Swiss Company Formation
In Switzerland, the Civil Code governs business entities. As in all civil law jurisdictions, formation and administration of companies tends to be considerably more bureaucratic than in common law jurisdictions. Although the Civil Code is at Federal Level, businesses are domiciled in a particular canton. Each canton maintains a Commercial Register which contains particulars of the subscribers, directors capital structure etc. The Register is a public document.
The form of company normally used by foreigners is the Stock Corporation and its variants. Other corporate vehicles are the Limited Liability Company (Societe a Responsabilite Limite), and the Limited Partnership (Societe en Commandite)
The Stock Corporation
The Stock Corporation ("Societe Anonyme" or "Aktiengesellschaft") is the form most often used by foreign investors and its more important features are as follows:
- The minimum number of subscribers is 3
- Nominee shareholders and nominee subscribers are permitted
- The minimum authorized share capital is 100,000 Swiss Francs of which either 20% or 50,000 Swiss Francs (whichever is the greater) must be paid up by way of a deposit of funds in a bank account; the bank will not relinquish control over these funds until the company registration certificate has been issued
- Share capital cannot be increased by more than 50% of the authorized capital at any one time
- Shares can be ordinary shares, preference shares, voting shares or non voting shares and can be issued at a premium; bearer shares are permitted
- A majority of directors must be Swiss nationals and must be domiciled in the country
- All directors must be shareholders whether they are the beneficial owners of those shares or hold as nominees (the holding of one share as a nominee is sufficient to meet this requirement)
- The company must have an auditor and a registered office
- A person whose name appears in the articles of association signs on behalf of the company
The Holding Company
The 'Holding' Company is a Stock Corporation with a particular tax status. Holding companies benefit from reductions in corporate income tax and capital gains tax at federal and cantonal levels, and from a reduction in net worth tax at cantonal level.
The Swiss holding company was a particular target of the OECD's 'unfair tax competition' initiative, and in 2004 an agreement was reached between Switzerland and the OECD whereby information about holding companies would be shared by Switzerland in circumstances where there was prima facie evidence of fraud.
For federal tax purposes a company is defined as a holding company if it holds either a minimum of 20% of the share capital of another corporate entity or if the value of its shareholding in the other corporate entity has a market value of at least 2m Swiss Francs (known as a "participating shareholding"). The reduction in the level of corporate income payable tax depends on the ratio of earnings from "participating shareholding" to total profit generated.
Although the definition of a holding company varies among cantons, broadly speaking a corporate entity is a holding company for cantonal corporate income tax purposes so long as it either:
- Derives 51%-66% of its income from dividends remitted by the subsidiary; or
- Holds 51%-66% of the subsidiary's shares
The Domiciliary Company
Domiciliary Companies are Stock Corporations that are both foreign-controlled and managed from abroad, have a registered office, but neither a physical presence nor staff in Switzerland They must carry out most if not all of their business abroad and receive only foreign source income. The use of domiciliary companies can result in savings in corporate income tax levied on income and capital gains and net worth tax.
The Auxiliary Company
An Auxiliary Company is essentially a Domiciliary Company, which in addition may carry out a certain proportion of its business in Switzerland. Auxiliary Companies are possible in only seven cantons, and do not benefit at federal level. Treatment varies according to canton, but in most cases an auxiliary company may have Swiss offices and staff and be in receipt of Swiss income (which is taxed at normal rates). Most income though must be from a foreign source.
The Service Company
Service Companies are Stock Corporations whose sole activity is the provision of technical, management, marketing, publicity, and financial and administrative assistance to foreign companies, which are part of a group of which the service company is a member. Service companies may not in general derive income from third parties (i.e. companies outside their corporate group). Service company status is obtained by way of an advance cantonal tax ruling (there is no benefit at federal level).
The Mixed Company
Mixed Companies are Stock Corporations which have the characteristics of both domiciliary companies and holding companies but which do not qualify as either. There is no benefit at federal level, but at cantonal and municipal level there are corporate income tax benefits if the mixed company meets the following conditions:
- The company is foreign controlled
- A minimum of 80% of its total income comes from foreign sources
- The company has close relationships to foreign entities
To contact us for more specific information about your company, call +353 1 431 9663 or look at our corporate website www.chesterfield-offshore.com.
