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Since 1965 Delaware has been able to develop advantageous offshore company structures for company formation and has since become an attractive jurisdiction due to its friendly corporate legislation as well as other key advantages that have made it one of the world's most popular state to incorporate a company.
There are two types of offshore companies which can be formed in Delaware: a Delaware Corporation Company and a Delaware Limited Liability Company (LLC). There are some key differences in the structure and operating requirements of these two entities, but the important features and advantages of Delaware as a jurisdiction for offshore company formation generally apply to both. The Delaware LLC is the preferred and more popular of the two types. For simplicity, unless specifically stated otherwise, all information in this article pertains to a Delaware LLC.
The Delaware LLC consists of members. It does not issue shares and therefore has no shareholders or authorized share capital. It instead obtains its funding from member contributions and distributes its profits in the form of distributions to members.
A Delaware offshore LLC offers numerous advantages and uses, such as zero corporate taxation, high levels of financial privacy, fast and affordable incorporation processes, and few reporting requirements. The unique feature of a Delaware LLC is the fact that its structure and rules are defined at the outset in a contract known as an “operating agreement”. There is great freedom whilst drafting this operating agreement, which means one is able to tailor the terms to suit their individual requirements.
|Delaware LLC||Corporate Details|
|Type of Entity||Limited Liability Company (LLC)|
|Type of Law||Common Law|
|Governed by||Delaware General Corporation Law (DGCL)|
|Registered Office in USA||Required|
|Shelf company availability||Yes|
|Our time to establish a new company||5-7 days|
|Minimum government fees (excludes taxation)||90USD|
|Access to Double Taxation Treaties||No|
|Share capital or equivalent|
|Bearer shares allowed||No|
|No par value shares allowed||NA|
|Publicly accessible records||No|
|Location of meetings||Anywhere, not mandatory|
|Corporate directorship allowed||No|
|Local or qualified||Yes Local|
|Requirements to prepare||Yse|
|Requirements to file accounts||No|
|Publicly accessible accounts||No|
|Recurring Government Costs|
|Minimum Annual Tax||50 USD|
|Requirement to file an annual return||Yes|
|Migration of domicile permitted||Yes|
To incorporate a Delaware LLC, the member/s will need to provide a certified copy of their passport or US national ID, as well as a proof of address. Thereafter, a certificate of formation must be filed with the Delaware Secretary of State, which contains the following information:
If all is approved, turnaround time is usually about 3 days, after which the LLC is fully registered.
Many consider Delaware to be one of the few tax havens within the United States. Delaware Offshore LLCs are taxed at a corporate taxation rate of 0%. To qualify for this rate exemption, the company should not carry out their business within the state (hence they are referred to as “offshore companies”). The Delaware State also charges zero taxation on royalty payments and distributions to members.
The above tax policies allow for significant tax savings in certain circumstances; however, one should confirm the level of applicability and savings given their own unique situation and tax status.
Anonymity, Confidentiality and Disclosure
Delaware LLC’s offer high levels of privacy. Information about the company and its beneficial owners are not publicly available. There is no auditing or requirements to file accounts. Furthermore, the names of the LLC members are not part of any documents which are filed with the Delaware state, and are only known to the registered agent.
No minimum capital requirements.
A minimum of one member is required who can be a resident or non-resident natural person. Corporate members are not advised. The members are usually in charge of managing the LLC, but it is also permissible for a non-member manager to be employed who then reports directly to the member/s.
Business activities must be conducted outside of Delaware to qualify as an offshore company and thus obtain the associated tax benefits.
Principal Corporate Legislation
Delaware General Corporation Law (DGCL). The DGCL has several advantageous policies for offshore company owners. These include the stipulation of a zero corporate tax rate and the allowance of nominee shareholders/directors for utmost anonymity. The DGCL statutes also allow for high degrees of flexibility in corporate structure. There are very few mandatory provisions which can easily be overwritten by the company managers. This freedom and flexibility are part of what makes Delaware such an attractive jurisdiction for offshore incorporation.
Type of Law
US common law. It is important to note that Delaware’s Court of Chancery operates with judges, not juries. This is an advantage for some, as they feel that the rulings adhere more with the facts of the law as opposed to human sentiment.
Powers of the Company
A Delaware LLC has all the same powers and rights as a natural person. It is regarded as a separate legal entity from its members. Therefore, a member’s liability is limited to their investment in the company alone.
There are no requirements for meetings.
A registered local office and local agent are both required.
Language of legislation and Corporate Documents
Audit and Annual Reporting Requirements
The company is required to maintain their own accounting records, but there is no requirement to file these detailed records with the state. There are no audit requirements either.
Financial Statements required
The company should maintain annual financial statements which contain the distribution of profits to US citizens. The company need only file their statement of annual return with the Secretary of State.
Shelf Companies available
Shelf companies are available for faster incorporation.
Time required to form an offshore company
A Delaware LLC can be incorporated in 3 – 7 days.
Company Name Requirements and Restrictions
The name of the company should end with the words “Limited Liability” or the abbreviation “LLC”. The company name is also allowed to include the following words: Association, Institution, Union, Company, and Foundation.
The name should be unique and should not be deemed inappropriate by the Delaware Secretary of State Office.
Access to Double Tax Treaties
Yes, as a US State, there are tax treaties with the wide range of countries which the US has tax treaty agreements with.
There is an initial license/registration fee of about USD 90. Thereafter, there is an annual “franchise tax” of minimum USD 75, which includes the return filing fee of USD 50.
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