Legal Business. Memorandum On Establishment Of Business Presence In Singapore

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1 Memoranda on legal and business issues and concerns for multiple industry and business communities Memorandum On Establishment Of Business Presence In Singapore 1 Rajah & Tann 4 Battery Road #26-01 Bank of China Building Singapore Tel: Fax: Website:

2 Memorandum On Establishment Of Business Presence In Singapore Introduction Forms Of Business Organisation An investor intending to have a presence in Singapore to carry on business may use any one of the following principal forms of business organisations to structure their operations in Singapore: (d) sole proprietorship; partnership; company incorporated in Singapore; or branch of a foreign corporation. Representative Office In the case of a foreign investor which is a corporation which does not wish to conduct business activities in Singapore, but nevertheless desires to have some presence in Singapore for promotion and liaison purposes, it may consider establishing a representative office. A representative office is prohibited from engaging in business activities. Diagrammatic Representation The following is a diagrammatic depiction of the various business organisations that an investor can utilise to commence business operations in Singapore: Types of Business Entities Sole Proprietorship Partnership Incorporated Company Branch Representative Office Exempt Private Public Non-exempt Limited Unlimited Limited by shares Limited by guarantee Page 1

3 Choice Of Business Vehicle Factors To Take Into Account In Selecting Form Of Business Organisation To select the most appropriate form of business organisation, an investor should consider the advantages and disadvantages of each form of business organisation in light of the following factors: liability; capital requirements; extent of public access to information; (d) tax considerations; (e) regulatory requirements; and (f) cessation of business. Weight Of Each Factor The foregoing factors are not exhaustive. The weight of each factor relative to the rest may vary depending on the particular circumstances of the foreign investor and the nature of his business. Summary Of Advantages And Disadvantages Of Each Form Of Business Organsiation A summary of the advantages and disadvantages of each form of business organisation in light of the above factors is set out in the following table (It should be noted, however, that where a foreign investor is a corporation, the choice of business vehicle is effectively between a company limited by shares and a branch): Forms of Business Organisation Advantages Disadvantages Sole Proprietorship Minimal regulatory requirements. Easy to maintain administratively. Easy to de-register. Minimal filing requirements. Little information about the business is available to the public Unlimited liability owed directly by the owner to creditors of business. Page 2

4 Forms of Business Organisation Advantages Disadvantages Partnership Minimal regulatory requirements. Easy to maintain administratively. Easy to de-register. Minimal filing requirements. Little information about the business is available to the public. Unlimited liability owed directly by the partners to creditors of business. Company Liability of members limited if a limited company is incorporated. Separate legal personality from its members, ie, separate legal entity. Certain tax considerations may favour a company over a branch, eg benefits of double tax treaties concluded by Singapore, tax incentives more readily available, etc. Greater statutory regulation. Liquidation of company tedious and timeconsuming. Accounts available for public inspection (save for exempt private company). Branch Easier to maintain administratively than a company. Greater capital base may be available. Closure of a branch much easier than liquidation of a company. Certain tax Liabilities of branch are in effect part and parcel of liabilities of head office of foreign corporation. Head office accounts available for public inspection. Registered office in Singapore means foreign corporation can Page 3

5 Forms of Business Organisation Advantages Disadvantages considerations may favour a branch over a company, eg, tax deductions for settingup costs of branch or operating losses of branch, etc. foreign corporation can be served with legal process in Singapore. Public Access To Information Accounts The accounts of a company incorporated in Singapore have to be filed with the Registrar. Once filed, these become public records and are available for inspection by any member of the public. Likewise, all documents lodged by the company with the Registrar become public records and are available for public inspection. Accounts Of An Exempt Private Company An exempt private company is, however, not required to file its accounts with the Registrar if it can certify that its duly audited accounts have been laid before the company in general meeting and that it is able to meet its liabilities as and when they fall due. As to what constitutes an exempt private company, please see paragraph 5.4 of Annex A. Head Office Accounts Where a foreign corporation has registered a branch, the head office accounts are similarly available and open to the public for inspection once they are filed with the Registrar. Sole Proprietorship Or Partnership Accounts Unlike a company (save for an exempt private company), limited information about a sole proprietor or a partnership is available for public inspection. Tax Considerations Income Tax Rates Both companies incorporated in Singapore and foreign corporations which have registered branches in Singapore are liable for tax at the rate of twenty-six percent (26%) of the chargeable income accruing, derived or received in Singapore unless its business qualifies for and is granted tax relief for a period under the Economic Expansion Incentives (Relief for Income Tax) Act, or enjoy concessionary tax benefits by virtue of the aforesaid Act or the provisions of the Income Tax Act. Page 4

6 Dividends Dividends declared by a company incorporated in Singapore are also liable to twenty-six percent (26%) income tax. This is deducted at source and is payable by the company. However, income tax previously paid by the company is imputed to dividends and is therefore available as a tax credit for offsetting against the tax payable on dividends. The amount of dividends declared by a company is usually restricted by the amount of tax credit available for offsetting so that the company will not incur additional tax liability. Remittance Of Dividends And Profits Subject only to tax liabilities, a company incorporated in Singapore may pay dividends to foreigners not resident in Singapore. Similarly, profits arising from the operations of a branch may, subject only to tax liabilities, be freely remitted to the head office. In Singapore, there are currently no exchange control formalities or approvals required for all forms of payments, remittances or capital transfers. The Exchange Control Act, exists in Singapore but the operation of this Act has been suspended with effect from 1 June Other Tax Considerations From the foregoing, it can be seen that the income tax treatment of a company and a branch is generally the same. There may, however, be other tax considerations which favour a company over a branch and vice versa. Benefits And Privileges Conferred By Double Tax Treaties For example, under the double tax treaties entered into by Singapore, an entity not resident in Singapore is not entitled to enjoy the benefits and privileges conferred by these treaties. An entity is resident in Singapore if the control and management of the business is exercised in Singapore. With respect to a branch, the control and management is usually in the hands of directors of the foreign corporation residing in the country where the head office is located. Accordingly, it is unlikely that a branch will be treated as resident in Singapore. It will therefore be unable to enjoy the benefits and privileges conferred by Singapore s double tax treaties. A company incorporated in Singapore, in comparison, is more likely to have its control and management exercised in Singapore. The availability of benefits and privileges under Singapore s double tax treaties could be a factor favouring the incorporation of a company rather than the registration of a branch. Tax Treatment Of Foreign Corporation In Its Home Country Conversely, the tax treatment of a foreign corporation in its home country may favour the registration of a branch. For example, the home country may allow tax deductions for costs incurred in setting up a branch in Singapore or losses incurred by the branch. Tax Incentives There is also the need to consider tax incentives available in Singapore. Such tax incentives may be more readily available to a company incorporated in Singapore than to a branch. Page 5

7 Tax Imposed On Sole Proprietorships Where a business is conducted by a sole proprietorship, tax is imposed on the owner in respect of the income of the business at graduated rates if he is an individual resident in Singapore but at a flat rate of twenty-six percent (26%) if he is not resident in Singapore. Tax Imposed On Partnerships A partner of a partnership is liable to tax individually on his proportional share of the partnership income. Like a sole proprietor, tax is imposed at graduated rates for a partner resident in Singapore but at a flat rate of twenty-six percent (26%) for a non-resident partner. Where the partner is a corporate entity, tax is imposed at a flat rate of twenty-six percent (26%) even if the partner is resident in Singapore. Licensing Of Business Activities Obtaining Approvals And Licences For Proposed Business Activities Whichever form of business organisation is utilised and apart from the registration process, the need to obtain approvals or licences from the relevant government departments or statutory authorities may arise depending on the proposed business activity which is to be conducted through the form of business organisation in question. Examples of business activities for which special approvals or licences are required, regardless of whether they are conducted by locals or foreign investors, include the following: banking and insurance business; dealing in securities or acting as investment advisor in relation to securities; manufacture of goods listed in the First and Second Schedules to the Control of Manufacture Act; (d) dealing in chemicals falling within the statutory definitions of poison, hazardous substance, toxic industrial waste or radioactive material ; (e) operating an employment agency; (f) operating a hotel or a travel agency; (g) moneylending; and (h) activities which can only be conducted by professionals possessing qualifications laid down by statute, eg lawyers, accountants, etc. Page 6

8 Cessation Of Business Sole Proprietorships, Partnerships and Branches Of Foreign Corporations The termination of the registration of a sole proprietorship or partnership or the closure of a branch of a foreign corporation is an easy exercise as it only consists of the lodgment of one form with the Registrar of Companies and Businesses, namely Form D (Statement of Changes in Business Particulars including Cessation of Business) for a sole proprietorship or partnership and Form 90 (Notice by Foreign Company of Cessation of Business) for a branch. Winding Up A Company Incorporated In Singapore The process of winding up a company incorporated in Singapore is far more complicated and timeconsuming, depending on whether the winding up is a voluntary winding up or by the court and whether the company is active or dormant. Other Relevant Considerations Restriction On Foreign Investment Types Of Restrictions There are generally no restrictions imposed on foreign investment in Singapore. There are, however, certain exceptions, which are set out below: the manufacture of arms and ammunition, being subject to a Government monopoly, is closed to private enterprise; equity participation by foreigners in banks incorporated in Singapore is restricted; the ownership of companies in the newspaper publishing industry is regulated by statute, namely, the Newspaper and Printing Presses Act; and (d) the ownership of residential property in Singapore by foreigners requires the approval of the Controller of Residential Property save for residential premises in buildings of at least 6 floors and approved condominiums. Employment Issues Application To The Controller Of Immigration For Employment Passes Where an expatriate is posted to Singapore, he has to apply to the Controller of Immigration for an employment pass. Briefly, the Controller of Immigration grants employment passes at his discretion. An important consideration in the granting of an employment pass is whether the expatriate concerned possesses the appropriate skills and qualifications. Another factor is the level of capitalisation of the company incorporated in Singapore. Employment passes are not likely to be issued if the issued and paid up capital is minimal (for example, S$2.00). Page 7

9 Special Cases Collaboration With A Singapore Entity Partnership A foreign corporation may be a member of a partnership. If a partnership carries on business in Singapore, it is each and every member of the partnership which is carrying on business in Singapore. Therefore, a foreign corporation is obliged to first register a branch before it can become a partner of a partnership carrying on business in Singapore. Once a branch is registered, however, the branch may effectively carry on business in Singapore without the necessity to enter into a partnership. Consequently, foreign corporations rarely register a partnership with one or more partners under the Business Registration Act. Joint Venture Agreements If a foreign corporation seeks to collaborate with another person in carrying on business in Singapore, it is preferable to incorporate a company and participate in the equity, management and operation of the company under the terms of a joint venture agreement. Using A Business Name Other Than Own Corporate Name Registration Of A Business Name In Its Sole Capacity A foreign corporation may also register a business name (other than its corporate title) under the Business Registration Act in its sole capacity rather than in partnership with others and carry on business in Singapore under that business name. It must, however, be first registered as a branch in order to carry on business in Singapore. Once registered, the branch may effectively carry on business under the corporate title of the foreign corporation. Some Factors To Consider In Choosing This Option The registration of a business name by the foreign corporation under the Business Registration Act for the purpose of carrying on a business in its sole capacity is only required if the corporation wishes to carry on business in a name other than its corporate name. This usually only happens where the business in question is one of various business divisions of the foreign corporation and is to be conducted under the divisional name rather than the corporate title of the foreign corporation. Rajah & Tann is one of the largest law firms in Singapore. It is a full service firm and given its alliances, including US premier firm Weil, Gotshal & Manges, is able to tap into a number of countries. Rajah & Tann is firmly committed to the provision of high quality legal services. It places strong emphasis on promptness, accessibility and reliability in dealings with clients. At the same time, the firm strives towards a practical yet creative approach in dealing with business and commercial problems. The information contained in this newsletter is correct to the best of our knowledge and belief at the time of writing. Specific professional advice should be sought before any action is taken. In this regard, you may call the lawyer you normally deal with in Rajah & Tann or the Knowledge Management team at Rajah & Tann Knowledge Management. All rights reserved. Page 8

10 Appendix A Types Of Business Organisation Explained Sole Proprietorship A sole proprietorship refers to the carrying on of a business by an individual on his own without being associated with others. A sole proprietorship may engage in any type of business activity in Singapore save for those business activities which are required by statute to be conducted by a corporate entity, such as banking, finance and dealings in securities. Registration Business Registration Act A sole proprietorship must be registered under the Business Registration Act. The registration process is simple and inexpensive. To register, the following documents have to be submitted to the Registrar of Companies and Businesses (the Registrar ): Form A (Application for Approval of a Business Name for Registration of a Business); and Form B (Application for Registration of a Business). The forms are available from the Registrar. Annual Renewal The registration must be renewed annually. Personal Liability A sole proprietorship is not a separate legal entity. This means that the owner of the business will be personally liable to creditors for all debts and liabilities incurred in the name of the business. Appointment Of A Local Manager In the case of a foreign investor seeking to establish a sole proprietorship in Singapore, a local manager who will be responsible for the management of the business must be appointed. The local manager in this respect does not have to be a Singapore citizen or permanent resident. An expatriate holding an employment pass granted by the Controller of Immigration, and physically resident in Singapore, could qualify for appointment as a local manager. Regulatory Requirements Once Registered Sole Proprietorship With respect to a sole proprietorship, the regulatory requirements which have to be complied with under the Business Registration Act are minimal. Administratively, it is therefore very easy to run a sole proprietorship. Briefly, the regulatory requirements are as follows: Page 9

11 Certificate of Registration Must be Renewed Annually The certificate of registration of the business name of the sole proprietorship must be renewed annually for so long as the sole proprietor continues carrying on business. Registrar of Companies and Businesses to be Notified of Change of Particulars The Registrar must be notified in the prescribed form of any change of the particulars registered with the Registrar. Certificate of Registration to be Displayed in a Conspicuous Position The certificate of registration or a certified copy thereof as well as the registered business name must be displayed in a conspicuous position at the principal place of business of the sole proprietorship and every other place where the business of the sole proprietorship is carried on. (d) Printing of Registered Business Name and Certificate of Registration Number The registered business name and the certificate of registration number must be printed on every letterhead, invoice, bill or other documents used for the purpose of the business of the sole proprietorship. (e) Notification of Registrar of Ceasure of Business The prescribed form notifying the Registrar if the sole proprietor ceases to carry on business under the registered business name must be lodged. (f) Consequences of Default in Respect of Obligations If there is any default in respect of the obligations under the Business Registration Act, the sole proprietor will be guilty of an offence. The local manager will also be guilty of the same offence. Such criminal liability may take the form of a fine or imprisonment or both. Partnership Definition A partnership consists of two or more persons carrying on business in common with a view to profit. The partners may either be natural persons or corporations. The maximum number of partners statutorily permissible in a partnership is twenty. Registration Requirements Business Registration Act A partnership must, like a sole proprietorship, be registered under the Business Registration Act. The registration process is identical to that applicable to a sole proprietorship. Page 10

12 Joint Liability Between Partners Further, like a sole proprietorship, a partnership is not a separate legal entity. Thus, the partners will be jointly liable to creditors directly for the debts and liabilities of the partnership without limitation. As between the partners, their rights and obligations are usually governed by a partnership agreement, and as the case may be, by general partnership principals. Regulatory Requirements Once Registered The regulatory requirements that a partnership must comply with upon registration are similar to that for a sole proprietorship. Company Incorporated In Singapore Companies Act, Cap 50 The incorporation of a company in Singapore is governed by the Companies Act, Chapter 50. A company is legally a person separate and distinct from its members. As such, the members of the company are not directly liable to creditors of the company for debts and liabilities incurred by the company. The company is responsible for its own debts and liabilities. Distinction Between Limited And Unlimited Companies Members Liability The liability of the members of a company to contribute to the assets of the company upon its liquidation may be limited or unlimited, depending on whether the company is a limited company or an unlimited company. A limited company has the word Limited or Berhad or the abbreviation Ltd or Bhd in its name. For an unlimited company, the liability of the members is without limitation. An unlimited company may have a share capital. It is possible to convert a limited company into an unlimited one and an unlimited company into a limited one. Limitation by Shares or by Guarantee A limited company may in turn be limited by shares or by guarantee. For a company limited by shares, the liability of the members is limited to the amount remaining unpaid on their shares. For a company limited by guarantee, the members are only obliged to contribute up to the amount which they have agreed to contribute. Initial Working Capital Given the foregoing, a company limited by guarantee does not obtain its initial working funds from its members. It is therefore only suitable if no initial working funds are required or such funds can be obtained from other sources. In contrast, the company limited by shares can obtain its initial working capital by issuing shares to its members which are paid for by the members. This makes it a more suitable business vehicle than the company limited by guarantee. Page 11

13 (d) Disadvantages of Company Limited by Guarantee Another factor militating against the use of the company limited by guarantee is that the Registrar of Companies and Businesses very rarely grants approval for the formation of a company limited by guarantee. (e) Raising Finance from the Public If an investor incorporating a company limited by shares in Singapore wishes to raise finance from the public, the more appropriate business vehicle is a public company rather than a private company. The vehicle of a public company may be employed even if it is not proposed to raise finance from the public. A public company, however, is generally subject to more regulation than a private company. Private Company Requirements of a Private Company A company having a share capital, regardless of whether it is limited or unlimited, is a private company if it satisfies all of the following requirements: (i) the right to transfer shares of the company is restricted; (ii) the number of shareholders must not exceed 50, excluding joint holders of shares and past and present employees of the company or a subsidiary thereof; and (iii) the raising of finance from the public by way of subscription for shares or debentures of the company or deposit of money with the company is prohibited. Public Company Any company which is not a private company is a public company. Required Abbreviations in the Company s Name Subject to certain exceptions, a private company must have the word Private or Sendirian or the abbreviation Pte or Sdn in its name. A private company may be converted into a public company. It is also possible to convert a public company into a private company. Exempt Private Company Definition Private companies may further be classified into exempt private companies and non-exempt private companies. An exempt private company is a private company in which no beneficial interest in the shares of the company is held by a corporation and which has no more than 20 shareholders. It follows, therefore, that a company with even one corporate shareholder cannot be an exempt private company. The Minister for Finance has the power to declare Page 12

14 any private company that is wholly owned by the Government of Singapore to be an exempt private company. Accounts and Loans An exempt private company must prepare its balance sheet and profit and loss account annually, but it need not submit these documents with its annual return. An exempt private company is also permitted to make loans to its directors and to companies in which its directors are interested. Regulatory Requirements After Incorporation Companies Act An incorporated company must comply with various regulatory requirements as contained in the Companies Act upon incorporation. The key of these requirements are discussed hereunder: (i) The Companies Act requires a company incorporated in Singapore to have a minimum of two (2) directors who must be natural persons of full age and capacity. Of the two directors, at least one has to be ordinarily resident in Singapore. A person who is neither a Singapore citizen nor a permanent resident of Singapore may fulfil this requirement if he is granted an employment pass by the Controller of Immigration and is physically resident in Singapore. (ii) Every company is obliged to appoint a secretary who has to be a natural person who has his principal or only place of residence in Singapore. The Companies Act prescribes minimum qualifications as regards who can be a company secretary. (iii) The Companies Act requires every company to have a registered office as from the date of incorporation. The registered office has to be open and accessible to the public for not less than five (5) hours during ordinary business hours on each day. The registered office need not be open on Saturdays, weekends and public holidays. (iv) Every company is obliged to appoint an auditor within three (3) months of the incorporation of the company. The auditor has to be an approved company auditor, ie, one who is approved by the Minister for Finance. (v) The Companies Act requires every company to keep and maintain certain registers such as a register of members, a register of directors, managers, secretaries and auditors and a register of directors shareholdings. (vi) The Companies Act requires the accounts of every company to be audited once every year and for a profit and loss account, a balance sheet, a directors report, a statement by directors and an auditors report to be prepared. These have to be tabled at an annual general meeting which must be convened once every calendar year, not later than six (6) months from the close of the last financial year. In the case of the first annual general meeting, this must be convened within eighteen (18) Page 13

15 months from the date of incorporation of the company. The audited accounts and reports have to be filed with the Registrar with an annual return. Branch Of A Foreign Corporation The Registration of a Branch can Only be Effected by a Foreign Corporation Registration requirements (i) A foreign corporation, if it does not incorporate a company in Singapore, has to register a branch under the Companies Act if it wishes to carry on business in Singapore. A branch is not a separate legal entity in that its debts and liabilities are part and parcel of the debts and liabilities of the head office of the foreign corporation and its activities are limited to those stipulated in the constitution of the head office. (ii) A branch of a foreign corporation is administratively easier to maintain than a company incorporated in Singapore. There is no obligation to have a resident director or to appoint a company secretary in Singapore. Generally, there is also no obligation to hold general meetings in Singapore or to maintain any statutory registers in Singapore. Regulatory Requirements After Registration The Companies Act prescribes, among other things, the requirements set out below which have to be observed by a foreign corporation which has registered a branch. Appointment of Agents There is an obligation on the foreign corporation to appoint two (2) persons resident in Singapore as its agents to accept service of process and any notice required to be served on the corporation. A corporation cannot be appointed as an agent. A foreigner living in Singapore and holding an employment pass issued by the Controller of Immigration could fulfil the residency requirement. However, the functions of the agents are limited and, as long as the obligations under the Companies Act are complied with, the role and responsibility of the agents is less demanding and onerous than that of directors of a company incorporated in Singapore. Registered Office Must Be In Singapore The foreign corporation is required to have a registered office in Singapore, which means that legal process can be served on it in Singapore. Lodging of Accounts with the Registrar Once a branch is registered, the foreign corporation is required to lodge with the Registrar annually within two (2) months of its annual general meeting, a copy of its head office audited accounts and the branch audited accounts. If the foreign corporation is not required by the law of its place of incorporation to hold an annual general meeting and prepare a balance sheet, the corporation is required to prepare and lodge with the Registrar a balance sheet Page 14

16 containing such particulars and to which are annexed such documents as the directors of the corporation would have been required to prepare, as if the company were a public company incorporated in Singapore. It is possible to apply, in such circumstances, to the Registrar, for waiver as to form and content of the accounts. But it is not possible to obtain dispensation for the filing of the head office accounts. Where branch accounts are concerned, it is possible to apply to the Registrar for waiver for any of the reasons set out in the Companies Act. The Registrar may exercise his discretion in favour of the waiver if he is satisfied as to the reasons for the application. Representative Office Establishment And Regulation There is no legislation governing the establishment and regulation of representative offices. A representative office has no legal status, but is merely an administrative creature. Establishment Application to the Appropriate Regulatory Authority A foreign corporation seeking to establish a representative office in Singapore has to apply to the appropriate regulatory authority for approval. This authority is the Trade Development Board where the foreign corporation is engaged in manufacturing, trading, trade logistics or trade-related services. Where the foreign corporation is a financial institution such as a bank, merchant bank or insurance corporation, the establishment of a representative office by that foreign corporation is regulated by the Monetary Authority of Singapore. We would be happy to provide you with details on the establishment of a financial institution if you should require this information. TDB Guidelines Under the guidelines of the Trade Development Board, which must be strictly adhered to, a representative office is prohibited from carrying out any activity which constitutes carrying on business in Singapore. It is not permitted to enter into business contracts or provide services for a fee. Its activities must be confined strictly to promotion and liaison work on behalf of its parent corporation. It would therefore not be an appropriate vehicle for a foreign corporation which desires to conduct business in Singapore. Treatment of the Representative Office as a Temporary Establishment In addition, the Trade Development Board treats a representative office as a temporary establishment. The registration of a representative office is usually valid for only one year though the Board may allow registration for a two-year period. Registration may be renewed but such renewal is subject to the Board s absolute discretion. Normally, after a representative office has been set up for a period of three years, the foreign corporation may be expected to upgrade its presence in Singapore to a branch or a subsidiary. Page 15

17 Rajah & Tann is one of the largest law firms in Singapore. It is a full service firm and given its alliances, including US premier firm Weil, Gotshal & Manges, is able to tap into a number of countries. Rajah & Tann is firmly committed to the provision of high quality legal services. It places strong emphasis on promptness, accessibility and reliability in dealings with clients. At the same time, the firm strives towards a practical yet creative approach in dealing with business and commercial problems. The information contained in this newsletter is correct to the best of our knowledge and belief at the time of writing. Specific professional advice should be sought before any action is taken. In this regard, you may call the lawyer you normally deal with in Rajah & Tann or the Knowledge Management team at Rajah & Tann Knowledge Management. All rights reserved. Page 16

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