Opening a company abroad: the preliminary guide

Opening a company abroad represents a key strategic component in the processes of internationalization of enterprises. However, such a choice requires thorough multidisciplinary analysis that includes not only financial aspects but also legal, tax, and organizational ones. Insufficient or inadequate planning could expose the company to significant risks, including controversies related to "esterovestizione," a phenomenon where a company, despite being registered in a foreign country, actually operates in Italy, contravening national tax regulations. This aspect is regulated by Article 73 of the Consolidated Text of Income Taxes (TUIR) and represents an area of growing attention from tax authorities.

In addition to tax compliance, it is essential to structure an organizational plan that considers the‘operational efficiency and compliance with local regulations. Internationalization requires specific expertise in commercial law, in-depth knowledge of labor regulations, and adequate human capital management. The lack of harmonization between internal operating models and local practices can compromise the effectiveness of expansion, leading to economic and reputational inefficiencies.

Starting a business abroad: the fundamental aspects to know

In the landscape of options available for international expansion, corporate structures are primarily divided into branches, representative offices, partnerships, and corporations, each characterized by specific legal and tax implications.

Branches and representations

Branches constitute extensions of economic activity in another state and are subject to taxation in the country where they operate, in accordance with the “permanent establishment” principle enshrined in international double taxation treaties (e.g., the OECD Model Tax Convention). It is crucial to verify the existence of a local taxable presence resulting from ongoing activities or the appointment of a tax representative.

Partnerships

Partnerships, like general partnerships and limited partnerships, have different management peculiarities and legal responsibilities. In general partnerships, partners have unlimited liability for corporate obligations, while in limited partnerships liability is modulated according to the capital invested. In addition, the way in which shares are transferred varies significantly between the two types, affecting the flexibility of corporate governance.

Corporations

Corporations, such as limited liability companies (LLCs) and joint stock companies (S.P.A.s), are legal entities that are separate from shareholders, with a limited liability regime. In Italy, Article 25 of Law 218/1995 determines the applicable law based on the registered office of the company, unless the effective management is located in Italy, in which case Italian law applies. Significant differences between LLCs and SPAs include the minimum share capital required and the methods of management and control, making it necessary to carefully consider the choice of corporate vehicle in relation to the strategic objectives of the enterprise.

In a global context characterized by constantly evolving regulations, the assistance of expert professionals in international corporate law, transnational taxation, and strategic planning represents an essential element for ensuring solid business expansion that complies with local and international regulations.

The conditions of corporate incorporation outside national borders 

When you decide to open a company abroad, it is crucial to check whether you meet the necessary requirements to avoid tax issues such as the increasingly common corporate esterovestification. According to the’Article 73 of the TUIR, two conditions are crucial:

1. The company's administrative headquarters must be physically located abroad. This implies that offices and decision-making bodies must be operational in the country where tax residence is to be established.
2. The activity of the company must be actually carried out in the country of tax residence. If the company is incorporated abroad but the business is conducted in Italy, the tax residence will be in Italy.

These are the basic requirements, but there are also specific conditions that must be verified in order to avoid the presumption of esterovestification, as provided for precisely in TUIR Art. 73, para. 5-bis.

Many entrepreneurs mistakenly believe that online businesses, being without a physical location, can be easily established abroad without tax implications. In any case, even the digital export through a e-commerce, must meet the requirements described above. If the location is foreign but the site is intended for the Italian market, the activity could be considered to be carried out in Italy, with the associated tax implications.

Foreign real estate and holding companies

The same esterovestification rules also apply in the case of foreign real estate and holding companies, which require special attention to avoid tax issues related to this phenomenon. One option for avoiding the risk of esterovestification is the creation of a multinational group, where the entrepreneur entrusts the management of the business to a manager residing in the country in which the registered office of the company is located. In this way, the entrepreneur remains a capital partner but does not directly manage the business.

This solution, although effective, may be more challenging for new businesses to sustain, as they may not have sufficient resources to deal with the costs associated with establishing a multinational group. Therefore, it is considered a more suitable strategy for established businesses.

The steps to be followed for open a company abroad

To identify the best country for a process of internationalization of the enterprise, it is essential to consider the following aspects:

1. 1. Planning and research through market research:  it is important to conduct a’market analysis to assess demand and competition in the target country.
   2. Legal and tax aspects:  it is advisable to consult experienced figures in export-related tax and legal practices to navigate the laws and regulations of the foreign country. At the same time, it is important to inquire about any double taxation agreements between the home country and the foreign country (such as those in place for nations like the’Saudi Arabia) to avoid double taxation on the same income.
   3. Management and operations: understanding labor laws, cultural customs, and employee expectations in the destination country is essential to effective management. So is assessing how geographic location will affect the supply chain And shipping costs.

When to set up a company abroad: timing and considerations

Opening a company abroad is a choice that therefore requires careful study. More and more companies, in fact, are seeking to expand into new international markets, and this can be accomplished by opening a foreign office while maintaining their base of operations in Italy. This scenario provides an ideal context for starting an export process, which is usually implemented when the company already has a solid base in the domestic market.

In particular, the’internationalization becomes a natural step when the company has reached a certain maturity and can invest resources to expand abroad, either with a subsidiary or with branches. The stage of business maturity is, therefore, a fundamental prerequisite for the success of this operation.

Transfer, merger and dissolution of companies

For entrepreneurs wishing to transfer, merge, or dissolve a company, it is important to know European regulations, such as the EU Directive 2019/2121, which facilitates the transfer of economic activities between EU countries, and the EU Directive 2017/1132, which regulates cross-border mergers. Cross-border demerger, on the other hand, has no uniform regulation and is still being discussed.

Setting up a company abroad can certainly bring tax and operational advantages, and take advantage of all the opportunities that the international environment offers. It is therefore an option that many Italian companies are pursuing, in order to penetrate the market of target countries more effectively. 

Octagona, a leader in the internationalization strategies, offers customized counseling aimed at ensuring the most suitable paths for open a company abroad, and full compliance with evolving international regulations. For more comprehensive information, we invite you to contact us through the appropriate form.