps to counter money-laundering has led to the imposition of more stringent ‘KYC’ rules on the offshore sector.

There are more than 65,000 companies registered in the Cayman Islands, but according to General Registry figures, the number of companies registering has steadily decreased in recent years. According to the official figures for January 2003 there were 587 new companies registered, compared with 613 for the same month in 2002, and 823 in January 2001. Full year figures show a similar decline, with 12,693 companies registering in 2000, 8,456 in 2001, and 7,106 in 2002.

Ordinary Resident Company

An ordinary resident company is usually formed for the purposes of carrying on local business. In addition to the Companies Law, it is subject to the terms of the Local Companies (Control) Law 1995 which requires licensing, and the annual submission of a list of shareholders. Only registered, and not bearer, shares are allowed. An annual general meeting must be held, and a register of members must be kept at the registered office, open to public inspection. The name of the company must end in Ltd or Limited. The list of shareholders of the company must be filed with the Registrar of Companies in January each year; the Immigration Board should also receive a similar list showing those shares beneficially owned by Caymanians. Registration fees are payable on incorporation and annually: CI$150 for capital not exceeding CI$42,000, CI$350 otherwise.

Ordinary Non-Resident Company

An ordinary non-resident company is subject to the same rules as a resident company, but under the terms of the Local Companies (Control) Law 1995, must not conduct any business within the islands. This form or that of the exempt company is the usual choice for offshore operations. The Financial Secretary will grant a certificate of non-residence if he is satisfied that the company does not and does not intend to trade onshore. The company is then relieved of the licensing requirement and the need to provide lists of shareholders to the Immigration Department. An annual list must still be provided to the Registrar, but it is quite usual to appoint proxies.

The normal minimum capital requirement is CI$42,000, and the minimum capital duty levied on incorporation of a nonresident company and annually thereafter is CI$400; for higher capital the rate is CI$565. There are no restrictions on the location of general meetings or of directors or the secretary, if there is one, except that one shareholders’ meeting must be held in Cayman each year.

Records of members, directors, mortgages and charges must be kept. Financial records must be maintained although no audit is necessary and there are no filing requirements.

Ordinary non-resident companies can apply to convert to exempted companies.

Exempt Company

The differences between a non-resident company and an exempted company are as follows:

• An exempted Caymans company does not have to use Ltd or Limited in its name;
• it may issue bearer shares in addition to registered shares;
• it has to hold one directors’ meeting a year in Cayman (but may use proxies); it does not have to hold a shareholders’ meeting in Cayman;
• it need not file a list of shareholders annually, and does not even have to keep such a list;
• it may obtain a Certificate of Tax Exemption (ie against any future Cayman taxation)

An exempted company (or limited duration exempted company) is the normal form of choice for collective investment vehicles. Incorporation fees depend on capital as follows:

• CI$410 for capital less than CI$42,000
• CI$660 for capital up to CI$820,000
• CI$1,384 for capital up to CI$1.64m
• CI$1,968 thereafter

Limited Duration Exempt Company

Limited duration exempted companies are like exempted companies except that:

• the Memorandum of Association must limit the life of the company to 30 years or less;
• certain events are specified which automatically precipitate its voluntary winding-up and dissolution;
• it must at all times have not fewer than two members;
• the Articles may provide that no shares may be transferred without the agreement of all shareholders; and
• management may be carried out by the shareholders or may be delegated to a board of directors.

Fees are as for exempted companies, plus $200.

Foreign Company

Foreign companies are companies incorporated outside the Cayman Islands which establish a place of business, or carry on business in Cayman (which includes the sale by or on behalf of the company of its shares or debentures). Under the Companies Law a foreign company must register, providing the following information:

• a copy of its incoporation documentation in English;
• the names and addresses of its directors; and
• the name of a person in Cayman who can accept service on the company’s behalf.

There is a fee of CI$850 on registration, and CI$500 annually thereafter.

A company can also transfer its domicile to the Cayman Islands ‘by way of continuance’ which obviates the need to incorporate afresh. The reverse process is also possible.

Limited Partnership

Cayman Islands partnership law is based on English law, with recent amendments. Limited Partnerships are formed under the Partnership Law 1995. One or more general partners have unlimited liability and are responsible for management; limited partners are liable only to the extent of their contributions.

To form a limited partnership a declaration must be filed with the Registrar of Limited Partnerships which describes all the partners and gives other information; this declaration is also published in the Cayman Gazette.

Exempted Limited Partnership

A limited partnership may become an exempted limited partnership, or one can be formed de novo, by filing a statement with the Registrar. Unlike the Limited Partnership declaration, this does not need to include the names of the limited partners or the amounts of their contributions.

An exempted limited partnership must not do business with the public in Cayman. An exempted limited partnership may obtain a 50-year Certificate of Tax Exemption (ie against any future Caymans taxation).

Trusts

Trust law in the Cayman Islands is based on English trust law, with some recent modifications in the Trusts Law 1996. Other recent changes include the Perpetuities Law 1985 which increased the perpetuity period to 150 years, the Special Trusts (Alternative Regimes) Law which introduced purpose trusts, the Trust (Foreign Element) Law 1987 which provided inter alia for the importation and exportation of trusts, and the Fraudulent Dispositions Law 1989 which includes specific asset protection provisions.

Trusts do not have to be registered; a company offering trust services must obtain a licence under the Banks and Trust Companies Law 1995; individuals do not have to do so.

Trusts can be exempt, like companies and limited partnerships, but must then be registered with the Registrar of Trusts, and pay a fee of CI$400 (CI$100 annually thereafter). The Governor gives a 50-year undertaking to the Trustees that no taxation will be imposed on the trust.

The Hague Convention has not been implemented in Cayman. Specific provisions exist for the non-recognition of foreign judgements and the exclusion of forced heirship.

In the Cayman Islands there are no taxes other than import duties (at varying rates), stamp duty at 7.5% on transfers of real estate (currently reduced temporarily to 5%), and stamp duty at rates up to 1% ad valorem on legal documents dealing with valuable assets or transactions; however issues of securities, mutual fund shares or units are normally exempt from stamp duty.

During 2003 the Cayman government battled to avoid inclusion in the scope of the EU’s Savings Tax Directive, but in the end was forced to give in by the UK Treasury, and is applying the information exchange model under the Directive from 1st July, 2005. This means that information about interest on savings paid to citizens of European member states will be forwarded to the tax authorities of the member state in question.

The Cayman Islands authorities have put a brave face on this development, which they tried hard to avoid.

The Cayman Islands Financial Services Association expressed support for the government’s decision to opt for exchange of banking information: “Should the Directive become fully implemented as planned, we believe that automatic information exchange would be consistent with the Cayman Islands’ promotion of transparency in its financial services industry”, commented Eduardo D’Angelo P. Silva, a Director of CIFSA.

The Cayman Island’s Financial Secretary Mr George McCarthy said: “International business is attracted to the Cayman Islands because of the critical mass of experienced professional advisers, our robust and effective regulatory system, innovative products and services and an approach to tax which is business-friendly. We have signed and implemented commitments on tax transparency. We have consistently asked for fairness – a level playing field and equitable treatment. It is not a case of us asking to be let into your ports ‘for a bit of financial raiding’, but of the Cayman Islands correcting decades of negative spin by competing onshore financial centres.”

In February 2004 the Cayman Islands Legislative Assembly voted to accept the terms of the European Savings Directive, the culmination of weeks of talks with the United Kingdom government who had threatened legislative action against the jurisdiction. Leader of Government Business McKeeva Bush urged members to vote for the motion, telling them that the Cayman no longer has a mandate to go it alone. Despite his plea however, the opposition People’s Progressive Movement (PPM) chose to abstain. “I am not one that is normally pushed around,” observed Mr Bush of a dispute that saw the Caymans challenge the right of the EU to impose the Directive on offshore dependent territories. I believe that you can only push so much. In effect then, our two alternatives are that we either reject the proposal and allow the UK government to put it in to place, or we agree, take what is offered and say, ‘I live to fight another day.’ “

In return for Cayman’s acceptance of the Directive, the UK has agreed to pursue discussions on a Double Tax Avoidance Treaty.