The need for substance

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January 14, 2018
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191 Comments

As a result of recent developments, the importance of companies to establish substance in order to operate and benefit from their tax residence in Cyprus has become more evident.

Lack of substance may not only mean losing benefits derived under tax treaties and EU directives but also such companies may be denied the right to operate bank accounts in Cyprus.

Central Bank of Cyprus

The Central Bank of Cyprus has on 14th June 2018 issued and sent to all banking institutions operating in Cyprus a circular against opening or continuing bank accounts for companies which do not meet certain criteria and are considered “shell companies”.

The circular adopts the following definition for “shell” companies.

The term “shell company” refers to a non-publicly traded, limited liability company (LLC) or any other business entity that fulfils any one or more of the following criteria: –

  • has no physical presence in its country of domicile (other than mailing address);
  • has no established economic activity, little to no independent economic value and no documentary evidence to the contrary;
  • is registered in a jurisdiction in which companies are not required to file independently audited financial statements; or
  • has a tax residence in a jurisdiction recognised as a “tax haven” or has no tax residence.

“Physical presence” is construed as a meaningful mind and management located within a country. The presence of a third person such as a lawyer, an accountant or a service provider, acting merely as an agent of the company or providing nominee services including secretarial duties does not constitute physical presence. Also lack of employed personnel (including the nominee presence of one single person as a staff number) is construed as lack of physical presence.

These restrictions do not necessarily apply to holding companies which own investments in shares, intangible or other assets, including real estate or ships, companies undertaking group financing activities or acting as group treasurer or companies established to facilitate currency trades, asset transfers or corporate mergers, and substantiated information is provided about their ultimate beneficial owners.

Banks may opt to engage in a business relationship with a shell-company client but must be able to justify their decision.

The above guidelines will be incorporated into the Central Bank’s Anti-Money Laundering directive.

Other tax implications

Furthermore, tax authorities around the world are becoming increasingly assertive and sophisticated and are ready to challenge what they perceive to be abusive structures and arrangements. With increasing transparency and automatic exchange of information Cypriot companies which do not have real substance run tax risks, such as: –

  • having their Cyprus tax residency status questioned;
  • losing the benefits of Cyprus tax residence; and
  • becoming liable to tax elsewhere.

A company lacking sufficient management may be entirely disregarded by foreign tax authorities, running the risk that – in addition to any taxes payable by the company in Cyprus- its income is imputed to the beneficial owners in their own country and taxed there.

Substance and ways to enhance this

The key factor of substance is sufficiency of management which means having adequate corporate governance arrangements and directors with the skills, knowledge and experience to run the business, who can prove that important business decisions are taken in Cyprus. They must spend adequate time on the business of the company and must have real decision-making powers. They must not be directed by company shareholders, but rather should act independently in the interests of the company.

The existence of an office in Cyprus, facilities and employees can be a key to enhancing substance. The operation of bank accounts, accounting and other functions should take place in Cyprus.

Themis Business Centre

Themis Professional Services Limited maintains a modern fully equipped business centre at the same building as offices at which office space, secretarial support, conference room facilities etc are available either for both long term and limited use.

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