Panama, August 24, 2020.
Juan David Morgan Jr., partner and head of the Shipping and Admiralty Litigation practice of Morgan & Morgan, was part of the experts of the seventh edition of The Shipping Law Review. This publication highlights the leading jurisdictions and critical features of regulations concerning the handling of maritime disputes.
The online Panama chapter is available here.
Or a PDF version is available to download here.
At the beginning of a startup’s life, the use of financial resources in the most efficient way is of vital importance. It is for this reason that the incentives that a country can provide to an entrepreneur and his newly formed company can potentially determine how and how much that company will grow.
In previous articles in this Startup Series, we summarized the advantages of incorporating a startup under Panamanian law, and briefly mentioned some of the incentives that exist in our legislation. In this new edition, we will expand on some of the applicable special regimes, so that founders can be generally aware of the most relevant incentives for his or her field.
Panama is the ideal jurisdiction to develop all kinds of entrepreneurial initiatives due to its wide array of special commercial regimes and its state-of-the-art logistics facilities. From Panama, activities that have effects outside of Panama, such as the distribution of products at the regional level or assembly of products destined to be exported, can be carried out. These activities have specific tax rules, which are covered by special trade and fiscal regimes. With this in mind, and considering that a startup depends on exponential growth in a short period of time, understanding the different incentives and regimes available can boost the business from its early stages.
In addition to the tax advantages provided by the Principle of Territoriality, which we have already discussed, there are a number of special regimes in Panama that, although not expressly created for startups or entrepreneurial businesses, are designed in a manner that could be used to stimulate the economic activities in which the startup is involved. Undoubtedly, amongst the special regimes that could be applicable to startups are the incentives for companies dedicated to research and innovation in scientific, technological, humanistic and cultural fields that are located within the City of Knowledge Foundation complex.
- For innovative companies located within the City of Knowledge Technopark, there are important tax incentives such as: the exemption from import tax on the machines, equipment, furniture, vehicles, devices and supplies necessary for the development of said companies; exemption from the Tax on Transfers of Movable Personal Property and Services (“ITBMS”) on machinery, equipment, vehicles, devices and supplies that are acquired and necessary for the development of said companies; and exemption from any tax, duties, or encumbrance imposed on the remittance of money abroad when such remittance or transfer of funds is carried out for some purpose of the companies.
There are also special regimes that provide incentives to industrial manufacturing, agro-industrial, and marine resource transformation companies. Companies engaged in these activities may obtain an Industrial Development Certificate by filing a request to the Ministry of Commerce and Industries in which, among other things, they must describe the activity of the company and the product or products that are currently being manufactured. The certificate confers benefits to its holders, such as the reimbursement of 35% of all disbursements made for research and development of new and improved processes, product features or the creation of new products. Additionally, the losses suffered by the companies holding the aforementioned certificate during a fiscal period will be deductible throughout the following five fiscal periods, at the rate of 20% per year. It is important to mention that companies will not be able to take advantage of the benefits conferred by this law if, among other things, they already enjoy other tax benefits, or if they are located in special zones, free zones, fuel free zones or any other zones that are established in the future by special laws.
Other important incentives that deserve mention are those afforded to companies established within the Panama-Pacific Area, which will enjoy exemption from import tax on all types of merchandise, equipment, service, products and other goods introduced to the Panama-Pacific Area, exemption from ITBMS, exemption from export and re-export tax, among others. Companies established within Free Zones, tourism companies and investors in tourism companies; and headquarters of multinational companies are also afforded with exemptions and tax benefits that a startup could take advantage of, if applicable. Lastly, Panamanian legislation grants incentives to multinational companies that establish their base of operations for Latin America in Panama (these head offices are known as the Multinational Headquarters or “SEM” for its name in Spanish), such as exemptions from income tax for services provided to entities domiciled abroad that do not generate taxable income in Panama and exemption from sales tax for services rendered to entities domiciled abroad that do not generate taxable income in Panama, among others (for more information on the SEM special regime, click here).
It is important to highlight that, as a commitment to reinforcing international tax transparency, Panama has been part of the Base Erosion and Profit Shifting (BEPS) initiative since 2016, and that regimes such as SEM and Panama-Pacific comply with such substantive rules aimed at ensuring consistency, transparency and belonging in all its activities.
- Micro-enterprise: One that generates gross revenue or annual turnover up to the sum of US$ 150,000.00.
- Small-sized enterprise: One that generates gross revenue or annual turnover between $ 150,000.01 and US $ 1,000,000.00.
- Medium-sized enterprise: One that generates gross revenue or annual turnover between US $ 1,000,000.01 and US $ 2,500,000.00.
Startups wishing to benefit from this regime must submit a request to be listed in the Business Registry of the Authority for Micro, Small and Medium-sized Enterprises (AMPYME). Such request must provide, among other things, a suitable income statement or letter from an accountant certifying the company’s annual turnover (recently constituted companies are exempted from this requirement). Thereafter, the MSME must register with the General Revenue Office (DGI, for its name in Spanish) for its special regime to be incorporated into its taxpayer profile. Once the company is registered, it will be exempt from paying income tax for the first 2 fiscal years, counted from the date in which the MSME was registered in AMPYME. Note that, as a temporary measure aimed at mitigating the effects of the COVID-19 crisis, the income tax exemption afforded to MSMEs has been extended to cover the first 3 fiscal years, counted from the date in which the MSME was registered in AMPYME. In addition, such enterprises may participate in AMPYME’s Business Development Program, gain access to the Seed Capital Fund Competitive Program and the PROFIPYME Financing Program, the Microcredit Financing Fund for Small and Medium-sized enterprises, and will be given priority in public bids in which there is a tie between two companies.
All that said, it is clear that Panama offers a significant number of special regimes and tax benefits. These regimes may well be taken advantage of by a founder who wishes to establish his or her company in Panama and grow his or her startup in a short period of time. Given the need for a startup to achieve scale quickly, having the government’s support and incentives is beneficial and could be a component that a potential investor takes into account when investing in a startup. Finally, each business must be evaluated so as to determine whether the incentives mentioned herein are applicable. We are at your service for any queries you may have on these issues.
For more information on these topics, please contact:
Aprueban Proyecto de Ley que establece medidas temporales de protección al empleo por razón del COVID-19
El día de hoy fue aprobado en Tercer Debate el Proyecto de Ley No. 354 que establece medidas importantes que aplicarán de forma temporal a las empresas que cerraron total o parcialmente durante el Estado de Emergencia y a los trabajadores suspendidos.
A continuación, los puntos más importantes que fueron aprobados:
- Se extienden hasta el 31 de diciembre de 2020 las suspensiones de los contratos de trabajo. Estas prórrogas se realizarán de mes a mes, y no aplicará la figura del silencio administrativo. Se requiere aprobación expresa del MITRADEL.
- El empleador podrá reiniciar progresivamente sus labores reintegrando gradualmente a sus trabajadores.
- Se prohíbe la contratación de nuevos trabajadores en igual o similar posición a la de un trabajador suspendido. No obstante, sólo se permitirá la contratación de nuevos trabajadores si se requiere nuevos puestos de trabajo, lo que deberá ser informado al sindicato, o a los trabajadores, donde no exista organización sindical.
- El reintegro gradual no puede ser utilizado discriminatoriamente en perjuicio de los trabajadores. Si se comprueba, la multa oscilará entre $500 y $1,000 por cada trabajador discriminado.
- El empleador que ha reactivado su operación podrá establecer turnos distintos a los vigentes, las veces que lo considere necesario, informando a los trabajadores con 48 horas de anticipación.
- Los trabajadores que en la 2ª. partida no tienen derecho al 13° mes, por razón de la suspensión, tendrán derecho a recibir un bono determinado por el Ejecutivo, pagado a través del Ministerio de Economía y Finanzas.
- Para los mutuos acuerdos, el empleador entregará al trabajador la propuesta escrita para que la responda en 2 días hábiles. Si se firma el mutuo acuerdo sin el cumplimiento de este plazo, el trabajador podrá demandar la nulidad del acuerdo, y solicitar el reintegro ante los juzgados seccionales de trabajo.Se presume cierta la afirmación del trabajador de que no se le otorgó el término de 2 días para responder.
- La terminación de la relación laboral por mutuo consentimiento, despido o por decisión unilateral del empleador dentro de los 3 meses siguientes al reintegro, obliga a la cancelación inmediata, en un solo pago, del total de las prestaciones o derechos.
- El cálculo de la prima de antigüedad y la indemnización para los trabajadores con contratos suspendidos o con reducción de jornada, se calculará de acuerdo a los salarios que recibía durante los 6 meses anteriores al Estado de Emergencia.
- Se suspende el cómputo del tiempo correspondiente al fuero de maternidad durante el período de suspensión, cuando ésta sea por causas de fuerza mayor o caso fortuito o incapacidad económica para la prosecución de las actividades.
- El tiempo restante del fuero se reactivará tan pronto se reintegre la trabajadora.
- Esta ley empezará a regir a partir de su promulgación.
Para consultas por favor escríbanos a [email protected]
Panama, July 29, 2020.
Morgan & Morgan is pleased to announce that, for the fifth consecutive year, the firm´s Private Wealth Law practice group earned top ranking (Band 1) in the 2020 Chambers Hight Net Worth Guide, a publication aimed at the international private wealth market and a key reference point of the world´s leading firms in terms of service excellence and reputation.
“This is a big player in the Panamanian market, capable of dealing with complex tax matters. They are excellent at resolving problems with a practical and effective approach.”, a market commentator says to Chambers.
Three of Morgan & Morgan partners were also distinguished with top rankings in the guide:
Roberto Lewis Morgan, head of the practice with a depth of expertise in wealth preservation and distribution matters, including private foundations and corporate vehicles. A client comments to Chambers that he “gets things moving within the firm” and is “receptive to clients.”
Raul Castro, partner and advisor to the Panamanian government regarding international tax matters, CRS and FATCA implementation. One market insider says to Chambers Castro “is absolutely outstanding,” explaining: “He is the go-to person when you have something complex in Panama or the BVI. He has a very practical approach towards client needs.”
Luis Manzanares, partner and with substantial experience in wealth preservation matters, including tax and succession planning advice on investment funds, trusts and private interest foundations. “A savvy lawyer with huge international experience,” says one client to Chambers.
Morgan & Morgan has a seasoned team of lawyers with vast experience in traditional wealth protection and management structures such as discretionary and non-discretionary trusts, private interest foundations and corporations. More than five years ago, the firm started a new practice led by a group of young lawyers with vast knowledge in modern structures tailored for HNW individuals and families.
More information on this recognition is available here.
Superintendence of Non-Financial Regulated Persons issues new regulations in relation to attorneys and accountants
Panama, 24 July 2020.
By means of Rule JD-01-2020, published in the Official Gazette No. 29076 of 24 July 2020, the Superintendence of Non-Financial Regulated Persons (SNFR) has established a set of rules and obligations imposed to attorneys and accountants whenever they incur in any of the regulated activities under Law 23 of 2015, which relates to prevention of money laundering, financing of arms of mass destruction and financing of terrorism.
Below, we summarize the relevant matters of this new regulation:
Access to Clients’ information
Art. 3 of Rule JD-01-2020 establishes that attorneys and accountants regulated by the SNFR incurring in any of the regulated activities, shall, at the requirement of SNFR, deliver a list of clients classified in qualitative and quantitative terms, based on risk parameters. With respect to clients that has terminated its commercial relation, shall be included in the list indicating an explanation of the cause of termination of the commercial relation.
During the supervision, all documents relating to the relation of each client (e.g. Contracts, agreements, etc.) shall be furnished, as well as the documentation related to the due diligence and control measures applied.
Due Diligence Measures
Art. 6 and 7 of Rule JD-01-2020 establishes the enhanced due diligence requirements applicable to natural or legal persons, that shall be requested by attorneys and accountants in the scenarios set forth under Law 23 of 2015, in which such measure is required in light of the high risk cases.
This new regulation also establishes a list of clients that may be subject to a simplified due diligence measures in virtue of the regulated activities exercised by attorneys and accountants, which is something that was not previously regulated.
Directors and Representatives
Attorneys and accountants shall, at requirement, disclose to the SNFR the identity of the persons designated or offered as nominees to its clients.
Rule JD-01-2020 derogated and left without effect Resolution JD-14-2015 and its amendments, that were the original regulation applicable to the regulated activities of attorneys and accountants.
For further information or advice on the matters described above please contact:
Senior Associate, Morgan & Morgan
With the enactment of Law No. 81 on Protection of Personal Data, the Republic of Panama aims to establish the principles, rights, obligations and procedures that regulate the protection of personal data, also considering their interrelation with private life and other rights and fundamental freedoms of citizens, by natural or legal persons, public or private law, lucrative or not, that process personal data in the terms provided in the Law.
Storage or transfer of personal data:
The storage or transfer of personal data of a confidential, sensitive or restricted nature, outside the territory of Panama, by the company responsible for the storage of data or custody thereof, will be allowed, provided that the company and/or country of residence have standards of protection comparable to those of the Law or if the entity that transfers the data makes sure to adopt all the necessary steps so that it is protected. The following cases are excepted from the aforementioned requirements: (1) when the owner has granted its consent for the transfer; (2)when the transfer is necessary for the execution or enforcement of a contract by the interested party; (3) in cases of bank or money or stock exchange transfers; and (4) in case of information whose transmission is required by law or in compliance with international treaties ratified by Panama.
It establishes the obligation to develop procedures, protocols and processes for the management and transfer of data that includes the appropriate security methods.
Consent of the owner of personal data:
It is established that the processing of personal data can only take place as permitted in this Law, or with the consent of the owner of the data.
Definition of sensitive data:
Sensitive data refers to the private sphere of its owner or whose misuse could give rise to discrimination or entail a serious risk for him/her– for example, of racial origin, religious beliefs, union affiliation, political opinions, data related to the health, life, preference or sexual orientation, genetic data or biometric data, among others aimed at uniquely identifying a natural person.
Sensitive data can not be transferred except: (i) by explicit consent of the owner; (ii) when necessary to safeguard the owner’s life; (iii) when it is necessary for the recognition, exercise or defense of a right in a judicial proceeding; and (iv) when it has a historical, statistical or scientific purpose.
Rights of Access, Rectification, Cancellation, Opposition and Portability:
The rights of owners of personal data to exercise over those responsible for database processing are: (i) Access (to obtain the data and know the purpose and origin for which they were collected), (ii) Rectification (to access and request correction, modification or update), (iii) Cancellation (to request deletion of data), (iv) Opposition (refusal to provide or revoke its consent) and (v) Portability (right to obtain a copy of all personal data in a structure matter in certain circumstances).
The database custodians that transfer personal data stored in a database to third parties must keep a record of them, which must be available to ANTAI, if requested to do so.
Personal Data Protection Council:
The Personal Data Protection Council is created, which has the following functions: to advise ANTAI in relation to the Law, recommend public policies, evaluate cases submitted for consultations and develop internal regulations and it is composed by:
- the Minister of the Ministry of Commerce and Industries;
- the General Administrator of the Authority for the Protection of Consumers and the Defense of Competition (ACODECO);
- the General Director of ANTAI;
- the Ombudsman, or its nominee;
- a representative of the National Council of Private Enterprises (CONEP);
- a representative of the National Bar Association;
- a representative of the Panama Banking Association;
- a representative of Electoral Tribunal; and
- a representative of the Chamber of Commerce, Industry and Agriculture.
The National Government Innovation Authority will have the right to address the council as a technical advisor.
Duty to compensate for pecuniary and/or moral damages caused by the unlawful handling of personal data.
National Authority for Transparency and Access to Information (“ANTAI”):
Right to appeal against ANTAI in case of claims to any database storage operator to resolve differences in the exercise of the aforementioned rights. The competent body for the fulfillment of the obligations of this Law is ANTAI except in the case of estities regulated by special laws, in which case the claimant must first submit its claim to the competent regulatory authority. The ANTAI, through the Directorate established to consider the matter, is granted the powers to impose sanctions. The decision of the Directorate in the ANTAI established to consider these proceedings may be challenged through a reconsideration appeal. A subsequent appeal may be filed with the Director General of ANTAI.
The sanctions may be between US$1,000 and US$10,000, depending on the severity and recurrence and may be a written warning, citation before the ANTAI, fine, closure of the database registration or suspension and disqualification of the storage activity and/or treatment of personal data. There are minor infractions (for example: not sending the information required by ANTAI), serious infractions (for example: processing data without the owner’s consent) and very serious infractions (for example: the collection of personal data in a malicious way).
This law will take effect two (2) years after its promulgation.