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E-COMMERCE IN GIBRALTAR

 

There is something of a competition between a number of offshore jurisdictions to offer the most advanced e-commerce environment to businesses seeking an offshore base for part or all of their operations. Gibraltar would claim to be one of the preferred jurisdictions in this competition, and it is a fact that the Government is working on appropriate legislation which it says will be in place by the autumn of 2000, and by supporting the development of e-commerce facilities. This section of the Gibraltar site explores how businesses can optimise their tax structure by using Gibraltar as a base while still keeping to sensible commercial principles of operation.
Can Gibraltar become a major player in the expanding and lucrative world of E-commerce and an effective hub of such activity for the European Union? Keith Azopardi, who took over the helm of the Department of Trade and Industry in the cabinet reshuffle following the general elections earlier this year, believes it can and will. And he sees the drive to win that role for the Rock as a 'major priority'.
It is an ambitious goal, since the world, both onshore and offshore, is full of countries which have said they mean to become global e-commerce leaders. The UK may have shot itself in the foot with its misconceived 'RIP' legislation and its general slowness, but Ireland, Malta and the Isle of Man are just three of the competitors which are arguably ahead of Gibraltar in various respects. In the Far East the authorities in Manila have earmarked the equivalent of £150 million to create a computer mini-city which they hope to establish as the global 'capital' of E-commerce, while Hong Kong and Singapore are forces to be reckoned with.
Gibraltar's advantages are her position in the EU, both geographically and structurally, an established base of professionals, good telecommunications and excellent port facilities. If only the problems with Spain could be resolved, Gibraltar could function as a tax-efficient e-commerce gateway to Spain and the rest of the EU beyond for physical goods as well as digital ones. As things are, Gibraltar has to give preference to digital products, including financial services, in which the competition is strongest.

Some of the basic infrastructure is already in place. Despite Spain's efforts to baulk progress and her reluctance to comply with EU obligations in this field, Gibraltar has a relatively efficient telecoms network and the capability to expand this to provide the range of bandwidths that serious development of E-com will require. Proposed telecoms liberalisation will reduce the current high costs of the services, making these more competitive.
Geographically Gibraltar is well-placed both as a stepping stone into Europe and at a crossroads of the world's communications network - though such advantages are probably more psychological than practical. In theory at least, cyberspace knows no boundaries and the global nature of E-commerce allows it to be conducted anywhere. As a speaker at a recent international symposium on E-com legislation put it: 'All you need is a laptop and a link to the Internet and you are in business.' An over-simplification which encapsulates a basic truth.
Another "plus" is the solid international reputation as an off-shore financial centre which the Rock enjoys. Its company and banking legislation and regulatory practices are comparable to those of Britain and provide an important confidence-builder for companies considering Gibraltar as a potential home - whether for E-com or any other form of business.
The natural bonding of the Internet and Offshore stems from the fact that both, of their nature, manage to avoid tax. Businesses which can operate on the Internet without, so to speak, touching ground in a high-tax jurisdiction will naturally migrate to offshore jurisdictions; while businesses that already have offshore existence will find it highly convenient to be able to use the Internet to trade with their high-tax customers without having to make a landing in their countries.
As a major offshore jurisdiction with many tens of thousands of offshore enterprises already installed, including many trading companies, it is only a matter of time before Gibraltar becomes a centre of e-commerce activity. The territory's geographical location (European time-zone), its good telecommunications links, sophisticated business infrastructure and the low-cost, English-speaking, highly-educated work-force are all factors which will attract the sales, marketing and administrative departments of European retail operations.
By locating websites in Gibraltar to carry out functions previously based in high-tax jurisdictions such as sales and marketing, treasury management, supply of financial services, and most of all, the supply of digital goods such as music, video, training, software etc, businesses can take advantage of low rates of taxation for increasingly substantial parts of their operation.
A case in point is the betting and gambling sector: Gibraltar has already attracted most of the book-makers who have fled the UK's high-tax regime in order to set up telephone betting service centres offshore. Some of them also offer Internet products, either as a direct replacement for over-the-counter or telephone betting on racing, or simply as pure gambling products: electronic fruit machines and other casino games. Telephone betting is labour intensive, electronic betting less so, but there will still be a major boost for employment in the territory. One company alone is talking about 200 jobs.
In many countries, the distribution of goods from a warehousing facility does not constitute the carrying on of a trade or business in that jurisdiction, so that even for physical goods, in many case it will be possible to avoid a permanent establishment (taxable presence) altogether in many high-tax jurisdictions where trading activities currently take place.
A company operating an e-commerce facility in Gibraltar will very probably choose exempt company or qualifying company status and will therefore have minimal local taxes to pay.

LEGISLATION ON E-COMMERCE

THE EU DIRECTIVE ON A LEGAL FRAMEWORK FOR E-COMMERCE
As part of the EU, Gibraltar is of course subject to the developing body of EU law that impacts on e-commerce. There is already a fair amount of this, but the most important part is the Directive to establish a coherent legal framework for e-commerce development within the Single Market. The Directive was finally approved on 4th May 2000, and member states have 18 months to transpose its provisions into national law. Its key components are as follows:

The directive implements the principles of free movement of services and freedom of establishment.

The most contentious issue regards the liability of on-line service providers. The Directive establishes an exemption from liability for intermediaries where they play a passive role as a "mere conduit" of information from third parties and limits service providers' liability for other "intermediary" activities such as the storage of information.

The Directive also clarifies that the Internal Market principle of mutual recognition of national laws and the principle of the country of origin must be applied to Information Society services.

Place of establishment. The Directive defines the place of establishment as the place where an operator actually pursues an economic activity through a fixed establishment, irrespective of where web-sites or servers are situated or where the operator may have a mailbox.

Transparency. The Directive requires Member States to oblige Information Society service providers to make available to customers and competent authorities in an easily accessible and permanent form basic information concerning their activities (name, address, e-mail address, etc).

On-line contracts. The Directive requires Member States to remove any prohibitions or restrictions on the use of electronic contracts. In addition, it ensures legal security by imposing certain information requirements for the conclusion of electronic contracts in particular in order to help consumers to avoid technical errors.

Commercial communications. The Directive defines commercial communications (such as advertising and direct marketing) and subjects them to transparency requirements.

Implementation. The Directive strengthens mechanisms ensuring that existing EU and national legislation is enforced. This includes encouraging the development of codes of conduct at EU level, stimulating administrative co-operation between Member States and facilitating the setting up of effective, alternative cross-border on-line dispute settlement systems.

THE EU REGULATORY FRAMEWORK FOR ELECTRONIC COMUNICATIONS
In July 2000 the Commission published a package of proposals for a new Regulatory Framework for electronic communications, with the following main components (but these proposals cannot become law in less than two years):
Proposal for a directive on a common regulatory framework for electronic communications networks and services

Proposal for a directive on universal service and users’ rights relating to electronic communications networks and services

Proposal for a directive on access to, and interconnection of, electronic communications networks and associated facilities

Proposal for a directive concerning the processing of personal data and the protection of privacy in the electronic communications sector

Proposal for a directive on the authorisation of electronic communications networks and services

Proposal for a regulation on unbundled access to the local loop

Proposal for a decision on a regulatory framework for radio spectrum policy in the European Community

LOCAL LEGISLATION
Gibraltar has yet to implement any specific e-commerce legislation. However, the Government has said that legislation to implement the government's programme of telecoms liberalisation will have been taken through the House of Assembly by the autumn. The results of a feasibility study carried out by a team of UK-based experts will also be known by then. Their report was expected to be presented to the government in June. The Government has also stated that a full programme of e-commerce legislation will be enacted this year, although few details are yet available.

The new Gibraltar Government, elected early in 2000, was quick to make its intentions clear as regards e-commerce. The Minister for Trade, Industry and Telecommunications, with responsibility for the Rock's burgeoning financial services sector, is the Hon. Keith Azopardi.

"I am very pleased to take over the helm at the Department of Trade, Industry and Telecommunications at a time when Gibraltar is prioritising e-commerce and, after a consultative process, will introduce Electronic Commerce legislation. This benchmark piece of legislation, which incorporates the provisions of the relevant EU directives, will provide the legal framework to launch Gibraltar as a high-tech platform for e-commerce."

THE FACILITIES

HOSTING AND ISP FACILITIES
The two main Gibraltar telecommunications companies, GibTel and Nynex, have been offering a range of Internet services for some time, and there are a number of smaller companies offering various types of support service for site development.

Systech Limited provides ASP solutions to Gibraltar e-commerce operations, particularly through the EcomPlus package which links local sites to payment processing solutions; Systech also supports more than 100 local Sage users.
Gibraltar's main achievements in e-commerce so far have been in the betting and financial derivatives sectors, where a number of British companies have re-located to take advantage of high-quality telecommunications and Internet support from the local operators. Victor Chandler, with 300 employees in Gibraltar already, has the highest profile, but his is just one company among many that have set up on the Rock.

BANKING FACILITIES
The Commissioner of Banking regulates banking in Gibraltar under The Banking Ordinance 1992. A substantial amount of subsequent legislation has kept Gibraltar up with current EU regulatory standards.

Under EU 'common passport' legislation any branch of an authorised EU bank may establish itself in Gibraltar subject only to notification procedures. Likewise a Gibraltar-licensed bank may set up branches elsewhere in Europe. Most of the thirty banks established in Gibraltar are branches of major UK, European or US banks. Gibraltar-registered banks have three branches elsewhere in Europe.

The banks in Gibraltar provide a full range of commercial services and are well connected internationally, making this probably one of the better jurisdictions in which to operate e-commerce operations from a financial services point of view, and of course (see next section) transactions, balances and remittances will not be taxed as long as the appropriate corporate set-up has been structured.

TAX-EFFICIENT E-COMMERCE

PLANNING THE TAX STRUCTURE
Gibraltar has an 'onshore' tax structure quite similar to that of the UK so far as income and corporation tax is concerned, although there are no capital taxes. However, as long as a company does not do business locally (ie have transactions with local residents) it can use the exempt private company form which can be resident or non-resident, pays no tax on its income (other than the yearly registration fee of G£225 if resident or G£200 if non-resident), and applies no withholding tax to payments it makes.

No stamp duty is payable on any document or transaction relating to the exempt company's shares; however an exempt company does pay, like all companies, 50p capital duty per G£100 of its authorised share capital on incorporation. This is the most commonly used corporate form in Gibraltar, and would be the normal choice for an e-commerce operation which is carrying out transactions around the world with its customers from servers based in Gibraltar. An exempt company must obtain a certificate of tax exemption, which is valid for 25 years, from the Financial and Development Secretary.

Branches of overseas incorporated companies, which have to be registered with the Registrar of Companies, and pay an annual registration fee of G£300, can also be exempt and benefit from the same tax exemptions as an exempt company. Branches also must obtain a certificate of tax exemption from the Financial and Development Secretary.

Gibraltar, as a part of the EU, applies the Parent/Subsidiary Directive, so that a Gibraltar company with a 25% EU parent (or subsidiary) benefits from a preferential tax regime as regards dividends. The use of a Gibraltar 1992 Company together with the operation of the Parent/Subsidiary Directive allows dividends from an EU subsidiary to be remitted with minimal taxation in Gibraltar to a non-EU parent (NB such schemes may become ineffective as a result of the EU's 'harmful tax practices' initiative under the Code of Conduct Committee).

There is a quasi-double tax treaty with the UK, but otherwise Gibraltar has no tax treaties, meaning that dividends or other types of income paid from Gibraltar to high-tax countries are going to be taxed in the hands of the recipient, depending on the local regime, even though they may have suffered tax in Gibraltar (not a problem for exempt companies, of course). Many high-tax countries have 'Controlled Foreign Corporation' legislation, meaning that undistributed profits in a Gibraltar (low-tax) subsidiary will be deemed to be taxable income in the high-tax residence country of a controlling owner (individual or company). The exact arrangements vary widely.

It follows that the owner of a business in a high-tax country who wants to transfer part or all of the business to a low-tax area such as Gibraltar must follow one of the following routes or some more-or-less complicated variation or combination of them (it must be understood that the right solution will depend completely on the circumstances of age, residence, country etc - these are just illustrative possibilities):

• Set up a new business in Gibraltar with ownership which falls outside the CFC rules, eg don't hold more than 40% from a high-tax country, and put remainder of shares in trust for children or in the hands of an offshore relative;

• Create a joint venture with other onshore companies or owners whereby ownership is sufficiently distributed to escape CFC rules;

• Owner (individual or company) move offshore (not necessarily Gibraltar), move business to Gibraltar and outsource high-tax area distribution (if physical);

• Transfer existing business into trust or other offshore ownership for inheritance tax purposes; set up new offshore business to handle expanded range of products or markets.

NB: Any transfer of all or part of a business away from a high-tax area is likely to trigger a disposal for capital gains, gift or transfer tax purposes - great care is needed to avoid this happening. Companies may be in a better situation than individuals to mitigate the effects of tax on a transfer; equally, companies with international subsidiaries may be able to make use of 'mixer' holding companies, and thus may not be so much affected by the CFC rules.

In fact there are numerous possibilities for arriving at an effective structure; it is normally possible to improve the tax performance of a business substantially by moving part or all of it offshore - but expert professional guidance is essential, and the suggestions above are no more than indications of the sort of thing that may be effective in some circumstances.

WHAT TO LOCATE IN GIBRALTAR
To date, e-commerce companies have tended to focus on marketing and selling as the most likely business functions to locate offshore, but there is no reason why procurement, administration, payroll and other corporate functions should not be based offshore.

Since physical distribution can be outsourced, and in some countries doesn't even amount to a taxable presence, the use of offshore is by no means limited to digitally-downloadable products. Still, there is no doubt that the greatest cost and tax savings are available to those companies whose products can be delivered electronically, as in the following list:

Retail businesses dealing in intangibles or intellectual property, such as software or music
Electronic publishing enterprises
Online reservations
Telecommunications services
Language translation services
Education and Internet-based training
Online gift certificates
Online brokerages and other financial services, including insurance
Legal services
Software and other technical support
Research and online information services
Internet Service Providers (ISPs)
Metamediaries and access portals
Corporate services
Data warehouse centres for processing and storing data
Database management services
Certification and verification services for business and consumer documents
Hubs for secure transactions and communications
Supply chain management centres
Communications and billing hubs for fibre optic and satellite systems
Network monitoring facilities and services

In the case of Gibraltar, its physical proximity to EU markets, and its excellent port facilities mean that it can also be used as a trans-shipment or physical distribution centre for many types of product. Gibraltar's attractions in this respect would be considerably enhanced if the problems with Spain were to be resolved. Bottlenecks at the border and Spanish obstructionism create unnecessary difficulties at present.

Indeed, so far Gibraltar has proven attractive mainly to betting and gaming companies and to financial trading operations.

Trafalgar Financial Futures established operations in Gibraltar in 1999, and news of its success encouraged First Continental, a big player in the 'short end' of the Liffe market, to set up a trading operation in Gibraltar. A further player has already obtained a licence and other applications are currently begin considered by the local regulator, the Gibraltar Financial Services Commission.

Gibraltar was the first offshore centre to receive authorisation to trade on the London International Financial Futures Exchange, and it is envisaged that Gibraltar will have its own Eurex node in the future.

In May 1999, Victor Chandler sent shock waves through the betting industry by becoming the first big-name bookie to open an offshore service for UK clients, replacing 9% UK taxes with a 3% service charge. The Victor Chandler International office now has 350 employees, a mixture of Gibraltarians, Brits, Spaniards, Chinese, Greeks and Americans. Since the Chandler move, property prices in the territory have leapt 25 per cent and the company, which now has an annual turnover of about $1bn, claims to be responsible for about a quarter of Gibraltar's GDP.

OFFSHORE OPTIONS FOR E-BUSINESS PEOPLE
The object of setting up an e-commerce business, or part of one, in an offshore jurisdiction, is evidently to make money, and if the tax structure is correct, profits will accumulate in a local bank from which they can be freely invested according to an individual's preferences, either by being ploughed back into expansion of the business, or into income- or capital-generating investments.

There are as many different offshore investment situations as there are offshore investors, and anyone considering making offshore investments must absolutely take appropriate professional advice. But it can be useful to have a first idea of what kind of investment, and which offshore jurisdictions, might be suitable before approaching professionals.

Recognising that investment strategies are heavily dependent on a person's country of residence, life-style and future plans, Eurofinanzza Worldwide assists an individual to specify the broad outlines of his or her offshore investment profile, and receive in return some suggestions as to the most suitable investment route to be further explored with professional guidance.

CASE STUDY

THAI TASTE ENTERS THE E-COMMERCE REVOLUTION
Thanks to Systech Ltd., Thai Taste can offer a range of Thai food and accessories via a sophisticated web site to a wide range of customers in the UK.

COMPANY BACKGROUNG
Thai Taste is a company that brings you everything Thai – genuine Thai food, Thai spices and Thai design, everything you need to live the Thai life. All Thai Taste products are of unique Thai style and manufactured to meet the demands of the European market. Thai food’s uniqueness is reflected in its catalogue and a sophisticated web site that can answer customer questions and generate sales which is essential for the company’s future.

THE ELECTRONIC COMMERCE SOLUTION
After a successful mail order campaign, Thai Taste identified the potential of using the Internet as an alternative sales channel to expand their client base. With the use of the Internet, Thai Taste knew that they could satisfy the needs of their global clienteles and saw this as a “natural progression from our existing mail order channels”, explains their Head of Marketing. Together with an e-commerce solution, a professional website based in Gibraltar’s Finance Centre assisted Thai Taste venture into the Internet market.

The company had a clear vision with the type of website they wanted to build. Thai Taste wanted a site that was no different to their successful mail order brochure and built on a platform that would allow flexibility and scalability.

To help it meet these goals, Thai Taste selected the online business development consultancy, Systech Ltd. David Hutchings Managing Director, Systech, describes the key issue facing a sophisticated web site: “A consumer oriented site has to be supported by a bespoke database and complex middleware so that customers can browse products, add items to their shopping cart and place orders online.”

But for all the complexity of the technology and the business goals, the site still had to be simple to use for the customer. This is precisely what Systech Ltd had to offer.

The site also had to accommodate visitors who might make several visits before actually making a purchase. The potential client can make full use of the site right up to the point of making the actual purchase. There are no hidden areas, except for existing clients who become members of the site straight after the first purchase. There is therefore a member’s only section that allows members to view the current status of their order(s), or even view the history of their purchases. Furthermore, personal details such as members password, delivery address and billing address may be modified within the member’s section.

BUSINESS BENEFITS
Given all these demands, the correct selection of technology was essential. Systech developed its own e-commerce solution - EcomPlus. David Hutchings explains: “Given Systech’s commitment to internet technology and the development tools we’ve developed, we found that we could leverage core web-application technologies with full online payment support and many other features.”

The urgent deadlines facing the project were also a deciding factor. “Systech’s development tools made it more cost-effective to develop this application in the time that we had. Additionally the pre-built components of the EcomPlus solution allowed us to minimise bespoke development, reducing costs and time to market.”

Systech built the solution based on Windows 2000 Advanced Server, Microsoft SQL Server and their EcomPlus software. This technology underpinned the bespoke software, which was used to present an online catalogue of Thai Taste’s existing products, process data entered by customers and then handle the orders and communicate with the fulfilment centre.

Roll out of the site was staged and the site finally went live at the beginning of October. By the end of the first three weeks of trading the site had handled many orders, with payments handled by WorldPay. As WorldPay is not the only option as a Payment Gateway, EcomPlus is designed to handle various direct and indirect methods.

Thai Taste is optimistic that business will continue to grow. Gibraltar’s Finance Centre is very strong and friendly towards e-commerce. This makes it a highly efficient way of targeting potentially millions of customers, without the overheads of other sales channels or setting up in other countries.

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