A foreign company may be continued in Malta without being wound up and liquidated in the home country, provided that:
- The foreign company emanates from a country approved in Malta as being similar in nature to a company set up under the laws of Malta.
- Such a foreign company is authorised by its Memorandum and Articles of Association or other instrument constituting the company.
A request is typically made to the Registrar of Companies to continue the company to take place in Malta. The following documents accompany such request:
- A resolution signed by the foreign company shareholders authorising it to be registered in Malta and a certified English translation if such resolution is not in English.
- A copy of the foreign company’s revised constitutive document, including the requirements necessary for the incorporation of a company in Malta.
- A certificate of good standing or equivalent document of the foreign company.
- A declaration signed by at least two directors of the foreign company, or in default by the persons vested with the administration or representation of the foreign company, where such declaration shall confirm the following:
a. The name of the foreign company and the name under which it is to be continued.
b. The jurisdiction under which the foreign company was incorporated and the date of incorporation.
c. The decision to have the foreign company registered as continuing in Malta.
d. The foreign company has formally notified the foreign relevant authority of its decision to be registered as continuing in Malta.
e. That no proceedings for breach of the country’s laws or jurisdiction of incorporation have been commenced against the foreign company.
f. A declaration signed by at least two directors of the foreign company, or in default by the persons vested with the administration or representation of the foreign company, confirms the foreign company’s solvency.
g. A list of directors of the foreign company, together with the company secretary and any person vested with the administration or representation of the foreign company, if the latter does not have directors or a company secretary.
h. Proof that the request to continue in Malta is permitted by the country’s laws or jurisdiction in which the foreign company has been incorporated or registered.
i. The consent of the number or proportion of shareholders, debenture holders and creditors of the foreign company may be required by the laws of the country or jurisdiction where the foreign company was incorporated or registered.
Companies Carrying out a Licensable Activity
If the foreign company carries out activities concerning banking, investment, insurance, financial services, they would be required to provide evidence that the country where they were incorporated or registered and had received the licence has consented to their registration in Malta.
The same applies to any other financial activity licenced and/or authorised in the country of its incorporation or registration and where such activities would also necessarily require a licence in Malta.
Furthermore, the foreign company would also be required to obtain a licence or authorisation in Malta before carrying out its activities in Malta.
Where a foreign trustee holds the foreign company’s shares on behalf of an ultimate beneficial owner, they shall be required to obtain authorisation from the Malta Financial Services Authority to act as a trustee in Malta. This is solely about shares in foreign companies which have applied to be registered as continued in Malta.
If the shares do not have any special voting rights and do not exceed in aggregate two Euro and thirty-three cents (€2.33) in nominal value or its equivalent in any other currency, the requirement for this authorisation does not apply to a foreign trustee acting as trustee in one or more shares in a foreign company.
Registration in Malta
Once the foreign company has submitted the above-mentioned documents to the Registrar of Companies and such documents comply with Maltese law, the foreign company shall be provisionally registered as a company in Malta. The Registrar of Companies shall issue a Provisional Certificate of Continuation in favour of the company.
The company then has six months to submit documentary evidence that it has ceased to be a company registered in the country where it was incorporated or registered. Provided that such evidence is satisfactory to the Registrar of Companies, the latter shall then issue a Certificate of Continuation confirming that the company has been registered as continuing in Malta.
Effects of Registration in Malta
The registration of a foreign company in Malta shall not operate as to:
- Create a legal entity.
- Prejudice or affect the continuity of the company.
- Affect the company’s property, and such company shall retain all its assets, rights, liabilities and obligations.
- Render defective any legal or other proceedings instituted or to be instituted by or against the company.
- Release or impair any conviction, judgment, ruling, order, debt, liability or obligation due or to become due, or any cause existing against the company or any member, director, officer or persons vested with the administration or the representation of the company.
Tax Treatment of Redomiciled Companies
Foreign companies redomiciled in Malta would suffer no consequences concerning local tax and/or duty purposes under Maltese law.
Once the Certificate of Continuation is issued to the redomiciled company, it is characterised and treated as a company ordinarily resident and domiciled in Malta. This is in terms of the Income Tax Act, Chapter 123 of the Laws of Malta.