With a sole proprietorship there is no distinction between the personal and business assets. As a result, all assets and liabilities pertaining to the proprietorship constitute the income and expenses of the owner. Creditors of a sole proprietorship have recourse directly on the personal property of the owner, whereas private creditors can also recover their claims from the assets of the business. Therefore, as such, TripleTrust has never advised any of its clients to do business as a sole proprietorship.
A foundation is a legal entity in its own right with its own assets and liabilities. The legal concept of the foundation was developed from capital being set aside for a special non-profit or charitable purpose and was originally used by religious and welfare groups. The foundation is still frequently used for religious and non-profit organizations. Distributions to incorporators or to those, who constitute its bodies, are not allowed – save in case of a private foundation – and its distributions are furthermore restricted by law to distributions with a charitable or social purpose.
The foregoing does not mean that the use of a common foundation is restricted to charitable purposes. It can be -and is extensively- used in structures in which the foundation is the legal owner of assets of which others hold the economic ownership.
The private foundation
For purposes of international tax and estate planning the private foundation has been introduced as a flexible variant of the long existing ‘common’ foundation which variant is comparable to a trust. The Dutch name is Stichting Particulier Fonds, abbreviated SPF.
As mentioned, the private foundation is a foundation but a specific and flexible form thereof. The private foundation is, like other foundations, a separate legal entity, with assets and liabilities in its own name. Furthermore, a private foundation neither has shareholders, members or the like. Beneficiaries do not have to be appointed if such appointment is not desired.
Therefore, the purpose of a private foundation may include the making of distributions to incorporators and or others, such as children or grandchildren of the founder, without serving a charitable or social purpose. Beneficiaries of such distributions can – but are not required to – be appointed/designated in the articles of association, and if such is done, either in very general or very specific terms.
Another major difference between common and private foundations is that the private foundation’s purpose may not be to conduct a business or enterprise for profit. Managing its assets (investments, equities etc), to act as a holding corporation, or to participate as a partner in a limited partnership, will however not be regarded as ‘conducting a business’. Under the provisions of Book 2 of the Civil Code, the foundation may and should invest its assets and may do so actively. There are no limits on the type of investments.
Since the 1st of January 2012 it is possible to set up an Anglo-American like trust pursuant to Curaçao law. The Curaçao Trust must be incorporated by a notarial deed executed before a civil law notary in Curaçao. The Curaçao Trust can be used for many purposes, including as a top holding vehicle for international structures, as asset protection tool for previously privately owned assets, as a business or investment trust, in financing- and securitization transactions, as a security trustee and also to set up a protected cell company (or segregated portfolio company). The protected cell company is an interesting vehicle which can be used for umbrella funds and captive insurance companies.
Within Curaçao’s legislation there are three forms of partnerships:
A public partnership is a partnership that carries out a profession or business (or performs professional or business acts) and acts externally in a for third parties clearly identifiable manner under a name used by it as such. A public partnership is referred to as “openbare vennootschap” in Dutch language.
The possibility exists to convert a public partnership into an N.V. or a B.V., in which case the partners of the public partnership will become shareholders of the N.V. or B.V. by law, proportionate to their former share in the public partnership.
A silent partnership is a partnership that is not a public partnership and is referred to as “stille vennootschap” in Dutch language. Therefore, a partnership which does not carry out a profession or business or a partnership which does not participate in transactions is a silent partnership.
A limited partnership is a public partnership in which there is a distinction drawn between the limited partners and the general or managing partners and is referred to as the “Commanditaire Vennootschap (“CV”)” in Dutch language. The general or managing partners manage the affairs of the CV and represent it in dealings with third parties. They are jointly and severally liable for the debts resulting from the enterprise of the CV.
A limited or “silent” partner, however, contributes to the partnership a certain amount of capital. His liability is limited to the amount of capital contributed. A limited partner is prohibited from directly managing the affairs of the CV, however he can represent the general partners as their attorney-at-fact. If a limited partner is involved in the direct management of a CV he forfeits his right to the protection of limited liability and becomes jointly and severally liable for the debts resulting from the enterprise of the partnership, together with the general or managing partners.
The public limited liability company (N.V.) and private limited liability company (B.V.)
The N.V. and the B.V. are the most common formal structures for the conduct of business in Curaçao. The B.V. is a flexible form of company. The B.V. is a company similar to the N.V. The main differences as compared to the N.V. are:
- The B.V. has registered shares only;
- The articles of association can determine that the shareholders can be held liable for the debts of the B.V.;
- The articles of association of the B.V. may contain a provision providing for a different manner for dissolution of the company;
- If it is envisaged that preferential rights be attached to shares, such may be provided for in the articles of association of the B.V.;
- There is no distinctive financial regime such as for the “large” N.V.;
- On the initiative of an individual shareholder general shareholders meetings for the B.V. can be convened;
- The B.V. can be organized in such a manner that it is “managed by shareholders”: in that case there is no distinction between the shareholders and the managing directors as corporate bodies.