The following is a brief summary of the significant features of an Anguillian International Business Company ("IBC") together with an outline of the incorporation procedure under the International Business Companies Ordinance 1994 as amended by the International Business Companies (Amendment) Ordinance 1999 (together the "Ordinance"). The summary includes a schedule containing details of current Government fees.
SIGNIFICANT FEATURES OF IBCS
- Subject to any provisions in the Articles of Incorporation and By-Laws (which together form the constitutional documents of the IBC), the prohibitions contained in the Ordinance (which are set out in paragraph 1.8(ii) below), or any other enactment or law for the time being in force in Anguilla, an IBC has the power, irrespective of corporate benefit, to carry on or undertake any business or activity, do any act, or enter into any transaction. It may carry on its business, conduct its affairs and exercise its powers in any jurisdiction outside Anguilla to the extent that the laws of Anguilla and of that jurisdiction permit.
- An IBC which does not do business in Anguilla is exempt from any corporate tax, income tax, withholding tax, capital gains tax or other taxes based on or measured by assets originating outside Anguilla or in connection with matters of company administration which may occur in Anguilla. No estate, inheritance, succession or gift tax is payable by persons not resident or domiciled in Anguilla with respect to any shares, debt obligations or other securities of and IBC.
- Confidentiality and Disclosure - There is no requirement for a public record to be maintained as to the identity of shareholders or directors, although an IBC may file such registers publicly if it so chooses. A copy of the shareholders' register must be kept either at the registered office of the company or at the office of its registered agent. A shareholder of an international business company is, upon request, entitled to one copy of the articles and by-laws of the company and any amendments thereto, without charge; and to additional copies of the articles and by-laws of the company and any amendments thereto, upon the payment of such fee as the directors may determine to be reasonably necessary to defray the costs of preparing and furnishing them. It is open to shareholders to request inspection of the register, books, records, minutes and consents kept by the IBC, and if refused by the company, application may be made to the court for an order to allow inspection.
- Nominee shareholders may be used.
- Public records of IBCs consist only of the Certificate of Incorporation and the Articles of Incorporation (for details of which see Section 3 below). It is not necessary to lodge the company's By-Laws as documents of public record. A copy of the company's Articles, By-laws (for details of which see Section 3 below) and any amendments thereto must be kept at the company's registered office.
- An IBC may have a single shareholder and it may also have a single director, both of which may be corporate and non-resident. Resolutions of either may be consented to in writing in the manner provided for in the By-Laws.
- Companies incorporated under the Anguillian Companies Ordinance, the Limited Liability Companies Ordinance or under the laws of a jurisdiction outside Anguilla may be "continued" as IBCs. In the case of a foreign company, it may continue as an IBC notwithstanding any provision to the contrary in the laws of the jurisdiction under which it is incorporated.
- A foreign company may provisionally continue as an IBC conditional upon instructions for continuation being given to the Registrar by a nominated third party.
- An IBC may change its domicile to another jurisdiction or may continue under the Anguilla Companies Ordinance.
- An IBC may fully indemnify directors, officers and liquidators from corporate funds.
- Reduction in authorized and paid-up capital requires the minimum of formalities compatible with the protection of creditors and minorities.
- An IBC may merge or consolidate with other IBC's, companies incorporated under the Anguilla Companies Ordinance or the Limited Liability Companies Ordinance and with foreign companies.
- An IBC may issue bearer shares.
- An IBC may purchase and own its shares.
- Shares may be issued with or without par value.
- The Ordinance makes no distinction between private and public IBC's.
- Subject to the provisions in the Articles of Incorporation or By-Laws, the shareholders of an IBC may, by a simple majority, amend the Articles of Incorporation, change the name, go into voluntary liquidation, etc. The power to amend the Articles of Incorporation may be given to the directors.
- Where a governmental authority in any jurisdiction outside Anguilla, expropriates or imposes confiscatory taxes upon the shares or other interests in an IBC, the IBC or any person holding shares or other interests may apply to the High Court for an order that the IBC disregard such action and continue to treat as shareholders or interest holders those persons whose shares or interests were subject to the action by the foreign governmental authority.
- There are provisions within the Ordinance covering the rights of minority shareholders.
- An IBC may rescind voluntary winding up proceedings after the commencement thereof.
- An IBC may apply to a Judge in chambers, without the necessity of joining any other party, for a declaration on any question of interpretation of the Ordinance or of its Articles of Incorporation or By-Laws.
- An IBC does not have to file annual returns.
FORMATION
An Anguilla IBC is formed by filing Articles of Incorporation with the Registrar of Companies. If satisfied that the requirements of the Ordinance in respect of incorporation have been complied with, the Registrar shall, upon receipt of such Articles, issue a Certificate of Incorporation. The Certificate of Incorporation is conclusive proof of the incorporation of the company named in the Certificate.
1. ARTICLES OF INCORPORATION
The Articles of Incorporation must be in an approved form and must contain the following 7 items of mandatory information:
1.1 Name
i) The proposed name of the corporation. This can be in any language. One of the following words, phrases or abbreviations shall form the last part of the name of every IBC:
- "Limited" or the abbreviation "Ltd.";
- "Corporation" or the abbreviation "Corp.";
- "Incorporated" or the abbreviation "Inc.",
- "Sendirian Berhad" or the abbreviation "Sdn Bhd";
- "Société à Responsabilité Limitée" or the abbreviation "SARL";
- "Société Anonyme" or the abbreviation "S.A."
- "Sociedad Anónima" or the abbreviation "S.A."
- "Besloten Vennootschap" or the abbreviation "B.V.";
- "Gesellschaft mit beschrankter Haftung" or the abbreviation "GmbH";
- "Naamloze Vennootschap" or the abbreviation "N.V.";
The Registrar has discretion to exempt a company which is being continued as an IBC, from the above requirements.
ii) The name of an IBC cannot:
a) suggest or imply the patronage of Her Majesty or any member of the Royal Family or any connection with Her Majesty's Government or any department thereof in the United Kingdom or elsewhere;
b) suggest or imply a connection with a political party or a leader of a political party;
c) suggest or imply a connection with a university or a professional association recognized by the laws of Anguilla unless written consent to such use is obtained; or
d) be a name that is prohibited under any regulations made to facilitate the better administration of the Ordinance.
iii) A name intended for future adoption may be reserved for 120 days.
1.2 First Registered Office Address
This must be an address in Anguilla and must be prrovided by a person who holds a relevant licence (see Endnote 1).
1.3 First Registered Agent's Name and Address
An IBC must have a Registered Agent in Anguilla. The Registered Agent must be a person who hold a relevant licence (see Endnote 2).
1.4 Share Capital
A statement as to whether the company is authorized to issue par value, no par value or a combination of both types of share must be included. The aggregate par value of all shares and the par value of each share must be given.
1.5 Classes, Maximum Number and Designation of Powers of Shares
i) A statement must be included of the classes and any maximum number of shares that the company is authorised to issue;
ii) If there are to be two or more classes of shares, the rights, privileges, restrictions and conditions attaching to each class must be set out; and
iii)If a class of shares can be issued in series, the authority given to the directors to fix the number of shares in, or to determine the designation of and the rights, privileges, restrictions and conditions attaching to the shares of each series must be included.
1.6 Restrictions on Transfer of Shares
If the right to transfer shares is to be restricted, a statement to this effect, and the nature of the restrictions must be included in the Articles of Incorporation. A notification to this effect must also be given on each share certificate issued in respect of such shares.
1.7 Additional Provisions
It is possible to set out in the Articles of Incorporation any provisions permitted by the Ordinance or by law to be set out in the By-Laws of the company, but these will then become part of the public record.
In addition to the above, we would draw your attention to the following:
1.8 Objects or Purpose
i) An IBC does not need to have any form of objects clause as, pursuant to the Ordinance (and subject to any limitations in the Ordinance or any other law), an IBC has the power, irrespective of corporate benefit, to carry on or undertake any business or activity, do any act, or enter into any transaction. If required, any restrictions on the business that the company may carry on can be set out in the Articles of Incorporation.
ii) To qualify for registration as an IBC, however, a company may not:
a) carry on business with persons resident in Anguilla;
b) carry on a banking or trust business within the meaning of the Offshore Banks and Trust Companies Ordinance 1991;
c) carry on business as an insurance or a reinsurance company, insurance agent, insurance broker, or insurance manager;
d) carry on company management business within the meaning of the Company Management Ordinance, 1994;
e) own or hold an interest, whether legal or beneficial, in real property situate in Anguilla, (other than property referred to at paragraph 3.1.8(iii)(e) below).
iii)For the purposes of item 1(ii)(a) above, an IBC shall not be treated as carrying on business with persons resident in Anguilla by reason only of the fact that
a) it makes or maintains deposits with, or borrows money from, a bank which has a licence to carry out business granted under the Banking Ordinance, 1991 or a bank which has an offshore banking licence of any Class granted under the Offshore Banks and Trust Companies Ordinance, 1991;
b) it makes or maintains professional contact with solicitors, barristers, accountants, bookkeepers, trust companies, administration companies, investment advisers or other similar persons carrying on business within Anguilla;
c) it prepares or maintains books and records within Anguilla;
d) it holds, within Anguilla, meetings of its directors or shareholders;
e) it holds property for use as an office from which to communicate with shareholders or where books and records of the company are prepared or maintained;
f) it holds shares, debt obligations or other securities in another international business company or company incorporated under the Companies Ordinance;
g) shares, debt obligations or other securities in the company are owned by any person resident in Anguilla or by any international business company or company incorporated under the Companies Ordinance; or
h) it owns a vessel or vessels registered in Anguilla in accordance with the Merchant Shipping Act.
1.9 Currency of Issued Shares
Shares may be issued in one or more foreign currencies.
1.10 Directors
A minimum of one is required. Directors may be corporations or individuals. Directors' meetings can be held anywhere in the world and can be conducted by telephone. Annual meetings are not required.
1.11 Registered and Bearer Shares
A statement indicating whether the shares are to be designated as either registered or bearer shares and the number of each to be issued should be given, or an express grant of authority to the directors to fix the same by resolution must be included in the Articles of Incorporation. A statement must be included in the Articles of Incorporation indicating any particular restrictions on the transferability of registered shares, usually this is subject to the prior or subsequent approval of the shareholders or directors.
1.12 Exchange of Shares
Registered shares and bearer shares may be exchanged for each other.
1.13 Notice to Holders of Bearer Shares
A statement as to the manner in which notice to shareholders is to be given to the holders of bearer shares must be included in the Articles of Incorporation, if applicable.
2 BY-LAWS
The By-Laws of an IBC contain the regulations for the company. These are not registered and do not form part of the public record. The shareholders or the directors are responsible for making the By-Laws of an IBC. Regulations made pursuant to the Ordinance contain a form of By-Laws which may be suitably adapted or modified.
3 TAX EXEMPTION
The Ordinance specifically provides for a blanket tax exemption and an exemption from registration of documents for IBCs not doing business in Anguilla which exemption extends to stamp duty (other than in respect of transfers of property situate in Anguilla) and to the registration of documents under the Registration and Records Act.
4 TIMING
The Articles of Incorporation and By-Laws can be prepared, and the former filed, within one to two working days. Once filed, a Certificate of Incorporation is issued by the Registrar of Companies.
5 ACORN
Anguilla's Commercial On-line Registration Network system, (ACORN) has now been introduced. ACORN is an on-line electronic Companies Registry system which allows a user to do electronically all of the things that currently require physical filings with the Anguilla Companies Registry. Working through the Internet, it allows licensed company managers and trust companies in Anguilla, together with their approved overseas agents, to incorporate IBC's (as well as Ordinary Companies, Limited Liability Companies and Limited Partnerships) electronically. Users of the system can also transact other registry activities (and submit other documents) electronically. Using ACORN, IBCs can be incorporated instantly from anywhere in the world 24 hours a day, 365 days a year.
6 GOOD STANDING CERTIFICATE
These are available and can be obtained for an additional fee.
5 SHELF CORPORATIONS
Previously incorporated "shelf" corporations are available.
STANDARD GOVERNMENT FEES (AS AT FEBRUARY 1999)
Government Registration Fee on Incorporation
(including maintenance for calendar year of incorporation):
All shares are par value and authorized capital is US$50,000 or less US$ 250.00 All shares are par value and authorized capital exceeds US$50,000 US$ 1,000.00 Some or all shares have no par value and authorized capital is US$50,000 or less US$ 250.00 All shares have no par value and there is no authorized capital US$ 250.00
Maintenance for Subsequent Calendar Years
All shares are par value and authorized capital is US$50,000 or less US$ 200.00 All shares are par value and authorized capital exceeds US$50,000 US$ 700.00 Some or all shares have no par value and authorized capital is US$50,000 or less US$ 200.00 All shares have no par value and there is no authorized capital US$ 250.00
ENDNOTES:
1. Under the Company Management or the Offshore Banks and Trust Companies Ordinances.
2. Under the Company Management or the Offshore Banks and Trust Companies Ordinances.
If you would like further information on International Business Companies or the other corporate vehicles available in Anguilla or on how Harney Westwood & Riegels can help you with your incorporation enquiries, please contact J Alex Richardson or Fiona Bada in Anguilla.
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