A) Setting up a limited liability company
1. What is the procedure to be followed to set up a limited liability company in Cyprus? Please provide details of the minimum share capital, the currency in which the share capital can be denominated and the time required to set up a limited liability company.
As an international business centre, Cyprus provides a variety of options to entrepreneurs seeking to establish a legal entity in Cyprus, always designed to meet their specific needs. The forms of corporate entities include the Limited Liability Company by shares , the Limited Liability Company by guarantee with share capital or without share capital, the Public Company limited by shares and the European joint stock company (Societas Europea - SE). The Companies Law Cap. 113 also provides for the re-domiciliation of a foreign company (where this is permitted by the foreign jurisdiction) as well as for the establishment of a branch of a foreign company.
The non- corporate legal forms include the Sole Proprietor, the Limited Partnership, the General Partnership and the Cyprus International Trust.
The majority of business organisations in Cyprus are Limited Liability Companies by shares . In order to set up a Limited Liability Company, the following steps need to be taken:
- Application to the Registrar of Companies for the approval of the Company name, unless a shelf company is used.
- Preparation of the Memoradum and Articles of Association of the Company signed and prepared by a lawyer registered with the Cyprus Bar Association, together with the relevant forms containing the following information to be submitted for the registration of the company:
The name of the company that has been approved by the Registrar.
The authorised and issued share capital of the Company. There is no restriction by the Law in relation to the amount of the authorised share capital nor to the currency.
The directors and the secretary of the Company.
The registered address of the Company.
The process of registration may take up to three working days. Once the company is registered, the Registrar issues a certified copy of the Memorandum and Articles of Association, Certificates of Registration, Registered Address, Directors and Secretary and Shareholders.
2. What are the one-time and annual costs and registration fees that need to be paid by someone interested in setting up a company in Cyprus?
The average cost of setting up a company is between the range of 1000 EURO to 3000 EURO depending on the type of service provided. Other services requested are charged eiher on a fixed fee basis or on a time spent basis depending the agreement between the client and the service provider. The Company is also required to pay an annual levy of 350 EURO in order for the company to remain in good standing. In addition a company will have to prepare financial statements every year. The cost of this preparation will depend on the transactions and type of transactions.
3. What is the minimum /maximum number of directors that is required in order to set up a company in Cyprus and what are the duties and responsibilities of a director?
The minimum number of directors required is one for a private limited company and two for a public company under Cyprus Companies lawand the appointment and removal of such a director is at the discretion of the shareholders .The Law does not distinguish between executive and non-executive directors, nor between substantive and nominal directors. There is no obligation to appoint a director whose nationality is Cypriot unless it is considered as essential in order to establish local management for tax or other reasons depending on the facts and circumstances of each case. In general, the business of the Company is managed by the Directors and they may exercise all the powers of the Company although certain crucial matters can be reserved in the Articles of Association of the Company so that they are decided by the Shareholders. The directors owe fiduciary duties to the company. More specifically, they need to act in good faith and for the benefit of the company, comply with the company’s Memorandum and Articles of Association and manage the company’s day to day operations based on the Cyprus Company Law. They also have a duty to exercise reasonable care and skill and the Law also provides for several statutory duties that directors need to comply with in order to keep and maintain the day to day operations of the company. Directors can be personally liable due to an illegal action or an ultra vires act done by them. A breach of a fiduciary duty or a common law duty will render a director personally liable to the company in damages or injunctive relief. In case of such a breach, an action may be brought by the company or by one or more members suing in a derivative action.
4. Is a company secretary required? If yes, what are the duties and responsibilities of a company secretary in Cyprus?
The Law requires the appointment of a Secretary. The Secretary is appointed by the directors and the articles of association should normally contain an appropriate provision to this effect. While the Cypriot legislation does not provide specifically for the duties and generally the role of a Secretary in a company, the company secretary, very broadly speaking, is usually responsible for administrative matters concerning the company. It is generally the duty of the Secretary to maintain official company minute books and statutory registers. The Secretary also undertakes to prepare any necessary statutory information i.e. the annual return of the company and to ensure that the company files such information promptly. Within the duties of the Secretary to file statutory information is also the filing of the accounts of the company that are prepared by the auditors of the company. The Company Secretary is able to sign most of the forms that companies need to submit to the Registrar of Companies. The Secretary is the company’s officer who will provide the Members and Directors with notice of meetings and to provide Members with proposed written resolutions and auditors with any passed resolutions. The Secretary also keeps the various registers up to date upon instructions from the Directors. It is common for the secretary to prepare the necessary statements of the company’s affairs if an administrative receiver or a provisional liquidator is appointed, or if a winding-up order is made. The Secretary is answerable to the Directors and when there are any changes in the company law affecting the running of the company, the Secretary advises the Directors accordingly. Furthermore, it is the usual practice that any appointment and/or changes of Directors or company secretary must be communicated to the Registrar of Companies and properly documented by the Company’s Secretary. It is important that a company has a secretary who is qualified and experienced to perform the duties inherent in the position. The Directors would be failing in their duties if they appointed a company secretary who doesnot have the appropriate skills and experience. Failure to carry out some of the duties of the secretary may result in fines being imposed on the Company or even in the Directors being prosecuted for certain acts or omissions. The company secretary may also be an artificial person, i.e. a company. It is a usual phenomenon within a group of companies to have a service company within the group acting as Company Secretary to other group companies.
5. Are there any restrictions for foreign investors to hold shares in a limited liability company registered in Cyprus?
There are no any restrictions for foreign investors to hold shares, except in certain regulated industries such as banking and media. Foreign investors have the opportunity of participating in most sectors of the economy, with equity participation of up to 100% in any Cypriot enterprise, without a minimum level of capital investment. Foreigners considering registering companies, acquiring shares in existing companies, or setting-up business activities in Cyprus, no longer need approval from the Central Bank of Cyprus. As from 1st October 2004, foreign investors can register a company directly with the Registrar of Companies, and obtain any license, if needed, from the appropriate authority according to the nature of investment. There are no restrictions concerning the maximum allowable percentage of foreign participation in an enterprise in Cyprus.
6. Are there any restrictions for a foreigner to carry out a trade or business in your jurisdiction via a limited liability company registered in Cyprus?
Foreign investment is generally free from restrictions and the discriminatory treatment of EU citizens or companies is prohibited. Sector-specific policies apply and authorisations are required for foreign investment in certain regulated sectors, such as:
- Financial services
- Investment services
There are also restrictions on the purchase of immovable property by non-EU citizens, which are based on public policy grounds (Acquisition of Immovable Property by Aliens Law Cap. 109, as amended).
7. Is it possible for a limited liability company registered in Cyprus to continue its legal existence in another foreign jurisdiction? If yes please provide details of the procedure to be followed and any restrictions which may be applicable
A Cyprus limited liability company may be re-domiciled in another country or jurisdiction provided that the laws of that other country of jurisdiction allow such step. The redomiciliation can only take place with the prior permission by the Registrar of Companies. To this effect, an application must be filed with the Registrar to obtain the necessary consent. Supporting documentation must be filed with the Registrar.
The Registrar will give its permission provided that the company, among others provides:
- A duly signed solvency declaration confirming the solvency of the company and confirming that the directors are not aware of any circumstances that would negatively influence the company’s solvency within the next three years;
- Special resolution; and
- Interim financial statement to the Registrar.
In addition, the company must publish a notice for the intention to re-domicile in two newspapers in Cyprus. Copy of this notice must be sent to the Registrar of Companies within fourteen days. Once the above conditions are satisfied, the Registrar may consent for the re-domiciliation.
8. What is the procedure to liquidate and wind up a limited liability company in Cyprus?
On 7th of May 2015 the Cyprus House of Representatives has passed a package of six statutes that from now on will constitute the Insolvency Framework of the Republic of Cyprus. The Insolvency framework was an essential prerequisite for the smooth continuation of the implementation of the Cyprus economic adjustment programme which was agreed with Troika.
More specifically the following came into force:
1. Insolvency of Natural Persons (Personal Repayment Schemes and Debt Relief Order) Law of 2015
2. Bankruptcy (Amending) Law of 2015
3. Companies (Amending) Law (No.3) Law of 2015, regarding liquidation
4. Companies (Amending) Law (No.2) Law of 2015, regarding a mechanism for restructuring corporate debt (Examinership)
5. Insolvency Practitioners Law of 2015 and
6. Insolvency Practitioners Regulations of 2015
The first two laws are for natural persons whereas the third and forth laws relate to companies. The fifth law and regulations will regulate the profession of Insolvency Practitioners, which is vital for the successful application of the Insolvency framework. In particular, they provide for the procedure and requirements for the licensing of Insolvency Practitioners.
The new Insolvency Consultants Law of 2015 and the relevant Regulations establish and regulate the profession of the Insolvency Consultant in the Republic of Cyprus. In accordance with the law, only a licensed Insolvency Consultant can act in relation to a legal person as a liquidator, temporary liquidator, receiver, administrator or examiner.
To become an Insolvency Consultant one must meet certain requirements as set out in the law and must be a member of either the Insolvency Committee, the Bar Association or ICPAC.
The liquidation procedures for companies are governed by the Cypriot Companies Law Act, Cap 113. Section 203 of the Act provides two methods of liquidation, namely:
- a compulsory liquidation by the court; and
- a voluntary liquidation, either by the company itself or by its creditors.
Compulsory Liquidation by the Court
A petition so as to demand the winding up of the Company may be filed by the company itself, by any contributor(s), by the Official Receiver or by any creditor(s). As set out by s.211 Companies Law, Cap 113, a Company may be compulsorily wounded up by the Court in any of the following situations:
- the Company has resolved by means of a special resolution that it should be wound up by the Court;
- default is made in delivering the statutory report to the Registrar of Companies or in holding the statutory meeting;
- the company does not commence its business within a year from its incorporation or suspends its business for a whole year;
- the number of members, in the case of a private Company, is reduced below one, or, in the case of any other Company, below seven;
- the Company is unable to pay its debts;
- the Court is of the opinion that it is just and equitable that the Company should be wound up.
For these purposes, a Company is considered unable to pay its debts when the Company is indebted with a sum total exceeding €5000, the concerned creditor has served the Company with a written notice demanding payment of the incurred debt due and the Company failed to pay the sum due within three (3) weeks from the date the written notice was served; when a judgment was executed against the Company’s property but the execution failed to settle the debt; or, when the Court is satisfied that the Company is unable to pay its debts. (s.212 Companies Law, Cap 113)
If a winding up order is made, a liquidator will be appointed by the Court to whom the administration and control of the Company as well as its property will pass. In turn, the liquidator, subject to the powers granted to him by virtue of s.233 of the Companies Law, Cap 113, will have to secure that the assets of the Company are distributed to all its creditors and to ensure that any remaining surplus is distributed to any person entitled to it. When the liquidation of the Company’s assets is fulfilled and every matter is settled, a petition for the final wind up of the Company is filed by the liquidator to the Court which, at its absolute discretion, will issue an order for its final dissolution. (s.260 Companies Law, Cap 113)
Voluntary winding up is initiated provided the members pass a resolution.
Inasmuch, upon concluding and mutually agreeing that it would be in their best interests to cease the existence of the Company, its directors convene a General Meeting with the purpose of passing a resolution so as to place the Company into voluntary liquidation. The Company may vote for liquidation by an ordinary resolution provided its Articles of Association encompass a fixed period as regards the Company’s lifetime or specify that it may be wound up in a certain event. Alternatively, a special or an extraordinary resolution is required for the Company’s voluntary liquidation, clarifying that it is impossible to continue conducting its business due to its liabilities or debts. (s.261 Companies Law, Cap 113)
The insolvency procedure begins on the day the resolution is approved. (s.263 Companies Law, Cap 113) In relation to the appointment of the liquidator, voluntary liquidation is subcategorized as follows:
Members Voluntary Liquidation: The members of the Company appoint the liquidator and the creditors have no say in his appointment. Such voluntary liquidation commences if the Company is able to settle all its incurred debts within a year and provided that the directors covenant by way of declaration to that effect before the passing of the resolution. ()
Creditors Voluntary Liquidation:The appointment of a liquidator lies with the discretion of the creditors who hold a meeting on the same day, or on the next, as the meeting at which the resolution to liquidate was passed. Inasmuch, the creditors may accept the liquidator appointed by the members or appoint someone else. ()
The appointed liquidator by virtue of Section 286(1)(a) has inasmuch the same powers as those given to a liquidator in a compulsory insolvency defined herein above.
The direct consequence of a voluntary liquidation is that, thereafter, the Company may not conduct any business except for the purposes of a beneficial liquidation. (s.264 Companies Law, Cap 113)
Examinership: The recent amendments to the Companies Law Cap. 113 introduced the concept of examinership which is in essence a rescue process. This procedure is intended to rescue and revive possibly viable companies having always in mind the creditors and their rights as a whole . Simultaneously, it endeavours to escape or eject , where feasible, receivership and winding up (s.202 Companies Law, Cap 113).
9. Taxtion of limited liability companies
9.1. What is the current corporate rate of tax to which limited liability companies are subject to on their corporate profits?
Where a company is Cyprus tax resident, tax is imposed on income accruing or arising both from sources in and outside of Cyprus. Where a company is not Cyprus tax resident, tax is imposed on income accruing or arising only from sources within Cyprus. A company is considered to be tax resident in Cyprus if it is managed and controlled in Cyprus. The corporate tax rate is 12,50%. In accordance to the recent amendments to the Tax Laws of the Republic of Cyprus, new equity used by a Cyprus Company or a permanent establishment in the Republic of Cyprus for carrying out its activities will allow a notional interest reduction in the effective corporate tax rate as from 1st of January 2015, thus encouraging new investment and fresh funding. Notional interest will be calculated based on the effective interest earned on the 10 year government bonds of the country plus 3% with the minimum rate being the equivalent 10 year bond yield of Cyprus plus 3%. The notional interest deduction cannot however exceed the 80% of the taxable income of the company for the year before the deduction.
9.2. What are the tax implications on the distribution of dividends from the limited liability company to its shareholders?
There is no any corporation tax on the distribution of dividends by a Cyprus Company to its shareholders. Dividends are only subject to Special defence contribution at the rate of 17% for 2015 but this is applicable only to shareholders that are physical persons and are Cyprus tax residents. There is no special defence contribution on the payment of dividends to shareholders that are Cyprus tax resident companies. Moreover there is no special defence contribution on the payment of dividends by a Cyprus company to non Cyprus tax residents shareholders.
A company that is Cyprus tax resident is deemed to have distributed 70% of its profits after taxation in the form of dividends at the end of the two years from the end of the tax year in which the profits relate and must account for 17% defence contribution thereon. This provision is applicable to Cyprus Companies that have Cyprus tax resident shareholders.
9.3. Are there any fiscal incentives applicable in Cyprus?
Any gains arising from the disposal of securities are exempted from corporation tax. Dividend income received by a Cyprus company is exempted from corporation tax. However dividend income might be subject to special defence tax. Dividend income will be subject to special defence tax only if the non-resident company paying the dividend engages directly or indirectly more than 50% in activities leading to investment income; and the foreign tax burden on the income of the dividend paying company is substantially lower than the tax burden of the Cyprus tax resident company or the non-resident company which has a permanent establishment in the Republic. Both of the above need to be satisfied in order for dividend income to be subject to Special Defence Contribution. Profits from a permanent establishment maintained outside the Republic are exempted from corporation tax. Significant deductions of expenses subject to certain non-deductible expenses. Generally all expenses that have been incurred wholly and exclusively for the production of income are deductible. Advantageous capital allowances. Profits from the exploitation and/or disposal of intellectual property rights are 80% exempted. Wide and exceptionally beneficial Double Tax Treaty Network. Shipping profits are exempt from corporate taxation in accordance with the provisions of the Merchant Shipping (Fees and Taxing Provisions) Law and are subject to a beneficial tonnage tax regime. 80% exemption of the net royalty income from owned intangible assets as well as 80% of the net profit emanating from the disposal of intangible assets. Mergers, Takeovers and other Re-Organizations can take place within groups without tax consequences. Tax losses are carried forward indefinitely and can also be surrendered as group relief. No Capital gains tax will be imposed on the sale of immovable property until the 31st of December 2016. It is a prerequisite in order to qualify for the exemption that the said property was acquired after the publishing of the new Capital Gains Law in the Official Gazette, namely 16th of July 2015. Capital Gains Tax will not apply to a Cyprus company disposing of shares of another Cyprus company which owns immovable property to which it is a shareholder. For the exemption to apply the immovable property owned must not exceed 50% of the value of the shares being disposed. Transfer fees on immovable property are reduced by 50% until the 31st of December 2016as from the 16th of July 2015. New equity used by a Cyprus Company or a permanent establishment in the Republic of Cyprus for carrying out its activities will allow a notional interest reduction in the effective corporate tax rate as from 1st of January 2015.
9.4. What tax considerations must a foreign potential investor take into consideration before setting up a business in Cyprus?
A potential investor should considered the types of the transactions that will engage, the double tax treaties in place, the tax treatment of potential transactions as well as VAT regulations.
9.5. How many double taxation agreements have been signed by Cyprus ? Pleasemention other DTAs which are in progress. Does Cyprus offer other forms of relief from double taxation should a limited liability company incur tax in a foreign country with which Cyprus does not have a treaty for the avoidance of double taxation? Briefly provide some detail of such unilateral measures.
Currently Cyprus has the following Double tax treaties:
Armenia, Austri, Belarus, Belgium, Bulgaria, Canad,China, Czech Republic, Denmark, Egypt, Estonia, Finland, France, Germany, Greece, Hungary, India, Ireland, Iran, Italy, Kuwait, Kyrgyzstan, Lebanon, Malta, Mauritius, Moldova, Montenegro, Norway, Poland, Portugal, Qatar, Romania, Russia, San Marino, Serbia, Seychelles, Singapore, Slovakia, Slovenia, South Africa, Spain, Sweden, Syria, Tajikistan, Thailand, Ukraine, United Arab Emirates, United Kingdom, USA, Uzbekistan
For countries that Cyprus does not have any double tax treaty there is no any WHT on dividends, interest and royalties (certain rules for royalties).
Any tax suffered abroad on income subject to income tax will be credited against any income tax payable on such income irrespective of the existence of a double tax treaty.
9.6. Please provide details of any deductions allowed for tax purposes including any legal requirements which must be satisfied for such deductions to be allowed in Cyprus.
- Any gains arising from the disposal of securities are exempted from corporation tax.
- Dividend income received by a Cyprus company is exempted from corporation tax. However dividend income might be subject to special defence tax. Dividend income will be subject to special defence tax only if the non-resident company paying the dividend engages directly or indirectly more than 50% in activities leading to investment income; and the foreign tax burden on the income of the dividend paying company is substantially lower than the tax burden of the Cyprus tax resident company or the non-resident company which has a permanent establishment in the Republic. Both of the above need to be satisfied in order for dividend income to be subject to Special Defence Contribution.
- Profits from a permanent establishment maintained outside the Republic are exempted from corporation tax.
- Significant deductions of expenses subject to certain non-deductible expenses. Generally all expenses that have been incurred wholly and exclusively for the production of income are deductible.
- Advantageous capital allowances.
- Profits from the exploitation and/or disposal of intellectual property rights are 80% exempted.
10. Annual Financial Statements
10.1. What is the annual financial statement?
Companies registered in Cyprus have obligations imposed on them amongst others by the Companies Law and the Income Tax Laws irrespective of whether a company is active or dormant. Section 142 (1) (a) of the Law provides that the directors of a company shall cause in every year to be prepared financial statements on the basis of International Accounting Standards.
10.2. Which company is required to prepare and file the annual financial statement?
Section 152A of the Income Tax Law provides that every company which is not a small size company must have its financial statements prepared by a Cyprus registered auditor. The term “small sized company” means a company that fulfills simultaneously at least two of the following three criteria during the whole financial year:
A company which initially fulfills the above criteria is classed as a “small sized company” but will loose this status if it exceeds the above criteria during two consecutive financial years.
10.3. Which company is required to have an audit of its annual accounts?
The following companies must submit their annual accounts to be audited by qualified auditors duly registered with the appropriate professional body in Cyprus authorised by the Cyprus Government:
- Public Companies .
- Any Company which is obliged to prepare consolidated accounts.
- Any company which is not considered to be a small company .
A small company is considered to be one which, at least two of the below following items do not exceed the following values:
- Net assets in balance sheet approximately €3.4m
- Turnover per year approximately €7m
- Average number of employees is 50 persons.
If any company exceeds two of the above values then it is not deemed to be a small company.
10.4. When is the deadline for preparation and filing of the annual account?
The deadline for preparation and filing of the annual account are due to the Registrar of Companies, along with a company’s annual report, by December 31 following the fiscal year being audited.
The first financial statements/annual tax returns must be presented, the latest, within 18 months from the registration of the company and thereafter once a year. The following rules as to time limits apply:-
Filing of these financial statements and tax returns with the Cyprus authorities has to take place by the 31st December of the following year. For example, a company registered on 1.5.2007 has to prepare financial statements and tax returns for the period 1.5.2007 until 31.12.2007 and file them by 31.12.2008.
However, companies falling under category (2) above may elect to follow the provisions of the above time limits specified in category (1) above and file their first financial statements and annual tax return for the first year of their incorporation.
10.5. How does the company file the annual financial statement?
A Cyprus company has the following two statutory obligations with respect to the audit of its financial statements:
- A company must submit its audited financial statements to the Registrar of Companies. These financial statements must be prepared on an annual basis, except for the first financial statements of a company which can cover a period of up to eighteen months from the date of the company’s incorporation. In the case a company has subsidiaries and it has no exception from consolidation either from the International Financial Reporting Standards or from the Cyprus Companies Law, Cap. 113, Section 142, then it is required to file with Registrar of Companies its consolidated financial statements.
- A company must submit its Annual Tax Return to the Inland Revenue authorities on a calendar year. Annual Tax Returns must be supported by the audited separate (non-consolidated) financial statements of the company.
In the case of a company without subsidiaries or of a company with subsidiaries that falls within the non-consolidation criteria, a single audited set of financial statements will suffice for both statutory obligations. However, where consolidation is required, then a company should prepare a set of consolidated financial statements for the purposes of the Registrar of Companies and a set of separate (non-consolidated) financial statements for the purposes of Inland Revenue. The financial statements for both the above statutory purposes should be prepared in accordance with International Financial Reporting Standards as adopted by the European Union and in accordance with the requirements of the “Cyprus Companies Law, Cap. 113.
10.6.What is the penalty for non-compliance?
1. With reference to the provisions of sections 118 -122 of the Companies Law Cyprus Companies and their directors are subject to “THE PENALTY OF OMISSION”, having the meaning given to it by section 375 of the Company Law.
According to section 375 of the Company Law “THE PENALTY OF OMISSION” shall be calculated for every day for which the omission, refusal or violation is continued. It shall not exceed the amount defined by the specific provision of the relevant law or if it is not prescribed in any law it should not exceed the penalty of 42.72 euro per day.
2. With regard to the provisions of section 142 of the Companies Law, referring to the PREPARATION OF ANNUAL FINANCIAL STATEMENTS, failure to produce such financial statements constitutes a criminal offence and directors of the Company may be found to be criminally liable with a fine of up to €17,000 and/or up to one year’s imprisonment (s.151(3)(b)).
3. As regards the provisions of section 150 of the Companies Law, with reference to the PUBLICATION OF FINANCIAL STATEMENTS, failure to publish and/or issue such financial statements constitutes a criminal offence and in case of conviction the director of the Company is liable to a fine not exceeding 850 euro.
4. With provisions of section 151 of the Company Law, regarding REQUIREMENTS OF PREPARATION OF REPORT OF THE DIRECTORS, which is enclosed to financial statements, commit criminal offence and in case of conviction is liable to imprisonment not exceeding one year or to a fine not exceeding 17000 euro or to both of these sentences.
5. Directors are under the obligation to produce a management report, which is annexed to the financial accounts, on the state of the company’s affairs and any developments of the company in accordance with the minimum requirements set out in the Comapnie Law(s.151(1)(a)).Officers of the company (including directors) are liable to fines (€855 - €8,550) for a failure to furnish the annual accounts and the annexed report on request (by a person entitled to make such a request as set out in s.152 of the Companies Law).
DEFENCE: Where the director can prove that he had reasonable grounds to believe, and did believe, that a competent and reliable person was charged with the duty of ensuring that the requirements in relation to the keeping of books of account were met, then this shall be a defence.