What are common ownership structures for ownership of commercial real estate?
Real Estate (3rd edition)
In general, real estate assets can be acquired by individuals as well as any corporate or non-corporate entity permitted under Austria law; therefore a private limited liability company (Gesellschaft mit beschränkter Haftung - 'GmbH'), a partnership (Offene Gesellschaft - 'OG'), a limited partnership (Kommanditgesellschaft - 'KG') and foundations (Privatstiftungen) and funds (Fonds).
The GmbH and the KG are the most common form for ownership of commercial real estate.
The right choice of entity depends – among other facts – on size and development plans of the prospective real estate, as well as on tax planning and liability. More often we see the acquisition of shelf companies as well as double-storey corporate structures involving foreign companies as master companies or subsidiaries on the market as part of share deals.
Commercial real estate is commonly owned by individuals and legal entities (direct ownership) or by means of indirect interest through equity/securities of legal entities or investment funds.
6.1 The structures most commonly used are corporate structures, including Cayman Islands companies and foreign companies.
6.2 Because the Cayman Islands is a no-direct taxation jurisdiction (although see question 14), and real estate investment activities can be conducted though different structures, foreign investors are free to select their investment model based on factors (for example, taxation and investment regulation) not driven by Cayman regulation, except where participation may be marketed in the Cayman Islands.
6.3 REITs and real estate derivatives from Cayman Islands real estate are relatively uncommon due to the relatively small size of the jurisdiction and the taxable event that arises when an interest in land (including the equity capital of a land holding corporation) is transferred (see question 14), although there have been some instances of foreign REITs acquiring Cayman Islands commercial property.
6.4 Institutional investment in the Cayman Islands is increasing as the sizes of projects require large amounts of capital. However, at least two-thirds of commercial real estate is held privately.
It is common for both individuals and legal entities to own immovable property. Also, partnerships and joint ventures are made for the purpose of owning and or developing immovable property.
Usually, limited companies are used for the purchase of immovable property when such property is being purchased to be re-sold or to be developed. A company that is a dealer of land or a developer pays tax at 12.5% when selling an immovable property at a profit. When an individual who is not a dealer of land sells immovable property at a profit, 20% capital gains tax is charged. Whether it is beneficial for an entity to purchase the immovable property instead of an individual depends on several factors like the value of the property, the intended future use of the property, the prospect of selling the property, the number of persons involved the purchase etc. Each case depends on its own facts.
Furthermore, trust structures may be used for the purchase of property. This is usually the case when there is a reason to keep the legal title separate from the beneficial title. Such trusts are registered at the land registry.
A new trend in Cyprus is the investment in immovable property through funds.
Commercial real estate is typically owned by companies. When commercial properties are owned through one or more companies, a transfer of the properties can (directly or indirectly) take place as asset or a share sales. In Denmark, commercial real estate is often owned by limited liability companies such as “aktieselskaber” or “anpartsselskaber” or by tax transparent companies such as “kommanditselskaber” (limited partnership) or “partnerselskaber” (limited liability partnership).
Ownership structures are often motivated by tax considerations, as transfer of real estate triggers capital gains taxes and certain fees, whereas transfer of shares as a main rule does not.
Depending on the number of commercial and residential leases in the property, ownership may be structured in a holding structure so that the commercial property is owned by a property company which in turn is owned by a holding company. According to current case law, this allows the owner of the holding company to transfer shares in it (and, thus, indirectly the real estate) without triggering the tenants’ statutory right of first refusal to acquire the property. Such right of first refusal is otherwise granted the residential tenants of a property that has 6 or more residential tenants (or 13 or more residential tenants if there are also commercial tenants in the property) in case of a transfer of the property or the shares in the property company.
The choice of the type of entity to be set up for owning a commercial real estate is usually the result of a tax analysis on a case by case basis.
Individuals often set up a French partnership named société civile immobilière (SCI) to hold and rent commercial real properties on an unfurnished basis. SCI is a fiscally transparent entity and its taxable income is, thus, taxed at the level of each of its partners.
Partners of a SCI have unlimited liability for the whole of the debts of the company but only in proportion to their holding in the capital of the partnership.
Commercial real estate can be held directly by individuals or through entities. High value commercial assets are typically held through specifically created structures which are, depending on the ultimate owner, formed inside and/or outside of Germany.
Common vehicles to hold real estate in Germany include:
- Limited liability companies: Limited liability companies, formed specifically for the purpose of holding the real estate in question, are a common holding structure and may be based in Germany or other jurisdictions. Corporate vehicles offer limited liability, which allows investors to ring-fence assets and liabilities, and they can also provide tax advantages for some classes of investors (for instance with respect to trade tax and capital gains taxation). Corporate vehicles are also used to provide privacy and anonymity for investors.
- Limited liability partnerships: Limited partnerships are also a common holding structure for German real estate. German limited liability partnerships have a legal personality and are typically transparent for corporate and individual income tax purposes. Limited partnerships are a very flexible structure from a governance perspective without many of the rules and restrictions that apply to corporate vehicles. German limited liability partnerships are registered in the commercial register and usually have a general partner with unlimited liability which in turn is usually a limited liability company.
- REITs: The German real estate investment trust (G-REIT) is formed as a stock corporation with a number of key tax advantages. However, G-REITs are subject to relatively strict governance rules (e.g. minimum distribution rules, minimum number of shareholders, minimum capital and leverage rules), and hence are often not suitable for individual investments of one investor. They are subject to the laws of the German Stock Corporation Act (Aktiengesetz) as well as the REIT Act (REIT-Gesetz) and may only hold ownership in real estate (excluding existing residential real estate) as well as participations in real estate companies.
- Open-ended funds: The German open-ended fund is a mutual investment scheme issuing units and regulated by fund rules. It is usually open to a broad range of investors, aimed at multiple investments and managed by a financial investment management company (Kapitalverwaltungsgesellschaft, KVG) as asset management company. The fund as such does not have a legal personality, but its assets are legally owned by the KVG as a so-called "separate asset" (Sondervermögen) on behalf of the open-ended fund. The KVG needs authorisation of a management company for UCITS purposes or as an AIFM. The open-ended fund has various tax advantages.
- Closed-ended funds: In contrast, German closed-ended funds are investment schemes typically set-up for a limited number of investors to collect capital for specific investments or types of investments. They are also managed by an asset management company which has authorisation as an AIFM.
Both individuals and legal entities may hold and exercise rights over commercial real estate. Foreign ownership is generally permitted.
A common entity form that is used to invest in real estate and manage income deriving from real property assets is the Real Estate Investment Company. These entities benefit from a special tax framework, including exemptions from property transfer tax on acquisition, capital gains tax on the sale of property, tax on dividends, etc.
Common ownership structures for ownership of commercial real estate are:
- Direct ownership by one or more individuals/entities as owners / joint owners (with or without an express agreement between co-owners on the mode of utilization and devolution of the asset).
- Co-operative societies, in which allottees of plots/premises on the property held by the co-operative society are members. Here, title to the entire property including common areas like internal roads vests in the co-operative society, whereas members of the society are allottees of demarcated premises. The property or the building is managed by the society from contributions from members in accordance with its bye-laws.
- Limited liability companies, in which allottees of plots/premises on the property held by the limited company are shareholders. Here, title to the entire property including common areas vests in the company, whereas shareholders of the company are allottees of demarcated premises. The property or the building is managed by the limited company from contributions from shareholders in accordance with its Articles of Association.
- Association of Apartment Owners / Condominium, in which title to the entire property including common areas vests in the Association of Apartment Owners, whereas apartment owners are the owners of individual apartments. The property or the building is managed by the Association of Apartment Owners from contributions from apartment owners in accordance with its bye-laws.
- LLPs are also used for real estate investments, since the profits and losses of the LLP are assessed in the hands of the LLP itself and there is exemption from tax in the hands of its partners. Since November 2015, the government permitted FDI under the automatic route into LLPs operating in sectors where 100% FDI is allowed through the automatic route (including Construction-development projects, as explained in the response to question 3. But note that LLPs with FDI will not be allowed to operate agricultural/plantation activity or “real estate business” (as defined in the response to question 3).
A co-operative society is preferred as a common holding structure, as it promotes participation by the members in decisions regarding management of the common asset in a democratic manner with one member having one vote, though majority rule can sometimes be a disadvantage.
Ownership structures for commercial real estate in Ireland range from private individuals, corporate entities, co-ownership structures and limited partnerships.
The most popular structure for international investors in recent years is an Irish Collective Asset-management Vehicle (ICAV) – a vehicle designed for investment funds and attractive to investment managers seeking to market their funds in the U.S. The introduction of tax reforms in 2016 which negatively impacted Irish Real Estate Funds has led a decline in the popularity of such structures. International investors are increasingly using non-Irish resident structures, such as Luxembourg companies.
Irish resident investors will typically utilise Irish resident companies, or limited partnerships.
Real Estate Investment Trusts (REITS) were introduced in 2013 as a new vehicle for investment. Subject to meeting certain criteria, a REIT will not be liable to either Corporation/ Income Tax on its property rental income or property profits, or Capital Gains Tax on disposals of assets of its property rental business. Budget 2020 has limited the existing provision which allows a REIT to avoid any latent Capital Gains Tax exposures when it ceases to be within the regime so that the provision applies only where REITs have been in operation for a minimum of 15 years.
Although it is possible for foreign entities to directly own land and buildings in Japan, it is rather common to own real property through a Japanese entity such as a kabushiki-kaisha (“KK”) or a godo-kaisha (“GK”) incorporated under the Companies Act.
In the real estate financial market, it is common to use (i) a GK together with a tokumei-kumiai agreement (“TK”), which is one type of partnership agreement under the Commercial Code or (ii) a tokutei-mokuteki-kaisha (TMK) incorporated under the Act on the Securitization of Assets in order to reduce applicable taxes.
There are some factors to determine which structure is appropriate, for instance (i) regulations (different types of regulation would apply to the scheme depending on the type of SPC and the type of asset the SPC is holding), (ii) the need for a clear tax opinion (under the GK-TK structure, it is generally difficult to obtain an unqualified tax opinion regarding the avoidance of double taxation), and (iii) managing cost (the cost using the TMK structure is typically higher).
(1) GK-TK structure
One important aspect of the GK-TK structure is that the TK agreement allows avoidance of double taxation. However, the requirement for the avoidance is not clearly prescribed by the laws of Japan, and a legal and tax opinion with respect to that point is difficult to provide.
A GK is rather more simple and flexible than a KK in terms of governance. It is possible for a GK to be established solely with one entity as a member appointing one individual as a managing officer (shokumu-shikkousha). An ippan shadan hojin (“ISH”) is commonly used as a member of a GK to achieve governance neutrality and bankruptcy remoteness. This is because the officers of an ISH cannot change or be appointed by the contributors of ISH once the individuals are appointed under the articles of association. This means that the ISH can be free from the funder (sponsor)’s control.
(2) TMK structure
Unlike the GK-TK structure, the requirements for special tax treatment of a TMK are clearly prescribed by the tax laws of Japan; therefore, by fulfilling those requirements, an investor can avoid double taxation. A TMK can issue two types of equity: specified shares which are similar to ordinary shares in a KK; and preferred shares. The voting rights of a preferred shareholder are limited under the Act on the Securitization of Assets.
On the other hand, the Act requires (i) one director and statutory auditor from a governance view point, and (ii) preparation of a specific asset liquidation plan, which must be submitted to the authority.
Commercial real estate may be held in the name of an individual or a group of individuals. Other ownership structures for commercial real estate are:
- Companies: a company can own property in Kenya. This includes foreign companies, but subject to the restriction to hold on a leasehold basis and on agricultural land as explained above.
- Partnerships and limited liability partnerships (LLPs): These are attractive as they involve fewer statutory obligations than companies. LLPs are also tax efficient.
- Societies: societies invest in real estate as a means to create more value for their members. The funds pooled by the members make commercial real estate quite accessible and allow the society to realise faster returns, either from rents collected or from resale of the property.
- Trusts: For incorporated trusts, the property is registered in the name of the registered trust. Where the property is owned by an unincorporated trust, the title to the property would be in the name of the trustees, but may note that they hold it as “trustees”.
- Real-estate investment trusts: This is a relatively new land-holding structure in Kenya. The ownership structure is similar to that of trusts as explained above, but subject to specific tax and other regulatory considerations.
- Joint ventures: this is common where a property owner has vast land but no capital and a developer seeks to partner with a property owner through a joint venture that entails the land being transferred to a special purpose vehicle.
In addition to legislation governing real estate, the above structures are governed by the relevant sector specific legislations.
The most commonly used ownership structures for commercial real estate are:
- Direct ownership by individuals (least common structure due to increased liability exposure).
- Direct ownership through companies.
- Trusts, including specific real estate trusts which rights are publicly traded (e.g. FIBRAs and CKDs).
FIBRAs (fideicomisos de inversión en bienes raíces). Mexican equivalent of REITs (real estate investment trusts) that have become one of the most attractive mechanisms for real estate developers for its tax benefits. Real property owners create a FIBRA by conveying title to a Mexican trust, which, in turn, issues real estate trust certificates in a registered stock exchange providing that the resources obtained from such allocation are used to acquire and develop real estate intended for leasing, based on certain eligibility criteria established under the FIBRA governing documents.
CKDs (certificados de capital de desarrollo). Development capital certificates (known as CKDs) are investment vehicles structured through a Mexican trust which receive resources from the public offering of trust certificates (mainly from pension funds), to finance national infrastructure and real estate projects, as well as to perform investments of private capital in promoted companies.
Sometimes, real estate is transferred indirectly to a buyer through the acquisition of (i) shares or equity interests in the specific vehicle or entity holding title to real property, or (ii) beneficial interests in the corresponding real estate trust.
Real estate trusts became popular in Mexico mainly because of its flexibility as investment vehicles. For instance, by implementing a real estate trust structure, owners and private investors could transfer title to real property and funds, respectively, to develop a specific project, providing for different rights and obligations each of them would assume through their beneficial interests under the trust agreement.
Monaco law does not provide any restriction on ownership structures relating to commercial real estate. Commercial real estate can be owned either by individuals or by legal entities.
The most common structure is ownership through companies which will either operate their own business activities or rent the premises for investment purposes.
The advantage of legal entities such as companies limited by shares (public limited companies called sociétés anonymes) and limited liability companies (private limited companies called sociétés à responsabilité limitée) is to provide the ultimate individual owner(s) with a protective corporate veil against potential litigation and limited liabilities.
Individuals also often choose the easy processing of setting up civil companies (called sociétés civiles immobilières) to own and rent commercial real estate but shareholders remain liable for the debts of the company in proportion of their shares.
In order to avoid certain restrictions upon land ownership by non-EU nationals/companies, most real estate investments are usually made through Romanian SPV companies (special purpose vehicles). For example, a company which actually carries on a commercial activity may be either (i) the owner of the property or (ii) a lessee, if the owner is a property developer.
Commercial real estate is usually owned by companies established specifically for this purpose. This approach allows for efficient operation of the respective real estate asset, and facilitates its sale as a going concern through share deals. Until recently, foreign investors preferred to establish offshore companies to own real estate. However, due to tax changes concerning controlled foreign companies, this type of structure has largely lost its appeal. Now commercial real estate is usually owned by a Russian LLC.
Investment entities can take several different legal forms. Those forms are unlimited liability company (d.n.o.), limited partnership (k.d.), limited liability company (d.o.o.), public limited company (d.d.) or partnership limited by shares (k.d.d.). The best shield for ultimate owners is the limited liability company as a vehicle for real estate ownership. All entities are required to pay taxes and fees when acquiring real estate.
The most common form of entity used by foreign investors is the limited liability company (d.o.o.). Such an entity can be formed by only one shareholder, individual or legal entity, has a simple organisational structure that can be modified according to the investor’s needs and generally shields the shareholders from liability for actions of the company or its debts, while the minimum share capital is a mere €7,500.
Furthermore, there are no minimum capital requirements for unlimited liability companies and limited partnerships, while in the case of public limited company a minimum share capital is €25,000, the same as for the partnership limited by shares.
Commercial real estate can be held directly by individuals or through entities, although it is more common for high value commercial assets to be held through specifically created structures.
Common ownership structures include:
- Limited liability companies; and
- SOCIMIs (Spanish REITs).
Limited liability companies: Sociedades Anónimas ("S.A.") and Sociedades Limitadas ("S.L.")
The S.A. and the S.L. are the most frequently used corporate vehicles in Spain. Both companies operate in a similar way, although the S.L. requires fewer formalities.
In both companies, the liability of the shareholders or members is limited to the stake held in the share capital of the company.
The minimum share capital for an S.A. is 60,000 euros, and at least 25% of this amount must be paid up upon incorporation. In the case of an S.L., the minimum share capital is 3,000 euros, which may or may not be fully paid up upon incorporation. Contributions of assets can be made both to an S.A. and an S.L. If the contribution in kind is made to an S.A., an independent expert valuation is mandatory, whereas in an S.L. the independent expert valuation is optional.
It is common for companies incorporated as investment vehicles to have a relatively low share capital and to capitalise through shareholder loans, so as to minimise as far as possible the Company's Corporate Income Tax ("CIT"). Although there is no thin capitalisation rule under Spanish tax legislation (i.e. no specific debt to equity ratio is required), earning stripping rules apply as regards tax deductibility of net financial expenses.
As a general rule, net financial expenses incurred by Spanish entities would be deductible for tax purposes up to an amount of 30% of their operating profit (EBITDA) for the financial year. In any event, an expense amount of EUR 1 million would always be deductible (if incurred).
In the case of entities belonging to a tax consolidated group, the 30% limit and the EUR 1 million threshold would refer to such tax group.
Please note that additional limitations exist in the case of LBO transactions (i.e. acquisition of an entity and subsequent merger or subsequent application of the CIT consolidation regime).
Furthermore the difference between the 30% limit and the net financial expenses for the tax period could be accumulated (i.e. added to the 30% limit) in the tax periods ending in the following 5 years.
Lastly, it should be noted that any net financial expenses not deducted for tax purposes may be deducted in the following tax periods, provided that the 30% limit is complied with in such years.
In addition to the above, fair market conditions and strict documentation obligations should be observed as regards any indebtedness incurred with related parties. In particular, the taxpayer would be obliged to carry out a comparability analysis in order to determine a fair market value of the remuneration agreed under the relevant transaction.
Please also note that interest derived from Profit Participating Loans granted as from 20 June 2014 by companies which belong to the same corporate group (regardless of their tax residence) are not deductible for CIT purposes.
Companies are incorporated through deeds granted before a Notary Public, including the company by-laws. In general, such incorporation requires: (i) evidence via a bank certificate that the share capital has been paid up (when it is paid up in cash), (ii) an attorney with sufficient powers to appear before a Notary Public to incorporate the company, and (iii) a certificate showing that the corporate name of the company has been reserved.
Period before the company may operate
The company can operate as soon as its public deed of incorporation has been granted. However, it does not acquire its full corporate form until it is registered with the corresponding Commercial Registry. The period for such registration varies from province to province, but tends to be approximately three weeks as from its filing at such Registry.
The acquisition of a property by a company which has been incorporated but which is pending registration with the Commercial Registry is valid. However, the individuals acting on behalf of the company will be considered jointly and severally liable with the company for such action until the company is registered with the Commercial Registry. In addition, the sale and purchase of the property will not be registered with the Land Registry until the company is registered with the Commercial Registry.
Directors and company representation
A company can be managed and represented by a sole director, joint directors, joint and several directors or a Board of Directors. The directors may be entities or individuals of any nationality and do not need to reside in Spain. Please note that if the director is a foreign person, he/she will have to obtain a Spanish tax identification number (known as "NIE"). Certain formalities have to be fulfilled in order to obtain a NIE. Should the director be an entity, it will have to appoint an individual as representative (who will be liable on the same terms as a director).
The post of director may be remunerated or not, depending on the provisions of the company by-laws. The law establishes certain cases of incompatibility with respect to the exercise of the post as director of a company, usually referring to persons in public office. Directors are subject to liabilities as established by law, which may be covered by D&O insurance policies.
When the company is managed by a sole director or by joint and several directors, each director can bind the company acting individually without distinction, as opposed to joint directors, who must act together. When the company is represented by a Board of Directors, the post of member of the Board of Directors does not imply per se any capacity to represent the company, although a Managing Director may be appointed to perform the same duties as those of the Board, save for those which may not be delegated by law.
The incorporation of a company, as well as any increase of its equity (i.e. share capital, share premium, other shareholder contributions to equity) are subject to but exempt from Capital Duty Tax ("Impuesto sobre Operaciones Societarias").
On the other hand, any decrease of share capital where previous contributions are reimbursed to the shareholders are subject to Capital Duty Tax (to be paid by the shareholders) at a 1% rate on the market value of the assets/rights reimbursed.
Under certain circumstances, some investors consider it appropriate to issue shares with a share premium, so as to reduce such Capital Duty on the return of funds to shareholders, since the return of share premiums is not subject to such Capital Duty Tax.
Spanish Real Estate Investment Trusts (or the Spanish acronym SOCIMIs) are special legal and tax investment vehicles specifically devoted to real estate assets that generate rental income.
Spanish SOCIMIs will be subject to a 0% Corporate Income Tax (CIT) rate subject to a mandatory annual dividend distribution of profits. Accordingly, rental income and capital gains generated by SOCIMIs will be taxed at a 0% CIT rate, provided that the real estate assets are owned for a minimum of three (3) years as from the date of application to adhere to the SOCIMI regime.
The legal requirements of SOCIMIs are as follows:
Sociedad Anónima (S.A.)
Minimum share capital
EUR 5 M
Yes, also permitted in Alternative Markets within the EU (MAB, AIM, etc.)
Corporate object /
Holding period of the assets
Qualifying Assets must be owned by the SOCIMI for a three-year period since (i) the acquisition of the asset by the SOCIMI, or (ii) the first day of the financial year that the company became a SOCIMI if the asset was owned by the company before becoming a SOCIMI. In the case of urban real estate, the holding period means that these assets should be rented; the period of time during which the asset is on the market for rent (even if vacant) will be taken into account, subject to a maximum of one (1) year. If the holding period is not maintained, the SOCIMI will be taxed at a 25% CIT rate for any kind of income related to such asset, during its entire holding period, together with the accrued default interest.
Mandatory distribution of dividends
Since 2003 the typical structure of a real estate transaction is through a sale and purchase of the shares in a limited liability special purpose vehicle (SPV) holding the real estate or property in question. In Sweden there are, as of now, no ‘thin capitalisation’ or similar rules, meaning that a dormant limited liability company with only SEK 50,000 in share capital may purchase real estate worth SEK 100 million (or more, with no limitation based on legal requirements), establishing an SPV structure for sale of the property (known as ‘packaging’). The background behind this structuring is that since 2003, such share transfers are, as a general rule, tax exempt, meaning that there will be zero income tax on the profits made on the sale of the shares. Applicable taxes will then be stamp duty and income tax on the property transfer into the SPV holding. However, the property transfer into the SPV will normally be made on a price or value equal to the tax residual value involving zero income tax also in this step of the structuring.
Direct real estate transfers carry a stamp duty of (currently) 4.25 percent for legal persons (less for physical or private persons and some other legal entities) based on the higher of the purchase price and the tax value of the property the year before the transfer. If there is no tax value on the property – because it involves a property category that under law is exempt from property tax (such as certain public service properties, for instance schools or care properties) or involves a newly established property through land parcelling measures – there will be a need for a valuation report. Currently, there is no stamp duty on the transfer of shares of real estate companies. This means that most transactions, from a processing and documentation standpoint, are made as indirect share transfer deals, rather than direct property transfers.
There has been a proposal for change in the tax legislation for packaging of real estate into SPVs, involving inter alia proposed income taxation on the sale of shares and changes of applicable rates of stamp duty, possibly also extending stamp duty charges to property amalgamation measures and to the sale of shares. A government inquiry (Sw. SOU 2017:27, Vissa frågor inom fastighets- och stämpelskatteområdet) released its report on such issues in 2017. However, several government representatives, many market players and tax experts have criticised the suggested changes and it is commonly believed that the proposal, in its current form, will not lead to legislation.
Commercial real estate is typically owned and managed through one or several limited liability corporations, but ownership under other forms of association also exists. Direct ownership of commercial real estate by individuals/natural persons is relatively unusual. The main driving factors behind the ownership structures currently in use are, naturally, tax optimization and limitation of owner liability.
The choice of ownership structure depends on the commercial purposes and therefore is determined on a case-by-case basis.
However, the common ownership structures are:
- Owned by a corporate
Corporate-owned real estate is basically for operating a business, including intra-group restructuring, e.g., line of business grouping.
Another familiar purpose is wealth management for families. There were tax incentives made available in certain years in a form of enacted royal decree, omitting transfer-related taxes and income tax for the transfer to land from a natural person to a company.
- REIT (Real Estate Investment Trust)
A REIT allows the owner to generate more revenue and expand investment from the real estate through fundraising from the public. There are currently various types of REITs: offices, warehouses and department stores. All units of a REIT will be listed on the Stock Exchange of Thailand, and the relevant regulators have placed qualifications and conditions for REIT establishments.
There are no statistical studies indicating the percentage related to the type of the ownership but both there are some tax advantages for the companies.
In case the company (except the companies having real estate trade as its main activity) owns the real estate, it is exempt from VAT and %75 of the corporate tax by transferring it on the condition that the real estate properties are held for over two years.
Commercial real estate can be held directly by individuals or through entities, although it is more common for high value commercial asset to be held through specifically created structures, often formed outside of England and Wales.
Common ownership structures include:
o limited liability companies;
o offshore property unit trusts; and
o limited partnerships.
Limited liability companies: Limited liability companies, formed specifically for the purpose of holding the real estate in question, have historically been a common holding structure, often based offshore. Corporate vehicles offer limited liability, which allows investors to ringfence assets and liabilities. They can also be tax efficient, for example selling the shares in a corporate vehicle means that a purchaser should not have to pay stamp duty land tax on the transfer of the property. However, the tax efficiency of corporate holding structures has been impacted by the April 2019 changes in the UK's rules on the taxation of non-residents’ capital gains on UK real estate, which now usually fall within the UK Corporation Tax net. These rules apply to gains both on direct asset disposals and on certain indirect disposals of interests in entities that are UK-property rich. This can lead to effective double taxation on indirect disposals since the seller will be taxed on its gain at the share level, but may also suffer a price reduction on account of latent capital gains sitting within the vehicle being sold. This has given rise to increased interest in offshore property unit trusts which can be treated as direct-tax transparent (see below). Companies within a qualifying group may benefit from an exemption election from tax on capital gains: the rules here are complex.
Offshore property unit trusts: Under these structures, the property is held by trustees (usually two to allow a purchaser to have the comfort of "overreaching" the trust on a sale see Q13) on behalf of investors who hold units in the unit trust. Property unit trusts are a commonly formed in Jersey (JPUTs) or Guernsey (GPUTs).
Offshore property unit trusts can have a number of key tax advantages - if the trust documents is drafted correctly, and the trust is managed properly, the transfer of units in a property unit trust should not give rise to stamp duty land tax and typically does not give rise to UK stamp duty either. Property unit trusts that were properly drafted and managed used to be treated as tax transparent for income purposes but tax opaque for capital gains by the UK tax authorities. However this has changed since April 2019. Under the UK’s new approach to taxing capital gains of non-resident investors, a property unit trust defaults to being tax opaque for capital gains purposes, but may in certain circumstances elect to be treated as fully tax transparent for capital gains (i.e. as though it were a partnership), which can make them attractive to tax-exempt investors in particular. The entity must be UK-property rich, transparent for UK income purposes and notify HMRC within the applicable window in order for this transparency election to be available. Property unit trusts are an increasingly popular and tax efficient way of holding UK real estate, albeit the inability of property unit trusts to be a member of an SDLT group means they can cause difficulties if intra-group restructurings are necessary.
Limited partnerships: Limited partnerships are a common holding structure for English and Welsh property, with English, Jersey and Guernsey limited partnerships commonly used. The exact nature of the limited partnerships varies with some having legal personality whilst others (including English limited partnerships) do not. Limited partnerships are typically transparent for most tax purposes (including income and capital regimes) and are therefore a popular structure for tax-exempt investors (although the transparent nature means that transferring interests in a partnership that holds property is normally subject to stamp duty land tax). Limited partnerships are a flexible structure, without many of the rules and restrictions that apply to corporate vehicles.
Commercial real estate is typically owned by corporations, trusts, partnerships, limited liability companies or limited partnerships. Tax concerns, personal liability of the investors, management concerns, and transferability of ownership interests are all factors to be considered in selecting the appropriate entity through which to own the property.
A corporation is (i) managed by its board of directors, (ii) continues in existence regardless of the death, bankruptcy or sale of interests of any shareholder, with few exceptions for certain tax reasons, and (iii) generally protects shareholders from personal liability for the corporation's obligations. By default, a corporation is treated as a "C" corporation for U.S. federal income tax purposes. Profits of a "C" corporation are taxed at the corporation level and, if dividends are distributed to shareholders, also taxed at the shareholder level, thus limiting its attractiveness to investors. Under certain circumstances, a "C" corporation can elect to convert to an "S" corporation, which is only subject to one level of tax. Among other limitations, however, a shareholder of an "S" corporation may only be an individual who is a U.S. citizen or resident alien, estate or certain types of trusts.
The primary goals shared by investors when selecting a vehicle to own commercial real estate – avoiding double taxation and limiting liability to the amount invested – can be achieved in many cases through the use of a limited partnership or limited liability company, and in certain jurisdictions, a business trust. In many cases, a Delaware limited liability company is used mainly because such an entity achieves both of these objectives, is easy to form and operate, and Delaware's laws are well developed and provide for a great deal of flexibility. Another entity that achieves the goal of avoiding double taxation and limitation of liability is a real estate investment trust (a "REIT"). If the proper election is made, a REIT can be in the form of a limited liability company, a partnership, a corporation or a trust. Provided an entity qualifies as a REIT, it generally is not taxed on its otherwise taxable net income and gains to the extent that it distributes such income and gains to its shareholders. Rather, shareholders of a REIT are generally subject to tax on such distributions so that an investment through a REIT is typically subject to a single level of tax and not the double level of tax that generally applies to "C" corporations. In order to qualify as a REIT, an entity must satisfy certain requirements with respect to its ownership, operations, income, and assets. If an entity's status as a REIT is terminated because it fails to meet the applicable REIT requirements and does not satisfy certain relief provisions, the terminated REIT will be taxed in the same manner as a "C" corporation.
The most common ownership structure for ownership of commercial real estate is that the real estate (under HGB title or HMSRS title) will be owned by an Indonesian company (eg, a PMA company owned by a foreign investor) that holds the business licence to operate the relevant commercial activity (eg manufacturing).
Unincorporated joint venture structures are also common. Under such structures, two parties will set up a joint operation in relation to a commercial real estate development where typically one party will contribute the land and the other party will contribute cash or expertise. The parties will then operate the commercial real estate together and share the economic benefits.
In certain regions (eg Bali), it is quite common to see foreigners entering into a financed shareholder ownership structure to circumvent the restriction on real estate ownership by foreigners. This structure is normally implemented by way of a secured loan (to purchase the land) arrangement under which a nominee Indonesian individual will hold the land (usually in exchange for a fee). It is important to understand that under the secured loan arrangement the foreigner does not have any legal or beneficial ownership in the land but only contractual rights against the nominee Indonesian individual. Such structures come with risks.
Real Estate CIC
In 2017, Indonesia’s Financial Services Authority issued regulations to encourage establishment of Indonesian real estate investment funds in the form of collective investment contracts (Real Estate CICs). The 2017 regulation consolidated and replaced four existing regulations on Real Estate CICs and it is hoped that this change will help investors to better understand the regulatory framework.
A Real Estate CIC is essentially an investment vehicle whereby funds are raised from investors for investment in real estate assets, real estate-related assets, and/or cash and cash equivalents. It is managed by an investment manager and a custodian bank, which enter into a collective investment contract with the investor. In exchange for their fund contributions, the investors in a Real Estate CIC are issued participation units which reflect their interest in the fund.
Since 2017, only three Real Estate CICs of this kind have arisen, with the last one being registered in late 2019 through investment in the companies operating Plaza Indonesia and FX, which are both mall properties in central Jakarta. Real Estate CICs are not as prevalent in Indonesia as in more mature Asian markets such as Singapore and Hong Kong.
Commercial real estate can be acquired and owned either by individuals or by legal entities. Large size or high value commercial asset are generally owned by commercial companies.
Common ownership structures include:
- joint stock company (société anonyme - "SA"): is a limited liability company, each shareholder's liability is in principle limited to the amount of its contributions to the company. It is the most common form of commercial company with limited liability for the operation of large businesses. Most of the organization and management modalities are provided for by specific regulation regarding the SA.
The most common management scheme for a SA consists in having (i) a CEO (directeur general - the legal representative of the company), and (ii) a board of directors (conseil d'administration).
The shares in a SA are freely transferable unless otherwise provided in the company's articles of association (which may provide for restrictions on the transfer of share, such as a temporary lock-up or prior approval clause).
- limited liability company (société à responsabilité limitée - "SARL"): is also, in principle, a limited liability company. It can be set up by only one shareholder and can have up to 50 shareholders.
The SARL is often used for smaller businesses, especially because of its lighter and simpler management organization and process. Management formalities are generally not as cumbersome as in an SA.
The transfer of shares in a SARL is subject to prior approval of the majority of shareholders, provided that such majority effectively represents ¾ of the shares in the company. Such prior approval clause may be extended under the terms of the article of association.
- real estate civil company (société civile immobilière - "SCI"): is a civil company whose corporate purpose is to hold real estate assets. In principle a SCI shall not have a commercial or trading nature. The shareholders are indefinitely liable for the debts of the company in proportion to the share they hold in the share capital.
It is managed by one or more managers who must be shareholders of the company. Provided that the articles of association do not stipulate otherwise, the shareholders are vested with the powers and authority to manage the Company.
It is worth noting that Morocco has recently introduced regulated investment vehicles similar to real estate investment trusts, known as Organismes de Placement Collectif Immobilier (OPCIs) - similar to US REITs.
OPCI main business purpose must consist in direct or indirect investments in real estate assets with a view of carrying out leasing activities. As usual for these types of real estate funds they are fully exempt from corporate tax are and exempted from paying corporate tax provided that they meet certain requirements and particularly if they comply with distribution obligations.
An OPCI may either be (i) a real estate investment company (société de placement immobilier) incorporated as a joint stock company, admitted to trading on the stock exchange, or (ii) a real estate investment fund (fonds de placement imobilier “FPI”) organized as a joint ownership without legal personality.