Cyprus law allows for the redomiciliation of companies, through the transfer of their registered offices both into and out of Cyprus without creation of a new entity and without the need to dissolve. This is a valuable tool for companies wishing to change their jurisdiction of incorporation, while maintaining the same legal identity.
A key motive for foreign companies wishing to transfer their registered office to Cyprus is the attractive Cypriot tax regime.
Some of the tax advantages offered by the Cyprus regime include:
- 12.5% corporate tax rate;
- Broad network of double tax treaties;
- Unilateral tax credit on any tax paid abroad on the same income, irrespective of the existence of a double tax treaty;
- Profit from sale of shares and titles is exempt from taxation;
- No capital gains tax other than on the disposal of immovable property situated in Cyprus or shares representing immovable property based in Cyprus;
- Payment of dividends and interest to non-Cyprus tax residents are exempted from withholding tax;
- Notional interest deduction on new capital introduced as from 1 January 2015 in the form of paid up share capital or share premium of a Cyprus company is eligible for an annual notional interest deduction which is calculated as a percentage of interest on the new equity;
- Transfers of assets and liabilities between companies can be effected without tax consequences within the framework of a reorganization (mergers and demergers, divisions, exchange of shares).
In order to effect the transfer of the registered office of a foreign company to the Republic of Cyprus certain preliminary matters must be considered:
- The laws of the foreign company must allow the foreign company to re-domicile and continue to exist as a company registered in Cyprus;
- The documents of incorporation of the foreign company (articles or memorandum of association) must contain a provision (“Continuation” provision) that will allow the foreign company to exist under the legal regime of another jurisdiction or allow the incorporation documents to be amended to include this provision;
- If the foreign company carries out a licensed activity in the foreign jurisdiction, it will need to produce evidence of the license and also satisfy local licensing criteria (if any) for the relevant activity in Cyprus;
- Cyprus law does not recognise bearer shares; therefore, the authorised share capital of the foreign company after its transfer-in to Cyprus will have to be registered shares; and
- If the existing name of the foreign company does not include the word “Limited” at the end then it is not possible to continue in Cyprus under the same name. Therefore, possible names will need to be chosen with which the foreign company will be able to continue to exist once re-domiciled to Cyprus. An application will be made in advance to the Cyprus Registrar of Companies (the “Registrar”) to obtain approval of proposed names. The approval is valid for 6 months from issue.
An application must be submitted by the foreign company to the Registrar together with a number of documents in relation to the foreign company and a sworn affidavit by the director of the foreign company, as required by the Law.
Once the Registrar is satisfied that the application (along with the required documents) complies with the provisions of the Law, then the Registrar will provisionally register the company as a company continuing in Cyprus and the Registrar will issue a temporary certificate of continuation (the “Temporary Certificate of Continuation”). From the date appearing on the Temporary Certificate of Continuation, which will be the date of registration of the foreign company as a Cypriot company, the foreign company will be considered a legal person incorporated in Cyprus, will be provisionally registered and subject to all obligations under the Law and will be capable of exercising all the powers of a company incorporated in Cyprus.
Following the issue of the Temporary Certificate of Continuation the foreign authorities will have a period of 6 months to submit proof to the Registrar that the company has been de-registered from the foreign jurisdiction (the “De-Registration Certificate”).
The De-Registration Certificate is filed with the Registrar and the company is issued with a permanent certificate of continuation from the Registrar. This certificate confirms that the company has been registered as a company continuing in Cyprus.
If the company does not procure such proof of deregistration within the six month period referred to above, then the Registrar may (i) delete the name of the company from the register and inform the jurisdiction of incorporation that the company has not been registered in Cyprus; or (ii) if there is a reasonable cause for the delay, extend the period for submission of proof of deregistration by a final three month period, after which no further extensions are granted and deletion and notification ensue.
In order to effect the transfer of the registered office of a Cypriot company out of the Republic of Cyprus, certain preliminary matters must be considered:
- The articles or memorandum of association of the Cypriot company (“M&AA”) must contain a provision that will allow the Cypriot company to transfer and exist under the legal regime of another jurisdiction. If there is no such provision then the M&AA must be amended to include such provision;
- The laws of the foreign jurisdiction that the Cypriot company wishes to relocate to must also allow for the Cypriot company to re-domicile and continue to exist as a company registered in that jurisdiction;
- The availability of the name that the Cypriot company proposes to use upon continuation in the foreign jurisdiction must be checked with the relevant authority of that jurisdiction;
- If the Cypriot company carries out any activity within or from the Republic of Cyprus that requires a licence from any competent authority, the Cypriot Company must provide proof of consent by the competent authority for the transfer out.
- The Cypriot company must be up to date with the submission of the annual returns to the Registrar and must ensure that all annual fees and other sums payable under the Companies Law Cap 113, have been paid;
- The Cypriot company will need to obtain and submit tax, VAT and social insurance clearance certificates to the Registrar along with the application;
- A notice stating the facts of the special resolution of the Cypriot company approving the redomiciliation must be published in two daily newspapers of wide circulation in Cyprus as soon as the special resolution is signed (the “Publications”) and a copy of such publications must be submitted to the Registrar within 14 days from the date of the publications; and
- The Registrar will not grant its consent to the redomiciliation until a three month period, starting from the date of the Publications, has elapsed. During this three month period any creditor of the Cypriot company may file an objection to the redomicliation of the Cypriot company out of Cyprus.
An application (ME 2 form) must be completed, signed and submitted on behalf of the Cypriot company to the Registrar together with a number of documents as required by Law in order to obtain the consent of the Registrar for the transfer out.
Once the Registrar has reviewed the application and is satisfied with the same and provided that:
- the three month waiting period has expired;
- no creditor has objected to the transfer out; and
- all the duties/fees/annual returns of the Cypriot company have been paid/submitted (as appropriate)
the Registrar will consent to the continuation of the Company outside of Cyprus and will issue a certificate of consent.
Thereafter, and upon any required submission of documents to the relevant authority in the foreign jurisdiction that the Cypriot company proposes to transfer to (the “Foreign Authority”), a provisional certificate of continuation/document of continuation will be issued by the Foreign Authority (the “Certificate of Continuation”).
The Certificate of Continuation will then need to be submitted to the Registrar in Cyprus in order to remove the Cypriot company from the register of companies in Cyprus and the Registrar will proceed to issue a certificate of striking off (the “Striking Off Certificate”). Upon this action, the Cypriot company ceases to exist in Cyprus.
The final action in Cyprus is the delivery of the Striking Off Certificate to the Foreign Authority where the final steps for the transfer out are put into place.