For a small or medium-sized company based in a high-tax area and without an extensive network of senior (and expensive) advisers, it is not easy to know how to approach the idea of offshore e-commerce. Just the idea of e-commerce itself is sufficiently challenging at first, if a company has previously relied on traditional business methods, and it could seem too extreme to take on board the complexities of a move offshore at the same time.
Ignoring the possibility of offshore e-commerce could, however, be very short-sighted…
Can the owners make use of tax benefits?
The first, crucial point to take on board is that there is no point in considering offshore e-commerce unless a company (meaning, its owners) are going to be able to take advantage of low taxation. Many offshore jurisdictions make much out of other factors, ranging from the climate to their international connectivity (good phone lines), but the truth is that for all except certain very specific types of business it would be next to impossible to justify a move offshore in economic terms if it were not for the tax benefits.
The second, equally crucial point is that once a company’s owners accept in principle the idea that it is worth being flexible in order to achieve tax benefits, then there is hardly a company on earth that can’t benefit from offshore e-commerce. ‘Being flexible’ might mean a whole range of things, including a change of residence, corporate restructuring or redesigning product ranges.
Choosing what to send offshore
Having accepted in principle that there might be, probably will be, some ‘hassle’ involved in going offshore, the next step is to determine which parts of a company’s operations could be offshore without disadvantaging the business overall. Actually the question is the other way around: which parts of the business absolutely must stay onshore? It’s obviously impossible to give a generic answer to that question, since so much will depend on the nature of each business in particular, but some generalizations are possible.
For instance, the delivery of physical goods has to take place onshore – but it can be outsourced, and is nowadays better outsourced in many cases, even for an onshore business. The marketing of goods which require physical contact with the customer has to stay near the customer – except that increasingly sophisticated software is allowing ‘virtual’ on-line experiences to take over ever-greater parts of the sales process. And so on: there is plenty of information available in the press and in specialist periodicals to allow the owner of a business (whether that be another company or an individual) to make the judgments about the ‘transportability’ of a business or its components.
Going offshore is not trouble-free
So it is not likely to be the nature of the business that stops it going offshore, although there will be questions of timing and practicality in human terms. That leaves the tax position of the owner(s) as the crucial factor in determining whether a business can move, and the starting point here is that the owner(s) of an onshore business, if they are themselves onshore, will have to make some fairly major changes if the tax benefits of offshore e-commerce are to be achieved. This is because the combination of Controlled Foreign Corporation (CFC) laws with generalized anti-avoidance legislation ‘sees through’ any simple structure that attempts to distance onshore owner from offshore business. There are few, if any, high-tax countries that haven’t already put these types of legislation in place.
Ensuring a tax-efficient result
This is another point at which it is difficult to generalize. There really are a lot of different ways in which the fiscal separation of owner and business can be achieved, and professional advice is unavoidable, to take account of the circumstances of all concerned. However, again, it is possible to make a few generalizations:
* if the owner (whether company or individual) is going to remain onshore, then ownership will have to be divided among distinct entities or individuals in order to get below the CFC barrier; and there may still remain a problem with anti-avoidance legislation in some circumstances;
* if possible, it will be best for most or all ownership to be held in offshore hands; and finally,
* if possible, it will be best for a new business to be started so that capital gains tax problems don’t arise on the transfer of the business out of the high-tax jurisdiction.
These ‘rules’ impose some fairly rough and difficult changes for most people, and a judgment has to be made as to whether the game is worth the candle. No gain without pain!
Having decided that the gain is worth the pain, the owner(s) can now move forward to start active planning. At this stage, a competent professional adviser becomes an absolute necessity. In parallel with that, it is also necessary to plan the e-commerce or e-business commercial structure; here it is less improbable that there will be an expert within the company, but it is still unlikely, and very likely an outside e-commerce adviser, probably from one of the specialized e-commerce consultancies, should be found.
Who should consider moving their e-business offshore:
The first question that will appear in your mind, is whether or not you should move your business offshore.
Most businesses can benefit by moving all or a portion of their business to a tax free jurisdiction. Of course moving only a portion of the business will still require opening a new International Company to collect profits from the business.
Companies that do not have any physical assets in a high tax country would benefit the most. A perfect example of that would be a web site that makes profit from downloadable or accessible online material, such as software downloads, video/music downloads, e-cards, online gambling, etc…
Many companies that are involved in drop shipping of products also move offshore as they also do not have any physical assets.
The rule of thumb in this case is called “permanent establishment”. It is a definition formed by the OECD (Organization for Economic Co-operation and Development) and it is the main instrument to establish taxing jurisdiction over a foreigner’s unincorporated business activities. Permanent Establishment means a fixed place of business through which the business of an enterprise is wholly or partly carried on. In the terms of e-commerce, the geographical location of the web site on a server does not make it a permanent establishment, but what does is the location of owning corporation, bank account, and in most cases the location of the payment processing third party.
An example is a company that manufactures t-shirts in the US and then sells them online. The best way to maximize the profit is to establish two separate companies, the permanent establishment for the manufacturing company would be United States, but the online e-tailer could be registered in a tax free zone such as Turks and Caicos Islands. The international company would buy t-shirts from the US manufacturer and sell them over the world with no taxation of income.
Here is a short list of companies that would be perfect candidates for moving or starting in a tax free jurisdiction:
Online pharmacies (terms and conditions apply)
Stored value and pre-paid card online funding solutions
VoIP/telecom and pre-paid phone card providers
IATA and ABTA travel related services
Direct online hotel and car reservation sites
Companies selling licensed software products
Digital content providers
Online retailers of mainstream goods
Property listing and advertising companies
Marketing, corporate service providers and tax consultancies
Companies operating in the publishing and educational fields
Health/herbal supplement providers
CDs, DVDs and electronic games companies
Global charities with an online presence
Mainstream dating companies
Ticketing and event management companies
Online Gambling and Lottery
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