REALWorld Law

What are the main features of the constitution of each type of corporate vehicle used to invest in real estate?

Yes.

Last modified 19 Jul 2023

What are the main features of the constitution of each type of corporate vehicle used to invest in real estate?

The term ‘permanent establishment’ is a taxation concept in Hong Kong and is not a corporate vehicle as such. It is generally used in the context of double taxation treaties where the concept is relevant to the tax rights of the state in which a permanent establishment has been created.

Last modified 19 Jul 2023

What are the main features of the constitution of each type of corporate vehicle used to invest in real estate?

Companies

The Companies Ordinance does not prescribe any requirement for a minimum amount of nominal share capital. A company limited by shares incorporated in Hong Kong can be formed by at least one founder shareholder taking at least one share in the company.

Branches of a foreign corporation

There are no minimum capital requirements.

Partnerships

There are no minimum capital requirements, although the partnership agreement may set out the initial capital that each of the partners must contribute to the partnership.

Trusts

There are no minimum capital requirements.

Last modified 19 Jul 2023

What are the main features of the constitution of each type of corporate vehicle used to invest in real estate?

Companies

The fees for incorporating a company having a share capital include an application fee of HK$1,720 if delivered in hard copy, and HK$1,545 if in electronic form.

On the other hand, for a company not having a share capital the fee for incorporation is calculated according to the number of members stated in the company's articles of association. The fee is HK$170 (for 25 or less members), HK$340 (for more than 25 but not exceeding 100 members), and an additional HK$20 for every 50 members or less after the first 100 members. This fee is subject to a maximum of HK$1,025.

Any party that applies for the incorporation of a Hong Kong company or registration of a non-Hong Kong company under the Companies Ordinance is deemed to have made a simultaneous application for business registration. From a cost perspective, this means that the prescribed business registration fee and levy must also be paid to the Companies Registry (in addition to the incorporation fee above). There are two types of business registration certificate, namely the one year certificate and the three year certificate. The amount of fees payable under a certificate generally depends on the commencement date of the registration certificate. For a one year certificate, the amount payable (ie registration fee plus levy) is HK$2,150 (subject to review from time to time), whereas for a three year certificate the amount payable is HK$5,650 (subject to review from time to time).

Branches of a foreign corporation

In order to register a place of business in Hong Kong, the non-Hong Kong company must pay an application fee of HK$1,720 if delivered in hard copy form, and HK$1,545 if in electronic form. In addition, it must pay a business registration fee and levy to the Companies Registry. There are two types of business registration certificate, namely the one-year certificate and the three-year certificate. The amount of fees payable under a certificate generally depends on the commencement date of the registration certificate (ie the date of commencement of business). For a one year certificate, the amount payable (ie registration fee plus levy) is HK$2,150 (subject to review from time to time), whereas for a three year certificate the amount payable is HK$5,650 (subject to review from time to time).

Partnerships

The main costs of setting up a partnership are the costs involved in relation to the drafting and conclusion of the partnership agreement. A simple partnership agreement can cost around HK$50,000 to prepare, although the actual costs can vary from one partnership to another, depending on the lawyers' fees charged in preparing the partnership agreement and the complexities of the arrangements between the parties.

Also, in order to establish a limited partnership in Hong Kong, registration must be obtained (otherwise it will be deemed to be a general partnership and all limited partners will be deemed to be general partners with unlimited liability). The registration fee is HK$340, plus an additional fee of HK$8 for every HK$1,000 (or part of HK$1,000) of the sum contributed by each limited partner.

For a limited partnership fund, a registration fee of HK$2,555 plus a lodgement fee of HK$479 are payable on application for registration. The eligibility requirements of a fund to be registered as an LPF are set out in section 7 of the Limited Partnership Fund Ordinance (LPFO)

Trusts

The main cost associated with setting up a trust is the preparation of the trust deed. This could cost around HK$200,000, although the precise amount will vary depending on the type and complexity of the trust arrangement including compliance with applicable regulatory requirements. For unit trusts that require authorization, an application fee for authorization must also be paid to the Securities and Futures Commission. The amount of fee varies depending on the nature of the unit trust fund, for instance, the application fee for a single fund is HK$20,000. After authorization is obtained, an authorization fee is payable, together with the first annual fee before the authorization is effective. This fee also varies according to the nature of the unit trust fund. An authorization fee of HK$10,000 and a first annual fee of HK$6,000 is payable in the case of a single fund. Higher fees apply to ‘umbrella’ type funds.

Last modified 19 Jul 2023

What are the main features of the constitution of each type of corporate vehicle used to invest in real estate?

Companies

To incorporate a company in Hong Kong it is necessary to submit to the Companies Registry a specified form and a copy of the constitution (articles of association) of the company as supporting documents. The incorporation fee must also be paid at the same time. Assuming that the application is in order, the certificate of incorporation of a company limited by shares will be issued on the fourth working day after the submission date (if the application is mailed to the Companies Registry in paper form) or within one hour after submission of the documents (if submitted through an online facility). The certificate of incorporation of a company limited by guarantee will be issued in about three weeks.

Branches of a foreign corporation

The place of business in Hong Kong must be registered in order to be operative. Upon the satisfaction of all registration requirements, ie the submission of the completed specified form with the requisite supporting documents (such as the constitution and certified copy of the certificate of incorporation of the non-Hong Kong company) and the payment of the requisite registration fees, the Companies Registry will issue a certificate of registration. This usually takes at least 10 working days after the submission of all requisite documents in acceptable form to the Companies Registry.

Partnerships

A partnership can become operative as soon as the relevant partnership agreement is finalized.

For a limited partnership, registration with the Companies Registry is also required and it can take about five working days for the Certificate of Registration to be issued.

For a limited partnership fund, registration with the Companies Registry is also required and it can take about four working days for the Certificate of Registration of a Specified Fund to be issued.

Trusts

Discretionary trusts are operative on the execution of the trust deed.

A unit trust that requires authorization from the SFC is operative once the trust deed has been executed, the trust property has been deposited, investor subscriptions for the minimum aggregate amount have been collected and authorization is obtained.

The amount of time it takes to obtain authorization can vary from one trust to another. To make the authorization process more efficient, SFC revised its application lapse policy in November 2013. For applications received by SFC on or after 1 January 2014, if no authorization has been granted within six months (calculated from that take-up date, (ie the date of the Take-up letter issued by SFC, generally five business days following receipt of all necessary application documents)), then the application will lapse (subject to any time extension granted by SFC in limited circumstances and at its sole discretion).

Last modified 19 Jul 2023

What are the main features of the constitution of each type of corporate vehicle used to invest in real estate?

Companies

The corporate governance requirements for a company are primarily set out in its constitution, which is the company's articles of association (the requirement for a memorandum of association was abolished with effect from 3 March 2014). The articles of association set out the internal regulations for the management of a company, and may provide information about the appointment and powers of directors, as well as matters relating to shareholders' rights and procedures in general meetings.

Regarding general meetings, the Companies (Amendment) Ordinance 2023, which came into effect on April 2023, expressly enables companies to hold fully virtual or hybrid general meetings without requiring the physical presence of members at any physical locations. It will provide sufficient flexibility for companies to conduct corporate affairs smoothly and effectively, having regard to their own circumstances and needs.

Corporate governance requirements are also set out in the Companies Ordinance. In particular, every private company must have at least one director who is a natural person. A body corporate, in general, cannot be a director unless the company involved is a private company which is not a member of a group of companies of which a listed company is a member. Directors are responsible for the management of the company and owe fiduciary duties to it.

Every company must also have a company secretary (who is an officer of the company). A director can also be a company secretary (except in the case of a private company having only one director). The company secretary must either be an individual who is ordinarily resident in Hong Kong or a body corporate with its registered office or place of business in Hong Kong.

In addition, a company must have a registered office in Hong Kong where court documents and other official notices may be served. Companies must hold their annual general meeting ("AGM") within nine months (for companies limited by guarantee or private companies which are not subsidiaries of public companies) or six months (for all other companies) after the end of their accounting reference period (ie the period by reference to which the company's annual financial statements are to be prepared).

However, if the company's first accounting reference period is longer than 12 months, the company must hold its first AGM as follows:

• Nine months from the date of incorporation or three months after the end of the accounting reference period, whichever is later (for companies limited by guarantee or private companies which are not subsidiaries of public companies).
• Six months from the date of incorporation or three months after the end of the accounting reference period, whichever is later (for all other companies).

If the company is listed on the Hong Kong Stock Exchange, the Rules Governing the Listing of Securities on the Stock Exchange of Hong Kong Limited (Listing Rules) and the requirements in the Corporate Governance Code and Corporate Governance Report (which is an appendix to the Listing Rules) will also apply.

Branches of a foreign corporation

A non-Hong Kong company that is establishing a place of business in Hong Kong will need to appoint an authorized representative who is authorized to accept service of proceedings and notices in Hong Kong and have a registered place of business in Hong Kong. The authorized representative is usually a person residing in Hong Kong or a firm of solicitors or certified public accountants. If the non-Hong Kong company ceases to have a place of business in Hong Kong, the company must deliver to the Registrar for registration a return in respect of another person as an authorized representative of the company for at least 11 months from the date of cessation of maintenance of a place of business in order to accept service on the company's behalf.

Partnerships

The corporate governance procedures for partnerships will largely be dictated by the provisions in the partnership agreement.

Reference should also be made to the Partnership Ordinance (Cap. 38 of the Laws of Hong Kong) which contains legislative provisions regarding the liability of partners, partnership property, expulsion/retirement of partners and dissolution of the partnership etc. For limited partnerships and limited partnership funds, respective provisions of the Limited Partnerships Ordinance (Cap. 37 of the Laws of Hong Kong) and Limited Partnership Fund Ordinance (Cap. 637 of the Laws of Hong Kong) must be considered.

Trusts

A discretionary trust is not a separate legal entity in the same way as an individual or a company, rather it is a relationship which exists whereby the trustee is compelled to hold property for the benefit of others (the beneficiaries). The trustee, who owes fiduciary duties to the beneficiaries, oversees the fund, and any corporate governance requirements will generally be set out in the trust deed. These features apply to unit trusts as well, although for unit trusts which are subject to authorization from the SFC, additional regulations (for example, the Code on Unit Trusts and Mutual Funds) apply. In particular, such a trust must appoint a trustee/custodian as well as a management company who are:

• independent of each other; and
• acceptable to SFC.

If the trustee is a company (which is the common case), the above requirements for companies will also apply. Furthermore, if the trust is listed on the Hong Kong Stock Exchange, the Listing Rules and the Corporate Governance Code and Corporate Governance Report requirements will also apply.

Last modified 19 Jul 2023

What are the main features of the constitution of each type of corporate vehicle used to invest in real estate?

Companies

All Hong Kong companies incorporated under the Companies Ordinance are required to file an annual return with the Companies Registry once a year. For private companies, the annual return should be made up to the anniversary date of the registration of the company in Hong Kong and filed with the Companies Registry within 42 days of that date, together with a filing fee. For public companies or companies limited by guarantee, the annual return should be filed within 42 days of the company's return date, ie six months (for public companies) or nine months (for companies limited by guarantee) after the end of the accounting reference period (ie the period by reference to which the company's annual financial statements are to be prepared) of the company.

For a private company, the filing fee for the annual return if delivered within 42 days of the relevant date is HK$105 (HK$140 for a public company; HK$105 for a company limited by guarantee). If filed after 42 days, the filing fee will rise incrementally to a maximum of HK$4,800 for a public company and HK$3,480 for a private company limited by share capital or guarantee depending on the number of days of delay.

Although private companies are required to prepare audited accounts, they need not submit them to the Companies Registry. Public companies (but not private companies) are required to submit their accounts together with their annual return to the Companies Registry.

Other recurring costs include maintaining the company secretarial function and a registered office, holding annual general meetings and producing annual accounts if and when required.

Branches of a foreign corporation

All non-Hong Kong companies registered under the Companies Ordinance are required to file an annual return with the Companies Registry once a year. The annual return should be made up to the anniversary date of the registration of the company in Hong Kong and filed with the Companies Registry within 42 days of that date, together with the filing fee. The filing fee for the annual return if delivered within 42 days of the relevant date is HK$180. If filed after 42 days, the filing fee will rise incrementally to a maximum of HK$4,800 depending on the number of days of delay. A certified true copy of the latest published accounts for a period of at least 12 months should generally accompany the annual return.

Partnerships

The recurring costs of producing annual accounts for the partnership should be taken into consideration.

Limited partnerships must also file any changes to their registered particulars with the Companies Registry within seven days. It costs HK$26 to register a statement of changes to the particulars of a limited partnership. Additional costs will be payable for changes in the sums contributed by any (new) limited partner (HK$8 for every HK$1,000 or part of HK$1,000 contributed by any (new) limited partner).

For a limited partnership fund, a filing fee of HK$105 is payable upon the filing of annual return. In addition, it costs HK$26 to file a notification of change in address, location of records and investment scope of limited partnership fund and HK$1,405 to file a notification of change of name of limited partnership fund.

Trusts

A trust usually incurs annual administration costs, the amount of which will depend on the nature and activities of the trust. In the case of unit trusts, annual management fees and any performance-related fees may also need to be paid to the management company. Unit trusts authorized by SFC must also pay an annual fee to the Commission. The amount of this annual fee varies depending on the nature of the unit trust fund, for instance, the fee for a single fund is HK$6,000.

Last modified 19 Jul 2023

What are the main features of the constitution of each type of corporate vehicle used to invest in real estate?

Companies / Branches of a foreign corporation

Hong Kong adopts a territorial principle of taxation, therefore under the Inland Revenue Ordinance (Cap. 112 of the Laws of Hong Kong) only profits arising in or derived from Hong Kong are subject to Hong Kong profits tax. Profits sourced elsewhere are not subject to Hong Kong profits tax.

Partnerships

Profits generated by the partnership are assessed in accordance with the Inland Revenue Ordinance. Thereafter, the assessed profits for the relevant year of assessment will be apportioned amongst the persons who were partners during the relevant period in the ratio in which the profits for that year of assessment were divided. Such apportioned profits will constitute the shares of the assessable profits of the individual partners for that year of assessment and taxed accordingly, without any taxes levied against the partnership itself.

A limited partnership fund (as long as they meet the definition of a fund) and special purpose entities held by a limited partnership fund will be exempted from profits tax in Hong Kong subject to certain conditions. No stamp duty is chargeable for subscription, transfer or redemption of limited partnership interest. Capital contributions or distribution of profits in kind involving transfer of Hong Kong stock or immovable property will attract stamp duty.

Trusts

Trusts are generally subject to profits tax from a business carried on in Hong Kong. However, unit trusts which are authorized by the Securities and Futures Commission may enjoy tax exemptions, which means that the profits derived from the investment activities of the unit trust in accordance with the trust deed and other applicable statutory requirements will be exempt from profits tax.

Last modified 19 Jul 2023