Gibraltar International Focus
Sponsored by Europa Trust Company Limited
08 November, 2016
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 world's foremost e-gaming 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 2016 and the official language is English, although Spanish is 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. A new constitution approved by a referendum in the jurisdiction in 2006 gave it more autonomy from the UK over its own internal affairs.
The jurisdiction's currency is the Gibraltar pound, which is at par with the British pound. There are no exchange controls in Gibraltar.
Gibraltar And The EU
While Gibraltar remains an Overseas Territory 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.
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 percent and 35 percent). In practice most Qualifying Companies agreed to pay between 5 percent and 10 percent tax, and the form became the standard Gibraltar low-tax offshore entity for significant trading companies.
As Gibraltar moved into line with new internationally-agreed tax standards, the Qualifying Companies regime dissolved in January 2005 and the Exempt Companies legislation eventually phased out by January 2011.
Under the replacement corporate tax regime all companies pay corporate tax at an internationally-competitive 10 percent, except for energy and utility providers, who pay a 10 percent surcharge and are therefore subject to corporate tax at 20 percent. This has applied since January 1, 2011.
In June 2015 Gibraltar's Chief Minister, Fabian Picardo, met with the new TAXE committee of the European Parliament and defended the territory's tax ruling regime by pointing out that Gibraltar is a compliant jurisdiction which is fully open and transparent.
At the time of writing, the outcome of the EC's probe into Gibraltar's system of tax rulings is still awaited.
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. Examples in 2016/17 include a GIP3,215 personal allowance, a GIP3,215 spouse allowance, dependent relative allowances up to GIP305, a home purchase allowance of GIP12,000, child allowances up to GIP1,105, a disabled individual allowance of GIP9,040, a single parent allowance of GIP5,290, a nursery school allowance of GIP5,025, and a medical insurance allowance of GIP5,020. 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 following tax rates (2016/17): the first GIP4,000 of taxable income at 14 percent; the next GIP16,000 of taxable income at 17 percent; and the remainder of taxable income at 39 percent.
The alternative system is a new Gross Income Based system, in which the taxpayer receives no allowances (except for allowances for mortgage interest, home purchases, pension contributions and private medical insurance), 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 percent
- The next GIP7,000 at 20 percent
- The remainder at 28 percent
Individuals with gross assessable income exceeding GIP25,000:
- The first GIP17,000 of assessable income at 16 percent
- The next GIP8,000 at 19 percent
- The next GIP15,000 at 25 percent
- The next GIP65,000 at 28 percent
- The next GIP395,000 at 25 percent
- The next GIP200,000 at 18 percent
- The remainder at 5 percent
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, the government has traditionally offered tax regimes 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 regimes, outlined below:
In 2016/17, 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 and possess net assets to a value of at least GBP2m. Evidence of an individual's 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 as well as for new applicants who possess skills not available in Gibraltar and, in the Government's 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.
Offshore Business Sectors
In this part of the feature, we look at the key sectors of Gibraltar's offshore economy.
E-Commerce And E-Gaming
The Government elected early in 2000 was quick to make its intentions clear in regards to 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.
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 online gaming sector, which had grown to 34 licensed operators by May 31, 2016, including such household names as Ladbrokes, BetVictor, bwin and 32 Red.
All gambling operations in Gibraltar require licensing under the Gambling Act 2005. Remote Gambling licences, including for telephone and Internet betting, are issued by the Licensing Authority. The Gambling Commissioner, appointed under the provisions of the Act, is granted powers to ensure that licensees conduct their operations in accordance with their licenses and maintain the good reputation of Gibraltar.
The Licensing Authority will only consider licensing blue chip companies with a proven track record in gambling, licensed in a reputable jurisdiction, of good financial standing and with a realistic business plan. The Gambling Act requires that the licensee shall at all times be effectively controlled and managed from Gibraltar.
There is a turnover tax for fixed odds betting operations and betting exchanges, which as from April 1, 2015, is levied at 1 percent up to GIP42.5m of annual turnover with the tax capped at GIP425,000 per annum. The minimum annual tax payable is GIP85,000. For Internet casinos gaming tax is currently levied at 1 percent of the gaming yield or gross profit. The maximum and minimum cap is the same as for fixed odds betting.
The Gambling Commissioner is responsible for drawing up and issuing codes of practice as to good practice in the conduct of their undertakings by licensees, and to ensure that licensees conduct their undertakings in accordance with the provisions of the Act.
The banking sector is well established in Gibraltar in both the offshore and local market. 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 authorization (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 percent 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 percent 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. Indeed, Gibraltar was one of the first jurisdictions to introduce and implement money laundering legislation that covered all crimes. In addition, Gibraltar is included on the OECD's white list of jurisdiction, being compliant with all international tax standards on the exchange of tax information.
Investment Fund Management
Gibraltar has emerged as a popular alternative jurisdiction for investment funds and their managers, offering robust fund legislation, efficient regulation, tax advantages and political and economic stability. Importantly, Gibraltar's EU membership provides entry to the single market in financial services, thereby enabling passporting throughout the member states of the EU.
A broad spectrum of domestic and international companies has emerged to service Gibraltar's growing funds industry, including banks, fund administrators, accountants, investment managers, stock brokers, company managers, auditors and lawyers.
As with the banking sector, the FSC is responsible for the regulation of investment business in Gibraltar.
Asset Management firms wishing to establish themselves in Gibraltar have the option of establishing themselves as a firm under the Financial Services (Markets in Financial Instruments) Act 2006, or the Financial Services (Alternative Investment Fund Managers) Act 2013. Under the former legislation, there are three different categories of authorization by the FSC: unrestricted; money-holders and arrangers. These categories have different application fees and different minimum regulatory capital requirements.
In 2005, Gibraltar introduced Experienced Investor Funds (EIFs) 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. It normally takes just 10 days to for an EIF to be registered and approved by the FSC.
EIFs currently established in Gibraltar are a diverse assortment of open-ended and closed-ended funds with asset classes ranging from standard tradable securities to property, private equity, venture capital, fund of funds and other alternative investment classes.
As of January 2016, Gibraltar was home to approximately 100 EIFs managing in excess of GBP2.5bn in assets. However, given that many EIFs are structured as Protected Cell Companies, using a sub-fund arrangement, it is estimated by the Gibraltar Funds & Investments Association that as of December 2014, some 180 different sub-funds were active on Gibraltar.
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 authorization 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 percent.
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.
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."
The insurance industry now has a substantial presence in Gibraltar, thanks to the combination of favorable tax rules, efficient regulation and Gibraltar's EU membership, which provides passporting rights in insurance, insurance mediation and reinsurance across all 31 EU and European Economic Area countries.
The FSC is responsible for the licensing and regulation of insurance activity in Gibraltar. Currently, insurance company applications are processed in about 18 weeks, well below the statutory six-month requirement.
According to the Government, Gibraltar's insurance industry has expanded from just 13 licensed insurers in 2000 to 56 licensed insurers in 2014. In 2012, the total gross premium income written by insurance companies in Gibraltar was GBP3.8bn and these companies held assets of over £9.0bn. Non-life insurance represents the largest sector of the Gibraltar insurance industry with almost GBP3bn of gross premium income in 2012.
The predominant class of business is motor insurance and Gibraltar motor insurers currently write 10 percent of the total UK motor market. In recent years, Bermudian insurers Arch, Transatlantic Reinsurance and XL Insurance have established insurance companies in Gibraltar. While motor insurance constitutes the largest class of business, Gibraltar has a growing and diversifying non-life insurance sector, and the FSC has authorized Gibraltar insurance companies to write permitted business across all 18 classes of general insurance business.
The first captive insurance company was established over 25 years ago and Gibraltar was the first EU jurisdiction to offer protected cell companies (PCC) legislation in 2001. PCCs are widely used within insurance company structures writing both general and life insurance business. There were 11 captive insurance companies registered in Gibraltar at the end of March 2016. Household names such as Brit Insurance, Intercontinental Hotels and Tate & Lyle have chosen Gibraltar as a domicile for their EU captives. The innovative nature of the PCC has led to one insurance manager creating almost 50 cells and its PCC being the largest in the EU providing solutions for both cell captives and fronting cells.
Gibraltar has strong ambitions to become the Insurance Linked Securities (ILS) jurisdiction of choice within the European Union having entered this segment of the insurance market with the Insurance Companies (Special Purpose Vehicles) Regulations 2009.
Insurance-linked securities (ILS) are financial instruments whose values are driven by insurance loss events, typically hurricanes, windstorms and earthquakes. This asset class has developed rapidly in recent years because returns from ILSs are largely uncorrelated with those of the financial markets. The total volume of catastrophe bonds and ILSs issued during 2013 exceeded USD7.5bn and by the end of 2013 there was an all-time high of USD20.5bn of outstanding catastrophe bonds and ILSs.
Gibraltar has announced the completion this month of its first ILS transaction in April 2015. Lottoland, a Gibraltar-licensed online lottery provider, successfully placed an ILS worth EUR100m. The ILS was placed within the European Union by means of an issuance vehicle, Euroguard Insurance Company PCC Limited, based in Gibraltar.
In November 2015, Gibraltar established a new category of PCC specifically tailored for the ILS sector. The new category of PCC, to be known as a SPV PCC, will be regulated under Gibraltar's Insurance Companies (Special Purpose Vehicles) Regulations 2009. SPV PCCs will only be permitted to establish cells that are 100 percent collateralized and, as a result, the solvency capital requirement for the core capital of the SPV PCC will be GIP500.
Minister of Financial Services Albert Isola stated: "This is yet another example of how we can innovate and work together with the private sector and the regulator to be at the forefront of new quality business for our jurisdiction. The launch of SPV PCCs is the next step in our ambition to become the premier ILS jurisdiction within the European Union. The SPV PCCs will complement Gibraltar's existing standalone insurance SPVs."
Gibraltar believes that the EU Solvency II Directive, which came into effect on January 1, 2016, is likely to create greater opportunities for onshore ILS offerings within the EU. Gibraltar aims to provide an alternative domicile for European sponsors that are concerned about establishing offshore SPVs or those who would prefer to structure their ILS offerings within the European Union.
Solvency II is a new supervisory framework which harmonizes insurance and reinsurance regulations and establishes a single market for the insurance sector in the EU. The Gibraltar FSC published guidelines on the reporting obligations for insurers under the Solvency II Directive in August 2016.
Trust management has been a traditional business for Gibraltar for more than fifty years. Originally most trust business emanated from wealthy 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 Professional Services Division is responsible for the supervision of 72 trust and company service providers (as at March 31, 2016), 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 250 years. There are no restrictions on the accumulation of income during the perpetuity period.
In October 2015, the Government of Gibraltar launched a consultation on the introduction of new legislation to permit the creation of private foundations.
A foundation is an incorporated, self-owning, legal entity which, although having much in common with a trust, has a distinct legal personality, something that is more commonly associated with companies. A foundation has similar features to a trust in that it has a founder who is like a settlor, beneficiaries who have similar rights to those of a discretionary trust, and a foundation instrument and rules which are similar to a trust deed. Foundations are commonly used for wealth management, and residents of jurisdictions in the Middle and Far East are more familiar with foundations than with trusts, which tend not to exist in their legal systems.
The draft Bill is based on Jersey's Foundations Law. Jersey introduced foundations in 2009, and the Isle of Man followed suit in 2012, before Guernsey enacted similar legislation in 2013.
Gibraltar takes its international obligations and commitments in the area of exchange of information for tax purposes very seriously. Consequently, at the time of writing it had signed tax information exchange agreements with more than 80 jurisdictions and was ranked alongside countries such as Germany and the UK in terms of tax transparency.
One example of Gibraltar's commitments in this area is the 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 drawn up to implement the US Foreign Account Tax Compliance Act (FATCA); Gibraltar signed an IGA with the US Treasury to simplify reporting requirements under FATCA on May 8, 2014.
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 2013 to request that the convention be extended to his jurisdiction, and inclusion in the convention significantly expands Gibraltar's network of information exchange agreements.
"It remains the Gibraltar Government's 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.
Regulations to bring into effect the so-called "Son of FATCA" IGA with the UK were published by the Gibraltar Government on November 12, 2015. The regulations confirm what information must be gathered by financial institutions in Gibraltar, and set a timetable for that information to be automatically exchanged with UK authorities from September 2016 and thereafter.
November 2015 also saw the Gibraltar Government receive a letter of commendation from John Koskinen, the Commissioner of the US Internal Revenue Service for "the achievement of a remarkable milestone the electronic exchange of financial account information between our respective tax administrations."
Koskinen thanked the Gibraltar team for its contributions to "this significant effort" and stressed that Gibraltar's ability to carry out the "necessary steps to ensure compliance of our financial institutions and implement a secure, electronic information exchange were truly remarkable."
That Gibraltar 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, and the jurisdiction can look to the future with a sense of confidence.
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