Limited liability company
Limited liability companies must have 1) a registered office and an address for service at a physical address in New Zealand; 2) at least 1 shareholder appointed and 1 share issued to a shareholder; 3) at least 1 director appointed who either lives in New Zealand or lives in Australia and is also a director of a company incorporated in Australia. In addition, limited liability companies must provide to the Registrar of Companies the details of the relevant ultimate holding company (to the extent applicable).
Limited liability companies are taxed on their earnings at the corporate tax rate and can attach imputation credits to their distributions to shareholders.
Limited liability companies can elect to adopt a constitution that sets out the operational procedures and other matters applying to their operations and governance. However, there is no mandatory requirement for companies to adopt a constitution. If a constitution is not adopted, the default provisions of the Companies Act will apply.
Directors are subject to a number of legislative and common law duties that are generally owed to the company to which they are appointed.
Companies can issue shares to shareholders and to 3rd parties in accordance with the requirements set out in the Companies Act and their constitutions (as may be applicable and to the extent that they have adopted a constitution). The Board is generally responsible for determining the issue price per share, which must be fair and reasonable to the company and all existing shareholders.
Companies may issue different classes of shares that have different rights and interest attaching to them, but this right is subject to the provisions of the Companies Act and/or their constitution.
Capital raisings must be done in accordance with the requirements of the FMCA and other applicable law.
Branch
To establish branches, overseas companies must be registered with the Companies Office and be assigned a New Zealand Company Number.
Branches are not separate legal entities, and overseas companies have the full legal responsibility and liability for the actions of their New Zealand branch operations in New Zealand.
Branches must appoint 1 person who is authorized to accept service of documents in New Zealand.
Branches must also notify the Companies Office of the date that they begin to carry on business in New Zealand as well as their “principal place of business in New Zealand”. Branches are taxed as separate entities in New Zealand and are taxed on all their New Zealand taxable profits, which include income sourced from New Zealand less any attributable expenses. A foreign company with a branch in New Zealand may be required to provide its financial statements (or specifically prepared financial statements) to the Companies Office and/or Inland Revenue.
As with limited liability companies, Overseas Investment Office approval under the Overseas Investment Act 2005 may be required before a branch of an overseas company can acquire shares and assets of a certain value, or to purchase certain land that is considered “sensitive land” (which is a term defined in the Overseas Investment Act 2005).
Branches are not required to display the identity of their shareholders on the Companies Office.