Where to set up an Intellectual Property Holding Company
Utilizing an intellectual property holding company is one of the most common legal tax avoidance strategies out there. However recent measures by the OECD and EU have dramatically changed this landscape. We’ve stayed on top of these changes to empower you to explore and evaluate where to set up (or move) your IP holding company.
In our previous article, we reviewed some aspects to consider when protecting, exploiting and structuring intellectual property assets. We covered how important it is to register your intellectual property when possible, best-practices for intellectual property that can’t be registered, as well as some potential ways to exploit your IP, and structure the IP holding in order to obtain certain benefits related to tax, asset protection, and financing.
If you haven’t had the chance to read it, you can do so here.
Today, we will review a number of jurisdictions that may be suitable for establishing your holding company. When it comes to the attractiveness of a given jurisdiction to establish an IP business, one should consider several aspects such as commercial rationale, political and economic stability, IP protection laws in line with international standards, legal security and rule of law, membership in international IP treaties, skilled labour-force, and last but not least, the availability of favourable tax regimes, among others.
From a legal standpoint, registrable IP protection is attained in each of the jurisdictions where the IP is registered. There are a number of international treaties which may provide a unified filing procedure in multiple jurisdictions, such as the Patent Cooperation Treaty (PCT), or the Madrid System on Trademarks, as discussed in our previous article.
However, some of these ‘international registrations’ may require a business presence in the jurisdiction. For instance, the PCT and the Madrid System require the applicant to be a resident or citizen or non-resident, with a real and effective commercial or industrial establishment in the country – where the definition is largely delegated to each contracting state.
From a tax standpoint, IP boxes are being modified to comply with the OECD’s Base Erosion and Profit Shifting (BEPS) framework, whereby the company should have substance and R&D activities locally in order to qualify for tax exemptions. Trademarks and other market-related IP are being excluded from these regimes, whereas copyrighted software still qualifies in certain jurisdictions.
IP-related intra-group transactions are under scrutiny. Generally, there should be commercial and economic substance in the country where the intellectual property holding company is located and all key decisions must be made by the IP holding company. Intra-group transactions must comply with international transfer pricing rules and the OECD Model Tax Convention on Income and Capital.
However, properly structured business groups can still leverage international opportunities for their IP holding companies, as we will see below. There are just certain caveats to consider and certain good practices to implement. The article does not intend to be a comprehensive review and is not legal or tax advice of any kind.
Switzerland has been, perhaps, one of the European jurisdictions that have attracted more international IP holding companies due to their political and economic stability, rule of law, and advantageous tax regime. WIPO is also headquartered in Geneva.
In Switzerland, companies are taxed federally at a 7.83% effective tax rate, and at the cantonal/communal level, from 4% to 16% depending on the canton or municipality. For instance, a company domiciled in Lucerne and Zug may be subject to a consolidated tax of 12.32% and 14.35%, respectively, whereas Zurich would be 21.15% and Geneva 24.16%. However, Geneva held a public referendum last Sunday (19 May), approving a plan to reduce the corporate rate for all companies to 13.99%, which will come into force by 2020, and others will follow during this year, as we will see later.
During the last years, IP holding companies have been benefitting from the mixed trading company regime and the domicile company regime.
Under the domicile company regime, companies that were carrying out only administrative functions in Switzerland (such as certain IP holding companies) were granted a tax exemption on a substantial portion of their foreign-source income (85% to 90%), and concessionary rates on capital gains.
For its part, the mixed trading company regime granted similar exemptions to income derived from overseas (from a 75% to 90% portion of foreign-source income) but allowed companies to conduct commercial activities within Switzerland with a maximum of 20% of income from local sources.
The portion of taxable income was usually determined by the number of employees of the company in Switzerland, and whether the company was under Swiss control, i.e. the percentage of Swiss resident shareholders. In some instances, if the company had less than six employees and no Swiss control, only 10% of foreign-source income would have been subject to tax.
This means that, in certain instances, a Swiss IP holding was subject to effective tax rates between 8% to 10%. Furthermore, Cantonal Tax Authorities have been granting privileged corporate tax regimes via tax rulings to certain multinational business groups that provided for exemptions or reduced cantonal corporate tax rates.
Economic Substance requirements to access these regimes was lenient. A local director (which is required by law), and engagement with a trust services company for the provision of management and secretarial services would have sufficed in most cases.
However, these preferential tax regimes, together with the holding company and the finance branch regimes, have come to an end and will be abolished from 1 January 2020 on.
A few months ago, we discussed how OECD and EU pressure have led to the enactment of a comprehensive tax reform, the Federal Act on Tax Reform and AHV Financing (TRAF), in Switzerland, which was ratified last Sunday (19 May) by public referendum.
Despite this tax reform, Switzerland is still an attractive jurisdiction for IP business purposes from a tax perspective. Corporate tax rates are reasonable and the country has concluded around a hundred double taxation agreements (DTA), including the Switzerland-EU agreement, availing for lower withholding tax rates for royalty payments to Swiss Companies.
Furthermore, withholding tax paid in treaty countries can usually be credited against corporate income tax and those from non-treaty countries are deductible for tax purposes.
Swiss companies can also serve as a master franchisee in a Master Franchise Model, or as an intermediate IP holding company to sublicense IP rights – and pay no withholding tax on royalty payments to either residents and non-residents.
Under the tax reform, Swiss Cantons may reduce their effective tax rates and are obliged to implement a BEPS-compliant patent box, which will only apply to qualifying income from Swiss registered patents. Under the patent box, qualifying income may be exempt up to 90%. The ratio of qualifying income may be determined by the amount of local R&D expenditure. Personnel expenses related to R&D may also benefit from enhanced deductions up to 150%.
However, effective implementation of the tax reform on this matter will take place once the cantons amend their cantonal tax laws, which may also bring effective corporate tax rates down to offset the abolishment of the preferential tax regimes. Some cantons such as Vaud, Berne, Basel, and Geneva, as we have previously commented, have held referendums on this matter, and others such as Zurich and Zug may do it during 2019.
Switzerland is a contracting party and member of all relevant international intellectual property treaties and organizations, including WIPO treaties, Paris Convention, European Patent Convention, the Patent Cooperation Treaty, the Berne Convention, and the Hague Union, the Madrid Protocol, among others. Patents, trademarks, and designs can be registered with the Swiss Federal Institute of Intellectual Property (IGE – IPI).
As we have commented in our previous article ‘where to set up a holding company’, Singapore should be on the radar of business groups considering jurisdictions to set up an intellectual property holding company.
A number of businesses across Asia-Pacific use Singapore to hold and base their IP development operations and use trading subsidiaries in the jurisdictions where the group is actually conducting business. This particularly applies for groups seeking capital fundraising, leveraging Singapore’s private equity and vibrant venture capital scene.
Singapore has a large network of tax treaties, including with EU countries, Canada, Russia, and South Asian countries. This could effectively serve to lower withholding taxes applicable on cross-border royalty payments. However, as we have commented on a number of occasions, economic substance in Singapore may be critical to access certain tax treaties, especially when it comes to intra-group transactions.
From a local tax perspective, royalties received are treated as ordinary income, and subject to the standard tax rate of 17% with the availability to access partial exemptions for the first SGD 200,000 on profits.
Further distribution of profits, via dividends, to ultimate beneficial owners or parent entities, would not be subject to withholding tax. In addition, the eventual sale of IP assets may be exempt from taxation.
If the Singapore company acts as an intermediary IP holding company to sublicense the IP rights, royalty payments to the ultimate holding may be further taxed at 10%, if the rate is not reduced under a tax treaty.
For companies planning to establish significant operations in the island, under the Intellectual Property Incentive Scheme (IDI), qualifying IP income will be eligible for a reduced rate of 5% or 10% for 5-year periods. The rate could increase by 0.5% from the third 5-year period and thereafter for each 5-year period up to eight 5-year periods.
Qualifying income refers to income from the commercialization of IP rights related to patents and software. The percentage of qualifying income to be eligible for the concessionary tax rate will be determined following a BEPS-compliant Nexus approach, whereby the percentage will be based on the ratio of R&D expenditures.
The concessionary tax rate will be determined by the incremental fixed asset investment or total annual business expenditure, and the number of skilled jobs created. To qualify for a 10% concessionary tax rate a given company would need to commit to an incremental fixed asset investment or annual business expenditure of SGD 6 million and an incremental number of 15 annual jobs created. Companies interested can apply directly to the Singapore Economic Board.
There are also enhanced deductions of 250% on R&D expenditures incurred from local staff and consumables and payments to R&D organizations, as well as a 200% enhanced deduction for the first SGD 100,000 spent in registering or licensing qualifying IP rights.
Whether the Singapore company qualifies for IP tax incentives or not, any IP related transaction with an affiliate party must comply with transfer pricing rules and price their transactions at fair market value. Filing transfer pricing documentation is mandatory for companies with gross revenue over SGD 10 million with transactions that exceed certain thresholds. Country-by-country reports are mandatory for Ultimate Parent Entities with consolidated group revenue of SGD 1.125 billion.
Singapore is a member of all major IP treaties, including membership in the World Intellectual Property Organization (WIPO), the Madrid System on trademarks, Paris Convention for the Protection of Industrial Property, The Hague Agreement on Industrial Designs, The Berne Convention for the Protection of Literary and Artistic Works, among others. Singapore IP laws are in line with the WTO’s TRIPS agreement.
The island has an independent judicial system based on the rule of law which is very scrupulous and strict when it comes to Intellectual Property rights. Furthermore, Singapore hosts one of the two WIPO Arbitration and Mediation Centers (the other is in Geneva) to settle IP disputes.
Patents, trademarks, and designs are registered with the Intellectual Property Office of Singapore (IPOS). Singapore is a contracting party of the Patent Cooperation Treaty (PCT).
Hong Kong is another Asian business hub that has attracted a number of IP holding companies. Hong Kong levies 8.25% tax on profits up to HKD 2 million and 16.5% on the rest. Capital gains are generally not subject to tax. Royalty income is treated as ordinary income and taxed at standard rates.
Dividends paid from the IP holding company may not be subject to withholding tax. Royalty payments made by an intermediary IP holding may be subject to an effective rate of 2.475% (less than HKD 2 mil.) and 3% or 4.95% (more than HKD 2 mil.) depending on whether there is a tax treaty in place between jurisdictions.
It may be possible for a company to claim an offshore tax exemption for profits related to the commercialization of IP rights, provided that the license or right of use is not deemed to be acquired and granted in Hong Kong and that no expenditures related to the development of this IP has been used as a deductible expense for HK profit tax purposes.
However, if the company maintains operations within Hong Kong, it could be deemed that these operations have produced the relevant IP derived profits, and therefore, the source of profits may be deemed to be in HK, and thus this royalty income taxable in Hong Kong.
In practice, for a HK company to successfully obtain an offshore tax exemption on this royalty income, it might need to not have operations in Hong Kong or have business presence in another jurisdiction where this royalty income would be deemed to be sourced from (which can lead to potential tax liability in said jurisdiction).
Furthermore, if the company doesn’t have operations and/or physical presence in Hong Kong, it may not be able to obtain a Certificate of Residency from the IRD, which might be necessary for the royalty payer to claim treaty benefits. This is of significant importance on business group structures and intra-group transactions that aim to benefit from advantageous withholding tax rates.
Hong Kong has around 40 tax treaties concluded with jurisdictions such as Canada, Western European countries and large Southeast Asian economies.
Like in Singapore, intra-group transactions must be conducted at arm’s-length. Companies with total revenue of HKD 400 mil. or more or total assets of more than HKD 300 mil. will be required to prepare and file transfer pricing documentation. Country-by-country reports are mandatory for HK UPEs with consolidated group revenue of 6.8 mil.
With regard to tax incentives for IP companies, HK has introduced an enhanced tax deduction of 300% on the first HKD 2 mil., and 200% on the rest, for payments to employees engaged directly and actively in a qualifying R&D, in consumables used directly in a qualifying R&D activity, and other payments to designated local research institutions. The eligible expenditure must have arisen from R&D activities wholly carried out within Hong Kong.
Hong Kong is a contracting party (either on its own or via the People’s Republic of China) to the Paris Convention for the Protection of Industrial Property, the Berne Convention for the Protection of Literary and Artistic Works and the Patent Cooperation Treaty, among others, and its legislative framework is in line with the TRIPS agreement. The Madrid System will become available in Hong Kong in 2022.
Registration of IP rights is done with the Intellectual Property Department of the Government of Hong Kong SAR.
Luxembourg has historically been one of the go-to jurisdictions for multinationals looking at establishing their intellectual property holding company in the European Union, due to the availability of an ‘IP regime’ that provided an 80% exemption from a variety of IP income types with lenient requirements to qualify, as well as an ‘a-la-carte’ tax regime that provided multinationals concessionary tax rates via tax rulings from the Luxembourg Inland Revenue (ACD).
Luxembourg also has no withholding tax on royalty payments and more than 80 tax treaties available, which have made it commonplace to set up ‘intermediary IP holding companies’.
To comply with the OECD’s and EU’s best tax governance practices, Luxembourg overhauled their old regime and replaced it via an amendment to the Income Tax Law that included a BEPS-compliant patent-box requiring economic substance and R&D expenditures: the so-called ‘nexus approach’.
When applying the nexus approach, each IP asset should be related to their R&D expenditures and the eligible income produced. Each IP asset and consequent IP income must be tracked separately.
In the old regime, all types of IP assets, including trademarks and other market-related IP, were eligible.
With the new regime, eligible income is IP income and capital gains derived from patents, utility models, copyrighted software, and protection certificates related to pharma products, including IP income embedded in the sales prices of products and services. Indemnities obtained through an arbitration ruling are also eligible.
Eligible expenditures include R&D expenses directly used to develop a given IP asset. Expenses may be incurred in-house or through outsourcing – as long as they have not been outsourced to an affiliate/related party. Acquisition, financing and property-related costs are not eligible.
After deducting eligible R&D expenditures to gross eligible IP income, we obtain net eligible IP income, which must be multiplied by the nexus ratio.
Put simply, the nexus ratio consists of multiplying eligible income by 130% and dividing it by the total expenditure of the company, capped at a ratio of 1.
The result of multiplying net eligible income per the nexus ratio is that the total amount will access an 80% corporate income tax and municipal business tax exemption, as well as a full exemption of net wealth tax. The effective tax rate would then be around 5.202%.
With the new regime, although eligible IP assets may still be acquired from a third party or obtained via a capital contribution in-kind from the shareholder – one should take into account whether R&D expenditures to enhance this IP asset(s) are incurred. If not, no exemption will apply and net income will be subject to the 18% standard tax rate plus a municipal business tax between 6% to 12%, depending on where the entity is domiciled.
However, Luxembourg may be a place to consider for establishing your business’ R&D activities. There are a number of tax credits available for certain investments in R&D, as well as innovation loans, cash grants and interest subsidies to cover costs for R&D projects from 25% to 100% depending on the size and investments of the company.
With respect to income derived from affiliate companies, it may be eligible for the IP box. However, one should also take into account that transfer pricing legislation – in line with the OECD’s arm’s-length principle standards – apply and that the group will need to produce transfer pricing documentation and conduct other related disclosures. CbC reporting is also required for multinationals’ UPEs with consolidated group revenue of over EUR 750 mil.
As commented above, Luxembourg does not levy withholding tax on royalty payments, which makes it an interesting location to set up a subsidiary to sublicense IP rights to other entities, for instance in the EU, where the EU Interest and Royalty directive applies.
Furthermore, Luxembourg has a broad network of tax treaties which can further reduce or eliminate withholding taxes for inward payments. Economic substance in Luxembourg may be required to avoid triggering Anti-abuse rules (GAAR), and other provisions to prevent ‘treaty shopping’ and ‘conduit companies’ i.e. companies used only to pass on interest, royalties, and dividends to non-EU companies.
From a parent-subsidiary standpoint, dividend payments to the parent holding company are usually exempt from tax, as long as a 10% of participation is held by the parent company for an uninterrupted period of at least 12 months. Dividends paid to certain non-treaty countries (i.e. tax havens) may be subject to a 15% withholding tax.
Luxembourg is also a member of major international treaties and conventions on intellectual property. The Ministry of Economy’s Intellectual Property Office (OPI) is the agency in charge of registering patents, inventions, trademarks, and designs. Other agencies such as the Intellectual Property Institute of Luxembourg (IPIL GIE) provide guidance and support to entrepreneurs and companies on IP matters.
Gibraltar has also attracted a number of IP-based businesses and other holding companies due to its EU membership via the UK (the implications of Brexit are uncertain and remain to be seen), its tax regime and its relatively good reputation after overhauling its offshore regime a few years ago, despite still being a low-tax country.
Gibraltar operates a territorial tax system, whereby only income accrued in or derived from Gibraltar is subject to tax, whose current rate stands at 10%. The source of income is usually determined by the location of the activities that produce such income. For instance, a company with headquarters and place of management in Gibraltar may be subject to 10% tax on their income, regardless of whether the payee is located in Gibraltar or overseas.
Therefore, regulated businesses such as financial services companies and gaming companies, which are required to establish a physical presence in the territory, are usually taxed at 10%.
There are certain exceptions to this territorial tax principle, such as for royalty income and certain interest income, which might be taxed at standard rates just because of the fact that it’s received by a Gibraltar registered company, regardless of the place where these royalties are paid from.
Generally speaking, an IP holding company will pay 10% tax on their net royalty income received. If the Gibraltar IP company commercializes related products and services that produce its income and it does not have a physical presence in Gibraltar (not even a bank account), it might be exempted from taxation.
However, issues may arise when the place of effective management is not in Gibraltar, which may open the company to be taxed elsewhere – where it is effectively controlled and managed from.
Gibraltar does not levy withholding taxes on dividends, royalties or interest payments. This may be particularly interesting for certain group structures looking at setting up a commercial subsidiary to exploit IP rights held in an overseas IP Holding Company. This was especially appealing for software companies that were distributing digital products across the EU, considering that Gibraltar is not a VAT-member, as they have been able to benefit from its membership in the EU from a commercial and financial services perspective.
The outcome of Brexit will be of special importance for Gibraltar IP holding companies that are licensing IP rights to related European parties. Currently, the EU interest and royalty directive may provide for a full exemption from withholding tax on payments to Gibraltar companies.
Like in Luxembourg, one should think of establishing substance in the jurisdiction to avoid being considered as a ‘conduit company’.
With regard to IP registration – trademark, patent and design registration must be made to the UK Intellectual Property Office (UKIPO) and then request an extension of protection to Gibraltar via the Gibraltar Companies House within three years of the date of registration.
Trademarks registered with the European Union Intellectual Property Office (EUIPO), can also apply for extension with the Gibraltar Companies House.
British Overseas Territories and Crown Dependencies
Companies incorporated in Bermuda, the Cayman Islands, BVI, and other British Overseas Territories and Crown Dependencies have traditionally been used for assigning IP rights, and exploiting them.
These are tax-neutral jurisdictions, in which no form of direct or indirect tax is applied.
Simplifying it, a management company was appointed to provide certain administration services for tax residency purposes, and, via an onshore intermediary holding to prevent royalties paid to be subject to withholding tax, certain business groups were able to channel part of their profits as royalties, tax-free to these countries.
These practices are currently under severe scrutiny. The OECD and the EU’s Code of Conduct Group (Business Taxation) under the Forum on Harmful Tax Practices (FHTP) have been focused on intensifying international pressure on these jurisdictions to avoid income from geographically mobile activities or assets (such as IP) to be transferred to tax havens. Other initiatives such as the ‘digital tax’ are also being considered.
These jurisdictions have been either required to abolish tax-free regimes for non-resident owned entities (such as IBCs) or to establish economic substance requirements for certain business activities. We’ve discussed this at length in several articles, such as this one and this one.
Most British territories have been included in the second group, as they levy taxes to neither residents or non-residents.
As we’ve mentioned, Economic Substance requirements apply to certain activities, which include intellectual property business.
This means that offshore companies that are not tax resident elsewhere and are planning to exploit IP rights will need to:
- conduct their core income-generating activities in the country of incorporation
- be directed and managed from within the country of incorporation
- have an adequate amount of operating expenditures incurred in or from within the country of incorporation
- have an adequate physical presence (including maintaining a place of business or plant, property, and equipment) in the country of incorporation.
- have an adequate number of full-time employees or other personnel with appropriate qualifications in the country of incorporation.
In addition, a new business activity category has been established: ‘high-risk intellectual property business’, which consists of companies that are exploiting IP rights and:
- have not created such IP; and
- have acquired the IP from a company of the same group structure or from a third-party that has conducted research and development out of the country of incorporation.; and
- licenses the IP to a company(s) of the same group,
or does not carry out R&D, branding or distribution as part of its local core income-generating activities
These companies will be subject to enhanced substance requirements. They will be presumed not to have met the economic substance test by default and will need to rebut this presumption.
A considered ‘high-risk intellectual property business’ needs to produce materials to explain how the development, enhancement, maintenance, protection and exploitation functions have been under its control and the involvement of personnel who are highly skilled and perform their core activities locally.
Documentation that needs to be provided periodically includes detailed business plans that clearly lay out the commercial rationale for holding the intellectual property assets in the jurisdiction, concrete evidence that the decision-making is taking place in the jurisdiction, and information on employees in the jurisdiction, their experience, their contractual terms, qualifications and length of service.
It is still possible to locate your IP holding company in an offshore jurisdiction. However, you will need to have a significant physical business presence in the territory. Certain initiatives, such as the Cayman Islands Enterprise City Special Economic Zone, facilitate the establishment of tech companies in the Islands and the obtainment of work permits and visas for their employees and might be of special interest for those looking at establishing economic substance there.
Other offshore jurisdictions that have traditionally attracted IP holding companies, such as Mauritius or Labuan, have excluded this activity from their preferential tax regimes.
There are still jurisdictions such as Seychelles and Panama, among others, that have not introduced economic substance requirements for IP businesses, yet.
The Bottom Line
As we’ve seen, despite the ongoing international tax landscape shake-up, there are a number of international structuring opportunities still out there for leveraging IP.
Some options involve establishing a greater level of economic substance, whereas others are more lenient in this regard.
If your plans include establishing or relocating your current R&D activities, there are plenty of jurisdictions offering BEPS-compliant IP boxes where you could benefit from significant super deductions and partial or total tax exemptions on certain income.
We have reviewed some today but other jurisdictions such as Hungary, UK, Ireland, the Netherlands, and Cyprus also have interesting IP regimes to attract and create value for their local economies, in addition to other tax benefits.
Other jurisdictions such as the United States, UAE Free Zones, Malta and Liechtenstein still offer interesting group structuring opportunities to minimize a given group’s consolidated effective tax rate. Also, depending on your specific industry, certain jurisdictions may provide other non-tax benefits, such as regulatory certainty for innovative business models on financial services.
Even traditional offshore jurisdictions are opening their local economies to international businesses, such as the aforementioned Cayman Special Economic Zone – which could be an opportunity to relocate you and your team in a low-tax jurisdiction (albeit with a high cost of living).
However, when it comes to structuring your business group, commercial substance between entities is key, as we have said countless of times, and a common-sense approach should be taken for intra-group transactions.
Artificial structures with no substance, commercial or economic rationale that involve both onshore and offshore locations are under high scrutiny – especially if strategic elements such as personal tax residency of the board members or management team are not properly taken care of. This is further evidence that ‘Flag Theory’ is and remains the best strategy for jurisdictional arbitrage available.
There are also structuring solutions for businesses that are running with large distributed teams and may not wish to concentrate all their operations in a single or few locations.
These are comprehensive solutions that not only consider corporate elements such as the place of effective management of the company, but also the personal circumstances and situations of the company members, directors, and managers.
At Flag Theory, we can help you leverage global structuring opportunities with a global and holistic approach, and jurisdictional comparison intelligence customized to your specific business, your specific personal circumstances, and your goals, to make sure that our solutions are aligned with your business plan and your personal objectives.
We are experienced in working with businesses in a variety of industries and we take into account not only all the legal, regulatory, and tax elements, but also the commercial needs, priorities, and goals of your business.
We can also help you find a restructuring solution for your business if it has been negatively affected by the recent offshore regimes’ overhauls, and we will also keep you informed about the new tax and legal developments in each of the jurisdictions in which you have business interests.
Our goal is to empower you to legally benefit from the highest asset protection, risk management, fully legal tax minimization, and smooth finance and commercial operations. Contact us today, it will be a pleasure to assist you.