Gibraltar International Focus
Sponsored by Europa Trust Company Limited
05 February, 2014
As one of the first British dependent territories to develop tax-exempt corporate forms, Gibraltar has a long history as an offshore financial centre, with the focus initially on the traditional forms of offshore business like company incorporation, banking, investment holding, shipping and trust management. The arrival of the internet however has seen the jurisdiction develop into one of the worlds foremost e-gaming and gambling company domiciles.
Gibraltar is a small peninsula located on the southern coast of Spain. It covers a total area of 6.5 sq km and its coastline stretches for 12 km only; there is a 1.2 km borderline with Spain. The Strait of Gibraltar links the Mediterranean Sea and the North Atlantic Ocean. Gibraltar enjoys a mild Mediterranean climate. Its highest point is the rock of Gibraltar which reaches 426m and is surrounded by narrow coastal lowland. The population was estimated to be around 29,000 in July 2013 and the official language is English, although Spanish, Italian, Portuguese and Russian are also spoken.
The history of the Rock of Gibraltar is rich and varied due to its strategic location. The Rock has for the last 300 years been under British control after the Treaty of Utrecht ceded the territory to Great Britain for ever. During the nineteenth century, Gibraltar developed into an impregnable fortress and a prosperous society developed within its walls. It remained a key British military and naval outpost until very recently and British culture has heavily influenced most aspects of Gibraltarian life.
Although Gibraltar remains a dependent territory of the United Kingdom, it has its own directly-elected parliament, and a new constitution approved by a referendum in the jurisdiction in 2006 gave it more autonomy from the UK over its own internal affairs.
Gibraltar and Spain
Spains historical claim to the Rock has however cast something of a cloud over the jurisdiction and Gibraltars constitutional status has been an almost constant source of friction in relations between the UK and Spain. In modern times Spain has pursued its claim to Gibraltar in every possible way short of force of arms; but the population will have none of it, and no resolution of the problem is in sight, despite various attempts at some kind of agreement acceptable to all three sides over the last ten years. In short, the Spanish are unlikely to accept anything short of full sovereignty over Gibraltar, but the British will not accept any deal which would interfere with their military presence in the territory. In any event, the overwhelming majority of the Rocks population are opposed to any sort of joint sovereignty arrangement, and this was emphatically demonstrated in a 2002 referendum when nearly 99% of votes cast were against such a proposal.
The current state of affairs does, however, make certain aspects of living in Gibraltar difficult. For example, Spanish border controls can cause long delays for people entering and leaving the territory, while restrictions on flights arriving and leaving from the local airport means that travellers often must seek connections to their destinations from Spanish airports. Another bugbear for Gibraltarians is Spains reluctance to provide more telephone numbers for Gibraltar.
The latest chapter in this long running saga saw Spain attempting to impose a congestion tax on traffic crossing the Gibraltar border in 2013, although the proposed EUR50 frontier fee would almost certainly contravene EU rules protecting the freedom of movement. However, in November 2013, the European Commission confirmed that strict border checks currently being implemented by Spanish authorities at the Línea de la Concepción crossing point with Gibraltar do not infringe European Union law, although the body says it reserves the right to reconsider its position should the situation change.
The Spanish measures came in response to a diplomatic wrangle between Spain and Britain concerning Gibraltar's construction of an artificial reef, which Spain alleges damages the livelihoods of Spanish fishermen in the area. Spain's foreign minister, Jose Manuel Garcia-Margallo, said in August 2013 that negotiations with Britain regarding Gibraltar's sovereignty "have been on hold for too long." However, a spokesman for British Prime Minister David Cameron said that while the UK would be willing to enter talks to address Spain's concerns about Gibraltar's fishing practices, it would not discuss the enclave's sovereignty. And so the impasse continues.
Gibraltar and the EU
While Gibraltar remains a colony of the United Kingdom, and entered the EU along with the UK, it does not belong to the EU's VAT, Common Agricultural Policy or common external tariff regimes. However Gibraltar has implemented much EU financial legislation and can apply Common European Passport regulations in the insurance, banking and fund management spheres.
Nevertheless, Gibraltar has always had an uneasy relationship with the EU, and in practice there are sometimes difficulties connected with the long-running row between the UK and Spain over Gibraltar's status. One of the longest-running arguments between the EU and Gibraltar has been over the latters tax regime (see below).
It was Gibraltar that originated the exempt company form, which has been widely copied by other jurisdictions. The low set-up cost made them ideal for property and investment holding, international trading and sales agencies, particularly if trade was being carried on between two high-tax jurisdictions. If a company obtained exempt status, the company was exempt from corporate tax and stamp duty (save in certain specific instances) in Gibraltar under the Companies (Taxation and Concessions act) 1984 (as amended).
A company incorporated in Gibraltar or a registered branch of an overseas company was eligible to apply for Qualifying Company status subject to conditions which were largely the same as those applying to an exempt company. A Qualifying Company paid tax on its profits at a rate agreed with the Financial and Development Secretary and stated on a certificate issued to the company (between 1% and 35%). This type of 'designer' tax arrangement was 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 agreed to pay between 5% and 10% tax, and the form became the standard Gibraltar low-tax offshore entity for significant trading companies.
The EUs campaign against so-called harmful tax competition has resulted in these offshore company forms being abolished, with the Qualifying Companies regime dissolved in January 2005 and the Exempt Companies legislation eventually phased out by January 2011. However, Gibraltars proposed replacement corporate tax regime triggered a long and complex series of legal disputes between the jurisdiction and the European Commission which brought into question its right to determine its own taxes and whether Gibraltar was benefiting from illegal state aid under EU rules by having a more advantageous set of tax rules than the UK.
Under the first proposed replacement to the offshore company forms, a zero rate of corporation tax would have applied to all companies, both onshore and offshore, but new taxes based on company personnel and property occupation would have been introduced, capped at 15% of profits. This was deemed an unacceptable compromise by the EU on the grounds that it still would have given offshore firms a significant tax advantage because they tend to have smaller premises and maintain lower levels of staff than their onshore counterparts. The government subsequently withdrew these proposals and settled on a new corporate tax regime whereby all companies pay corporate tax at 10%, except for energy and utility providers, who pay a 10% surcharge and are therefore subject to corporate tax at 20%. This has applied since January 1, 2011.
This compromise seemed to keep the European Commission wolves from Gibraltars door, and this tax regime survives substantially intact. Amendments were made in December 2013 however, in response to criticism from the EU Code of Conduct on Business Taxation.
Speaking to Parliament on December 23, 2013 Chief Minister Fabian Picardo outlined the amendment, noting that it addresses the EC's concerns over two aspects of Gibraltar's Income Tax Act 2010, namely the tax exemptions for inter-company loan interest and royalties income.
Earlier this year the EU Code of Conduct Group judged the exemption for inter-company loan interest to be harmful according to the Code of Conduct on Business Taxation. The EC said that the measure amounts to a form of state aid. As a result Gibraltar abolished the exemption in an Act which entered into force on July 01, 2013.
The new bill will abolish the exemption for royalties income, the chief minister said.
For taxation purposes, an individual is either resident or non-resident, and nationality is not a factor in determining tax status. An individual is 'ordinarily resident' if he or she is present in Gibraltar for a period of at least 183 days in aggregate in any one tax year, or is present in Gibraltar in excess of 300 hundred days in three consecutive years. Non-resident means any person other than a person ordinarily resident.
Several allowances and deductions are given under Gibraltar tax law, including a GIP3,000 personal allowance, a GIP3,000 spouse allowance, dependent relative allowances up to GIP190, a home purchase allowance of GIP11,500, child allowances up to GBP997, a disabled individual allowance of GBP3,000, a single parent allowance of GBP3,000, a nursery school allowance of GIP3,000, and a medical insurance allowance of GIP2,000.
There are also deductions for life insurance contributions and mortgage interest payments, and there is a special deduction for senior citizens.
Taxpayers can elect to be taxed under two different tax assessment systems in Gibraltar as follows:
Under the Allowance Based System, tax is charged following the deduction of personal and other allowances from gross income at the current tax rates: the first GIP4,000 of taxable income at 15%; the next GIP12,000 of taxable income at 24%; and the remainder of taxable income at 40%.
The alternative system is a new Gross Income Based system, in which the taxpayer receives no allowances, but pays tax on gross income at the following rates:
Individuals with gross assessable income not exceeding GIP25,000:
the first GIP10,000 of assessable income at 6%
the next GIP7,000 at 20%
the remainder at 28%
Individuals with gross assessable income exceeding GIP25,000:
the first GIP17,000 of assessable income at 16%
the next GIP8,000 at 19%
the next GIP15,000 at 25%
the next GIP65,000 at 28%
the next GIP395,000 at 25%
the next GIP200,000 at 18%
the next GIP300,000 at 10%
the remainder at 5%
There is no capital gains tax in Gibraltar and estate duty was abolished with effect from April 1, 1997.
Given the importance of the offshore sector to Gibraltar's economy, but with its very limited local labour pool, the government has traditionally offered tax schemes to attract highly-qualified expat workers and high-net-worth individuals to fill senior management roles or invest in the jurisdiction. The government currently offers two such schemes, outlined below:
Qualifying (Category Two) Individuals are liable to income tax on the first GIP80,000 of assessable income only. The minimum amount of tax payable by an HNWI in any one year of assessment under this scheme is GIP22,000 and the maximum is approximately GIP30,000. Applicants must have available for their exclusive use approved residential accommodation in Gibraltar. The Government would also be looking to ensure that the individual has sufficient means to maintain himself and his family; evidence of an individuals wealth will be sought, although it is not necessary for the individual to declare his worldwide wealth or earnings. The Government also requires that the individual has private medical insurance to cover both him and his family whilst residing in Gibraltar. Additionally, an applicant must not have been resident in Gibraltar in the previous five years.
A new category called High Executive Possessing Specialist Skills (HEPSS) was established for existing Category Three (since abolished) holders who earn more than GIP120,000 per annum and for new applicants who possess skills not available in Gibraltar and, in the Governments opinion, are of particular economic value to Gibraltar, who will occupy a high executive or senior management position. Under the HEPSS scheme, tax is payable only on the first GIP120,000 of assessable income under the Gross Income Based System. HEPSS applicants must also satisfy residential accommodation and residency conditions.
Qualifying Categories 3 and 4 were open to expatriate individuals of Exempt of Qualifying Companies and set the tax payable by the individual at GBP15,000, irrespective of their taxable income, but were abolished in 2007.
Offshore Business Sectors
In this part of the feature, we look at the key sectors of Gibraltars offshore economy.
E-Commerce and E-Gaming
The Government elected early in 2000 was quick to make its intentions clear as regards e-commerce, announcing that: The Government of Gibraltar believes there are significant opportunities for e-commerce businesses operating from the Rock. The Internet allows access to customers located in every corner of the globe and we should be well placed to serve this international clientele.
The Electronic Commerce act was passed on March 5, 2001 by the Gibraltar parliament, the House of Assembly, and was viewed as an important step in Gibraltar's development as an e-commerce hub to rival its nearest competitors, such as Guernsey, Malta and the Isle of Man.
The legislation facilitated the use of electronic means for transmitting and storing information and afforded legal recognition to transactions undertaken electronically. It also provided a framework for the accreditation of electronic signatures, and determines the activities and liability of service providers.
In addition to a sound legislative base, Gibraltar's advantages are her position in the EU, both geographically and structurally, an established base of professionals, good telecommunications and excellent port facilities. If only the problems with Spain could be finally resolved, Gibraltar could function as a tax-efficient e-commerce gateway to Spain and the rest of the EU beyond for physical goods as well as digital ones. As things are, Gibraltar has to give preference to digital products, including financial services, in which the competition is strongest.
By locating websites in Gibraltar to carry out functions previously based in high-tax jurisdictions such as sales and marketing, treasury management, supply of financial services, and most of all, the supply of digital goods such as music, video, training, software etc, businesses can take advantage of low rates of taxation for increasingly substantial parts of their operation.
A case in point is the betting and gambling sector: in 2000 and 2001 Gibraltar attracted many of the book-makers who fled the UK's high-tax regime in order to set up telephone betting service centres offshore. However, in May, 2004, Gibraltar showed that its e-commerce prowess wasn't limited to betting, when leading London-based independent trading firm Mac Futures significantly expanded its presence in the jurisdiction of Gibraltar with the opening of a new 100-desk trading facility by former Chief Minister Peter Caruana.
The gradually worsening tax climate in the UK and increasing international competition drove many betting and gaming operators away between 2006 and 2011, with quite a few of them migrating to Gibraltar.
The UK Governments response to the outflow of bookmakers offshore was to impose a 15 percent tax on a point-of-consumption basis from December 2013 in an attempt to remove the ability of bookmakers to benefit from low-tax jurisdictions such as Gibraltar, while still reaching British customers via online services.
The tax is expected to cost the online gambling industry GBP300m per year, but it remains to be seen how these changes affect offshore jurisdiction like Gibraltar which have carved out a particular niche in the industry. If William Hills response is any indication however, Gibraltars future as a favoured offshore domicile for British bookies remains assured. Speaking to reporters in December 2013, William Hills managing director, Andy Lee, said that the company had no plans to withdraw from Gibraltar. Currently, William Hills global operations are based in Gibraltar, and the company employs more than 400 people in the territory. "Our staff are very happy there and there are reasons why we will remain there in order to be competitive in this market," Lee said.
The banking sector is well established in Gibraltar in both the offshore and local market, although there has been a steady fall in the number of banks located in the jurisdiction, from 26 banks in Gibraltar in 1996, to 20 banks as at March 31, 2013, including 10 locally-incorporated banks, six branches and four e-money firms.
Most of the banks established in Gibraltar are branches of major UK, European or US banks. Banking activity is directed to asset management for high-net-worth individuals, not least because Gibraltar has tried hard to attract such people with special tax regimes.
Financial services in Gibraltar are regulated by the Financial Services Commission. The Commission introduced important changes to the way it supervises locally incorporated banks and non-EEA branches in 2002, rolling out a risk based approach to supervision, where the supervisory team evaluates an institution in terms of the risks posed to an institution in the way it does business or the type of business it is in. This new approach to supervision aims to focus supervisory resources on the areas deemed to be high risk for an institution in order to ensure that the right controls and procedures are in place to mitigate the risks or where corrective action is required by an institution.
The Banking act 1992 (as amended) repealed the previous distinction between 'A' onshore and 'B' offshore licences, and introduced a single banking licence. Thus Gibraltar licensed banks can in theory take advantage of 'passporting' opportunities and branch out across the EU and EEA without the need for further authorisation (except for notification).
A deposit protection policy has been brought into effect by the Gibraltar Deposit Guarantee Board in line with EU directives in this area. The deposit protection scheme was extended from December 31, 2010, so that any claimant with a qualifying deposit will be entitled to the lesser amount of 100% of the total of all qualifying deposits with the failed bank (including all branches); or EUR100,000 (or the sterling equivalent). Previously, the scheme covered 90% of a bank's total liability to a depositor, subject to a maximum payment to any one individual of GBP18,000 (or EUR20,000, if greater).
Gibraltar is thought to be one of the safer jurisdictions as far as money laundering risks are concerned. As part of the European Union, Gibraltar is required to implement all relevant EU directives, including those relating to anti-money laundering.
Gibraltar was also one of the first jurisdictions to introduce and implement money laundering legislation that covered all crimes.
Like other European 'offshore' jurisdictions, Gibraltar has had to come to terms with the EU's Savings Tax Directive, and has opted for a withholding tax on bank interest payments to nationals of EU Member States. In this way, Gibraltar has preserved banking secrecy.
The jurisdiction had come under fire from the Channel Islands, as its legal status in relation to the UK and European Union meant that the Directive did not apply to it in quite the same way. However, under an agreement between the two governments, Gibraltar and the UK exchange information about the returns on savings under the Directive, or, in Gibraltar's case only, if the savers so choose, impose a withholding tax on returns on savings of UK residents with accounts there.
The rate was set at 15% from April 1 2006 to June 30 2008, following which it rose to 20% for the next three years, and to 35% from July, 2011.
However, since the EU Savings Tax Directive became law, things have moved on considerably in the area of information exchange, and the campaign against cross-border tax avoidance and evasion has become a global one. The UKs offshore territories are under especial pressure to divulge more information about bank account holders and beneficial owners of companies, and in November 2013, Gibraltar signed an intergovernmental agreement (IGA) with the UK to share information on their respective residents with bank accounts in either jurisdiction. The agreement is based on the Model 1 IGAs that the United States Treasury has entered into with foreign governments under the US Foreign Account Tax Compliance Act (FATCA). At the time of writing, it is understood that Gibraltar is close to signing a FATCA IGA with the US.
The signing of the UK IGA coincided with an announcement from the OECD that the UK had deposited declarations extending the territorial scope of the OECD and Council of Europe Convention on Mutual Administrative Assistance in Tax Matters to cover Gibraltar. The Chief Minister of Gibraltar wrote to UK Prime Minister David Cameron in June of this year to request that the convention be extended to his jurisdiction. Inclusion in the convention significantly expands Gibraltar's network of information exchange agreements.
The Government of Gibraltar has however made clear that it stands fully behind efforts by the international community to improve tax transparency and combat tax evasion.
"It remains the Gibraltar Governments firm view that tackling tax evasion and fraud is rightly a global priority, necessary to protect the integrity of public revenues, the confidence of taxpayers in the fairness and effectiveness of their tax systems and, ultimately, public confidence in open global capital markets," the Government declared in a statement issued in May 2013.
However, the Government emphasized the fundamental importance of maintaining a level playing field in the international financial services area, ensuring that all territories adopt the same frameworks, and the need for firm enforcement action against non-compliance.
Investment Fund Management
There is a lively investment management sector in Gibraltar, with 19 licensed portfolio management firms. Many of the banks in Gibraltar also offer investment management services, and there are also independent stockbrokers.
At the end of March 2012, funds under management in Gibraltar totalled GBP8.1bn, of which GBP6.3bn was with banks, and the remainder with investment firms.
The Financial Services Commission is responsible for the regulation of investment business in Gibraltar.
Investment funds in Gibraltar are usually formed under a trust deed either as unit trusts or mutual funds, or under the Companies act as private or public companies. A public investment company (PIC) must have a minimum paid-up capital of GIP50,000 and if it is not listed on a recognised exchange its head office must be in Gibraltar.
In July, 2003, the UK gave its approval for passporting rights designed to allow local investment firms in Gibraltar to offer services to individuals in other EU member states. This was the third passporting 'badge' that the jurisdiction had received following banking and insurance passports and meant that firms regulated by a recognised competent authority such as the FSA did not have to seek regulatory approval from regulators in other member states.
However, the passport did not permit investment firms from the Rock to offer services in the UK as this was subject to the completion of a separate agreement between Gibraltar and Britain concluded in December 2005, which enabled investment services firms established in Gibraltar to passport (that is to market and sell) their products and services into the UK market.
In 2005, Gibraltar introduced Experienced Investor Funds under the Financial Services (Experienced Investor Funds) Regulations, 2005. These are funds designed for professional, high net worth or experienced investors. Investors in these funds must have a net worth in excess of EUR1m or invest a minimum of EUR100,000. They can normally be set up in a matter of days and must only notify the Financial Services commission within 14 days of establishment in order to trade.
This legislation also provides for the licensing of Non-UCITS Retail Funds and UCITS Funds. Non-UCITS Retail Funds are licensed by the FSC and are subject to more regulation and certain restrictions on the type of investment activity they may undertake. A number of documents must be submitted to the FSC, such as the fund's prospectus, before authorisation is given, and fund directors and managers are subject to higher levels of scrutiny than an EIF.
UCITS funds are generally aimed at retail investors and are allowed to 'passport' their services in the EU under the European directives on Undertakings in Collective Investment in Transferable Securities. However, UCITS funds must comply with the Financial Services act (Collective Investment Schemes) Regulations, 1991, which limits how much a fund may invest in any one issuer to 10%.
At the end of 2011, there were 199 EIFs registered in Gibraltar (including cells and sub-funds), with total assets of GBP1.35bn. In addition, there were 31 recognised funds established outside Gibraltar, of which 19 were UCITS-recognised funds and 12 were recognised foreign schemes.
Gibraltar is now well-positioned as an alternative to Dublin and Luxembourg for the establishment and management of hedge funds with the coming into force of the EU's Alternative Investment Fund Managers Directive (AIFMD) in July 2013.
The AIFMD is a new regulation, affecting investment managers, particularly those within the EU but also those that are external to the EU and who wish to market their funds within the EU. It determines how such investment managers can conduct their marketing activity.
According to the jurisdictions government, changes to the territory's funds legislation in 2012, in anticipation of the EU Directive, have enhanced Gibraltar's attractiveness as a domicile for large funds or those seeking to relocate to Europe to comply with the new EU fund sector rules. Consequently, Gibraltar is now specifically targeting New York and Latin American funds and fund managers with its promotional efforts.
Albert Isola, minister with responsibility for Gibraltar's Financial Services said: This legislation provides Gibraltar with an excellent opportunity and competitive advantage which should provide for further growth in this key area of our financial services industry.
Trust management has been a traditional business for Gibraltar, for more than fifty years. Originally most trust business emanated from rich UK individuals and was tax-related, but asset protection trusts have become important in recent years, with a much more diverse clientele.
Successive tightenings of UK anti-avoidance legislation have reduced the possibilities for UK citizens, but trust work continues to be significant; many Collective Investment Funds are of course based on Trusts.
Gibraltar has a well-developed legal and financial infrastructure for trust management and a large established base of trusts.
Trustees, if they are not already members of the accounting or legal professions, must be licensed by the FSC, which applies a number of criteria to determining whether a person or a company is 'fit and proper' to have a license.
The FSC's Fiduciary Services Division is responsible for the supervision of 68 groups (as at March 31, 2013), all of which are subject to risk assessments.
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 act 1986, the Trustee Investments act, the Bankruptcy act and the Trusts (Recognition) act which implemented the Hague Convention. Appeal is to the Privy Council.
There are no provisions for the exclusion of foreign inheritance laws or for the non-recognition of foreign judgements.
As in the UK, the essential requirements of a trust in Gibraltar are that it is created orally or in writing and that a settlor conveys legal title to real property (land) or personal property (property other than land) into the name of one or more trustees to be administered in accordance with the wishes of the settlor for the benefit of one or more beneficiaries.
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.
In common with many offshore jurisdictions of a similar stature, the economy of Gibraltar is challenged by its geographical constraints, small population and lack of natural resources. However, in its relationship with Spain and the EU, the Rock is also confronted by a unique set of problems which other offshore financial centres dont have to face. That it has survived and grown as an offshore financial centre of repute is a testament to the system in place in Gibraltar and its willingness to adapt.
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