Company Formation Services
A Progressive Offshore Jurisdiction
The Cook Islands is a progressive offshore jurisdiction with sophisticated and innovative legislation designed for
asset protection trusts
and international partnerships
Next, we outline the Cook Islands offshore legislation and the services provided by TBA & Associates
A Company is not permitted to carry on business in the Cook Islands as a trustee company unless it is registered pursuant to the provisions of the Cook Islands Trustee Companies Act 1981-1982.
Carrying on business as a trustee is widely defined and includes acting as trustee, executor or administrator.
The control of the registration of trustee companies lies with the Cook Islands Financial Supervisory Commission, which looks at the suitability of the applicant and the experience of this associated with the applicant. Minimum capitalisation requirements also apply.
THE ACT 1981-1982
A Company can be incorporated under the International Companies Act 1981-1982 as an international company if its shareholders are non-resident of the Cook Islands, however, a trustee company registered under the Trustee Companies Act 1981-1982 may hold shares in an international company and may be the sole shareholder. TBA & Associates can incorporate an international company within 24 hours of receipt of instructions.
Capital Requirements and Shares
There are no minimum capital requirements and shares may be of no par value. Shares may be designated in most major currencies and bearer shares may be issued (but must be “immobilized” with a Cook Islands custodian, which can be a Trustee Company), unless this is prohibited by the Articles of Association.
Directors and Secretary
Only one director of an international company need be appointed and there is no obligation to appoint a resident director. It is obligatory to have a resident secretary who must be an officer of a registered trustee company. Additional secretaries may be appointed who need not be residents.
An international company may be incorporated for any lawful purpose, other than that of a trustee company, but shall not carry on the business of banking or insurance, unless it is licensed under the relevant Act.
Principals or promoters of international companies may remain anonymous as there is no obligation to disclose any details of beneficial ownership of shares.
Such anonymity is further guaranteed by virtue of the provisions of Section 8(5) of the Act which impose penal sanctions on any person who discloses information derived from an inspection of the records of an international company.
The documents lodged with the Registrar of International Companies are only available for inspection by directors, members and debenture holders. Court proceedings relating to the rights or obligations of officers or members or debenture holders must be heard in camera, unless the Court orders otherwise.
All companies must lodge annual returns accompanied by audited accounts unless the members of the Company (being a private company) resolve at each annual general meeting that auditors should not be appointed.
The legislation expressly provides that international companies and foreign companies registered under the International Companies Act 1981-1982 and their shareholders will not be subject to any form of taxation including stamp duty. The legislation also provides such entities with a guarantee that the Crown will not compulsorily acquire or expropriate their property situated in the Cook Islands except under specified circumstances defined by law.
A foreign company incorporated outside the Cook Islands may register under the International Companies Act 1981-1982 if it has a place of business or is carrying on business from within the Cook Islands. Once registered under the Act it is subject to the same provision as an international company.
Forms of Entities
The Act permits the incorporation of various types of companies other than companies limited by shares. These include no liability companies, companies limited by guarantee, unlimited companies and mutual companies.
Special features of the Cook Islands International Companies Act 1981-1982 include:
Transfer of Corporate Domicile
One of the essential criteria for international tax planning is flexibility.
There should be an ability to modify promptly an offshore structure as a consequence of a change in circumstances and the Cook Islands legislation permits such flexibility through provisions which enable a company to transfer its domicile.
The International Companies Act enables:
(a) companies incorporated in other jurisdictions to transfer their registration to the Cook Islands as international companies,
(b) international companies to transfer their registration to other jurisdictions.
Stock Exchange Listing
Amendments to the International Companies Act in 1991 provide for International Companies to become listed on a number of major Stock Exchanges. In addition foreign companies already listed on designated stock exchanges can now make application to transfer their domicile to the Cook Islands.
The Act provides considerable flexibility in regard to reduction of share capital. Specifically, the Act allows:
• a Company to purchase and cancel its own shares;
• redemption of shares without maintenance of capital and without the need for a Court order;
• a Company to finance the purchase of its own shares.
The Cook Islands insurance legislation readily facilitates the establishment and operation of captive insurance and re-insurance companies.
The Offshore Insurance Acts of 1981-1982 and 1984 control the licensing of companies that wish to conduct offshore insurance business from the Cook Islands.
Offshore insurance business is defined as any insurance business where each of the insured, the policy beneficiary and the owner of the policy are not domiciled
Nor ordinarily resident in the Cook Islands and are not domestic companies or a trustee company.
Only an international company or a foreign company registered under the
International Companies Act 1981-1982 may be licensed to carry on offshore insurance business. A licensee is not permitted to transact any insurance business other than offshore insurance business and must use the services of a registered trustee company to conduct such business.
An offshore insurance company is required by Regulation to have a surplus of tangible assets over liabilities of USD$100,000 unless this requirement is exempted by the Minister of Finance under Section 23A.
A licence is not required for offshore insurance business transacted between companies which are related or for the re-insurance of risks ceded from a licensed offshore insurance company. The companies are deemed to be related if they have a parent subsidiary or fellow subsidiary relationship.
A company licensed under the Offshore Insurance Act is exempt from any form of taxation and duty, it must however file audited annual accounts with the Cook Islands Financial Supervisory Commission which administers the Act.
In addition to the general secrecy provisions of the International Companies Act 1981-1982, the Offshore Insurance Act contains strict secrecy provisions which impose penal sanctions on any Government official, officer or employee of a licensee or of its auditor who discloses any information concerning the offshore insurance business of the licensee.
TBA & Associates is fully experienced in the formation and management of captive insurance and re-insurance companies and further details are available through any office of the TBA & Associates Group
Banks and Merchant Banks
Banking business in the Cook Islands may only be carried on under a licence issued by the Financial Supervisory Commission under the Banking Act 2003.
The Banking Act requires that all licensed banks have a physical presence in the Cook Islands. The Financial Supervisory Commission considers that “physical presence” means that the mind and management of the bank must be based in the
Cook Islands, that the bank have an office in the Cook Islands which is open to the public during normal business hours, that all records of the bank must be kept within the Cook Islands and that all transactions of the bank must be approved by the management of the bank in the Cook Islands.
A trust, which is registered under the Cook Islands International Trusts Act 1984 (as amended) is entitled to the benefits and protection provided by that Act. The Act provides a registration system whereby a registered trust is sheltered from both the general common law and Cook Islands statue law insofar as those laws are inconsistent with the Act.
Application for registration is made by a licensed Trustee Company. The application must certify that no resident of the Cook Islands is a beneficiary, advise the date of the trust deed, the name of the trustee and the name of the trust.
There is no requirement to file the trust deed with the Registrar. Any information pertaining to an international trust, including the deed of trust and the identity of parties connected with the trust is confidential and subject to the secrecy provisions of the Act.
The Act creates a flexible tax effective environment in which the familiar English trust concept can be used for both tax planning and asset protections purposes.
The trustee(s) beneficiaries and Settlor of an international trust are exempt from any form of taxation and duty in the Cook Islands. The legislation removes some of the difficult aspects of the common law relating to trusts.
The modern rule against perpetuities has been abolished although if desired a specific perpetuity period can still be selected by the Settlor at the time the trust is established. Other common law rules such as the rule against accumulations and double possibilities do not apply.
The Act, as a consequence of amendments in 1989 and 1991, contains no innovative statutory provisions for the protection of assets held under international trusts.
The legislation overcomes specific common law problems to provide protection for settlors and beneficiaries from unwarranted claims against trust assets.
More recent amendments in 1996 and 1999 have expanded the definition and role of the protector, expanded the scope of the Purpose Trust and adopted with slight modification Section 50 of the New Zealand Trustee Act 1956 in respect of Custodian Trustees. Asset protection trusts are explained further.
The International Partnerships Act 1984 provides for the registration of partnerships in the Cook Islands including the exemption of the partners from any taxation and duties in the Cook Islands.
An international partnership must have at least one partner who is either a trustee company, an international company or a registered foreign company. All partners must be non-residents of the Cook Islands.
The Act also permits the registration of limited partnerships comprising of at least one general partner and one limited partner. One of the general partners must be either a trustee company, an international company or a registered foreign company.
Registration of an international or limited partnership is a simple procedure and the partnership agreement does not need to be filed. The International Partnerships
Act contains extensive secrecy and confidentiality provisions, including penal sanctions for their breach.