Protected Cell Companies in Mauritius – Everything you need to know
Introduced in 2000 under the Protected Cell Companies Act 1999 of Mauritius, a Protected Cell Company (PCC) is a Special Purpose Vehicle that authorises the lawful separation of assets owned by each cell of the company. Also known as a Segregated Portfolio Company in some jurisdictions, the PCC allows for more security and flexibility for international investment structuring.
What are PCCs? How to set up a PCC in Mauritius? What are the main features of a PCC? In this article, we tell you everything you need to know.
What are Protected Cell Companies?
A PCC is a corporate structure, limited by shares, which consists of a core (“non-cellular”) and an indefinite number of cells (“cellular”). In this structure, each cell is isolated from one another and operates separately. PCC allow for the segregation of risks, as well as assets and liabilities, of different individuals and/or corporate entities under a shared structure.
Therefore, the liability of the PCC arising from transaction attributable to one cell will affect its assets only. For instance – and thanks to the segregation, in case of bankruptcy of a specific cell, creditors shall utilise the assets of that specific cell – and not of the others within the structure – to honour its liabilities.
Setting up a Protected Cell Company in Mauritius
A PCC can be incorporated in Mauritius as a Global Business Company (GBC), and benefit from Double Taxation Avoidance Agreements in force. As stated above, existing foreign and existing Mauritian companies may also apply and convert into PCCs.
Although PCC can have an unlimited number of cells, their creation is subject to the authorisation of the Financial Services Commission (FSC) of Mauritius.
What are the main features of a PCC?
We list the important features of Protected Cell Companies:
- A company in Mauritius may be incorporated as a PCC.
- An existing company can convert into a PCC, on condition that its constitution authorises this conversion.
- Through continuation, a company incorporated in a foreign jurisdiction can be registered as a PCC and carry on its activities in Mauritius.
Distinct name or designation
PCCs must have the words “PCC” or “Protected Cell Company” at the end of its name, with each cell having its own designation or name. It could be the first, last or full name of the holder of the shares of that particular cell, or it could be a number and/or alphabet that will provide for the preservation of the holder’s anonymity.
A foreign company can continue to operate as a PCC in Mauritius, using the name designated in its articles of continuation and ending with the words “Protected Cell Company” or “PCC”.
Single legal entity
PCCs can have a multitude of cells. However, each one needs to have its own, distinct name or designation. Even though a cell is legally independent from the others, it is not a legal entity and is therefore created within the PCC. Moreover, the activities of each cell must be congruent with the overall business activity of the PCC.
No minimum capital is required for a PCC and for each of its cell. However, according to the nature of business (such as insurance businesses) of the PCC, the FSC has the authority to recommend certain capital requirements.
Segregation of assets and liabilities
As previously mentioned, a PCC is made up of a core (“non-cellular”) and cells (“cellular”). Such are their assets and their liabilities.
Segregation of non-cellular assets and liabilities
Non-cellular assets are assets that belong to the PCC (“core”). These assets are not attributable to any cell.
- Protected Cell Companies have the responsibility and are required to inform any person (legal or natural), with whom they are dealing or transacting, that they are a PCC; and
- Except business is made with no relation to any particular cell, PCCs are required to identify and inform this person with which cell they are dealing.
Should PCCs fail to respect the above-listed conditions, its directors will be personally liable to that person regarding that particular transaction. Unless they acted fraudulently, neglectfully, or in bad faith, the directors have the right to indemnity against the non-cellular assets of the PCC relating to their personal liability.
Segregation of cellular assets and liabilities
Cellular assets are assets that belong to particular cells of the PCC. They are not attributable to the Protected Cell Company.
The directors of a PCC have the responsibility and are required to hold:
- Cellular assets independently and easily identifiable from non-cellular assets; and
- Cellular assets distinctly and easily identifiable from cellular assets pertaining to other cells.
The liabilities of one cell extend to the assets of that particular cell, which is principally liable. In the case where the assets of that cell are not sufficient to honour its liabilities, then the non-cellular assets of the PCC will be liable.
It is important to point out that the liabilities of a particular cell does not have any impact on the assets of the others. On another note, if the liabilities of the PCC that do not relate to any transaction linked to a particular cell, the PCC’s non-cellular assets will bear all liability.
Protected Cell Companies are liable to tax as a single legal entity.
As a GBC, a PCC is liable to income tax at the rate of 15%. However, certain categories of income – such as dividend from foreign sources and interest from foreign sources – are subject to an 80% exemption. Therefore, the effective rate on these incomes does not exceed 3%.
In addition, there are no withholding taxes on interests and dividends. As such, PCCs may also claim credits for actual taxes suffered against the nominal tax payable, such as for withholding taxes that are retained in their source countries.
Issuance of shares
PCCs can issue shares in the capital of its cells (“cell shares”). The earnings derived from the issuance of cell shares will be consolidated within the cell’s assets. The income generated from the issuance of shares, other than the shares of its cell, will form part of the non-cellular assets of the PCC.
Core shares will carry voting rights of the PCC. Cellular shares, on the other hand, have all voting rights pertaining to a specific cell. This gives maximum protection to the investors of each cell with regard to its corporate governance issues.
Dividends to the shareholders of each cell are paid independently from one another. While dividends are payable only by reference to the profits made by each cell, the PCC will be taxed as a single legal entity.
The investment management is usually passed on to another person or entity having specialised knowledge in the field. The Investment Manager will normally hold the core shares of the PCC for effective investment decision making. Indeed, as these shares carry all of the PCC’s voting rights, the investors consent to grant the actual running of the Fund to that person/entity and its designated directors and administrator.
Activities PCCs can undertake in Mauritius
PCCs are suitable vehicle for investment funds, insurance business and asset holding. A PCC can engage in the following activities:
- Asset holding and managing of assets (or portfolios of assets);
- Structured Finance Businesses;
- Collective Investment Schemes (CIS) and Closed-ended Funds;
- Specialised CIS and Closed-ended Funds; and
- External insurance.
For instance, an investment fund can consist of different cells that invest in segregated portfolios, in different countries or different industry sectors (e.g. Private Equity Fund structured as a PCC).
Insolvency of a Protected Cell Company
Administration orders act as a rescue mechanism for insolvent PCCs, or its cells. It also allows them to continue their operations and doing business despite the fact that they are insolvent. An administration order is a better option in the realisation of the business and assets of the PCC, or a particular cell, than receivership or liquidation.
The parties that can make an application for an administration order are the directors, shareholders, creditors, the FSC, the Registrar of Companies of Mauritius, shareholders or creditors of any cell of the Protected Cell Company.
In general, if the cellular assets of a cell are not sufficient to settle the liabilities (of that cell), the Court may have to issue an administration order. In the same way, the Court can issue such order if the cellular and non-cellular assets are insufficient to honour the liabilities of the PCC (as a single legal entity).
Assets pertaining to a particular cell of a PCC are accessible to the creditors of that cell only.
Receivership order in relation to a cell
In case an administration order is not appropriate, the same parties can ask for the issue of a receivership order to any cell. If the assets of a cell are not sufficient to settle its liabilities, and for the proper winding up of the activity of the cell, the court orders that a receiver manages the business and cellular assets. The receiver is granted to take all actions he deems necessary for the purpose of the receivership.
Subsequent to the winding up of a cell, the receiver will distribute its assets to the creditors or the persons who are entitled to have recourse to such assets.
In the liquidation of a PCC, the liquidator’s responsibility is to keep:
- Cellular assets distinctly and easily identifiable from non-cellular assets; and
- Cellular assets independently and easily identifiable from cellular assets attributable to other cells.
Mauritius: the ideal jurisdiction for PCCs
When selecting the appropriate jurisdiction within which to set up a PCC, it is important to take into account a number of factors. In fact, establishing PCCs are more critical than setting up an investment holding for instance. Indeed, a PCC will have different strategies for different cells, as well as different groups of investors/stakeholders.
Furthermore, a PCC is expected to carry out cross-border and global business activities with different jurisdictions, more than other types of structures. It is therefore important for a PCC to have its operations in an International Financial Centre (IFC) that can communicate with many other jurisdiction efficiently and effectively. One of the main reasons for choosing Mauritius is that, being incorporated as a GBC, Protected Cell Companies will be able to take advantage of the Double Taxation Avoidance Agreements the country has with many emerging and developed economies around the globe.
While PCCs can also be formed in other jurisdictions such as the Isle of Man, Jersey or Guernsey, the Mauritian legislation is more flexible compared to others.
The key comparative advantages of Mauritius for the establishment of PCCs are:
- Mauritius has a wide network of Double Taxation Avoidance Agreements (DTAA) and Investment Promotion and Protection Agreements (IPPA);
- No capital gains and inheritance tax;
- No withholding tax on distributions made to any country; and
- Strategic geographic location with convenient time zone (GMT+4).
In addition, other interesting factors of the Mauritius IFC include:
- Flexible and appropriate legislation;
- Exchange liberalisation;
- Free repatriation of profits and capital;
- No capital duty on issued capital;
- Confidentiality and banking secrecy; and
- Strong regulatory framework.
How Sunibel can help in the setting up of, or conversion of a company into, a PCC?
Sunibel Corporate Services offers a comprehensive range of tailor-made corporate, trust, fund and fiduciary services to clients in various jurisdictions. Our service includes:
- The setting up of the PCC
- The provision of the mandatory two resident directors
- Company secretarial services
- Assistance in preparing the business plan for each cell that will be formed
- Arrange for the creation of cells
- Preparation of annual accounts and liaisons with auditors and authorities
- Filing of tax returns