Find out about the types of corporations available in Costa Rica, the procedures for setting up a company and fees you must pay.
Disclaimer: This document contains generic information only and is not intended as a substitute to professional counseling; if you have a decision to make consult a dependable professional. The information herein is intended but not promised to be updated and exact.
Date: February 2009.
1.PURPOSE AND USES:
Corporations or companies are commonly used as a holding vehicle to hold assets such as real estate or financial instruments, because the entity insulates the asset from the beneficiary owner’s personal liability, like in a car accident for example.
Estate Planning: special estate planning solutions and benefits can be achieved by customizing the entity’s articles of incorporation, thus avoiding the cost, complexity, and exposure of wills and probate procedures.
Residency status: In some cases, the entity can be used to qualify for temporary resident status in Costa Rica.
There are several options to choose from depending on the general strategy and/or purpose desired:
a) Sociedad Anónima or S.A. (the corporation):
This is the Costa Rican equivalent of the Delaware Corporation, i.e. the most commonly used type of entity. It has the more complex structure:
Shareholders: a minimum of two shareholders who constitute the corporation and when summoned together in the Shareholder Assembly represent the highest organ of the corporation. Stockholder meetings may be summoned by personal notification or legal notice in a newspaper.
Board of Directors: appointed by the shareholder assembly, it has a President who represents legally the corporation before third parties and may or may not have a power of attorney (general, full, limited or unlimited) over the corporation, the Secretary is depository of the corporation´s legal books and minutes of the stockholders´ meetings, the Treasurer in charge of financial affairs.
The Fiscal: is an Auditor in charge of the due diligence with special rights to inquire from any officer any document, to report and to summon a shareholders meeting for an emergency situation, may or may not have veto powers.
Shares: the minimum share subscription requirement is ten thousand colones (USD20 approx), the shares are common and nominative, grant to the owner equal right to dividends and obligation of expenses of the corporation, they’re transferable to any person or entity through endorsement and due record in the corporation books, they may be nominative or bearer shares. The ownership and transfer of shares are regulated by the “shares chapter” of the Code of Commerce, by the corporation charter and in a lack of the charter by the Code of Commerce chapter on securities.
Liability: Shareholders’ liability is limited to their amount of subscription. The President is liable to third parties for the corporation’s obligations.
“Founder Bonuses” (bonos de fundador): These are very special type of rights issued by the corporation, they only grant the right to net dividends in the amount and term set forth and indicated, and they do not grant the right to intervene in the administration of the corporation, are not convertible into common shares and don’t represent any participation on the corporation stock, under article 148 of the Code of Commerce. Furthermore, they may be nominative or bearer bonuses. Founder bonuses are regulated by the Code of Commerce chapter on securities when applicable to them. Note: the sui generis nature of this atypical concept is interesting, from the point of view of its classification under Controlled Foreign Corporation treatment.
Share types: under CR Code of Commerce, a corporation has to have common shares: ordinary shares, grant identical rights, represent equal parts of the stock, the nominal value equal to CR currency, and nominative i.e. to have a name for their owner. The minimum amount is ten thousand colones, there is no maximum, it only will increase the Registry Fees and taxes. Besides common shares, the corporation is free to issue and authorize any class of shares and securities, with the designations, preferences, privileges, restrictions, limitations and modalities established in the Articles, and as related to corporation benefits, assets, businesses, dividends, voting or any other issue related to the corporation activities. These shares are not registered in the Registry but in the Stock Holders´ Meetings and Stock Registry books and must be issued by valid stockholder meeting.
- any exclusions or limitations upon the common shareholders from the dividends participation.
- shares are not divisible, when there is more than one owner of one share, they must appoint a Proxy, in the lack of agreement the judge appoints one.
- corporations cannot own more than 50% of their own shares.
- Public Corporations: if a corporation goes public, ie issues securities and triggers the financial intermediation regulations, then Securities Regulations Law apply.
b) Sociedad de Responsabilidad Limitada or LTDA. (Limited Liability Company “LLC”): This is a hybrid entity, with characteristics of a corporation and of a limited partnership. It has a simpler structure than the corporation but more flexibility than the limited partnership. Liability of the company members is limited to the sum of quotas that they subscribe. It does not require a full board of directors like the SA, but rather just one General Manager. There may be additional directors appointed like a Co-Manager or Sub-Manager with the same signing power of less authority. The transfer of the company shares to third parties requires the unanimous agreement of the LLC shareholders, therefore making it safer from fraudulent or unauthorized transfers.
c) Sociedad en Comandita or S en C. (Family Limited Partnership): So-called “personalist” type of company, inherited from the early mercantilist legislation from middle age Europe when banks and financing were scarce. Simple structure: a limited partner who funds the company, has limited liability, no control over the administration nor voting rights and a general partner who has unlimited liability and full control of the company. Third parties who acquire partnership units do not become company members per se, they need the consent of the other members, even if the units are acquired under foreclosure. In lack of specific provision, the death of the general partner causes the company dissolution. Note: Special provision may be devised to assign losses and expenses to partners but to recycle proceeds and profits, so as to use against holders of a “charge order”, discourage creditors and preserve capital. A corporation may be used as the limited partner in order to achieve enhanced estate planning advantages.
3. GENERAL PROVISIONS:
All these entities are recorded under the Mercantile Registry Section of the Public Registry of Costa Rica. The articles of incorporation have to be signed by the founding members/shareholders and notarized by a Costa Rican notary public in the protocol book. Incorporation tax is $50 dollars approximately. Incorporation term ranges from 4 to 6 weeks depending on registrar assigned and amendments required by Registrar to be fully recordable. Minimum subscription sum is ten thousand colones (USD20 approximately). The Registry will issue an official entity registration number and assign registration entry numbers (citas de inscripción). Once incorporated the entity has to seal six books with the Revenue Administration Book´s Unit (Unidad de Timbraje de Tributación Directa) these books are shareholders/members assembly, the board of directors/managers meetings, shares/quotas registry and three books for the accounting (daily, ledger and inventories and balances). If the entity does not produce income in the territory of Costa Rica the entity may register as a commercial-inactive entity before the Revenue Administration of Costa Rica and will be ignored from reporting/filing duties (“dormant corporation/company”). The articles of incorporation may be modified partially or totally at any time to switch the type of entity, merge with another one or reach dissolution, or to change the entity name, domicile or directors.
4. SHARES´ CERTIFICATES:
Since the common practice has shown us “share certificates” are only good for getting lost, and often serve as forgery instruments, we discontinued them in our practice, years ago. Instead, we give the Legalized Stock Holder Registry Books to clients with the respective entry on it. If the books we gave don’t have it, let me know and we can fax you the entry.
The articles template we use states that Stock Holders Certificates are to be regarded/validated by Entry in the Stock Holders´ Book, to skip printing the shares and avoid share certificates circulating around.
- LIMITADAS: most of the vehicles we use are LLCs or LIMITADAS in Spanish, they are safer in this sense because under art. 78 of the Code of Commerce stock transfer are to be executed only in the Stock Holders´ Registry Book to be valid, hence they are safer and need no Certificates as a means of endorsement/transfer to third parties.
- SAs: in respect to SAs, we have implemented the same practice, especially because under art.140 of the Code of Commerce, the Sociedad is to consider a Stock Holder the one registered as such in the Stock Holder Registry book, and it does not mention the Shares´ Certificates. We have discussed this interpretation with corporate lawyers/professionals and at seminars, the only strong argument we´ve heard is that under art. 688 of the same Code, on Securities´ Section (títulos valores) it requires pursuant to the transfer of Securities to be done in the Securities´ Registry and in the Certificate itself, but then again, arguably, this only applies to “Public Corporations” with their shares/stocks listed in the Public Stock Market Exchange, hence as a requirement to validate a transfer only. Something we really believe unpractical and unnecessary for Closely Held Holding Corporations like most our clients use.
There are three types of mercantile entities in Costa Rica, analogous to the ones in the Common Law system, each one has its own “profile”. We recommend the S.A. as an excellent low profile “holding corporation”, in fact its name in Spanish means “anonymous society”, the LTD as a “managing company” is an excellent liability absorbing buffer, and the S en C (limited partnership) is a superior tool for estate planning purposes or as part of complex asset management structures such as trustee/fiduciary duties i.e. “trust company”.
C R Law LTDA. will assess your necessity, design and generate the articles of incorporation or charter that most effectively carries the desired purpose, file it at the Mercantile Registry of Costa Rica, get it recorded and arrange for the books of the entity, shares, translations and other related documents. We have “shelves” (previously established company) in inventory and available upon request as well. Accessory fiduciary services to the entities and estate planning solutions are available. Feel free to inquire about these services.
We charge a flat fee for the setting up the entity, and an optional registered office fee of US$100 dollars yearly, due on December each year, to have the entity domiciled in our law offices.
Corporation (S.A.) or L.L.C. (LTD) (Ltda) US$750 dollars.
Limited Partnership (S en C) US$1,000 dollars.
If a company is already established (shelf) add US$100 dollars.
Note: Fees include all incorporation taxes and legalization of books.
- Nominee Directors @USD500 per year.
- Shelf entity @USD850.
- Apostille Certification of Authority subject to inquiry.
- Courier anywhere in the world UPS @USD75.