International Focus - Seychelles
Sponsored by A.C.T. - Offshore Limited
06 March, 2013
A tropical paradise in the centre of the Indian Ocean, the Seychelles has successfully transitioned from an agricultural to a services-based economy within which tourism dominates. However, the government has actively encouraged the development of offshore financial services, and the finance industry now constitutes the third pillar of the economy.
The Seychelles are a group of 115 islands, about 2,000 km east of Africa and to the north of Madagascar, lying mostly between 4 and 5 degrees south of the equator. The archipelago lies outside the cyclone belt so the weather is stable all year round, with an average maximum daily temperature of 29 degrees.
Business life is centred around the capital, Victoria, which is situated on Mahe, the principal island in the Seychelles. The international airport on Mahe has direct flights to many cities in Africa, Europe, the Middle East, Australia and the Far East while a thriving transhipment business has grown up around the capital, which has the deepest port on the Indian Ocean.
The Seychelles gained independence from the British in 1976 and is politically stable. Economically, the islands have come to rely heavily on tourism and fishing, although in last two decades the government has made a sustained effort to attract financial services, initially in banking and insurance, but more recently in investment fund management and fiduciary services. Although economic growth averaged about 5% in the 1990s, and somewhat less in the noughties, it hasnt all been plain sailing; the Asian tsunami dealt a very heavy blow to the Seychelles, severely damaging tourism, infrastructure and the fishing industry, then the commodity price spike caused inflation to shoot up, and in combination with a shortage of currency reserves, the country defaulted on much of its debt and the economy faced crisis. In mid-2008 the government was forced to turn to the IMF for assistance, but the crisis prompted a series of economic reforms, including unpegging the local currency, the Seychelles rupee, from the US dollar, the lifting of exchange controls, and tax reform.
Offshore business in Seychelles began its development in the mid-1990s when the government launched a series of legislative initiatives aimed at establishing the country as a thoroughly modern, world-class international offshore financial centre. Much of the legislation was based on that of successful jurisdictions such as the British Virgin Islands and the Bahamas.
In 1994 legislation was enacted covering the registration of offshore companies, offshore trusts and the licensing of international trade zone companies. Additional legislation was introduced covering the licensing of offshore banks, offshore insurance companies and the establishment of a securities industry; and in 2003, the government legislated for additional types of company: Special Licence Companies, Protected Cell Companies and Limited Partnerships.
New legislation covering mutual and hedge funds was enacted in 2008 while a new law catering for the formation of foundations came in 2009 with the Foundations Act.
The Seychelles International Business Authority (SIBA) was set up by the Seychelles International Business Authority Act 1994 to administer the offshore sector and deals with the registration of offshore companies as well as supervision of the Seychelles International Trade Zone (SITZ, see below).
The International Corporate Service Providers Act, 2003, substantially improved and simplified the regime for incoming investment. Previously, the Seychelles International Business Authority (SIBA) had power to issue a licence to offshore businesses, but entitlement to fiscal concessions depended on obtaining a certificate from the Ministry of Finance under the Investment Promotion Act.
The new Act streamlined the procedure for establishing an offshore business, avoiding the need for a separate IPA application to the Finance Ministry.
By 2008 the number of IBCs on the register had surpassed 50,000, making the Seychelles one of the fastest growing offshore centres in the world. Almost 16,500 IBS were registered in the Seychelles in 2011 alone.
Seychelles International Trade Zone
The International Trade Zone Act 1995 and the International Trade Zone Regulations 1995 (as amended) provide for the establishment of free trade zones, which are delimited by a declaration of the Finance and Communications Minister, and can be for one company or many. The existing International Trade Zone (SITZ) on Mahe is established under the Act. Activities within the Zone are governed by the Seychelles International Business Authority (SIBA), which issues licenses to incoming companies.
The concessions available to licence holders in SITZ include:
· Exemption from customs duties on capital equipment to be used in SITZ;
· Exemption from Business Tax, Trades Tax and Withholding Tax;
· Exemption from social security contributions;
· Exemption from fees in respect of 'gainful occupation permits' (work permits);
· Entitlement to employ 100% foreign labour;
· A licence holder can apply for permission to sell within the domestic sector.
Licenses are available for manufacturing, assembling, redistribution or service activities; retailing is not normally permitted within the Zone or from it, but SIBA has authority to give consent for it. SIBA can request information at its discretion from an applicant for a license.
Offshore Company Law
The vast majority of companies formed in the Seychelles for offshore purposes are incorporated under the International Business Companies Act 1994. However this law did not supersede the existing Companies Law 1972, which is based on English law and is used to form various types of company used by businesses trading in the Seychelles, and also for offshore businesses which are not permitted to use the IBC form, such as banks, insurance companies and mutual funds.
Companies formed under the Companies Act 1972 can be private companies limited by shares, by guarantee, or hybrid; or they can be unlimited, but that is rare. Public companies can also be formed under the Act. For all these types of company, Memorandum and Articles of Association must be filed at the Companies Registry, along with the registration fee.
In 2011, the government was considering a new Companies Act which would unify and replace the existing dual system consisting of the Companies Act 1972 (the 72 Act) and the International Business Companies Act 1994 (IBC Act). According to the government, the proposed Companies Bill would simplify and modernize corporate law in the Seychelles thus improving the business environment for both domestic and international companies. It would also address issues and ambiguities within the existing company law framework and combine the separate domestic and offshore company registries into one registry under the Seychelles International Business Authority. The proposed Act received much criticism however; the Bar Association of Seychelles (BAS) for example stated in its consultation response that some of the changes envisioned by the Bill as ill-conceived.
Many of the proposed changes seek not only to alter existing company laws, but also seek to change established and entirely separate areas of law encroaching upon the acquired rights and affecting predetermined obligations of individuals. If enacted, its effects and consequences would have wide-ranging and negative repercussions, the BAS wrote.
As of March 2013, a bill for the amendment of the Companies Act 1972 has been approved by the Government, and is due to be presented to the National Assembly.
Some important amendments to company law were enacted at the end of 2011. One of these, the International Business Companies (Amendment) Act 2011, signed by President Michel in December 2011, requires all IBCs to keep proper accounting records. Under this amendment, IBCs must keep accounting records that are sufficient to show and correctly explain the IBCs transactions; to enable the financial position of the IBC to be determined with reasonable accuracy; and to enable the accounts of the IBC to be reasonably prepared. Fines can be imposed for non-compliance with these requirements. Accounting records must be kept for seven years under the amended law. In addition, the Companies Ordinance Amendment Act 2011, also signed by President Michel in December 2011, amended the Companies Ordinance 1974 to prohibit the issuance of bearer shares or bearer debentures.
The Seychelles has a territorial basis of taxation; that is, profits are taxed only if they are derived or deemed to be derived from a source in the Seychelles. There is no capital gains tax; interest, dividends and other payments received from abroad are likewise not taxed. A withholding tax on individual emoluments from employment was introduced in July, 2010. Government policy is to broaden the application of the income tax to other sources of domestic-sourced income (for example, dividends and interest on savings) once the personal income tax becomes established and the new system has been assessed.
The Business Tax Act governs company taxation in the Seychelles. The Act states that resident, non-resident corporate and non-corporate businesses are liable to pay business tax on their income derived from the Seychelles. A company is considered resident if it is incorporated in the Seychelles. A company not incorporated in the Seychelles that conducts business there is resident if its central management is located in the Seychelles or if its voting power is controlled by shareholders who reside there.
For companies and trusts, the first SCR1m is taxed at 25% Prior to January 1, 2013, the remainder was taxed at 33%. However, in his 2013 budget statement on December 4, 2012, Minister for Finance Pierre Laporte cut the top rate to 30% from January 1 for all companies expect commercial banks, telecommunication companies, insurance companies (but not brokers and agents), and alcohol and cigarette manufacturers. For sole traders and partnerships, there is no tax on the first SCR150,000 of income; income from SCR150,001 to SCR1m is taxed at 15% and income above SCR1m is taxed at 33%.
In the 2013 Budget, Laporte announced that the business tax rate for companies listing on the Stock Exchange will be reduced to 25%. He also proposed that the rate of business tax for companies in the education and medical devices sector be lowered to 15% from January 1, 2013.
An optional tax regime for small business was also proposed in the 2013 Budget, under which reporting requirements for companies with turnover of less than SCR1m would be reduced from January 1, 2013. Companies electing to file under this system would pay a flat tax of 1.5% on gross turnover.
An entity with a Certificate of Approval under the Investment Promotion Act 1994 may be exempt from part or all of the Business Tax, or may have special deductions or tax credits. Companies in the International Trade Zone also have tax privileges.
The Value-Added Tax Act 2010 was approved by the National Assembly in December 2010 and was intended to be introduced in July 2012, but was delayed until January 1, 2013. VAT replaces goods and services tax, which has been in place since 2001. A business is required to register for VAT if annual turnover is, or is expected to be, SCR5m or more. The standard rate of VAT has been set at 15%; there are no lower rates, although certain goods and services are classified as exempt supplies, including educational courses and materials, medical and health care services, childcare services, religious services and penalty interest (such as interest charged on an overdue account). Exempt imports include basic foodstuffs, goods for consumable stores for use outside of the Seychelles, energy-saving lighting devices and goods imported to be used in the process of conservation.
The Seychelles also has a substantial and growing list of double taxation avoidance agreements, and the government sees such treaties as being an important part of its scheme to develop as a key financial hub in the Indian Ocean. The Government has signed a total of 21 DTAs of which 18 are in force including treaties with: Barbados, Botswana, China, Cyprus, Indonesia, Malaysia, Mauritius, Oman, Qatar, South Africa, Thailand, the United Arab Emirates, and Vietnam. In 2013, the Government intends to negotiate more tax treaties, including with COMESA/SADC member states.
The Seychelles signed its first bilateral tax information exchange agreement (TIEA) in August 2010, with the Netherlands. The jurisdiction was subsequently white listed by the OECD for substantially implementing the internationally-agree standard on tax transparency, which required countries to have signed a minimum of 12 TIEAs.
Non-domestic banking in Seychelles is regulated by the Central Bank of Seychelles and is administered under the Financial Institutions Act 2004 (amended in 2008 and 2009) to cater for the offshore as well as the domestic banking. The Act makes provision for the licensing of offshore banks and incorporates the necessary flexibility to encourage growth in that sector. It also features full confidentiality with regards to information of its clients with the exception of criminal investigation cases.
Licences are issued by the Offshore Banking Department of the Central Bank and are granted only to companies incorporated under the Companies Act 1972 or foreign companies which have registered under the Companies Act. Licenses are issued for domestic banking, offshore banking, or both. When both are conducted, it must be through separate offices. Offshore banks are permitted to operate numbered accounts for their clients.
Applicants must supply extensive information to the Central Bank, including copies of the last three balance sheets and a business plan. The Bank imposes various prudential requirements and requires monthly balance sheet submissions.
All licensed offshore (non-domestic) banks are exempted from Seychelles taxes and duties for a 20 year period from the date the licence was granted, although a non-domestic bank may elect to pay business tax in Seychelles on its taxable income as agreed with the Commissioner of Taxes.
In 2008, new legislation was introduced, in the form of the Insurance Act 2008; this replaced the Insurance Act 1994, which was modelled on the Insurance Act of Singapore.
The Insurance Act 2008 contains provisions for the licensing of offshore insurance companies, insurance managers and principal insurance representatives. That Act, which regulates domestic and non-domestic insurance business, is an excellent legal framework for conducting offshore insurance activities.
The law provides for full confidentiality, expect in cases involving criminal investigation. An offshore insurance company must be either a company limited by shares or an unlimited company incorporated or registered under the Seychelles Company Law.
All licensed offshore (non-domestic) insurance companies are exempted from Seychelles taxes and duties for a 20 year period from the date the licence was granted, although a non-domestic insurer may elect to pay business tax in Seychelles on its taxable income as agreed with the Commissioner of Taxes.
With the development of a luxury marina close to Victoria, the attractive registration laws and the year round stable weather conditions, Seychelles is a good choice for luxury vessel registration.
The Merchant Shipping Act 1992 governs the shipping industry in the Seychelles. Ships and yachts may be registered in the Seychelles under the terms of the Act. Consular and diplomatic representatives of Seychelles abroad are also empowered to issue provisional certificates of registration to vessels satisfying the ownership and registration criteria. The shipping law also provides for parallel registration of bareboat charters in the Seychelles registry; likewise, a Seychelles vessel may be parallel-registered abroad during chartering.
The Government recognises most leading classification societies; for surveying and certification purposes the Government has appointed American bureau of Shipping, Bureau Veritas, Nippon kaiji Kyokai and Det Norske Veritas.
An International Business Company is the most effective vehicle for offshore ownership of a Seychelles-registered vessel or ship management operation. Such a company will be exempt from Seychelles taxation on profits and dividends. Sale and transfer of Seychelles-registered vessels or the companies owning them are also free of tax, as are the salaries of officers and crew of Seychelles-registered vessels operating internationally.
The age limit for registration is 15 years. The initial registration fee for a yacht is USD500. An annual registration fee of USD300 is also payable.
Trusts and Foundations
The International Trusts Act 1994 established, for the first time, a regime for international trusts in the Seychelles; it does not provide for domestic trusts. The Act was drafted after a thorough study of current practice in a number of leading offshore jurisdictions. Under the Act, the Seychelles International Business Authority (SIBA) is appointed as the regulatory body for trusts, alongside the Court.
Under Seychelles trust law, an international trust may be created in writing, by will or by oral declaration; deemed trusts are admitted, as are those resulting from a decision of the Court. The settlor must reside outside the Seychelles for the duration of the trust; at least one trustee must reside in the jurisdiction, but this trustee may be an IBC, which shall not thus be deemed as resident; an IBC may therefore be a settlor. The trust property may not include any Seychelles movable or immovable property.
The names of settlors and beneficiaries are confidential under the Act, unless a Court orders disclosure under the Anti-Money Laundering Act. The standard perpetuity period is 100 years; but it does not apply to purpose trusts. The accumulation of income is permitted and forced heirship judgements are specifically excluded.
An international trust is exempt from tax in the Seychelles; a registration fee of USD100 is payable to SIBA. Registration of trusts must be carried out by one of the two licensed trustees currently operating in the Seychelles.
New legislation to replace the International Trusts Act was proposed in 2011, and is currently being discussed. The aim of the proposed stature is to modernize Seychelles trusts law, and remove certain anomalies which exist in the current legislation. The new trusts bill is modelled heavily on Jersey's Trust Law.
The Seychelles Foundations Act 2009 was enacted in late December 2009 and provides for a new addition to Seychelles financial services product portfolio Seychelles foundations.
The Act provides for strong foundation asset protection; provisions protecting dispositions to a Seychelles foundation from challenge from creditors of the founder; and a two-year statute of limitations for creditors claims coupled with a high onus of proof (beyond reasonable doubt, rather than on the balance of probabilities).
A Seychelles foundation is established by a charter made in writing and signed by one or more founders and on the issuance of a certificate of registration by the Registrar (the Seychelles International Business Authority) upon registration of the foundation under the Act. On registration, a foundation is a separate legal entity.
Unlike in other foundation jurisdictions, it is not mandatory to state in the charter, or to otherwise file at the Registry, the names of the councillors of a Seychelles foundation.
While the charter of a foundation is required to be filed at the Registry, there is no requirement to file a foundations regulations. A foundation will commonly adopt regulations, to ensure that matters pertaining to foundation beneficiaries and distribution entitlements remain non-public.
The objects of a Seychelles foundation may be charitable, non-charitable or both, and may be to benefit a beneficiary or beneficiaries, or to carry out a specified purpose, or to do both. A Seychelles foundation must have a minimum of one councillor, who may be a natural person or corporate entity.
While a Seychelles foundation is required to keep proper books of account and records as its council considers necessary in order to reflect the financial position of the foundation, it is not subject to a mandatory annual audit requirement or to any requirement to file financial accounts or annual return in Seychelles.
However, the Foundation (Amendment) Act 2011 provides additional requirements with regards record-keeping. Under the changes, a foundation is required to keep, at its registered office, a register of its councillors, founders, beneficiaries, registered agent, any protector and any person authorised as an agent or power of attorney holder of the foundation. The foundations register is not open to public inspection but is open to inspection by the founder, any councillor, any protector and the registered agent of the foundation.
The 2011 amendment also introduced a new section 111A into the Foundation Act 2009, which provides that a councillor of a foundation may apply to the Supreme Court of Seychelles for directions in relation to the manner in which the council is to act with respect to a decision affecting the foundation.
A foundation may own assets worldwide. However, the assets of a foundation may not include any Seychelles real estate or other Seychelles property (subject to various exceptions under the Act, including shares in Seychelles IBCs or CSLs, interests under a Seychelles trust, Seychelles limited partnership or another Seychelles foundation, or a Seychelles bank account, etc).
A foundation is exempt from Seychelles Business Tax on its income and is exempt from Seychelles withholding tax, social security contributions and stamp duty (except in relation to any permitted lease of Seychelles real estate for own office use).
Enabling legislation putting in place a mutual funds sector in the Seychelles was enacted in 1997, aiming to provide a modern regulatory system in order to attract international mutual funds promoters from around the world.
In 2008, new legislation was introduced, in the form of the Mutual Funds And Hedge Funds Act 2008, which sought to build on the success of the jurisdictions financial services industry while plugging regulatory gaps in the previous mutual funds law.
The redraft extended the powers of the regulator, introducing additional rights to request periodical audits, request information for inspection and grant powers to enter, search and take copies of any licensed operations and guaranteeing compatibility with international standards enforced by FATF, IMF, International Organisation of Securities Commission and Offshore Group of Insurance Supervisors.
With this new legislation, the regulation of the investment funds sector has passed to the recently-established Non-Bank Financial Services Authority within the Central Bank.
The redrawn legislation also allows expatriate employment levels of up to 50%, replicating existing regulations for the offshore sector.
Funds in the Seychelles may be established either as investment companies or unit trusts. In the case of investment companies, a wide choice of vehicles are available. All funds must have a registered office and a licensed administrator in Seychelles.
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