Corporate structure options
Four main avenues are open to overseas entities wishing to set up a business in New Zealand. They are to:
- register a branch
- form a subsidiary company
- merge with or take over an existing New Zealand company, or
- enter a limited partnership.
Registering a branch
An overseas company wishing to register a branch in New Zealand must reserve its name with the Registrar of Companies and file a registration application within 10 working days from the start of business. The application must include:
- the names and current residential addresses of the directors of the overseas company
- the address of the overseas company’s main place of business in New Zealand
- evidence of the overseas company’s incorporation and a copy of the instrument constituting or defining its constitution (in English), and
- the name and address of at least one person in New Zealand who is authorised to accept service of documents on the company’s behalf.
Australian companies wishing to register a branch in New Zealand benefit from an information sharing arrangement between the Companies Office and ASIC. Registration is cheaper (if done online) than for companies from other countries, and you are only required to provide in your application the company’s ACN (Australian Company Number), together with the following New Zealand-specific details:
- an active email address
- the name reserved for the company with the Companies Office (this must be identical to the company’s name as it is registered with ASIC)
- physical addresses of the company’s principal place of business in New Zealand and person(s) authorised to accept service in New Zealand, and
- an address (postal or physical) for communications (with the Registrar).
Australian overseas companies also benefit on an ongoing basis from reduced compliance requirements. For example, they need only file a simplified annual return, with ASIC supplying the Companies Office on request with the relevant information filed by the company in Australia.
Forming and registering a subsidiary company
A subsidiary company incorporated in New Zealand must have at least one shareholder and one director (who may be the same person). Non-resident shareholders and directors are permitted. Generally, any legal entity may be a shareholder, but only individuals may be appointed directors. There is no statutory requirement to appoint a company secretary.
There is no restriction on the size of a company’s share capital. Companies (other than cooperatives) are not permitted to have a par or nominal value attached to their shares. Instead, company directors are required to determine the consideration for the issue of shares, and to resolve (and, if they vote in favour of the issue, certify) that the consideration and terms of issue are fair and reasonable (in their opinion) to the company and all existing shareholders. It is not necessary for the issue price to be fully paid, although shareholders are liable to creditors (and liquidators) to the extent of any amounts unpaid on their shares.
As with a branch, the first step to register a subsidiary is to apply to reserve the proposed subsidiary’s name. Once the name has been approved and reserved with the Registrar, the following incorporation documents must be filed:
- consent to act as a director and a certificate that he or she is not disqualified from acting (for each director)
- consent of the shareholder (for each shareholder)
- the notice reserving the company’s name, and
- a copy of the constitution, if the company is to have one.
Applications to the Registrar must also include:
- the name and residential address of each director
- similar details for the proposed shareholders, and the number of shares to be issued respectively to them, and
- details of the registered office and address for service of documents, both of which must be in New Zealand.
Most company filings are completed on-line.
A branch or a subsidiary?
The decision whether to establish a branch office or a subsidiary company will be influenced by legal, tax and commercial considerations. The following issues may be relevant:
A New Zealand branch of an overseas company must file two separate sets of audited financial statements, one for its worldwide operations and one for its New Zealand business. A subsidiary is required to file audited financial statements relating to its New Zealand business only. Every company must file an annual return at the Companies Office.
Filing of documents
Any changes to incorporation or branch documents must be notified to the Registrar within stipulated time frames, which can be as short as 10 working days. This requirement may prove more cumbersome for a branch than for a subsidiary as subsidiaries can file all documents except financial statements online whereas branches must file physical copies of all documents.
A New Zealand branch (being legally the overseas company), bears directly any liabilities that it may incur under New Zealand law. There is no sheltering of liability behind a different legal persona. Establishing a special purpose company as the branch may help ring-fence this liability. In practice, however, limited liability may be illusory as, unless the subsidiary is of substance in its own right, any significant commercial dealings may need to be guaranteed by the overseas parent.
A New Zealand branch of an overseas company will generally be considered non-resident for taxation purposes. If an overseas company incorporates a subsidiary in New Zealand, that subsidiary is a New Zealand tax resident. Please refer to the Taxation chapter for more information on the New Zealand tax environment.
As at October 2010, the filing fees to reserve a company name are NZ$10.22, and to register an overseas company, NZ$255.55 (or NZ$153.33 online).
More information is available at: www.business.govt.nz/companies/help-support/fees/companies-from-1-october-2010
Merger or takeover proposal?
A company considering merging with or buying a New Zealand company must be aware of the restrictions on business acquisitions contained in the Commerce Act 1986. Please refer to the Regulations affecting business chapter for an outline of the key restrictions.
If the New Zealand company is listed on the New Zealand Stock Exchange or, if not listed, has more than 50 shareholders, the Takeovers Code is likely to apply. Specific advice on the implications of the Code should be sought.
Forming a limited partnership
From an investor’s perspective, a limited partnership provides the limited liability protection of a company and some of the flow through tax and confidentiality advantages of a partnership. The New Zealand limited partnership model is broadly comparable to limited partnerships in other jurisdictions, including Delaware, Australian states and the Channel Islands. The following issues may be relevant in deciding whether to establish a limited partnership:
Although the identity of the limited partners must be registered with the Registrar, that information is not publicly disclosed. Every limited partnership must have a limited partnership agreement. Unlike a company’s constitution, however, this agreement is not registered with the Registrar and is not made public.
Like a company, a limited partnership is a separate legal entity from its investors; which separation helps to protect those investors from losses and claims arising from the business activities of the limited partnership. Limited partners are passive investors and their liability is typically limited to the capital they agree to contribute, provided they do not take part in the management of the limited partnership. The general partner manages the business and is responsible for the debts and obligations of the limited partnership if the limited partnership itself cannot meet them. A general partner may be a company.
Limited partnerships are treated as fiscally transparent for New Zealand tax purposes, notwithstanding their separate legal identity. The limited partners are treated as holding the assets of the limited partnership, and personally derive the income and deductions. This presents a number of tax advantages, such as the ability to distribute capital gains tax free to the limited partners and the pass through of tax losses (although the losses claimable by a limited partner are effectively capped at the amount of that limited partner’s economic exposure to those losses), use of a limited partnership can involve additional tax issues in some circumstances, such as where partnership interests are traded or where non residents are involved, although these can usually be resolved.
There is no restriction on the potential business activities of a limited partnership. Although a limited partnership is a creation of statute, in comparison with a company, the limited partnership is much less regulated.
While a limited partnership is required to prepare accounts (and keep them at its registered office), generally they are not required to file those accounts with the Registrar and therefore the accounts are not made public.
The filing fees for establishing a limited partnership electronically are NZ$276 as at July 2011.
Filing of documents
The Registrar must be notified within 10 days of any changes to the details lodged on initial registration.