Limited Liability CorporationCOSTA RICA TYPES OF CORPORATIONS AND TAXES
The Commercial Code 1964 governs the creation of companies, partnerships, trusts and sole proprietorships all of which are described below. The stock corporation is the most commonly used corporate entity and the sole proprietorship is an interesting concept if only because it is so far removed from the sole proprietorship of a common law jurisdiction. Even though Costa Rica is a civil law jurisdiction trusts are permitted. The tax laws do not discriminate between onshore and offshore operators and as such the concept of a tax exempt company does not exist. The international regulatory authorities which seek to curtail the activities of offshore centers consider a non discriminatory taxation system as one of the factors that defines a reputable and well regulated tax haven. Article 227 of the Commercial Code makes provision for the migration of a foreign company to Costa Rica and for the re-domiciliation of a Costa Rica company to a foreign country upon the presentation of a shareholders' resolution. Migration does not entail the dissolution of the corporation in its country of origin or the incorporation of a new company in Costa Rica. The law of the foreign corporation must permit its re-domiciliation.
Note that all corporate filings must be in Spanish.
Limited Liability Corporation
The principal difference between a limited liability company and
The limited liability company (sociedad limitada) limits the liability of the members to the value of the unpaid capital. It is governed by section 104(a) of the Commercial Code. Although at incorporation the company must have 2 subscribers a sole shareholder is subsequently permitted. Corporate shareholders are not permitted.
a stock corporation lies in the level of administration. Instead of being run by the directors the limited liability corporation can be managed by a manager with broad powers of attorney and so in this respect resembles a common law partnership. By contrast the administration of a stock corporation is subject to very detailed rules (see below).
Limited liability companies are however not very popular.
Stock
Corporation
The stock corporation (sociedad anonima) is the most popular form of business organization and has the following characteristics:
The President is assisted by a secretary and a treasurer and unlike a common law jurisdiction his authority to act on behalf of the company comes through the issue by the shareholders of a power of attorney in his favor which defines what he can and what he cannot do. The fiscal agent is basically an accountant and his duties are to keep an eye on the board of directors and to report directly to the shareholders. The fiscal agent and his immediate relatives cannot be the directors.
These requirements are burdensome by the standards of offshore common law jurisdictions and have the effect of pushing up the administrative costs of a stock corporation. Three sets of minute books and accountancy records must be maintained. One set is for the use of the directors, one is for the shareholders and the third must be kept in the registered office.
Reporting requirements are minimal. The company must file a tax return irrespective of whether it is liable to pay tax on its income.
Incorporation is relatively quick for a civil law jurisdiction taking some 4 weeks in all. Since stamp duty is payable on issued share capital the practice is to keep the value of issued share capital low thereby keeping the costs of incorporation to a minimum.
Public Limited Liability Company
A Public Limited Liability Company is a stock corporation whose shares can (unlike private companies) be openly and freely traded on the stock exchange. Law 7201 of 1990 was passed to allow for the creation of these corporate entities.
The minimum share capital of a Public Limited Liability Company is 50 million colons and it must have at least 10 shareholders. A Public Limited Liability Company remains under the permanent supervision of the Central Bank
Collective Corporation
The shareholders of a collective corporation have unlimited liability. Consequently this type of corporate entity is for all intents and purposes no longer used. It is comparable to the general partnership of the common law countries without some of the advantages.
Foreign Corporation
Foreign corporations can operate in Costa Rica either through a branch or a subsidiary. A branch must register under article 226 of the Commercial Code by presentation to the companies registry of a shareholders' resolution whose authenticity has been verified by the Costa Rican consul in the foreign corporation's domicile.
No such procedure applies when a foreign parent wishes to incorporate a subsidiary (ie as a stock corporation, see above). Subsidiaries receive more favorable tax treatment than branches, which suffer withholding tax on all remittances to their parent.
If a foreign company uses the re-domiciliation procedure rather than creating a new local subsidiary, it will remain subject to the laws of its original domicile as regards its articles, although Costa Rican law will apply in various respects, including of course taxation.
Sole Proprietorship
In Costa Rica the sole proprietorship ("empresa individual de responsabilidad limitada") is a far cry from the sole proprietorship of a common law jurisdiction. It could be said to have the characteristics of both a limited liability company and a limited partnership and the English translation of its name would seem to suggest that it is a limited liability company.
The concept originated in Liechtenstein but has been adopted by very few countries.
Under the Commercial Code of Costa Rican law a sole proprietorship is an enterprise with one owner whose liability is limited to the value of his share capital in the business. By way of exception where the sole proprietorship has been involved in fraud the personal assets of the owner can be seized to satisfy any judgment entered against the business where the assets of the latter are not sufficient to meet the creditors' claim.
The profits of a sole proprietorship can only be distributed by way of dividend where a trading profit has been made in that year. A sole proprietorship is run by a manager who has been granted broad powers of attorney and so is much simpler and cheaper than the running of a company. The owner of a sole proprietorship must be an individual and cannot be a legal entity such as a limited company.
Limited Partnership
A limited partnership (sociedad comandita) has a minimum of one general partner whose liability for the debts of the partnership is unlimited and a minimum of one limited partner whose liability for the debts of the limited partnership is limited to the amount of his unpaid capital. Where there is more than one general partner all are jointly and severally liable for the debts of the limited partnership. By way of exception if a limited partner actively participates in the management of the limited partnership he will have unlimited liability for the debts of the limited partnership.
General Partnership
In a general partnership all the partners have unlimited liability and are jointly and severally liable for the debts of the partnership. Profits are distributed according to the percentage of equity held.
Trusts
Although a civil law jurisdiction trusts can be created under Costa Rican law. Trusts are covered by articles 633-662 of the Commercial Code which deals with the proper law governing the trust, the jurisdiction and the situs of its administration.
Offshore business
Although Costa Rica is not an offshore financial center in the traditional sense its favorable tax regime means that it could have been classified as a tax haven some decades ago. However it was not until fairly recently that the Government became aware of its tax haven potential and began actively to both legislate for and market this sector of economic activity.
Costa Rica has many characteristics which give it a distinct advantage over other offshore jurisdictions including (as with Hong Kong) a perceived onshore jurisdictional status, very low taxes and a fiscal policy which does not discriminate between residents and non-residents for tax purposes.
Offshore activity is now flourishing in Costa Rica and a number of well known companies have set up operations there, but the industry is as yet only in its infancy.
A significant offshore banking industry does not as yet exist principally because the industry was only released from the shackles of state control in 1996. The lively domestic banking industry is described below.
There is no offshore insurance industry since the insurance sector remains under state control with significant political resistance being mounted against its privatization
The country's biggest low-tax sector is grouped around the Free Zones and other export incentive programmes. These cover a wide variety of industry and service sectors, but special mention is given to the electronics sector below.
Banking
The state banking monopoly ended in 1995 and there are now some 30 private commercial banks and 3 public banks in Costa Rica. Banking matters are governed by law No 1644 of 1953 as amended by law No 7558 of 1995 (known as the Organic Law of the National Banking System).
Financial institutions in Costa Rica are regulated by the Central Bank, through the General Superintendant of Financial Entities (SUGEF). The revised legislation reduced the reserve liquidity requirements to 15% of the value of the balance sheet, prohibits loans to an individual customer which exceed 20% of a bank's capital and specifies that a bank's capital cannot be less than 9% of its loans.
Finance and credit companies that take deposits from the general public require a license from the central bank and must have a minimum capital of 300 million colons.
Costa Rica has strict banking secrecy laws. The banks do not share any banking information with the tax department or with any other Government departments other than the central bank.
This general rule is qualified by an exchange of information agreement signed between the United States and Costa Rica.
A combination of strict secrecy laws, the country's offshore status and legislative changes aimed at increasing competition and efficiency will probably result in major growth in the banking sector in the near future.
Costa Rica Offshore and tax regime
Costa Rica does not distinguish between onshore and offshore businesses as such. The basis of taxation is territorial, with both residents and non-residents paying tax on Costa Rican income, and not on foreign-source income.
However, the Government has increasingly sought to make a virtue out of the country's low-tax regime, and there are a number of special regimes offering tax privileges to particular sectors, which are described in this section.
During 2003
and 2004 the government has been struggling to pass a Permanent Fiscal Reform
Package in an attempt to reduce the country's deficit. One of the key components
of the package would be a switch from the sales tax to a Value Added Tax system;
taxes payable by Free Zone companies would also be increased over a period of
time, and it's possible that the territorial basis of personal taxation would be
abandoned in favour of world-wide income taxation.
Forms of Offshore Operation
There are no special forms for offshore or low-tax operation in Costa Rica. The stock corporation, which is the form normally used for business activities, has some advantages from a withholding tax point of view.
Tax Treatment of Offshore
Operations
See Domestic Corporate Taxes for the general principles of Costa Rican corporate taxation, which also apply to entities taking advantage of special low-tax regimes.
Businesses in Export Processing Zones (Free Zones) have a number of tax privileges. Originally these concessions were offered only to industrial or agricultural companies, but they have now been extended to a wide range of processing and service activities. The main incentives are:
There are a number of related schemes offering tax privileges to exporters which stop short of giving the full range of benefits outlined above. These include the Drawback regime, Export Contracts, and the Temporary Admission scheme.
Costa Rica is a member of the WTO, and as such should have begun to eliminate Free Zone fiscal privileges for manufacturing companies in 2003. However this deadline was extended until 2007. There is no such obligation to eliminate incentives granted to companies providing services and it has been widely accepted that there are no commitments by the Costa Rican Government to reduce or eliminate incentives for service companies; the official standing on this matter is that the regime for services will continue with few or no changes at all.
The FTZ special regime is not bound to disappear as a direct effect of the Doha Qatar negotiations. The FTZ are based on local laws that establish many other incentives. The terms of the Agreement on Subsidies and Compensatory Measures signed at Doha, extended the deadline for the elimination of the income tax exemption from 2003 to 2007, plus a two-year period for progressive elimination. As a result, the regimes will maintain the same benefits as they have now until 2007, and on that year, only companies manufacturing and/or exporting goods (not companies providing services) will be affected by the elimination of the income tax exemption regime. All other incentives for FTZ companies will be maintained.
A number of sectors involved in the tourist business receive tax incentives under the Incentives to Tourist Development Law 1985:
For an agreed period forest development businesses are exempted from income tax on business profits and the annual rates tax of .25% of the value of the land.
Taxation of Foreign Employees of Offshore Operations
This section refers to the taxation of foreign employees of tax-privileged operations; see Domestic Personal Taxes for the general principles of individual taxation in Costa Rica, which also apply to the resident employees of offshore entities.
Foreign employees working in Costa Rica are taxed at normal rates whether resident or non-resident. There are no special arrangements for expatriate workers; indeed they and their employers pay full social security contributions although they can receive little benefit from it.
Exchange Control
Although there are no exchange controls as such in Costa Rica, currency received by resident corporations or individuals has to be sold through a Costa Rican bank; and capital imported for investment purposes needs to be 'registered' in order to ensure eventual problem-free repatriation.
Enterprises taking advantage of one or other of the investment incentive regimes described above are free of these restrictions to a greater or lesser extent.
Offshore Activities
Since there is no offshore sector as such in Costa Rica, there are no limitations on the types of activity that can be carried on by companies taking advantage of Costa Rica's low-tax regime.
Restrictions are placed on foreign investment in the state-owned monopolies of telecommunications, alcohol distilleries, insurance, newspapers, radio, television broadcasting, electricity and petroleum refining in all of which industries foreign participation is either forbidden or alternatively required to be part of a joint venture with a Costa Rican majority shareholding partner .
Beachfront development concessions also require local participation with the requirement that 50% of the capital must come from nationals and that foreigners wishing to be joint partners must have resided in Costa Rica for at least 5 years.
The advantages of the Export Processing Zones are of course limited to their physical extent, although there has been some 'spread' of these Zones into adjacent Industrial Parks, particularly for processing and service companies.
Employment and Residence
Residence can be obtained in one of 2 ways:
In March, 2004, the immigration agency (Migracion) said that the migratory situation in Costa Rica was “out of control” and that they would in future be restricting residency approvals to the minimum. Migracion has begun to apply an economic criterion, stating in some cases that an applicant 'would not add any input to the economy of Costa Rica or create employment for Costa Ricans'.
No one can work in Costa Rica without first obtaining a work permit, which takes from one to four weeks. A work permit cannot be applied for until a residence permit has been granted. Work permits are valid for one year and require annual renewal.
A company which has more than 30 employees can apply for a general work permit enabling it to bring foreign technicians and executives to work in the jurisdiction without the need to make an individual application for each person it wishes to engage .Such a permit is valid for one year and must also be renewed annually.
The labor code limits the percentage of foreigners working in each corporation, specifying that at least 90% must be indigenous and that 85% of salaries paid by a company must go to Costa Rican nationals. Moreover foreigners cannot occupy jobs for which Costa Rica nationals are available unless special permission is granted.
Domestic Corporate Taxation
Costa Rica is not a financial center
in the traditional sense and so does not distinguish between onshore and
offshore activity. The main taxes affecting a business are business income tax,
employers social insurance, withholding tax, import duty and sales tax at 13%.
Tax exemptions applying to businesses under various foreign investment incentive
schemes are described in Offshore Legal and Tax Regimes.
During 2003 and 2004
the government has been struggling to pass a Permanent Fiscal Reform Package in
an attempt to reduce the country's deficit. One of the key components of the
package would be a switch from the sales tax to a Value Added Tax system; taxes
payable by Free Zone companies would also be increased over a period of time.
Scope of Income Tax
In Costa Rica business tax legislation is based on the principle of territoriality meaning that all business income which has a foreign source is tax exempt. Only that proportion of business revenue earned within Costa Rica is subject to an assessment by the tax authorities.
All business entities whatever their form and whether they be sole proprietorships, partnerships, branches, stock corporations or limited liability companies pay income tax on the profits of their trade
Rates of Income Tax
The income tax rates payable by a business are set out in Article 15 of the Income Tax Law.
There are 4 business income tax rates, the rate payable varying according to the level of gross income. The 4 rates are:
Companies are subject to a further 10% tax on any brought-forward losses or investment allowances that are used to reduce chargeable income.
Local authorities levy an annual business license tax on all businesses engaged in profitable activities in their territory. This tax is paid quarterly, varies according to the nature of the business and is based on the previous year's net taxable income. The amount depends on the costs incurred by the local authorities in running basic services such as street lighting and rubbish collection.
Calculation of Taxable Base
Business income tax is assessed on the difference between gross income and allowable deductions.
Although there is no capital gains tax in Costa Rica profits made on the sale of a capital asset are taxed as business income and losses made on the sale of an asset may be set off against trading profits. The sale of land, shares and patent rights are excepted from this rule unless the seller's business revolves around their habitual sale.
There are a number of allowances which can be deducted from gross income for the purposes of an assessment:
Group and consortium relief is not available.
No credits are granted in Costa Rica for taxes paid in a foreign country. .
Filing Requirements and Payment of Tax
Tax is assessed provisionally based on the previous year's results and is payable each quarter. The fiscal year runs from 1st October to the following 30th September and any balance of tax due is payable on the following 31st December.
Withholding Tax
(Note :Currently there is a bill before Congress which if passed will eliminate the 15% withholding tax rule in its entirety.)
The general rule is that irrespective of whether the recipient is a resident or non-resident entity, 15% withholding tax is levied at source on all dividends remitted to shareholders, all commissions paid to third parties, all loan interest repayments, all interest credited on bank deposits, all interest paid by a private or public entity on any kind of security (e.g. bonds), all distributions by business entities (e.g. partnerships & sole proprietorships) of profits to its members and all distributions of trust funds to beneficiaries.
The general rule is subject to the following exceptions:
With the exception of stock corporations, any undistributed profits in the balance sheet of an enterprise at the end of a financial period are subject to withholding tax as if they had been distributed. Capitalisation of such undistributed profits (ie they cannot be distributed in future) avoids the tax.
Under law 7092 of 1988 the branch of a foreign corporation pays 15% withholding tax on profits which can be distributed as 'dividends' irrespective of whether those profits have or have not been remitted. The branch does not of course have the option of 'capitalisation'.
Dividends paid by businesses registered under the free zone legislation are free of withholding taxes for the period specified in the license.
Costa Rican withholding taxes are not comparable to most countries' equivalent taxes, since they are levied on post-tax business profits, and don't have any element of tax credit about them for the paying company. In effect, they mean that the marginal rate of corporate taxation is 30% plus 15% of 70% = 40.5%. This underlines the importance of the concessions under investment incentive programmes.
Stamp Duties
The law relating to Stamp Duty is contained in Law no 5923 of 1976 and Law no 6879 of 1983 (otherwise known as the Stamp Duty for Education and Culture Law).
Stamp duty is only payable by corporate entities and the branches of foreign corporate entities which are registered in the Costa Rican companies registry.
There are two types of stamp duty:
The tax is payable in February - March each year.
Social Security Taxes
The employer pays a contribution of up to 22% of gross salary whereas the employee pays a contribution of up to 9% of gross salary.
Self employed persons are also required to contribute to this fund. Foreigners temporarily working in Costa Rica are not exempted from the requirement to pay this tax even though it is evident they can never benefit from it.
Employers are required to insure their employees against accidents at work and various other contingencies. Depending on the monthly salary and the nature of the risk, premiums can vary from .5% to 22% of the employee's salary.
Total employer contributions can therefore reach a scary 44% of gross salary.
Residence and Liability for Taxation
In Costa Rica the taxation of individuals is based on the principle of territoriality meaning that all personal income which has a foreign source is tax exempt. Only that proportion of revenue earned by an individual within Costa Rica is subject to an assessment by the tax authorities.
The principle of territoriality is perhaps the most significant aspect of the country's fiscal regime. Costa Rica does not discriminate between the taxes payable by residents and non residents The main taxes affecting an individual are income tax, employee social insurance, withholding taxes, capital transfer tax and selective consumption tax. There are relatively minor municipal taxes, and there is a tax on vehicles.
Income tax is levied on both employment source income and non-employment source income. While residents and non-residents pay the same income tax on employment source income there is a slight distinction between how a resident and a non-resident are assessed on their non-employment source income but the distinction is driven by pragmatic considerations and is not discriminatory.
The selective consumption tax, equivalent to a VAT, and levied at 13% has a major impact on the standard of living.
During 2003 and 2004 the government has been struggling to pass a Permanent Fiscal Reform Package in an attempt to reduce the country's deficit. One of the key components of the package would be a switch from the sales tax to a Value Added Tax system; taxes payable by Free Zone companies would also be increased over a period of time, and it's possible that the territorial basis of personal taxation would be abandoned in favour of world-wide income taxation.
There is no capital gains tax in Costa Rica. Whilst gains made by businesses on the sale of capital assets may be subject to business income tax, capital gains made by a resident or non-resident individual on the sale of a capital asset are exempt from any form of income tax.
No credits are granted in Costa Rica for taxes paid in a foreign country.
Income Tax
Income tax payable by individuals is set out in the Income Tax Law; the rates are in article 15. The fiscal year runs from 1st October to the following 30th September. Employment income includes the gross value of a salary, wage, pension, commissions, bonuses, expense allowances and any benefits in kind. No expenses can be deducted in assessing employment income. However in respect of non-employment source income (e.g. dividends on shareholdings, rental from a property letting, etc) there is a difference in how residents and non-residents are taxed. Thus there are 3 distinct manners of assessing income tax payable by residents and non residents namely:
Personal Income Taxes
This group includes two categories:
persons whose income consist of a fixed salary or
other remuneration and
persons with profit generating activities
a. - Persons whose income consists of a fixed
salary
Any individual employed in Costa Rica pays a monthly withholding tax rate
based on his salary. Employment income (on a monthly basis) of individuals
is subject to a progressive tax of 15% as follows:
Income up to ˘323,000 exempt.
In excess of ˘323,000 up to ˘485,000 10%.
In excess of ˘485,000 15%.
The following tax credits can be applied by tax
payers, once income tax has been calculated:
There is ˘560 monthly tax credit applicable to each dependent meeting the
following criteria:
A minor (under 18 years)
Handicapped (physically or mentally), and therefore unable to make his own
living.
A high school or college student, not older than 25 years.
A ˘830 monthly tax credit applicable to the spouse only if there is no legal
separation between them. In case that both spouses are tax payers, the tax
credit can only be deducted by one of them.
b. - Individuals with profit generating activities
The following rates are applied to taxable annual profits:
Profits up to ˘1,434,000 Exempt
In excess of ˘1,434,000 up to ˘2,142,000 10%
In excess of ˘2,142,000 up to ˘3,573,000 15%
In excess of ˘3,573,000 up to ˘7,160,000 20%
In excess of ˘7,160,000 25%
The following tax credit can be applied by tax
payers, once income tax has been calculated:
A ?1,800 annual tax credit for each dependent. Conditions to apply to this
tax credit are the same as stated previously. In case that both spouses are
tax payers, the tax credit can only be deducted by one of them.
| – up to 323,000 colons – 323,000 to 485,000 colons – over 485,000 colons |
nil 10% 15% |
| – up to 1,434,000 colons – 1,434,000 to 2,142,000 c'ns – then up to 3,573,000 c'ns – then up to 7,160,000 c'ns – over 7,1,000 colons |
nil 10% 15% 20% 25% |
Social Security Taxes
The employer pays a contribution of up to 22% of gross salary and the employee pays a contribution of up to 9% of his gross salary. Self employed persons are also required to contribute to this fund.
Foreigners temporarily working in Costa Rica are not exempted from the requirement to pay this tax even though it is evident they can never benefit from it .
Employers are required to insure their employees against accidents at work and depending on the monthly salary and the nature of the risk premiums can vary from 0.5% to 22% of the employees salary.
Capital Transfer Tax
A capital transfer tax of 3.01% is payable by the purchaser on the value of real estate purchased. For the purposes of capital transfer tax "value" means the higher of either the purchase price recorded by the parties or the value ascribed to the transaction by the relevant Government department using a prescribed formula. The law on capital transfer taxes payable is set out in the Income Tax Law.
Sales Tax
Sales Tax stands at 13% and is levied both at the point of importation and at the point of sale (unless the sale is by way of export). It is levied on all goods with the exception of foodstuffs, real estate, medicinal products and certain other items.
Sales tax is not generally levied on services.
Sales tax is charged after the imposition of selective consumption tax.
The selective consumption tax varies from 0% to 60% and is levied either at the point of importation or for domestic production at the point of sale.
In assessing the value of the goods for the purposes of selective consumption tax domestic goods are valued at the price that the manufacturer sells the same to the distributor whereas imported goods are assessed on CIF.
The Government raises 46% of its revenue from these two taxes.
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