Gibraltar Types 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 (which was to have been applied from July 2003, but fell by the wayside), 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 were to be 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 was fiscally part of the United Kingdom, pointing to its 1969 constitution, which gives the territory fiscal autonomy.

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."

In his budget in June 2008, Peter Caruana announced his intention to bring forward a 3% cut in corporate tax originally scheduled to take place in 2009, meaning that the corporate rate would drop by 6% that year.

"Last year, and in order to signal the Government’s seriousness of purpose in reducing corporate tax rates, I reduced corporate tax rates to 33%, and said that I would reduce it further this year to 30%, with a signalled reduction to 27% next year," Caruana told Parliament in his budget speech.

"In order to further signal the Government’s commitment I am advancing that timetable by one year, and therefore the corporate tax rate is now reduced by 6% from 33% to 27% with effect from this year that is the year of assessment 2008/09," he added.

Caruana explained that he envisaged a further cut in the rate next year, before moving to the rate of between 10% and 12% from 2010, adding that: "My strong preference will favour the bottom end of that range."

In December 2008, the European Court of First Instance ruled in favour of Gibraltar, stating that the European Commission was wrong to argue that the tax reforms proposed in 2002/03 were in breach of state aid rules, and effectively giving the jurisdiction licence to set its own tax rules.

The Court dismissed the EU Commission’s case, and stated that although the UK is representative of Gibraltar, Gibraltar does, however, have fiscal autonomy from the UK, and therefore can introduce its own individual tax system (the aforementioned 10-12% corporation tax).

In a statement to the press at the time, Peter Caruana, Gibraltar's Chief Minister, said he was "overjoyed" by the outcome.

"The Court has found in Gibraltar’s favour and has accepted our arguments on each and every issue, relating both to regional selectivity and material selectivity, and has ordered the commission to pay the Gibraltar government’s legal costs.”

“This needs to be clearly understood. Had Gibraltar lost the Regional Selectivity case, we would have had to adopt the UK’s company tax system and company tax rates. That would result in the bulk, if not all, of the finance centre and gambling companies leaving Gibraltar. That would have meant the loss of thousands of jobs throughout our economy, and a very large fall in government revenue. This in turn would have rendered unsustainable our current level of public services and public sector employment.”

“This is a huge and vital victory for Gibraltar. A threat to our economic, social, and thus political well-being, has, once again, been successfully seen off. I believe that the economy of Gibraltar now has the opportunity to forge ahead to the next level of growth and development, to fulfil its great potential and thus to guarantee that we shall bequeath economic and social prosperity and stability to our children, grand children and future generations. “

”Once again, this small community has demonstrated that, when right is on our side, and we hold our nerve and we behave reasonably and intelligently, we have the ability and determination to defend our rights and interests as a people, even when they are challenged by more powerful entities and forces.”

”On behalf of the people of Gibraltar, I wish to thank all those companies in the financial services and gambling sectors and other sectors of the economy that have had the faith and confidence in us to stay with Gibraltar during these difficult and uncertain times.”

“The threat that Gibraltar has faced cannot be understated, nor therefore, can the importance of this victory to Gibraltar and its people and our future.”

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

Gibraltar Private Company Limited by Shares

Gibraltar 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.

Gibraltar Exempt Private Company

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.

Gibraltar 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:

Gibraltar 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:

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%.

Gibraltar 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.

Gibraltar 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.

Gibraltar General Partnership

Partnerships are governed by the Partnership Act (as updated), 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.

Gibraltar Limited Partnership

Limited partnerships are governed by the Limited Partnership Act, 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.

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.

Gibraltar Trusts

The basic law of trusts is contained in the Gibraltar Trustee Act, 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.

Gibraltar Foundations

The Gibraltar Private Foundation Ordinance 1999 was intended to establish 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 was scheduled to become effective from 1st January 2000.

However, this legislation appears to have fallen by the wayside, leaving the situation with regard to Gibraltar foundations uncertain, to say the least.

GIBRALTAR: TYPES OF COMPANY

Gibraltar Private Company Limited by Shares

Gibraltar Company Limited by Guarantee

Gibraltar Exempt Private Company

Gibraltar Public Company Limited by Shares

The Gibraltar 1992 Company

Gibraltar The Qualifying Company

Gibraltar Branch of Overseas Company

Gibraltar Non-Resident Company

Gibraltar General Partnership

Gibraltar Limited Partnership

Gibraltar Sole Proprietorship

Gibraltar Trusts

Gibraltar Foundations