Gibraltar Forms of Company

Under the Companies Ordinance 1930 all incorporated companies in Gibraltar are required to prepare accounts and have them audited by independent accountants.

Auditors, who are individuals, are appointed by the directors of a company, must be independent of the company, and must be registered under the Auditors Registration Ordinance.

The European Commission announced in 2001 that it would begin a review of Gibraltar's exempt and qualifying company regimes, but after Gibraltar sued the Commission to prevent the review, the European Court of Justice ruled in Gibraltar's favour in April 2002.

However, in July, 2002, Gibraltar's Chief Minister, Peter Caruana announced the territory's new corporate taxation policy to be applied from July, 2003, which included the abolition of the existing corporate forms which allowed zero taxation, the Exempt and Qualifying companies.

In March, 2003, the EU's Council of Finance Ministers confirmed that the reforms did not constitute harmful tax measures. However, in April, 2004, the Commission argued that the new rules would give companies domiciled in Gibraltar an unfair advantage over their counterparts in the UK, under a principle known as 'regional selectivity'. The Commission also took issue with the fact that since the taxes are based on payroll and the occupation of business premises, offshore companies registered in Gibraltar would be unlikely to incur any tax liability. The EC therefore rejected the reforms, effectively suggesting that for taxation purposes, Gibraltar should be considered part of the United Kingdom.

Chief Minister, Peter Caruana slammed the EC for suggesting that the jurisdiction is fiscally part of the United Kingdom, pointing to its 1969 constitution, which gives the territory fiscal autonomy. The United Kingdom government is said to be “100% on-side” regarding the ‘regional selectivity’ debate, and Gibraltar is challenging the EC's view at the European Court of Justice. The issue will take years to resolve, and meanwhile Brussels officials seem to have agreed that the existing situation (confusing as it is) may be allowed to continue.

Gibraltar dissolved its qualifying companies tax regime in January, 2005, as negotiations continued in Brussels. In a move that cost the Gibraltar government an estimated £1.5 million in annual tax revenues, the remaining qualifying companies, of which there were about 80, switched to the ‘exempt’ companies regime. “Each qualifying company has been dealt with on an individual basis and alternative arrangements made,” said the government.

Later in the month, it was announced that Gibraltar had been given until 2010 (2007 for new companies) to phase out its exempt company tax regime after the European Commission ruled that the scheme violated EU state aid rules.

The government of Gibraltar welcomed the European Commission's approval of the Exempt Company Status Agreement as an acceptable compromise.

Then in June 2007, further major changes to Gibraltar's corporate tax regime were announced in Peter Caruana's Budget speech.

Mr Caruana explained that:

"The Tax Exempt Company has been the backbone of the development and growth of both our finance centre and the online gambling industry, and thus of a very significant part of our economy. It continues to underpin thousands of jobs in Gibraltar and large amounts of Government revenue."

"In order to comply with EU law we must phase out the tax exempt company in 2010. However, in order to sustain our successful economic model we must retain a commitment to a very competitive corporate tax model."

Since it is no longer legally acceptable to have one tax model for ‘local’ companies and a different one for ‘foreign’ companies it is necessary to have a low tax system for all companies because
without a low tax system for overseas companies they will leave, and our economy
will suffer hugely. Thousands of jobs would be lost, as well as significant Government revenue. I have therefore already said, and I reaffirm now, that the Gibraltar Government is irrevocably committed to the principle of ‘low tax’ for our economic operators."

"By mid-2010 the Government will have introduced an across the board flat, low corporate tax rate. This will most probably be set at 10%, but in any event not higher than 12%. This will be similar to arrangements that already exist in Ireland, Cyprus, Malta and other EU Countries."

"In the intervening period, the Government will engage in an intensive, detailed and lengthy process of consultation with the different economic sectors."

"In order to signal the Government’s seriousness of purpose in this respect I am today taking the first step in the process of reducing corporate tax rates in Gibraltar, by 2% for the year of assessment 07/08 from 35% to 33%, and with effect from the year of assessment 2008/09 by a further 3% from 33% to 30%."

" I would also signal the intention of a further reduction the year after that to 27%, in anticipation of the introduction of the flat low tax rate in 2010."

As can be seen, the Rock's company formation regime has undergone (and is undergoing) some fairly major changes in recent years, and professional advice is a must before deciding to form a company in the jurisdiction.

The remainder of this page deals with the corporate regime prior to the aforementioned changes.

Private Company Limited by Shares

Gibraltar Limited Companies are incorporated under the Gibraltar Companies Ordinance 1930 which is based on the English Companies Act 1929. The basic rules are as follows:

A private company limited by shares is required to have at least two members, who can be individuals or companies; one shareholder can be a nominee company holding a share on trust for the other shareholder; the maximum number of members is 50; the Memorandum and Articles of Incorporation state that the company is private, restrict the transfer of shares, and prohibit public offerings of the shares;
Annual returns must be made to the Registrar, and details of the shareholders and capital structure are held on the public files;
Only one director is required; secretaries are not mandatory, and they may be corporate;
There must be a registered office in Gibraltar where the statutory books are kept;
There is no requirement for accounts to be filed; tax-resident companies however have to submit accounts to the tax authorities;
A Gibraltar company can be incorporated within 7 working days and ready made companies are available for immediate use.
There is a 0.5% duty on authorised share capital (minimum duty £G10);
There is an annual tax of £G225 (at the time of writing) payable by a limited company.

Company Limited by Guarantee

The Company Limited by Guarantee, and its sibling, the Company Limited by Guarantee and having Shares, have the nature of mutual companies, and as such have normally been used essentially for charitable and non-profit purposes.

Lately they have come to be used sometimes for private family foundations in place of discretionary trusts. In addition, they have been used for proprietary and members' clubs in the international leisure and timeshare resort industry, where they meet all the requirements of modern EU (and Spanish) law.

Exempt Private Company

See above for changes to the Exempt Company regime

It was Gibraltar that originated the exempt company form, which has been widely copied by other jurisdictions (see above for details of negotiations with the EC over the future of exempt companies). The low set up cost makes them ideal for property and investment holding, international trading and sales agencies, particularly if trade is being carried on between two high tax jurisdictions.

The exempt company is the main offshore vehicle in Gibraltar. An exempt company may be either incorporated in Gibraltar under the Gibraltar Companies Ordinance, or incorporated outside Gibraltar but registered as an overseas company under Part IX of the Companies Ordinance.

If a company obtains exempt status, the company will be exempt from corporate tax and stamp duty (save in certain specific instances) in Gibraltar under the Companies (Taxation and Concessions Ordinance) 1984 (as amended).

Shares in an exempt company may be transmitted free of estate and stamp duty on the death of the shareholder. An exempt company pays a flat rate annual fee regardless of profits. A company incorporated in Gibraltar which is ordinarily resident pays a flat rate fee of £225 per annum, whilst a non-resident company incorporates outside Gibraltar pays a flat rate fee of £200. Fees payable to non-resident directors and dividends paid to its shareholders are not subject to a withholding tax. For a company to obtain and retain its tax exempt status, it must fulfil the following conditions:

Its paid-up share capital at all times must not be less than £100 or the foreign currency equivalent thereof;
No Gibraltarian or resident of Gibraltar must have any beneficial interest in the shares of the exempt company except as a shareholder in a public company which is registered in a country other than Gibraltar;
If the company is incorporated in Gibraltar, it must keep its register of shares within Gibraltar and have a provision in its Memorandum and Articles of Association to the effect that its register will not be kept elsewhere. If the company is incorporated outside Gibraltar, it must keep a true copy of its register of members within Gibraltar;
The company must not, without the approval of the Financial and Development Secretary, carry on any trade or business in Gibraltar or with Gibraltarians or residents of Gibraltar except where these are other exempt companies. An exempt company may, however, manage and control its business from Gibraltar and have an office and staff locally; and
Its auditors must be approved by the Government of Gibraltar, who must confirm annually that the company is not in breach of the provisions of the Companies (Taxation and Concessions) Ordinance.

The privacy of exempt companies is protected by Section 14 of the Companies (Taxation and Concessions) Ordinance 1984, which states:

14(1). ... the Financial and Development Secretary and every person having an official duty in the administration of this Ordinance shall regard and deal with all documents, information and declarations relating to the identity of the beneficial owners or persons interseted in any shares, or bearer certificates or coupons issued under the provisions of this Ordinance as secret and confidential.

Disclosure is permitted for the purposes of any criminal or civil proceedings in which such document, declaration, matter or thing is material (Section 14(3)).

Public Company Limited by Shares

A public company is defined as one which is not a private company and which has at the end of its name the words 'Public Limited Company' or 'P.L.C.'. A public company must have a minimum of two members.

The Gibraltar 1992 Company

The Gibraltar 1992 Company was introduced to implement the EU Parent/Subsidiary Directive 90/435. See Direct Corporate Taxation for details of the considerable tax advantages accruing to a 1992 Company. The 1992 Company is a normal private company limited by shares which conforms with the following conditions:

the company's main objective must be to invest in holdings in other companies incorporated in or outside Gibraltar amounting in each case to a minimum of 5% of the voting share capital;
at least 51% of the company's annual income should be derived from such investments;
the company must have business premises in Gibraltar of at least 400 sq.ft and employ a minimum of two employees;
persons who are normally resident in Gibraltar cannot own shares in the company;
the company must maintain a satisfactory debt to equity ratio (not defined).

The Qualifying Company

See above for details regarding the abolition of Qualifying Companies in January 2005.

A company incorporated in Gibraltar or a registered branch of an overseas company is eligible to apply for Qualifying Company status subject to conditions which are largely the same as those applying to an exempt company (see above). A Qualifying Company pays tax on its profits at a rate agreed with the Financial and Development Secretary and stated on a certificate issued to the company. A qualifying company certificate is valid for 25 years from the date of issue.See above for details of the abolition of Qualifying Companies in January 2005.

According to the legislation, a Qualifying Company pays tax at a rate (between 1% and 35%) to be agreed between the company and the authorities. This type of 'designer' tax arrangement is intended to allow a company to slide under the bar of its home tax regime by paying just the amount of tax required to escape anti-avoidance rules. In practice most Qualifying Companies nowadays agree to pay between 5% and 10% tax, and the form has perhaps become more the standard Gibraltar low-tax offshore entity for significant trading companies.

A qualifying company must have minimum paid-up capital of G£1,000 and must deposit G£1,000 with the Accountant-General against future tax liabilities. Qualifying companies in the financial sector have to pay annual fees to the Financial Services Commission:

Life assurance or collective investment scheme: G£2,000
Insurance broker: G£3,000
Investment manager: G£3,000
Investment adviser: G£1,500

In effect this form broadens the concept of the exempt company and is particularly aimed at helping finance sector companies. See Offshore Legal and Tax Regimes for further details.

Qualifying companies need to submit accounts to the Gibraltar Commissioner of Income Tax, and normal income tax legislation applicable to resident companies is applied to calculate the assessable profits of the company. Although the qualifying company is subject to tax at a variable rate, as explained above, most of the current qualifying companies are taxed at 5%.

Branch of Overseas Company

If a foreign company intends to establish a branch or a permanent place of business in Gibraltar, it must within one month deposit with the Registrar of Companies a certified copy of its Memorandum and Articles of Association, a list and particulars of its directors and company secretary, and details of one or more resident individuals authorised to receive notices and communications. Once registered, the foreign company will be treated in the same way as a Gibraltarian company, and can take exempt or qualifying status if appropriate. The annual fee for a branch registration at the time of writing is G£300.

Non-Resident Company

A company which is incorporated in Gibraltar (whether or not exempt), owned by non-residents of Gibraltar and managed and controlled by directors who reside and hold board meetings outside Gibraltar is considered to be non-resident.

A non-resident company pays Gibraltar corporation tax only on its income derived from or remitted to Gibraltar.

A non-resident company pays an annual tax at the time of writing of G£200.

General Partnership

Partnerships are governed by the Partnership Ordinance, which is based on the English Partnership Act 1890. Partners may be individuals or companies. In a general partnership, a partner's liability is unlimited. Under the Business Names Registration Ordinance, partnership names must be registered if they differ from the surnames of the partners. Partnership agreements and financial accounts do not have to be filed although a partnership that is resident in Gibraltar must submit accounts annually to the Commissioner of Income Tax. Partnerships are, of course, fiscally transparent. The minimum number of partners is two, and the maximum number 20, although this does not apply to professional firms.

Limited Partnership

Limited partnerships are governed by the Limited Partnership Ordinance, which is based on the English Limited Partnership Act 1907. Partners may be individuals or companies. A limited partnership consists of one or more general partners with unlimited liability, and one or more limited partners, who are liable only to the extent of their capital contributions. A limited partner does not take part in the management of the partnership and is not entitled to dissolve the partnership by notice. A limited partnership must file a statement with the Registrar of Companies giving details of general and limited partners, and the amounts of capital contributed, in order to benefit from limitation of liability. A limited partnership must have its principal place of business in Gibraltar.

Sole Proprietorship

The business name of a sole trader, who has unlimited responsibility for his liabilities, must be registered with the Registrar of Companies, if it is other than the name of the sole trader. An annual return must be submitted to the Commissioner of Income Tax.

Trusts

The basic law of trusts is contained in the Gibraltar Trustee Ordinance, which is virtually a copy of English trust legislation. Gibraltarian legislation affecting trusts also includes the Perpetuities and Accumulations Ordinance, the Trustee Investments Ordinance, the Bankruptcy Ordinance and the Trusts (Recognition) Ordinance. Appeal is to the Privy Council.

The Hague Convention has been implemented, but there are no provisions for the exclusion of foreign inheritance laws or for the nonrecogition of foreign judgements.

Under the Bankruptcy Ordinance there is statutory protection against creditors for asset protection trusts, providing the settlor is an individual, and was not insolvent at the time of the disposition, nor became so as a result of it.

Trust documents are in English, and there are no requirements for registration except that Asset Protection Trusts must be registered with the Registrar of Dispositions. There is no stamp duty. The normal perpetuity period of a Gibraltar trust is 100 years. There are no restrictions on the accumulation of income during the perpetuity period.

Legislation has not yet been introduced to provide for purpose trusts.

Foundations

The Gibraltar Private Foundation Ordinance 1999 establishes a regime for foundations as 'vehicles for the holding of private assets endowed on the foundation for the benefit of identified persons or classes of persons', and is effective from 1st January 2000.

Foundations may not carry on trading or financial services business.

A foundation is established by a deed of endowment or by a deceased person's will, either of which constitute the Memorandum of Endowment.

A foundation has officers, with prescribed duties, a secretary, a registered office in Gibraltar, and a supervisory board.

A foundation must be registered with the Registrar, who must be sent an annual return. A Register must be kept at the registered office with details of the various parties associated with the foundation.

A foundation may re-domicile into or out of Gibraltar.

LINKS IN THIS SECTION

PRIVATE COMPANY LIMITED BY SHARES

COMPANY LIMITED BY GUARANTEE

EXEMPT PRIVATE COMPANY

PUBLIC COMPANY

GIBRALTAR 1992 COMPANY

QUALIFYING COMPANY

BRANCH OF OVERSEAS COMPANY

NON-RESIDENT COMPANY

GENERAL PARTNERSHIP

LIMITED PARTNERSHIP