Company Formation Luxembourg

Transcription

1 Public Limited Company (PLC., Corp./SA); Limited Liability Company (LLC., LTD./SARL); Partnership Limited by Shares (SCA); Limited Partnership (LP./ SCS); General Partnership (GP./SNC); European Company, (SE); Branch Office; SOPARFI-Financial Holding Company; Trading and Service Company; Private Asset Management Company (SPF); Securitisation Vehicle (SPV); Company for Intellectual Property Rights (IP-Box); SICAV/SICAF Investment Funds; SICAR Investemnt Company; Specialised Investment Funds (SIF); Real Estate Company; E-Commerce Company The Tax and Legal Aspects of the Formation of a Corporate Structure in Luxembourg Start-up Luxembourg

2 This publication is provided for information purposes only and should not be treated as a substitute for a tax or legal consultation or for the reading of Luxembourg s legislation or public statements. The reader should not act on the basis of the information contained in this publication without having obtained individual, expert advice. In particular, individual advice from tax consultants or lawyers should be sought with regard to the information on the tax treatment of foreign investments. International Advokat Trust Management G.E.I.E accept no liability or responsibility for any damage or loss resulting from the reader s decision made on the basis of the information contained in this publication. 2

3 Legal forms Table of Contents Legal forms Which legal form of company best suits your project? Formation of a Public Limited Company (PLC., Corp./SA) in Luxembourg 11 I. Legal Structure of a Public Limited Company (PLC., Corp./SA) Concept Formation Minimum Capital Shares and the Transfer of Shares Organisation Annual Accounts Liquidation 13 II. Tax Structure of a Public Limited Company (PLC., Corp./SA) Corporate Taxation Net Wealth Tax 14 III. Advantages of forming a Public Limited Company (PLC., Corp./SA) 14 Formation of a Limited Liability Company (LLC., Ltd./SARL) in Luxembourg 15 I. Legal Structure of a Limited Liability Company (LLC., Ltd./SARL) Concept Formation Minimum Capital Share Transfer Organisation Annual Accounts Dissolution 17 II. Tax Structure of a Limited Liability Company (LLC., Ltd./SARL) Corporate Taxation Net Wealth Tax 17 3

4 Legal forms III. Advantages of forming a Limited Liability Company (LLC., Ltd./SARL) 18 Formation of a Partnership Limited by Shares (SCA) in Luxembourg 19 I. Legal Structure of a Partnership Limited by Shares (SCA) Concept Formation Minimum Capital Company Name Organisation 20 II. Tax Structure of a Partnership Limited by Shares (SCA) 20 Formation of a Limited Partnership (LP./SCS); in Luxembourg 21 I. Legal Structure of a Limited partnership (LP./SCS) Concept Formation Minimum Capital Company Name 22 II. Tax Structure of a Limited Partnership (LP./SCS) 22 Formation of a General Partnership (GP./SNC) in Luxembourg 23 I. Legal Structure of a General Partnership (GP./Société en nom collectif, SNC) Concept Formation Minimum Capital Company Name 23 II. Tax Structure of a General Partnership (GP./SNC) 24 4

5 Business forms Formation of a European Company (SE) in Luxembourg 25 I. Legal Structure of a European Company (SE) Concept Formation Minimum Capital Company Name Organisation Accounting 26 II. Tax Structure of a European Company (SE) 26 Formation of the Branch Office of Foreign Companies in Luxembourg 27 I. Legal Structure of a Branch Office in Luxembourg Concept Formation Name Representation 28 II. Tax Structure of a Branch Office in Luxembourg 28 Business forms Which tax advantages will your business benefit from? Formation of a SOPARFI-Financial Holding Company in Luxembourg 30 I. Legal Structure of a SOPARFI in Luxembourg Concept Formation 30 II. Tax Advantages of a SOPARFI in Luxembourg Exemption from Tax of Dividends and Sale and Liquidation Proceeds from Investments Deduction of Investment-related Expenses 32 5

6 Business forms 3. Exemption from Net Wealth Tax Exemption from Withholding Tax Double Taxation Agreements (DTA) Value-added Tax (VAT) 33 Formation of a Trading and Service Company in Luxembourg 34 I. Trading and Service Company: Concept 34 II. Formation 34 III. Tax Structure of a Trading and Service Company Corporation Tax Net Wealth Tax Value-Added Tax (VAT) 35 IV. Advantages of forming a Trading and Service Company in Luxembourg 36 Formation of a Private Asset Management Company (SPF) in Luxembourg 37 I. Private Asset Management Company (SPF): Concept 37 II. Legal Structure of a Private Asset Management Company (SPF) Legal Form Formation Activity Supervision 39 III. Tax Advantages of a Private Asset Management Company (SPF) Taxation Tax Exemptions 39 Formation of a Securitisation Vehicle (SPV) in Luxembourg 40 I. Securitisation: Concept 40 II. Legal Structure of a Securitisation Vehicle (SPV) in Luxembourg Formation 40 6

7 Business forms 2. Securitisation Structure Asset Classes (Securitisation Objects) Supervision 42 III. Tax Structure of a Securitisation Vehicle (SPV) in Luxembourg Securitisation Company Securitisation Funds 43 Formation of a Company for Intellectual Property Rights (IP-Box) in Luxembourg 44 I. Luxembourg s Tax Regime (IP-Box) 44 II. Intellectual Property Rights (IP) in Luxembourg 44 III. IP-Companies in Luxembourg: Tax Optimisation Instrument 45 IV. Further Tax Advantages in Luxembourg Tax Exemptions Further Advantages 46 Formation of a SICAV/SICAF Investment Fund in Luxembourg 47 I. Legal Structure of a SICAV/SICAF Investment Fund in Luxembourg Concept Investment Policy Investors Formation Investment and Distribution Policy Supervision 49 II. Tax Structure of a SICAV/SICAF Investment Fund in Luxembourg Corporate Taxation Tax Exemptions 49 Formation of a SICAR Investment Company in Luxembourg 50 I. Legal Structure of a SICAR Investment Company in Luxembourg Concept 50 7

8 Business forms 2. Investment Policy Investors Formation Issuance and Distributions Policy Supervision 52 II. Tax Structure of a SICAR Investment Company in Luxembourg Corporate Taxation Tax Exemptions 53 Formation of Specialised Investment Funds (SIF) in Luxembourg 54 I. Legal Structure of a Specialised Investment Fund (SIF) in Luxembourg Concept Investment Policy Investor Formation Issuance and Distributions Policy Supervision 56 II. Tax Structure of a Specialised Investment Fund (SIF) in Luxembourg Corporate Taxation Tax Exemptions 57 Formation of a Real Estate Company in Luxembourg 58 I. Real Estate Company in Luxembourg: Concept 58 II. Tax Aspects The Taxation of Income from the Sale of Real Estate The Taxation of Gains on the Sale of Shares Two-tier Company Structure 59 8

9 Business forms Formation of a E-Commerce Company in Luxembourg 60 I. E-Commerce Luxembourg: Concept 60 II. Tax Aspects of Direct E-Commerce The Taxation of Direct E-Commerce Services Taxation of Direct E-Commerce Services in Luxembourg 63 Questions on Company Formation in Luxembourg? 64 9

10 Legal forms Legal forms Which legal form of company best suits your project? Public Limited Company (PLC., Corp./SA) Limited Liability Company (LLC., Ltd./SARL) Partnership Limited by Shares (SCA) Limited Partnership (LP./SCS) General Partnership (GP./SNC) European Company, (SE) Branch Office 10

11 Legal form: Public Limited Company (PLC., Corp.) Formation of a Public Limited Company (PLC., Corp./SA) in Luxembourg I. Legal Structure of a Public Limited Company (PLC., Corp./SA) 1. Concept The Public Limited Company (PLC., Corp./SA) in Luxembourg is a legal person whose capital is determined in advance and segmented into shares. The assets of a Public Limited Company (PLC., Corp./SA) are wholly liable for the company s liabilities. A Public Limited Company (PLC., Corp./SA) in Luxembourg may be formed for the carrying on of commercial or non-commercial purposes. Moreover, registered shares as well as bearer shares may be issued. 2. Formation A Public Limited Company (PLC., Corp./SA) in Luxembourg is formed through the recording of the articles of association by a notary. Its articles of association will subsequently be published in the Official Bulletin (Mémorial C) and lodged with Luxembourg s Trade and Companies Register. At least one natural or legal person is required for the said formation. The person may be of any nationality and is not required to be resident in Luxembourg. 3. Minimum Capital The minimum capital of a Public Limited Company (PLC., Corp./SA) in Luxembourg is 31,000 EUR. This requires to be contributed in full in the form of a cash or non-cash contribution. Non-cash contributions are independently valued by an auditor. When a Public Limited company (PLC., Corp./SA) is formed, at least 25% of the nominal value of every share requires to be paid up. Notwithstanding this, bearer shares will only be issued once the complete capital contribution is made. 11

12 Legal form: Public Limited Company (PLC., Corp.) 4. Shares and the Transfer of Shares Bearer shares in a Public Limited Company (PLC., Corp./SA) are transferred through the agreement and transfer of the bearer securities. However, the transfer of registered shares is only effective on a Public Limited Company (PLC., Corp./SA) in Luxembourg if either a transfer statement dated and signed by both the transferor and the transferee is present in the Register of Registered Shares or if the Public Limited Company (PLC., Corp./SA) has been notified of the transfer or if the said transfer has been accepted by the Public Limited Company (PLC., Corp./SA) in the form of a notarial deed. 5. Organisation 5.1. General Meeting The general meeting of the shareholders is the supreme authority of a Public Limited Company (PLC., Corp./SA) in Luxembourg. It is authorised to make all decisions relating to the Public Limited Company (PLC., Corp./SA) including the appointment of the board of directors. The ordinary general meeting must be convened annually at the date prescribed in the articles of association. Furthermore, the board of directors as well as the auditor of a Public Limited Company (PLC., Corp./SA) in Luxembourg can convene an extraordinary general meeting. The said meeting shall appoint the board of directors of the Public Limited Company (PLC., Corp./SA) Board of Directors The board of directors is responsible for the management and representation of a Public Limited Company (PLC., Corp./SA). It must consist of at least one member (director). However, if a Public Limited Company (PLC., Corp./SA) has more than one shareholder, the board of directors must consist of at least three members (directors). The said members (directors) may be natural or legal persons resident in or outwith Luxembourg. Moreover, it is not required that the members of the board of directors be shareholders of the Public Limited Company (PLC., Corp./SA) Appointment of an Auditor A Public Limited Company may appoint one or more commissaire to supervise the Public Limited Company (PLC., Corp./SA), who may be shareholders or 12

13 Legal form: Public Limited Company (PLC., Corp.) non-shareholders, if the following upper limits are not exceeded: a balance sheet total of 6.25 million EUR, net turnover of 6.25 million EUR as well as having an average number of 50 full-time posts. Where these upper limits are exceeded, an independent auditor must be appointed to inspect the books. 6. Annual Accounts The annual accounts of a Public Limited Company in Luxembourg (PLC., Corp./ SA) consist of the balance sheet, the profit and loss account and the notes thereto. Following their approval, the annual accounts will be lodged with Luxembourg s Trade and Companies Register and published in the Official Bulletin (Mémorial C). 7. Liquidation If 75% of the share capital of a Public Limited Company (PLC., Corp./SA) in Luxembourg has been lost and 25% of the votes cast at the general meeting are in favour of liquidation, the company shall enter into liquidation. II. Tax Structure of a Public Limited Company (PLC., Corp./SA) 1. Corporate Taxation Since January 1st, 2013, all Public Limited Companies (PLC., Corp./SA) in Luxembourg have been subject to corporate taxation at a rate of 29.22%. This said rate consists of the following components: corporate income tax at a rate of 21% on income exceeding 15,000 EUR (or a rate of 20% for income not exceeding 15,000 EUR); the solidarity surtax at a rate of 7% as well as the municipal business tax at a rate of 6.75%. All Public Limited Companies (PLC., Corp./SA) resident in Luxembourg which do not require a trade licence and whose assets, securities and bank balance together exceed 90% of its balance sheet total are required to pay only the minimum corporate taxation of 3,210 EUR (3,000 EUR plus the 7% solidarity surtax). 13

14 Legal form: Public Limited Company (PLC., Corp.) Furthermore, Public Limited Companies (PLC., Corp./SA) in Luxembourg are liable to withholding tax at a rate of 15% on their dividend distributions. In contrast thereto, royalty and interest payments as well as proceeds from liquidation or partial liquidation are tax-free. 2. Net Wealth Tax Public Limited Companies (PLC., Corp./SA) in Luxembourg are further subject to a net wealth tax at a rate of 0.5%. Public Limited Companies (PLC., Corp./SA) resident in Luxembourg are therefore subject to a net wealth tax on their total assets (assets in and outwith Luxembourg). However, Public Limited Companies (PLC., Corp./SA) not resident in Luxembourg are subject to the said tax on their assets in Luxembourg only. III. Advantages of forming a Public Limited Company (PLC., Corp./SA) In Luxembourg, the legal structure of the Public Limited Company (PLC., Corp./ SA) is used by large- as well as small and medium-sized companies, particularly due to the possibility to issue easily transferable bearer shares. Furthermore, the Public Limited Company (PLC., Corp./SA) is suitable for numerous Luxembourg business forms. This includes, but is not limited to, the SOPARFI-, the Financial Holding, the Trading Company, the Private Asset Management Company and the Securitisation Company (SPV). 14

15 Legal form: Limited Liability Company (LLC., LTD./SARL) Formation of a Limited Liability Company (LLC., Ltd./SARL) in Luxembourg I. Legal Structure of a Limited Liability Company (LLC., Ltd./SARL) 1. Concept A Limited Liability Company (LLC., Ltd./Société à responsabilité limitée, SARL) in Luxembourg is a corporation whose assets are wholly liable for the company s liabilities. It may be formed for the carrying on of any type of commercial or non-commercial purposes. 2. Formation A Limited Liability Company (LLC., Ltd./SARL) in Luxembourg is formed through the recording of its articles of association by a notary. Its articles of association will subsequently be published in the Official Bulletin (Mémorial C) and lodged with Luxembourg s Trade and Companies Register. Moreover, the shareholders of a Limited Liability Company (LLC., Ltd./SARL) in Luxembourg must be registered in the Trade and Companies Register of which there must be at least two and no more than 40. The shareholders may be natural or legal persons. It is also possible to form a single-person Limited Liability Company in Luxembourg (LLC., Ltd./Société à Responsabilité limitée unipersonelle). 3. Minimum Capital The minimum capital of a Limited Liability Company (LLC., Ltd./SARL) in Luxembourg is 12,500 EUR. This requires to be contributed in full in the form of a cash or non-cash contribution. The company s capital is divided into registered shares. Each share is of the same value and each share will have a minimum value of 25 EUR. 15

16 Legal form: Limited Liability Company (LLC., LTD./SARL) 4. Share Transfer The shares of a Limited Liability Company (LLC., Ltd./SARL) in Luxembourg may be transferred to non-shareholders only with the consent of the general meeting at which at least 75% of the company s capital must be represented. The said transfer is required in notarised form. Such consent is not required when the transfer is to a fellow shareholder. 5. Organisation 5.1. General Meeting The general meeting is the supreme authority of a Limited Liability Company (LLC., Ltd./SARL) in Luxembourg. The general meeting consists of all shareholders of the company and must be convened if the number of shareholders exceeds Managing Director A Limited Liability Company (LLC., Ltd./SARL) in Luxembourg has one or more managing directors who are not required to be company shareholders. Furthermore, the managing director(s) can be of any nationality and is not required to be resident in Luxembourg Supervision A Limited Liability Company in Luxembourg (LLC., Ltd./SARL) is subject to auditing obligations if it has more than 25 shareholders. The supervision is carried out by one or more commissaire who may be shareholders or non-shareholders. However, if a Limited Liability Company (LLC., Ltd./SARL) in Luxembourg exceeds two of the following upper limits, an independent auditor must be appointed to inspect the books: a balance sheet total of 6.25 million EUR, net turnover of 6.25 million EUR as well as having an average number of 50 fulltime posts. 6. Annual Accounts The annual accounts of a Limited Limited Company in Luxembourg (LLC., Ltd./ SA) consist of the balance sheet, the profit and loss account and the notes thereto. Following their approval, the annual accounts will be lodged with 16

17 Legal form: Limited Liability Company (LLC., LTD./SARL) Luxembourg s Trade and Companies Register and published in the Official Bulletin (Mémorial C). 7. Dissolution A Limited Liability Company (LLC., Ltd./SARL) in Luxembourg can be dissolved either through a decision of the general meeting at which 75% of the company capital must be represented or through a court order. II. Tax Structure of a Limited Liability Company (LLC., Ltd./SARL) 1. Corporate Taxation Since January 1st, 2013, all Limited Liability Companies (LLC., Ltd./SARL) in Luxembourg have been subject to corporate taxation at a rate of 29.22%. This said rate consists of the following components: corporate income tax at a rate of 21% on income exceeding 15,000 EUR (or a rate of 20% for income not exceeding 15,000 EUR), the solidarity surtax at a rate of 7% as well as the municipal business tax at a rate of 6.75%. All Limited Liability Companies (LLC., Ltd./SARL) resident in Luxembourg which do not require a trade licence and whose assets, securities and bank balance together exceed 90% of its balance sheet total are required to pay only the minimum corporate taxation of 3,210 EUR (3,000 EUR plus the 7% solidarity surtax). Furthermore, Limited Liability Companies (LLC., Ltd./SARL) in Luxembourg are subject to withholding tax at a rate of 15% on their dividend distributions. In contrast thereto, royalty and interest payments as well as proceeds from liquidation or partial liquidation are tax-free in Luxembourg. 2. Net Wealth Tax Limited Liability Companies (LLC., Ltd./SARL) in Luxembourg are further subject to a net wealth tax at a rate of 0.5%. Limited Liability Companies (LLC., Ltd./ 17

18 Legal form: Limited Liability Company (LLC., LTD./SARL) SARL) resident in Luxembourg are therefore subject to a net wealth tax on their total assets (assets in and outwith Luxembourg). However, Limited Liability Companies (LLC., Ltd./SARL) not resident in Luxembourg are subject to the said tax on their assets in Luxembourg only. III. Advantages of forming a Limited Liability Company (LLC., Ltd./SARL) In Luxembourg, the legal structure of the Limited Liability Company (LLC., Ltd./ SARL) is predominantly suited to medium-sized companies due to its many advantages including, for example, it suiting all commercial purposes from the trading of goods to asset management. 18

19 Legal form: SCA Formation of a Partnership Limited by Shares (SCA) in Luxembourg I. Legal Structure of a Partnership Limited by Shares (SCA) 1. Concept The Partnership Limited by Shares (Société en commandite par actions, SCA) is a corporation which, at the same time, shows the characteristics of a partnership. A Partnership Limited by Shares (SCA) consists of at least one shareholder subject to unlimited liability (general partner) as well as a natural or legal person who has contributed to the share capital with a particular contribution (limited partner). The latter is liable for the Partnership Limited by Share s (SCA) liabilities only for a sum matching his contribution. Insofar as not otherwise provided, the provisions on Public Limited Companies (PLC., Corp./SA) in Luxembourg apply to Partnerships Limited by Shares (SNC) in Luxembourg. 2. Formation A Partnership Limited by Shares (SNC) in Luxembourg is formed through the recording of its articles of association (Link Info-Seite) by a notary as well as its registration in the Trade and Companies Register (Link Info-Seite). At least one personally liable shareholder (general partner) is required to be mentioned by name in the said articles of association. 3. Minimum Capital The provisions on Public Limited Companies (PLC., Corp./SA) in Luxembourg apply in respect of the minimum capital of the shareholders of a Partnership Limited by Shares (SCA). According to that, the minimum capital of a Partnership Limited by Shares (SCA) in Luxembourg is 31,000 EUR. The Partnership Law provisions, which contain no minimum capital requirements, apply in respect of the capital contributions of the general partners. 19

20 Legal form: SCA 4. Company Name The company name of a Partnership Limited by Shares (SCA) is permitted only to contain the name of one or more than one of its personally liable shareholders (general partners). 5. Organisation 5.1. General Meeting The general meeting of a Partnership Limited by Shares (SCA) in Luxembourg has significantly less competences than those of a Public Limited Company (PLC., Corp./SA) in Luxembourg. In particular, its resolutions on the amendment of the articles of association require the consent of the Partnership Limited by Share s (SCA) managing director Board of Directors The board of directors of a Partnership Limited by Shares (SCA) in Luxembourg is not elected. Instead, it mandatorily consists of those shareholders subject to unlimited liability (general partners). The said shareholders are responsible for the management of and representation of the Partnership Limited by Shares (SCA) Commissaire At least three commissaire are required to carry out the supervision of a Partnership Limited by Shares (SCA) in Luxembourg. II. Tax Structure of a Partnership Limited by Shares (SCA) In respect of taxation, a distinction is made between the general partners as well as the Partnership Limited by Shares (SCA) itself together with the limited partners of a Partnership Limited by Shares (SCA) due to its hybrid structure. The general partners and their capital contributions are taxed in accordance with the Partnership Law provisions whilst the Partnership Limited by Shares (SCA) and its limited partners are treated as a corporation and/or shareholders for corporate taxation purposes. 20

21 Legal form: Limited Partnership Formation of a Limited Partnership (LP./SCS) in Luxembourg I. Legal Structure of a Limited partnership (LP./SCS) 1. Concept A Limited Partnership in Luxembourg (LP./Société en commandite simple) is a partnership having at least two shareholders, namely a general partner who is subject to unlimited liability and a limited partner subject to limited liability. The general partner is responsible for the management of a Limited Partnership (LP./SCS) in Luxembourg. Moreover, the liability of the said partner for the liabilities of the Limited Partnership (LP./SCS) is secondary, joint and several and unlimited. In contrast thereto, the limited partners are liable for the liabilities of a Limited Partnership (LP./SCS) only to the extent of that amount that they have contributed (the limited liability sum). Such partners are consequently not permitted to carry out the management of the business and have restricted controlling rights. 2. Formation A Limited Partnership (LP./SCS) is formed through the conclusion of a partnership agreement between at least two persons and will subsequently be registered in the Trade and Companies Register (Link Info-Seite). The registration in the Trade and Companies Register is accordingly of declaratory effect only. 3. Minimum Capital There is no minimum capital requirement for a Limited Partnership (LP./SCS) in Luxembourg. 21

22 Legal form: Limited Partnership 4. Company Name The company name of a Limited Partnership (LP./SCS) in Luxembourg must contain the surname of at least one of the partners subject to unlimited tax liability (general partners). The using of the names of other persons, particularly the names of the limited partners, is not permitted. II. Tax Structure of a Limited Partnership (LP./SCS) A Limited Partnership (LP./SCS) in Luxembourg is not subject to taxation as such. Instead, every shareholder of a Limited Partnership (LP./SCS) is liable to taxation in Luxembourg on their share of the income and assets of the company as well as on their private income and assets. 22

23 Legal form: General Partnership Formation of a General Partnership (GP./SNC) in Luxembourg I. Legal Structure of a General Partnership (GP./Société en nom collectif, SNC) 1. Concept The General Partnership (GP./Société en nom collectif, SNC) in Luxembourg is a partnership in which two or more natural and/or legal persons come together in order to carry on business under a single trading name. The liability of all shareholders of a General Partnership (GP./SNC) in Luxembourg for its liabilities is unlimited and joint and several. 2. Formation A General Partnership (GP./SNC) in Luxembourg is formed through the conclusion of a partnership agreement between at least two natural and/or legal persons. Moreover, a General Partnership (GP./SNC) is required to obtain a trading licence (Link Info-Seite) from the Ministry of the Middle Classes, Tourism and Housing as well as registering in the Trade and Companies Register (Link Info-Seite) in Luxembourg in order to carry on business. 3. Minimum Capital There is no prescribed minimum capital for the formation of a General Partnership (GP./SNC) in Luxembourg. 4. Company Name The company name of a General Partnership (LGP./SNC) in Luxembourg is only permitted to contain the names of its shareholders. 23

24 Legal form: General Partnership II. Tax Structure of a General Partnership (GP./SNC) A General Partnership (GP./SNC) is not taxed as such. Instead, its shareholders are subject to the standard taxation in Luxembourg. 24

25 Legal form: European Company Formation of a European Company (SE) in Luxembourg I. Legal Structure of a European Company (SE) 1. Concept The legal form of the European Company (Societas Europaea, SE; European Public Limited Company (PLC.,Corp.)) was introduced in 2001 as part of the EU Directive 2157/2001 on the Statute for a European Company (SE). The European Company (SE) is a Public Limited Company (PLC., Corp.) having its own legal personality and whose capital is divided into shares and which has branch offices in at least two other European Union Member States. The aim of the introduction of this new legal form was a uniform European company law. In particular, that businesses active in different Member States of the European Union or those wanting to become active in other Member States of the European Union being able to form companies in accordance with extensive uniform legal principles. And therefore not being required to be formed as subsidiaries in different countries accordance with different laws in each case. Instead, such businesses, insofar as they are active as a European Company (SE), subject to 2. Formation A European Company (SE) is formed independently of domestic law. Only legal persons are permitted to form a European company. This includes, for example, already existing companies such as Public Limited Companies (PLC., Corp.), European Companies (SE) and under certain restrictions- Limited Liability Companies (LLC., Ltd.). Furthermore, the registered office as well as the main place of central management and control of the founding companies must be located within the European Union (EU) or the European Economic Area (EEA). The newly formed European Company (SE) will be registered in the Commercial Register of the country in which its registered office is located. A Luxem- 25

26 Legal form: European Company bourg European Company (SE) will, for example, accordingly be registered in Luxembourg s Commercial Register. The said registration will subsequently be published in the Official Journal of the European Union. 3. Minimum Capital The minimum capital of a European Company (SE) is 120,000 EUR. 4. Company Name The company name of a European Company (SE) is required to contain the abbreviation SE. 5. Organisation Due to the different provisions among the Member States on the forms of company organisation, the Articles of Association of a European Company (SE) may provide for, in addition to the General Meeting, either a Board of Directors (monistic system, compare the Public Limited Company (PLC., Corp./SA) in Luxembourg) or a management and supervisory body (dualistic system, compare the Public Limited Company (PLC., Corp.) in Germany). 6. Accounting In respect of the obligation of a European Company (SE) to keep accounts, the law of the country in which its registered office is located applies. II. Tax Structure of a European Company (SE) No special provisions exist on the current taxation of the business activities of a European Company (SE). Instead, a European Company (SE) is subject to unlimited tax liability in the country in which its registered office is located. In respect of permanent establishments in other countries, a European Company (SE) is required to comply with its tax obligations in force in the respective countries. The distribution of profits (e.g. dividend payments) to the shareholders is likewise subject to the particular domestic provisions thereon. 26

27 Legal form: Branch Offices of Foreign Companies Formation of the Branch Offices of Foreign Companies in Luxembourg I. Legal Structure of a Branch Office in Luxembourg 1. Concept A Branch Office in Luxembourg is a permanent establishment which is geographically separated from the main business in a domestic or non-domestic Trading Company. From a business management point of view, it is a independent company carrying on commercial activities in Luxembourg which is fully authorised to conclude sales contracts. Legally, the Branch Office is seen as part of the Head Office due to it not having its own legal personality. The liability of the Branch Office for the liabilities of the Branch Office in Luxembourg is consequently unlimited. If the Head Office is a foreign company, the internal constitution of a Branch Office should be in accordance with the articles of association of the Head Office of the business and the particular foreign law. 2. Formation A Branch Office in Luxembourg is formed (Link Info-Seite) through the resolution of the management of the Head Office and through registration in Luxembourg s Trade and Companies Register (link Info-Seite). Therein, the said registration is of declaratory effect only. It is not required that a Branch Office in Luxembourg have an articles of association and the articles of association of the principal place of business shall be published in the Official Bulletin (Mémorial C). Moreover, the furnishing of the Branch Office with capital can be freely organised. A Trade Licence is required to be obtained by a Branch Office from Luxembourg s Ministry of the Middle Classes, Tourism and Housing for the carrying on of commercial activities. 27

28 Legal form: Branch Offices of Foreign Companies 3. Name The name of a Branch Office in Luxembourg must contain at least a description of the Head Office as well as the corresponding legal abbreviation in unaltered form. 4. Representation A Branch Office in Luxembourg is independently represented by the Branch Office manager vis-à-vis third parties. Notwithstanding this, the appointment of a Branch Office manager is not mandatory. An authorised signatory of the company, registered in Luxembourg s Trade and Companies Register, can accordingly be appointed to represent the Branch Office. II. Tax Structure of a Branch Office in Luxembourg A Branch Office in Luxembourg is liable as a permanent establishment to the standard tax for profits made there and consequently benefits from Luxembourg s preferential taxation. Moreover, the Branch Office may repatriate the said profits to the country in which its Head Office is located free from tax. 28

29 Busines forms Business forms Which tax advantages will your business benefit from? SOPARFI-Financial Holding Company Trading and Service Company Private Asset Management Company (SPF) Securitisation Vehicle (SPV) Company for Intellectual Property Rights (IP-Box) Investment Funds SICAV/SICAF Investment Company SICAR Specialised Investment Funds (SIF) Real Estate Company E-Commerce 29

30 Business form: SOPARFI-Financial Holding Company Formation of a SOPARFI-Financial Holding Company in Luxembourg I. Legal Structure of a SOPARFI in Luxembourg 1. Concept A SOPARFI-Financial Holding Company (Société de participations financières) in Luxembourg is a non-regulated Trading Company in Luxembourg which is fully liable to tax. It benefits from the inter-corporate privilege of the parent subsidiary Directive and is able to carry on Holding activities in addition to its financial activities. A Holding describes a parent organisation which can take the following forms: Operational Holding; Management Holding; Finance Holding and Organisational Holding. The purpose of a SOPARFI in Luxembourg is predominantly the acquisition, management and realisation of investments in companies in or outwith Luxembourg. A SOPARFI is permitted to carry on all types of commercial activities insofar as they are consistent with the articles of association or Luxembourg s statutory provisions. 2. Formation A SOPARFI in Luxembourg is formed through the recording of its articles of association by a notary. The articles of association will subsequently be published in the Official Bulletin (Mémorial C) and lodged with Luxembourg s Trade and Companies Register. A natural or legal person of any nationality, regardless of where they are resident, is required and authorised for the formation. A SOPARFI in Luxembourg is formed as a corporation as, for example, a Public Limited Company (PLC., Corp./SA.), a Limited Liability Company (LLC., Ltd./ SARL) or a Partnership Limited by Shares (SCA). In practice in Luxembourg, the legal form of the Public Limited Company (PLC., Corp./SA) is the preferred form for the formation of a SOPARFI. This is particularly so due to it being possible to issue bearer shares which can be easily transferred. 30

31 Business form: SOPARFI-Financial Holding Company It is a mandatory requirement that a SOPARFI in Luxembourg carrying on commercial activities as its primary or secondary activity obtains prior written consent (a trade licence, autorisation d établissement) from Luxembourg s Ministry of Small and Medium-Sized Businesses. II. Tax Advantages of a SOPARFI in Luxembourg 1. Exemption from Tax of Dividends and Sale and Liquidation Proceeds from Investments Since January 1st, 2013, the rate of corporate taxation on the distribution of dividends and sale and liquidation proceeds to a SOPARFI in Luxembourg has been 29.22% (21% or 20% corporation tax, plus the Solidarity Surtax at a rate of 7% as well as the Municipal Business tax at a rate of 6.75%). All corporations resident in Luxembourg which do not require a trade licence and whose assets, securities and bank balance together exceed 90% of its total balance sheet are required to pay only the minimum corporate taxation of 3,210 EUR (3,000 EUR plus the 7% Solidarity Surtax). Notwithstanding this, in the context of the application of the inter-corporate privilege, the dividends and sale and liquidation proceeds distributed to a SOPARFI in Luxembourg are exempt from tax upon satisfaction of the following requirements: 1.1. Requirements for the Parent Company The parent company (SOPARFI) must be either a corporation resident in Luxembourg with unlimited tax liability or the permanent establishment in Luxembourg of an EU Company within the meaning of the parent subsidiary Directive or must be a corporation resident in a country which has agreed a double taxation agreement (DTA) with Luxembourg. Furthermore, the parent company is required to hold at least 10% of the capital of the subsidiary company or to have acquired the said investment for at least 1.2 million EUR (or 6 million EUR for sale profits) and at the time of the making available of the dividends, the investment must have been held for an uninterrupted period of at least 12 months or a commitment existed to do so. 31

32 Business form: SOPARFI-Financial Holding Company 1.2. Requirements for the Subsidiary Company The subsidiary company must either be a corporation which has its registered office in Luxembourg with unlimited tax liability or a foreign corporation with unlimited tax liability which is liable to a tax comparable to Luxembourg s corporation tax or be an EU-subsidiary company fully liable to corporate taxation (congruity with Luxembourg s rate of corporation tax is not mandatory) within the meaning of the parent subsidiary Directive. If these requirements are not met, dividends can be at least 50% tax exempt if they are distributed by a corporation which is resident in Luxembourg with unlimited tax liability or a foreign corporation which is liable to corporate taxation (corresponding with Luxembourg s rate of corporation tax) and which has its registered office in a country which has agreed a DTA with Luxembourg or an EU-Subsidiary Company within the meaning of the parent subsidiary Directive. 2. Deduction of Investment-related Expenses Investment-related expenses are deductible to the extent they exceed the taxfree income generated from investment in the respective year. This also applies to value adjustments as well as losses suffered from the sale of investments. 3. Exemption from Net Wealth Tax The net wealth tax in Luxembourg applies, in principle, at a rate of 0.5%. Notwithstanding this and in accordance with the following requirements, the value of an investment remains exempt from the net wealth tax. For the application of the parent subsidiary privilege herein, no minimum holding period is prescribed: The parent company (SOPARFI) in Luxembourg must hold at least 10% of the capital of the subsidiary company or must have acquired the investment for a sum amounting to at least 1.2 million EUR and the subsidiary company must have been a resident or non-resident corporation with unlimited tax liability. 4. Exemption from Withholding Tax 4.1. Withholding Tax on Dividend Distributions In principle, the dividend distributions of a SOPARFI in Luxembourg are subject 32

33 Business form: SOPARFI-Financial Holding Company to withholding tax at a rate of 15%. However, the said tax will not be levied if the following requirements are satisfied: Firstly, the company distributing the dividends must be a resident legal person with unlimited tax liability. The benefiting company must also be a resident corporation with unlimited tax liability or a corporation resident in an EU member state within the meaning of the parent subsidiary Directive or the resident permanent establishment of a parent company with its registered office in a country which has agreed a DTA with Luxembourg. In addition, the benefiting company is required to have an investment in the SOPARFI in Luxembourg amounting to at least 10% of the company s share capital or of a purchase price amounting to at least 1.2 million EUR and which has been held for a period of 12 months or a commitment existed to do so. In the case of the dividends of a SOPARFI in Luxembourg being distributed to companies from countries outwith the EU yet which have agreed a DTA with Luxembourg, there exists a reduced rate of withholding tax of 5%. 4.2 Withholding Tax on Royalty Payments, Interest and Liquidation Proceeds Royalty payments, interest payments as well as the distribution of liquidation proceeds are also exempt from withholding tax in Luxembourg. 5. Double Taxation Agreements (DTA) Moreover, a SOPARFI in Luxembourg can benefit from Luxembourg s multiple double taxation agreements (DTA s) due to the use of the tax exemptions arising from the inter-corporate privilege not affecting the general tax liability of a SOPARFI. 6. Value-added Tax (VAT) If the business activity of a SOPARFI in Luxembourg is not exclusively limited to the holding of investments, it will be liable to value-added tax (VAT) and is consequently required to register for value-added tax (VAT). Luxembourg s rate of value-added tax (VAT) is 15%. A reduced rate applies to certain goods and services (e.g 3% on e-books). 33

34 Business form: Trading and Service Comapany Formation of a Trading and Service Company in Luxembourg I. Trading and Service Company: Concept If a company carries on a skilled trade, industrial or other commercial activities, such company is a Trading and Service Company. In this regard, there is a distinction made in Luxembourg between Trading Companies, in the strictest sense, which possess legal personality and Commercial Associations which do not. Trading Companies in the strictest sense include Public Limited Companies (PLC., Corp./SA); Limited Liability Companies (LLC., Ltd./SARL); Partnerships Limited by Shares (SCA); Limited Partnerships (LP./SCS); General Partnerships (SNC); Co-operative Societies (SC) as well as European Companies (SE). In contrast thereto, Commercial Associations are subdivided into Temporary Commercial Associations and Commercial Associations by Participation. II. Formation How a Trading and Service Company in Luxembourg is formed is determined by the particular legal form chosen. Irrespective of nationality or residence, any person may form a Trading and Service Company in Luxembourg. Furthermore, it is required that all companies in Luxembourg carrying on commercial activities obtain prior written consent (a trade licence, autorisation d établissement) from Luxembourg s Ministry of Small and Medium-sized Businesses. The requirements therefor are, firstly, that the manager of a Trading and Service Company in Luxembourg possesses certain professional qualifications and, secondly, that the company has a physical presence in Luxembourg. Moreover, a Trading and Service Company is required to register the business and to apply to the competent tax authority for a value-added tax (VAT) ID. number in Luxembourg. 34

35 Business form: Trading and Service Comapany III. Tax Structure of a Trading and Service Company The following information on the tax structure exclusively addresses corporations in Luxembourg due to Trading and Service Companies in Luxembourg being predominantly formed as Public Limited Companies (PLC., Corp./SA) or as Limited Liability Companies (LLC., Ltd./SARL): 1. Corporation Tax Since January 1st, 2013, all corporations in Luxembourg have been subject to corporate taxation at a rate of 29.22%. This said rate consists of the following components: corporate income tax at a rate of 21% on income exceeding 15,000 EUR (or a rate of 20% for income not exceeding 15,000 EUR), the solidarity surtax at a rate of 7% as well as the municipal business tax at a rate of 6.75%. All corporations resident in Luxembourg which do not require a trade licence and whose assets, securities and bank balance together exceed 90% of its balance sheet total are required to pay only the minimum corporate taxation of 3,210 EUR (3,000 EUR plus the 7% solidarity surtax). Furthermore, corporations in Luxembourg are subject to withholding tax at a rate of 15% on their dividend distributions. In contrast thereto, royalties and interest payments as well as proceeds from liquidation or partial liquidation are tax-free in Luxembourg. 2. Net Wealth Tax Corporations in Luxembourg are further subject to a net wealth tax at a rate of 0.5%. Corporations resident in Luxembourg are therefore subject to a net wealth tax on their total assets (assets in and outwith Luxembourg). However, corporations not resident in Luxembourg are subject to the said tax on their assets in Luxembourg only. 3. Value-Added Tax (VAT) Trading and Service Companies in Luxembourg are liable to value-added tax (VAT) at a rate of 15% on their activities. Notwithstanding this, certain supplies 35

36 Business form: Trading and Service Comapany and services are subject to the reduced rate of value-added tax (VAT) in Luxembourg. For example, e-books are subject to a rate of 3%. IV. Advantages of forming a Trading and Service Company in Luxembourg There is very little red tape surrounding the formation and management of a Trading and Service Company in Luxembourg. Moreover, Luxembourg s tax assessment framework in the form of the so-called tax rulings is flexibly administered. Questions on the scope of tax liability and undertakings relating to the taxation can be sought from Luxembourg s tax authority prior to the tax being due. In principle, these can be relied upon by both sides. In Luxembourg, such tax ruling procedures can be completed within weeks. Luxembourg is a signatory to several double taxation agreements (DTA s) which prevent the double taxation of Trading and Service Companies. 36

37 Business form: Private Asset Management Company (SPF) Formation of a Private Asset Management Company (SPF) in Luxembourg I. Private Asset Management Company (SPF): Concept The Private Asset Management Company in Luxembourg (Société de gestion de patrimoine familial, SPF) is not a new business form. Instead, it is a suitable investment vehicle for the management and planning of family assets, of a system for matrimonial property and of the succession of natural persons. The Private Asset Management Company (SPF) has been in existence in Luxembourg since 2007 and is the successor to the abolished Luxembourg Holding II. Legal Structure of a Private Asset Management Company (SPF) 1. Legal Form A Private Asset Management Company (SPF) in Luxembourg is only permitted to be formed as a corporation (Public Limited Company (PLC., Corp./SA); Limited Liability Company (LLC., Ltd./SARL); Partnership Limited by Shares (SCA) or Co-operative in the form of a Public Limited Company (SCOSA)). In practice in Luxembourg, the SPF is however predominantly formed in the legal forms of the Public Limited Company (PLC., Corp./SA) and the Limited Liability Company (LLC., Ltd./SARL). 2. Formation A Private Asset Management Company (SPF) in Luxembourg is formed through the recording of its articles of association by a notary. The articles of association will subsequently be published in the Official Bulletin (Mémorial C) and lodged with Luxembourg s Trade and Companies Register. It is required that the articles of association expressly regulate that the company is subject to the provisions of Luxembourg s law on Private Asset Management Companies. The minimum capital of a SPF in Luxembourg is dependent upon which legal form is chosen. 37

38 Business form: Private Asset Management Company (SPF) The shareholders of a SPF in Luxembourg, whose number must remain restricted, must be natural persons who are resident or not resident in Luxembourg who will be active in the management of the private assets. Furthermore, trustees or patrimonial entities with or without legal personality, such as Trusts or private Foundations managing the private assets of natural persons, may be used. In contrast thereto, other corporations are not permitted to hold the position of shareholder in a Private Asset Management Company (SPF) in Luxembourg. 3. Activity 3.1. Permitted Activity The permitted activities of a Private Asset Management Company (SPF) in Luxembourg are as follows: the acquisition, possession, management and realisation of investments in financial instruments, in the broadest sense, including derivatives; shares; investments; Funds; futures; bonds; options; precious metals as well as bank accounts. Furthermore, as long as a SPF is not involved in the management of the individual companies, a SPF in Luxembourg is permitted to hold majority or 100% company shareholdings. The unlimited taking out of loans from shareholders or from external third parties as well as the issuing of securities are also permitted Prohibited Activity A SPF in Luxembourg is prohibited from carrying on any type of commercial activity including the provision of management activity or financial services to third parties or shareholders. Furthermore, the guaranteeing of loans is not permitted even where a SPF has an interest in the respective company. The exception thereto is where the guaranteeing involves a gratuitous deposit or surety. A Private Asset Management Company in Luxembourg is likewise not permitted to hold patents or rights, to directly possess real estate, to receive more than 5% of the complete dividend income of the shareholders which is liable to taxation of less than 11% as well as the stock market flotation of SPF shares or their public offering. Notwithstanding this, a SPF can have a financial interest in structures carrying on the prohibited activities listed. 38