Companies opt for onshoring amid global risks and regulations

Companies opt for onshoring amid global risks and regulations

Picture: 123RF/EVERYTHINGPOSSIBLE

Over the past few years the wealth planning industry has been facing challenging circumstances. A variety of factors, including budgetary pressures, increased scrutiny from tax authorities and public outrage after high-profile offshore financing scandals, mean companies around the globe are under pressure to bring their offshore assets and operations back onshore.

While doing so will take effort from the affected organisations, migrating a company doesn’t have to be a negative experience. In fact, there are a number of positives in the offing for any company that takes the onshoring route, provided they do so in the right way.

Before looking at the practicalities of onshoring, however, it’s worth digging a little deeper into what’s driving the phenomenon. There are two kinds of forces behind the push to onshoring: hard and soft drivers. The hard drivers are best described as specific legal and regulatory pressures exercised on companies and their owners.

Tax authorities, for example, are set on “repatriating” operations and profits. In the US, tax authorities have made it easier for companies to repatriate their profits. As a result, there is a question mark over whether it still makes sense for US companies to do business via offshore vehicles. If other countries follow suit in a bid to strengthen home-grown corporates, the case for offshoring may continue to diminish.

Measures taken by the Organisation for Economic Co-operation and Development (OECD) to curb base erosion and profit sharing — the corporate tax planning strategies used by multinationals to “shift” profits from higher tax jurisdictions to lower tax jurisdictions, thus eroding the tax base of the higher tax jurisdictions — meanwhile are also playing a part.

In fact, research suggests that more companies than before are restructuring their intellectual property (IP) assets to meet substance demands since the latest such measures were finalised.

Soft drivers for onshoring, meanwhile, include anger at growing inequality between rich and poor around the globe, public outrage at corporate scandals and the ensuing increased scrutiny from traditional and social media, having an impact on the political agendas in the countries affected and geopolitics as a whole. The growing pressures described above result in companies coming to the realisation that operating offshore may no longer be a sustainable business model.

It’s also worth bearing in mind that setting up a new entity is often cheaper than migrating an existing one and, in some cases, can take less time.

Outside of staying on the right side of these hard and soft drivers there are other benefits to onshoring a business. These include a lower likelihood of controversy, the opportunity to operate in a more reputable tax and regulatory environment, closing the gap between where business is conducted and the entity is registered, and increasing credibility and attractiveness to business partners, investors and capital markets to raise financing.

To make the most of those benefits without any interruption to business operations it’s vital to have a proper onshoring plan in place. When it comes to putting the plan in place there are a number of steps that companies should take. The first is figuring out who is migrating. Is it a holding company, a commercially operational division, or an R&D and IP holding? It is also important to know what the holding and control structure is, be that direct control by individuals, a family trust or foundation, or a listed or institutional holding.

It’s also worth bearing in mind that setting up a new entity is often cheaper than migrating an existing one and, in some cases, can take less time.

Where the ultimate beneficial owner (the person or entity that is the ultimate beneficiary of the company) resides will also play a role in determining what approach you take to onshoring as does the likely future residency of individual owners. Will they be retiring elsewhere? Do they have children who will be studying abroad? The permutations are as many as there are such owners. These elements are crucial in evaluating double taxation treaties, for example.

With those questions answered, it’s key to get a good adviser in the country of immigration. The adviser will tell you what documents you should provide, whether there is a requirement to hand over audited financial reports, and whether agreements, contracts, IP and other assets and rights need to be assigned.

With the road map outlined in the country of immigration, one can assess the requirements in the country of emigration, most importantly a detailed understanding of how much it’ll cost and how long it’ll take to comply with the requirements in the target jurisdiction. Throughout the process you have to be realistic and accept that these variables may change. Special attention must be given to ensuring, through careful planning, the uninterrupted business activity of the entity.

Finally, anyone looking at onshoring should consider whether you want to migrate the company as-is or set up again from scratch. When you migrate, you bring the good, the bad and the history (which may or may not be ugly) with you. While history may be good from a tax and financial planning perspective, some commercial and other arrangements may be improved by setting them up from scratch.

It’s also worth bearing in mind that setting up a new entity is often cheaper than migrating an existing one and, in some cases, can take less time.

The crux of the matter is that while migrating a company what must be avoided at all costs is a cessation of activities while in limbo between jurisdictions. Business paralysis ends up being a driver of mounting costs — and mounting stress for all involved.

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