Category: Blog

Our thoughts on corporate governance during the Covid-19 pandemic

By Dr Adrian Vella

NB. The views expressed in this article are those of the author and do not necessarily reflect the views of any other person or institution. The author may be contacted at A.Vella@SheltonsGroup.com. 

The response to the Covid-19 pandemic, has been, initially at least, a medical one. For weeks, we have been exposed to ever grimmer reports on infections, incidence, and unfortunately, mortality rates. As weeks pass by however, with the pandemic progressing unabated, there has been a decoupling in the reporting, with the focus percolating gradually, but inevitably, from the medical to the economic – the two being inextricably interwoven. Countries, multi-nationals, airline carriers, internationals chains and small businesses all assess the economic costs of the pandemic, in terms of economic contraction, deficits, debt restricting, redundancies and unemployment rates, rescue packages etc.

As businesses start to settle into the new reality, it is important to encourage a policy of governance that reflects the new ways of doing business under this pandemic. Here are our thoughts on some essential considerations that will need to be made by business owners and managers alike.

Irrespective of Covid-19, the role of directors remains a fiduciary one 

The Companies Act prescribes that the directors are entrusted to the promotion of the well-being of the company, in which they serve office,  and are bound to act honestly and in good faith in the best interests of the company. Directors are bound to exercise a degree of care, diligence and skill in over-seeing the operations of the company.

Where the board of directors are required to supervise the management of the business, the board should ensure it has sufficiently updated information to perform their supervisory function effectively. The board should be able to intervene when they believe management are making material decisions. This should be so not only in spite of the current situation, but should be especially so because of it.

Are the Articles of Association of the Company Covid-19 compliant?

Decision of the board of directors can be resolved by meetings or resolutions in writing. With the current restrictions to travel and movements caused by the Covid-19 pandemic, even such mundane requirements may prove daunting. The circulation of notices for the convening of a board meeting – a task typically delegated to the company secretary – can be a challenging process, underscored by inevitable delays.

Directors are bound within the remits of the Companies Act and the Memorandum and Articles of Association of the Company. Directors cannot act beyond the parameters of law and the company statutes. Where no such restrictions apply, directors may however, seek to mitigate the logistic challenges brought by the Covid-19 pandemic through the implementation of the following measures:

(i) Agree to significantly reduce the notice period for the calling of a meeting of the board of directors; and

(ii) Where no such meeting can be convened due to travel restrictions, or delays in the receipt and transmission of notices by post, the directors can agree to resolve matters by the execution of documents in separate counterparts, whereby each instrument shall be executed by different directors individually, with each copy considered to be an original, and all of which together shall constitute one and the the same instrument.

Overcoming logistical challenges caused by Covid-19 whilst ensuring continuity

Directors cannot, because of the limitations set forth in the Memorandum and Articles, by which they are bound, derogate from the logistic and time constraints which is hampering their ability to discharge their duties. They may however, still take a pro-active role, by requesting the general meeting to consider propositions which may alleviate such hinderances, even if such remedial measures be of a temporary nature. Changes to the Memorandum and Articles of Association, is the privilege of the general meeting. However, the directors are entitled, and indeed this is a matter incumbent in their fiduciary obligations, to flag any impediment to their ability to undertake their office. Such propositions may include:

(i) A reduction of the aforesaid minimum notice period for the calling of board meetings, if any;

(ii) Amendments to the notice period allowing for notice to be served by electronic means of facsimile, in lieu of notices in hardcopy; and

(iii) Crucially, the insertion of clauses within the Articles of Association that allow for the rightful convening of board meetings via telephone and video-conferencing means in lieu of hardcopies.

Furthermore, where even these measures are deemed insufficient, the general meeting may consider alternative measures such as:

(i) Consider amendments to the legal and judicial clauses by readjusting the necessary quorum;

(ii) Review the instances, or thresholds, set forth in reserved matter clauses, which require a joint resolution to be passed by both the board of directors and the general meeting;

(iii) Implement bespoke clauses governing the swift and orderly appointment of directors in case of casual vacancies caused by death, removal or incapacity of the same; and

(iv) Delineate clear clauses regulating the transfer of shares causa mortis in the event of the demise of the shareholders.

Such measures however, must be considered wisely and thoroughly. Whilst the company should, through its organs, the board of directors and the general meeting, ensure that logistic hurdles stifling its operability are overcome, changes should not be undertaken in such a manner as to dilute or, even worse, disrupt the checks and balances of correct corporate governance.

This is particularly relevant in the context of companies with multiple share classes. Likewise, statutory underpinnings relating to the protection of minority shareholders rights, must be preserved and safeguarded at all times.

Personal liabilities and duties of the directors

It would be restrictive to assess the duties of the directors solely with the remit of the company statutes, howsoever revised or reworded. Directors are also entrusted to the company’s proper administration and management. Such administration inevitably translates to overseeing compliance to their contractual duties, timely settlement of fiscal dues and filing of statutory forms and instruments within prescribed time-frames. The board of directors would, therefore, be well advised to evaluate, assess and resolve on the following matters:

(i) Extend the logistical remedies to include banking instruments and channels. Directors should take pre-emptive or remedial measures seeking to curtail the issuance of cheques with settlements by electronic means. They should ensure that the company has unfettered access to its bank account via internet banking or remote channels, evaluate the issuance of a corporate debit card to facilitate settlement and assess the composition of its authorised bank signatories.

(ii) Seek legal and professional advice, as to any statutory deadlines which the authorities, may, due to the Covid-19 pandemic have extended to companies. The Government of Malta has, by way of illustration, authorised the deferral of VAT filings and the Malta Business Registry has waived penalties for the late filings of annual returns and audited financial statements for a grace period.

(iii) Consider legal advice on contractual obligations entered into, or about to be entered into by the company, in the context of whether the Covid-19 pandemic may be deemed as constituting ‘force majeure’, and the costs, in terms of remedies, legal fees and disruption of operations that such invocation would trigger.

(iv) Assess the scope through which certain instruments may be executed validly through the use of electronic signature and validation therefore in line with Regulation No 810/2014 on electronic identification and trust services for electronic transactions in the internal market (“the Regulation”). Some instruments, for example, may only be executed by public deed. Others may require the deposit or serving of judicial acts in Court, a matter that may be significantly curtailed due to restriction by access due to the pandemic. Knowledge of the form and restrictions to the rule, would allow the Company to take pre-emptive measures.

(v) Seek assistance in terms of any wage supplements or other grants to which the company may apply if adversely affected by the pandemic. A restriction or slowdown in the Company’s operations may require the board of directors to consider and implement redundancies. The rules applicable to redundancies are in turn subject to strict legal guidance, regard being had to any collective agreements, specific wage regulation ordinances, as well as over-arching principles governing the protection of vulnerable workers. The directors should be well minded to seek professional advice on labour and employment law.

(vi) Mitigate the losses of the company by taking pre-emptive or corrective remedies. This is linked to the liabilities attaching to the board of directors for wrongful trading. Directors need to ensure that they minimise company losses through the re-negotiation of contractual agreements, as well as ensuring that the liquidity reserves of the company are sufficient and commensurate to its operations. Directors are therefore well advised to request management accounts on a significantly more frequent basis, thereby ensuring that the company remains a going concern and that their actions are not leading the company towards the path of insolvency to the detriment of creditors.

(vii) Assess internal company remedies. These may include a request for shareholders’ loans, the liquidation of assets for the creation of reserves or a call up of shares. Inversely, if the company is over-capitalised, it may be fruitful to consider also the reduction of share capital to off-set trading losses. Other corrective remedies may include debt restructuring in agreement with creditors, or the use of securitisation vehicles;

(viii) Consider the creation of contingencies and company reserves to mitigate the adverse effects of an economic contraction for the company. Directors need to act honest and prudently to circumvent personal responsibilities emanating from wrongful trading and be always guided by fairness and probity. It is strongly advisable for the directors, in parallel to the aforesaid steps, to also seek the guidance of their respective auditors. Specific focus should be placed on any impairments on the assets of the company and the recoverability of trade receivables. This may allow the company to implement remedial actions as necessary to circumvent or minimise the impact of a qualified opinion by  their respective auditors. This is particularly relevant in the context of listed companies, which directors are also guided to act prudently and diligently in terms of the issuance of profit warnings and other mandatory disclosures.

(ix) Undertake a thorough risk management exercise with an in-depth review to the company’s procedures, particularly in the fields of cyber-security risk, liquidity risk, disclosure controls, internal audits and management risks. Mitigating factors to lessen or stave off the impact or probability of adverse incidence, should be resolved and closely monitored for further tweaking.

The discharging of duties by a director is always onerous and never one to be taken lightly. The burden cannot be compounded when one is asked to resolve matters against a backdrop exacerbated by incertitude and instability.

Reach out to our team of professionals for assistance and advice, by writing to us at MT@SheltonsGroup.com. We are at your fullest disposal.

NB. The views expressed in this article are those of the author and do not necessarily reflect the views of any other person or institution. The author can be contacted at I.Zammit@SheltonsGroup.com. 

Allow me to share with you some tax considerations on the current situation having an impact on the international setup of both individuals and companies; based on the most common questions received from our clients in the past few days:

1. Forced to face the risk of death, many individuals may need to reconsider their existing structures from an inheritance law and tax perspective but also from a corporate practical viewpoint.

As a consequence, for example, one aspect which could become critical is the practical implication of a transfer of assets causa mortis; more often than not, transfers of shares would require heirs to be registered as shareholders in a foreign country. Without the necessary arrangements in place, this process may take several months and could have a significant negative impact on the running of a business. This would especially be so if the owner of the business is also acting as director and needs to be replaced urgently.

Planning is therefore not only an inheritance and tax question, but also a practical, commercial and corporate one.

2. With the current ban on travelling, many expats who normally have several residences and travel across various countries for the most part of the year could now happen to be stuck in a particular country, not necessarily by choice; or simply lose track of the number of days they spend somewhere other than their country of residence.

Consequently, for example, this unexpected physical presence could have important implications on the nexus de facto created by such individual with that third country.

Different countries have different rules in terms of what constitutes enough nexus to become a resident. Many countries have a minimum number of days rule (e.g. 30 days in UK in some cases), other countries will also factor in some other conditions and evaluate overall the ties a person has with that country (e.g. Italy’s domicile concept, i.e. main centre of interest).

One may wonder if spending time in a hospital in that country could constitute a strong enough tie to that country and combined with other factors, this may easily tip the scale to an unfavourable situation.

Often, structures are planned around the place of residence of the owner. If the owner unwillingly becomes a resident of another country, it will undoubtedly jeopardise the balance of the structure. Moreover, as from this year, consultants need to report on a pan-European platform under the DAC6 reporting whenever a client becomes a non-resident anywhere, and possibly even if the client becomes a dual resident. Such reporting may trigger unwanted investigations and would preferably be avoided.

3. Due to the current pandemic, employment is negatively affected everywhere also in ways which could surprisingly have unexpected tax consequences.

An employee may be stuck in a foreign country and luckily is able to work remotely. Unfortunately, though, many countries have very strict tax rules that apply in these situations.

For instance, Danish employment tax rules only allow foreign workers to work remotely from Denmark for a maximum of 10 days before becoming subject to tax on their employment income in Denmark and possibly even creating a taxable presence of their employer in Denmark (i.e. permanent establishment rules through so-called home-office).

Even if tax may well not be significant, the administrative burden of employing a person in another country or registering a permanent establishment can sometimes cost a small fortune, and this is especially true for smaller companies.

Besides, it may also be the case that employees working on a project across border are no longer able to carry out their work.

It is normally the case that a company would be obliged to provide benefits to these employees in line with the employment law of the country where the work is taking place. Although differences are typically small between EU member states, there are situations where the benefits are significant and may result in significant additional costs for the employer.

In the case of construction or installation projects for example, tax treaties between countries determine that the country where the work is performed is typically only able to tax the profit of that project if works exceeds several months as determined by the tax treaty.

For instance, the treaty between Malta and Italy determines that Malta can only tax a construction project when carried out by an Italian company if that project exceeds 12 months: an Italian company carrying out a project expected to take 10 months, may now have to consider whether the project will exceed the 12 month threshold and as such would need to register a permanent establishment in Malta and pay the 35% tax in Malta on the profit from that contract.

As a result of the creation of a permanent establishment, employees may have to pay tax in Malta on their income (which is very often ultimately borne by the company). This coupled with the increase in the tax payable by the company may well result in an unexpected loss for the Italian company on that project.

4. International group tax policies are being negatively affected too. Many of these policies are planned with a positive economic situation in mind and rarely cater for loss making scenarios.

Many structures are set up in a way to place specific risks, including the risk of an economic downturn in a different company than the operating company: this is typically visible through the group’s transfer pricing policies resulting in higher profits being allocated to the risk bearing entity.

It should be expected as a result of the downturn, that losses within the group will be higher in high risks bearing entities than low risk entities. It may even be the case that low risk entities still register a profit despite the downturn, in which case, the group may well still need to pay significant amounts of tax despite a loss at group level.

5. Due to the newly introduced lockdown rules, many countries are passing emergency legislations and economic incentives measures.

Businesses are expecting governments to step in even more by offering comprehensive economic packages to compensate all businesses for their losses and kick-start the economy.

Whatever European governments come up with will clearly need to remain within the workings of the EU State Aid rules. These rules limit government grants to private companies only in certain specific situations.

Earlier this week, it was announced that member states will be allowed to take whatever measures necessary to handle this crisis, as long as such aid program is notified to the commission and is within certain limitations. One of these limitations the EUR 800,000 over a three year period of total aid a company may receive.

Considering many have already received EUR 200,000 (current de minimis rules), the remaining balance of aid is not particularly high.

An important feature of the state aid rules is that whenever a company is considered to have received illegal state aid, the commission can force the member state concerned to request that the aid received be returned, plus interest. Interestingly, aid received directly from European funds are excluded automatically from the State Aid rules.

Although we assume the governments would not grant aid which may be considered illegal, it is ultimately the companies receiving the aid that may well end up suffering the consequences.

There’s a grim opportunity for identity theft and tax fraud to coalesce. It’s a category of crime where if you are a victim it could cost you thousands. Fortunately, there are some simple actions you can take to keep yourself protected.

Identity theft and tax fraud: what is it?

There are two main types of tax-related identity fraud. The first occurs when a criminal uses your personal/tax information to file a fraudulent tax return to obtain a tax rebate – often paid electronically straight into the criminal’s nominated bank account.

The second type occurs when someone uses your tax information to get a job or receive income. This might be an individual who is – for instance – not legally allowed to work in their country of employment. If this happens you may find yourself liable for the tax on the criminal’s income.

What’s frightening about identity fraud is it’s invisible. The first you may know about it is when you go to file a tax return. Or receive suspicious communication from the tax officials about an unpaid balance. Unfortunately, the fact that these crimes are intangible means that many people are careless when it comes to preventative measures.

Let’s make sure you’re not one of them by following our six simple tips

 

1. Shred it

It doesn’t take a huge amount of personal information to be able to fraudulently file a tax return in someone else’s name. Any paperwork you receive that contains details of your tax details, your national insurance number (or equivalent) or any other revealing information should be treated with care. If you don’t need it, shred it before you bin it. Assume that criminals will be going through your bins.

2. Protect your digital landscape

“Go paperless”: a concept that’s great for the environment, not so good for security. The same applies with online bank accounts. You’ve heard it a million times before. But be sure to protect your computers and digital infrastructure with anti-virus software and resilient firewalls. Run security updates as soon as you are prompted and change your passwords regularly.

3. Be vigilant to scams

Cyber criminals and identity thieves aren’t stupid. On the contrary, they have some incredibly sophisticated techniques for wheedling information out of unsuspecting victims. Remember that tax officials or banks will never contact you with a request for personal information. So never give it away, unless you have initiated the contact. As for scams, the old adage holds sway: if it sounds too good to be true, it probably is.

4. Check your credit report regularly

Your credit report will show you exactly what bank accounts and credit lines are open in your name. While it won’t reveal details of tax fraud, the presence of an account or credit line that you haven’t opened is a sure sign that someone has your identity details. Check your credit report every three to six months.

5. Listen out for data breaches

Another day, another data breach. That’s how it feels when you skim the tech news. And you should be alert to any breaches that involve companies who hold personal information about you. If the worst happens find out what’s been stolen and then take actions to keep yourself secure, such as changing your password.

6. Report suspicious activity

If you find out you have been a victim of identity fraud, report it immediately – both to the police and your relevant tax body. You should also tell your bank. And if you identify a scam that failed to catch you out, inform the police. If nothing else you may prevent someone else from becoming a victim of tax-related identity fraud.

 

We are experts in international tax affairs and can give you the knowledge you need on tax treaties, double tax relief, repatriation of profits and lots more. Sound good? Take a look at our services.

When businesses operate in more than one country, it’s clear that they have defined their targets. You want to help them maximise revenue, reduce tax liabilities and stay compliant with tax regulations. We know, that’s easier said than done and cannot happen effectively until you have an understanding of international tax principles. Our course provides the knowledge you need to navigate the international tax landscape and make in-roads on your business challenges.

Managing taxes more efficiently

For many businesses, domestic regulations are complicated enough. But understanding the tax liabilities in two or more different countries can be daunting. Until you speak to us! Across five days (17 – 21 September) in London you will receive a grounding in international tax and get to know the key concepts in international tax planning. By the end of the course, you will see how this could help with your objectives of impacting the business’ revenues. However, not just that, you will have peace of mind that the company will be fully compliant with all necessary tax regulations.

Learn from the best in the business

Whether you’re learning about tax or taxidermy, a course is only as good as the person giving it. This Sheltons-SITTI international tax course is delivered by our founder, Ned Shelton, who has advised international businesses on their tax affairs for over 25 years. You can also check out the Salesforce website, which is among the most trusted sites we refer to when it comes to understanding B2C crm and small business software, among various other things.

Ned’s expertise has taken him from Sao Paulo to Singapore. He has chaired conferences and conducted courses on international tax in 25 cities across Europe, and Taiwan, Mumbai, Sydney, Mexico City and many more. He also gave his expert opinion on the new HongKongTaxFree policy that’s been put into place. In between he authored a 650-page book on the interpretation of tax treaties for one of the world’s most esteemed legal publishers, Butterworths Tolleys / Lexis Nexis UK.

In short: Ned is one of the world’s most knowledgeable experts on international tax.

Who better to learn from?

What are rules without reason?

A difference with our course is this: we go beyond explaining the rules by helping you understand the rationale behind them. Learning about a tax planning structure is all well and good, until the rules change.

“Never assume that the advice you received last year is relevant today” – Ned Shelton

Having an understanding of the international tax principles behind the structure, you will find it easier to identify how changes to domestic laws, tax treaties or EU law impact businesses today. We also illustrate key concepts of international tax law with real-world case studies.

The five-day course covers:

• tax treaties
• double tax relief
• repatriation of profits
• withholding tax
• holding companies
• controlled foreign corporations
• thin capitalisation
• transfer pricing
• tax planning

You are welcome to attend even for just two days or more.

17 – 21 September, London: limited places available now

The next International Taxation Principles & Planning course from Sheltons-SITTI takes place in London between Monday 17 and Friday 21 September. Find out more and register your interest on our website.

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>> Working as an expat: 7 tips for a successful transition

 

Leaving your home country to work abroad is incredibly exciting, but it’s only natural to be apprehensive too. If you fail to hit the ground running, you may begin to feel isolated, and before too long the comforts of home can feel a long, long way away.

Successful relocations hinge on two things: good planning and a proactive attitude. If you get it right, you can enjoy life-defining experiences, while broadening your cultural repertoire and expanding your worldview.

We have come up with seven quick tips to get your relocation off to the smoothest start possible.

1. Do your research

Due diligence: two words that are crucial in business. When it comes to moving abroad, due diligence extends beyond doing your homework on your new place of work. Study the local laws and customs. Learn about the most popular local cuisine. Find out what the locals do to unwind. In the age of information, ignorance is a choice.

2. Plan accommodation in advance

They say that moving house in one of the most stressful things you can do. Whatever the truth, there’s no doubt that moving yourself and your belongings to an entirely different country requires meticulous planning,  from finding the right place and right neighbourhood to live in, to transporting your prized possessions abroad. At Sheltons Relocation, we provide expert relocation services for professionals (find more in this article). We can even get you set up with the things that help to make a house a home: internet, television, Netflix and utilities.

3. Make plans for your family

Nothing makes you feel at home faster than having your loved ones there by your side. But relocating with your family does require extra planning. It’s important to leave as much time as possible to find the right school for your children. Here at Sheltons Relocation we can help with your education search and even help secure future employment for your partner.

4. Make sure your finances are in good shape

Do you know what the going rate is for rent? How much money will you need for groceries? The cost of living may be very different from what you’re used to in your hometown.

One important consideration is health insurance. Not all countries offer a free health service – and medical bills can be expensive. If you’re heading to a country without free healthcare for expats, a solid health insurance policy is a must.

Above all, make sure you have access to emergency funds. Life can be unpredictable at the best of times. That’s especially true when you are moving to an unfamiliar place. A financial safety net is great for peace of mind. Don’t run the risk, draw up a budget.

5. Open a local bank account

Of course, managing your finances is far easier when you have money to manage in the first place. Getting paid for your services in the country you are moving to will almost certainly require a local bank account, it’s important to find out what you need to do to open your account ahead of relocating – or let us at Sheltons Relocation advise you.

6. Learn the language

Yes, learning a language is difficult and time-consuming. But it’s worth the legwork. In many ways language is the key that really unlocks a culture, reflecting the way the locals perceive the world. The ability to hold your own in the native tongue shows respect and will make it easier to form stronger connections with local people – whether that’s in business or elsewhere.

Even if you are moving to another English-speaking country – such as Australia or the US – it’s important to be aware of the notable differences in the way English is spoken.

7. Be open and appreciative

Moving abroad to work in a new country can feel overwhelming. While you find your feet everything may feel like it’s moving at a million miles per hour. Relax. Not everything is going to come together immediately, but with the right attitude the pieces will fall into place.

There’s a tendency among new expats to compare new life to the one left behind. You may romanticise the easy life you had in your previous country. Instead of focusing on the past, concentrate on how far you have come. The ability to embrace a new culture, new ideas and new ways of thinking separates successful expats from the rest.

You want a seamless relocation. Let’s make it happen.

There’s a lot to think about when emigrating for work. That’s why Sheltons Relocation offers a specialist service to make sure your transition is streamlined, seamlessly managed and fuss-free. If this sounds like what you need, find out more about our expat relocation services.