THE ENTREPRENEUR S GUIDE

Transcription

1 THE ENTREPRENEUR S GUIDE Révisin: 06/01/2015 Printing : 10/02/15

2 THE ENTREPRENEUR S GUIDE I. SELECTION OF THE LEGAL ENTITY TYPE Senegal has, since 18 September 1995, been member f the Organizatin fr the Harmnizatin f Business Law in Africa (OHADA), which nw grups the 14 cuntries f the CFA zne in additin t Cmrs and Guinea Cnakry. OHADA mainly seeks, n the ne hand, t harmnize the ecnmic law in the member states and remedy the legal and judicial insecurity, n the ther. The legal status f a cmpany determines, t a large extent, its life, and even influences the life f the assciates. It is therefre imprtant t pt fr a status that crrespnds mst t: Partners mtivatins and bjectives; The cuntry s sci-ecnmic and legal cntext. The legal entity types in frce in Senegal are gverned by the OHADA unifrm act relative t the rights f trading cmpanies and Ecnmic Interest Grups. These entity types are: Single prprietrship; Ecnmic Interest Grups (GIE); Limited Cmpanies (SARL) Business crpratins (SA) C-partnership (SNC) Limited partnership (SCS) Each crprate frm has its administrative, tax, scial and financial characteristics. The cmparative chart belw presents the different crprate types. GUIDE OF THE ENTREPRENEUR 2

3 COMPARATIVE CHART FOR LEGAL ENTITY TYPE SELECTION Legal Status Single prprietrship Limited Cmpanies (SARL) Business crpratin (SA) Minimum number f partners Minimum startup capital Credibility with third parties Partner s liability Ecnmic Interest Grups (GIE) CFA francs minimum t be paid up in full at incrpratin 10,000,000 CFA francs minimum; ¼ f the capital t be paid up at incrpratin, the balance within three(3) years Very lw Imprtant Very imprtant Lw Unlimited (extended t the entrepreneur s persnal prperties) Limited t the cntributins Limited t the cntributins 0 Unlimited and jint and several (unless therwise agreed with third parties) Eligibility t CI r EFE YES YES YES YES Registered auditrs Nne Nt mandatry* mandatry Nne Management Entrepreneur Manager (partner r nt) appinted by the assciates General Manager r Managing Directr Chairman Taxatin n prfits Minimum flat tax (IMF) Unique Glbal Cntributin t the tune f 50 millins f CA fr services and traded gds IS (crprate incme tax) n ptin 0 IMF : minimum tax payable in case f lss-making results Crprate Incme Tax (IS) 30% f the net prfit 0.5 % f the turnver with a minimum f 500,000 and a maximum f 5,000,000 CFA francs Crprate Incme Tax (IS) 30% f the net prfit 0.5 % f the turnver with a minimum f 500,000 and a maximum f 5,000,000 CFA francs (*) If the capital exceeds 10,000,000 CFAF r if the turnver exceeds 250 millin CFA, r in case the staff exceeds 50 wrkers Unique Glbal Cntributin t the tune f 50 millins f CA fr services and traded gds (r IS n ptin) 0 GUIDE OF THE ENTREPRENEUR 3

4 ADVANTAGES DRAWBACKS CHART Legal status Advantages Drawbacks Single prprietrship Limited Cmpanies (SARL) Business crpratin (SA) Ecnmic Interest Grups (GIE) N minimum capital required fr start up; Rapid and simplified incrpratin frmalities ; Lw incrpratin csts ; Flat tax regime, incentive and very flexible. Minimum capital required nt very high ( CFAF) Limited liability: assciates are liable t the tune f their cntributins; Assciates have the pssibility f exerting a clse cntrl n new partner s access t the cmpany s capital ; The cmpany will still exist in case f the demise f ne f the partners r the manager (unless therwise stipulated in the Articles). Very credible with third parties; Great funds mbilizatin capacity (One S.A can call fr public savings); Limited risks t cntributins ; Pssibility f nly paying up ne quarter f the capital; Pssibility fr partners t freely transfer their shares. Pssibility f creating a GIE withut a startup capital ; Flexible incrpratin frmalities ; Flexible rganizatin and peratin ; Flat tax regime, incentive and very flexible Unlimited liability f the entrepreneur. In case f bankruptcy, the entrepreneur s liability is engaged; Lw credibility vis-à-vis third parties: banks, suppliers, clients Uneasy access t credit. The minimum capital required blcks certain initiatives ; Obligatin t refer t a ntary fr the deeds f incrpratin (statutes, statement f cmpliance...); High incrpratin charges (ver 40 percent f the minimum capital) Assciates cannt freely transfer their shares. High crprate capital ; High incrpratin charges ; Heavy management system (Bard, auditrs ) fr new cmpanies GIE members are suppsed t have an activity. The GIE itself is nt meant t have a gal f seeking and sharing prfits, but it is rather aimed at «putting in place all the means likely t facilitate and develp the ecnmic activity f its members, and imprving r raising the wherewithals f this activity;» Law credibility vis-à-vis third parties, mainly banks ; GIE members are jintly and severally liable fr the grup s debts. GUIDE OF THE ENTREPRENEUR 4

5 Legal Status Advantages Drawbacks Prcedure Taxatin Sales Agency Branch S.A.R.L Subsidiary S.A. Flexibility Cntracts are signed and executed by the parent stre Flexible as ppsed t the subsidiary Cmmercial structure Strng ties with the parent stre Rather credible with third parties; Minimum capital required nt very high (100,000 CFAF) ; Limited liability: Assciates are nly liable t the tune f their cntributins; Pssibility fr assciates t exert a clse cntrl f new partners access t the capital; Very credible with third parties ; Great funds mbilizatin capacity (S.A can call fr public savings) ; Risk limited t cntributins ; Pssibility f nly paying up ne quarter f the capital; Pssibility fr assciates t freely transfer their shares. Lng recgnitin prcedure Impssibility t carry ut cmmercial peratins Difficult recruitment f the supprt staff A life time f maximum 2 years at the end f which the cmpany is bliged t change its status r stp perating Legal independence between the parent stre and the subsidiary. On the peratinal frnt, nthing precludes the subsidiary frm cllabrating with the parent stre in the executin f the cntracts Headquarter agreement with the Freign Ministry Tw stages : Statutes established by the Ntary (prvide the manager s plice clearance) Cmpany recrded and registered by BCE Tw stages: Statutes established by the Ntary (prvide the manager s plice clearance) Cmpany recrded and registered by BCE Since the agency is nt suppsed t undertake cmmercial peratins in Senegal, it is therefre nt under a fiscal regime 30 percent f the net prfit 30 percent f the net prfit GUIDE OF THE ENTREPRENEUR 5

6 II. INCORPORATION FORMALITIES IN SENEGAL A. mandatry frmalities There are eight (8) mandatry incrpratin frmalities in Senegal: Presentatin f the plice clearance (fr the Manager); freigners must, in additin t that, present the plice recrds f the cuntry f rigin r any ther equivalent dcument; Establishment f ntarial dcuments (fr cmpanies) ; Capital build-up with the Ntary r the Bank (fr cmpanies) Registratin f the Statutes (fr cmpanies and GIES) ; Trade Register and Chattel Lan (RCCM) registratin; NINEA registratin; Incrpratin Statement; Public ntice (fr cmpanies). It is currently pssible t btain the plice recrd in a maximum f 24 hurs thanks t the circular letter n 1006 MJ/ACS f 14 March 2007 issued by the Ministry f Justice. Apart frm the delivery f the plice recrd, the establishment f ntarial acts and the capital build-up, all the ther incrpratin frmalities can be dne in 24 hurs at the Incrpratin Supprt Office (BCE) within APIX. B. Single prprietrship The dcuments required are the fllwing: 02 cpies f the Natinal ID card r the passprt (fr freigners) Plice clearance f less then 3 mnths; The plice recrd f the cuntry f rigin fr freigners f less then 3 mnths ; Certificate f residence; Marriage Certificate (if any) Tw revenue stamps f 2000 CFAF (fr the Trade Register and the NINEA) The incrpratin charges are: 10,000 CFAF wrth f registry fees fr single prprietrship withut trade name; 20,000 CFAF fr single prprietrship with trade name, brken dwn as fllws: 10,000 CFA fr the registratin f the trade name with the African Intellectual Prperty Organizatin (AIPO) ; 10,000 CFAF fr the registry fees.

7 C. Limited Cmpanies (SARL) & Business Crpratin (SA) The incrprated cmpany establishment prcedure is divided in tw stages: The establishment f the Statutes at a Ntary and the depsit f the capital (within 24 hurs). The Statutes must be signed by all the funding assciates r their duly represented prxies; The recrding f the deeds f incrpratin and the registratin f the cmpany at the Incrpratin Supprt Office (BCE) f APIX. The public ntices related t incrpratin and cmpany mdificatins are made either nline n the web site f the Ministry f Ecnmy and Finance by BCE, r by the ntary in the authrized newspaper. The dcuments required fr the creatin f a Limited Cmpany (SARL) r a Business Crpratin (SA) are the fllwing: The Manager s plice clearance f less then 3 mnths ; The plice recrd f the cuntry f rigin (fr freigners) f less than 3 mnths; The phtcpy f partners ID card; The Statutes; Minutes f the incrpratin; The Statement f cmpliance. The statutes, the minutes f the incrpratin and the statement f cmpliance are established by the ntary. It shuld be nted that the assessment f the cntributins in kind fr SARL and SA is dne by an auditr selected n a list f cmptrllers. Fr the SA, the resrt t the cmptrller fr the assessment f the cntributins in kind is mandatry whatever their value, while fr the SARL, nly the cntributins amunting t mre than five (5) millin CFAF must underg assessment by an auditr. The capital must cmpulsrily be depsited with a ntary r in a bank accunt titled accunt f a cmpany being set up. The accunt is unfrzen immediately after the cmpany is registered at the RCCM. The incrpratin charges are essentially cmpsed f: Registratin fees: 25,000 CFAF fr a Capital ranging frm t 100,000,000 CFAF; 1 percent f the Capital if the latter is abve 100,000,000 CFAF; NB: In case f cntributin in real estate, there is a tax surcharge wrth 3 percent f the cntributin value fr the registratin fees. Ntary charges: Fr SARL with a capital between and CFAF the charges stand at abut 20, 000 CFAF and abut 400, 000 CFAF with capital ver 500, 000 CFAF;

8 Fr SA, they stand at abut 700,000 CFAF. D. Ecnmic Interest Grups (GIE) The Ecnmic Interest Grup (GIE), like a Single prprietrship, can be created at the Incrpratin Supprt Office (BCE) f APIX. The Statutes, by-laws and minutes f the cnstituent General Assembly are drafted by the funders, but must necessarily be registered at the Impôts et Dmaines (Tax and State-wned Land Department). Standard frms f Statutes, By-laws and Minutes are available at BCE. Fllwing are the dcuments required fr the creatin f a GIE: 03 cpies f the Statutes, By-laws and Minutes f the cnstituent General Assembly; 01 cpy f members ID card ; The Chairman s plice clearance f less then 3 mnths ; 11 revenue stamps f 2,000 CFAF : 9 f them t be affixed n each page f the Statutes, the by-laws and the minutes fr registratin and 2 fr the Trade Register and the NINEA The csts are brken dwn as fllws: Registratin fees amunting t 35,000 CFAF; Incrpratin fees wrth 30,000 CFAF divided as fllws: 20,000 CFAF fr the trade name prtectin at AIPO; 10,000 CFAF fr the registry fees. NB: There are ther types f cmpany, less knwn, but envisaged under the OHADA unifrm act n trade cmpanies and GIEs and by the Civil and Trade Obligatins Cde (COCC) f Senegal. These are: The C-partnership (SNC): it is a cmpany in which the assciates have an undefined and jint and several liabilities. The assciates, unlike partners f incrprated cmpanies, have the capacity f traders. Due t its high level f risk, this type f cmpany is almst nnexistent; The Limited Partnership (SCS): it is a new frm f cmpany planned under AUSCG. There are tw categries f assciates In a SCS: the General Partners that are indefinitely and jintly and severally liable fr the cmpany s debts, and the Limited Partner wh are liable fr the partnership debt t the extent f their cntributins; The Prfessinal Civil Sciety (SCP): this type f cmpany is envisaged under COCC.