Issuing an Employment Pass from my small, family owned Limited Liability Company

[Narcisse]

Hi all,

One year ago, I got some great advice here on this forum and it was much appreciated, so I thought I would try again. I did find some similar topics, but nothing that specifically answered my question, so I thought I would try a new post. Apologies if I should have added my question to one of these existing posts.

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Business info - I have a small company registered and domiciled in Singapore that has been running (and paying IRAS taxes - albeit not a lot) for 5 years. I have been running it from overseas, as it requires minimal oversight. There is a resident director, who is not a nominee director, and they are also a shareholder. The business address is also in Singapore.

Personal Info - I am an Australian national, and I have always wanted to live in Singapore. My wife, who is a French national has always wanted to live there too. While the current world health situation has screwed us in many ways, the silver lining of the fact that my wife can't find work in her industry in France, which means there is no reason (personally) why we couldn't move to Singapore now and live out that dream.

No personal reason that is. Whether the MoM will let us or not is another issue. I guess my question is 3 pronged:

1. Is it possible for the company I am a director and majority shareholder of to issue an Employment Pass?

I have checked with the self assessment tool on the MoM website and due to the fact that I am getting on in my years now (40 - I didn't think it was that old, but MoM tells me it's old enough to almost need to double the minimum threshold) and that the company might be classified as financial services, the tool tells me that it is possible (I have several higher education degrees) if I pay above $8,000 - $9,000 SGD per month from the company to myself. Is there anything I am missing that would prevent my own small company from drawing up an employment contract with myself and then applying for EP for me? Full disclosure, I probably don't need to be in Singapore to be running this company, I just want to live in Singapore right now. I'm fine with changing my tax residence to Singapore and paying full Singapore income tax.

2. What would be the financial/fiscal implications of paying myself this salary?

Due to a conversation with Strong Eagle a year ago, I am fairly clear that paying myself a salary as a non-resident director would require the company to withhold tax at the rate of 22% as a director's fee instead of the usually salary treatment. However if I am in Singapore as a tax resident, would it then be treated as salary instead and be taxed at the regular Singapore resident income tax rates? I am definitely not trying to avoid any taxes and I am aware that the more I try to reduce tax, the more likely my EP will be rejected. But I do need to do some projections to figure out what this means for the company and myself financially.

The way I am calculating this in my head is that I personally pay income tax (or tax on director's fees - depending on answer to above question), but the salary paid reduces company income by the exact same amount as the salary, so reduces corporate tax over the same tax period. Because personal tax rates (at $9,000 SGD per month) are lower than corporate tax rate of 17%, this is actually a cost saving overall. If it is a director's fee taxed at 22%, then this is an extra cost. Do I have that right in my head? Am I missing anything that could lead to much greater costs?

3. Implications of drawing a salary from the company while injecting funds into the company at same time

Another problem I envisage is that the company has low annual profits, probably not enough to sustain the monthly salary. What it does have is significant liquid assets (cash) that has been there for 5 years, so it's not like I'm just injecting it now to look good for my application. Do you think this will affect my application (company annual income not enough to pay the salary, but cash assets more than enough to pay the salary for many years)?

I'm also wondering on what will be the optics if I am drawing money out of the company to take a salary (in order to get the Employment Pass), while possibly injecting money into the company in the form of either investment or shareholder loan (not 100% I will do this, but it is one possibility).

Anyway, I am sorry for the incredibly long message, but figured it was better to provide too much information rather than too little.

Thanks all,

N.

[PNGMK]

Have you read Strong Eagles posts (and Myasis Dragon) on this topic?

Sorry I see you have.

You need a business plan that shows a path to sustainability and local employment. Otherwise it will be seen for what it is; am attempt to procure an EP.

[Narcisse]

Thank you for your reply. The only thing that confuses me is this:

Otherwise it will be seen for what it is; am attempt to procure an EP.

Surely any application for an Employment Pass is an attempt to procure an Employment Pass?

If you are referring to the company formation being an attempt to procure an Employment Pass, no it was formed and incorporated 5 years ago, had nothing to do with trying to do with procuring an EP. It's a legitimate company, has a legitimate Singapore resident director (not nominee) and has legitimately been operating for 5 years and paying taxes to IRAS for those 5 years. I just wanted to clarify that.

I definitely see your point on sustainability, and local employment, as the company is in all honesty probably too small to justify a salary that might be required for the EP, and I don't see the company expanding quickly to the point where we could hire local. I expected this to be a requirement for the MoM self-assessment tool, but it didn't seem to figure anywhere. That's one of the reasons why I posted here, since in the MoM webpage, I pass the self-assessment tool, and in the requirements for application there is no mention about a business plan, only a requirement that I provide my University Certificates and the company's latest business profile from ACRA. The business profile is the only thing I can think they would assess to see if there is long term sustainability to be able to pay out this salary. I will say that the company holds sufficient cash and liquid securities to pay out the salary for years to come. Average P/L over the last 5 years would indicate inability to pay the salary just out of profits, but the last financial year's financials would look much better.

Thanks again for your reply, I do appreciate it.

[PNGMK]

I wish you luck. Friends of mine who used this pathway years ago have long since left so I don't know if it works anymore.

[Narcisse]

I wish you luck. Friends of mine who used this pathway years ago have long since left so I don't know if it works anymore.

Thank you. So it seems like something similar was possible, but not sure if it is anymore. If I apply to the MoM I will let the forum know how things went. I'm going to do more research myself first to try and make sure it is feasible before I apply. Thanks alot.

[PNGMK]

Yes, good luck. For what it's worth I just realized I still have an Aussie friend here who uses this to keep an EP (his primary income is from leased farm land).
He would have set this up back in 2007 I think. He has a business degree (like I do) and probably had it nailed down paperwise.

[Narcisse]

Yes, good luck. For what it's worth I just realized I still have an Aussie friend here who uses this to keep an EP (his primary income is from leased farm land).
He would have set this up back in 2007 I think. He has a business degree (like I do) and probably had it nailed down paperwise.

Wow thanks very helpful, and good to know.

[Myasis Dragon]

Here is my SGD 0.02 on the subject.

You mention that you are aware that non-resident directors are subject to a 22 percent withholding tax. Have you actually paid yourself anything as the non-resident director? If yes, then it is a plus in a couple of ways. First, the company is profitable enough to at least pay you something. And second, that you’ve followed the law, a desirable quality in most Singaporean bureaucrat’s eyes. It’s not a major issue if you haven’t made money and paid taxes, but it could be an issue if you paid yourself money but characterized it as executive director compensation which is not taxable.

You are an owner (shareholder) as well. This is a plus as you have run a successful company remotely for five years, without asking to move to Singapore. This is evidence that forming the company to get an EP was not your primary goal.

My view is that you want to position yourself as making a move to Singapore in order to hands on manage a small company that has been profitable for 5 years, and take it to the next level. This is the best light in which to cast your EP application; take a successful Singapore company and run it locally in order to expand its revenues.

Because, here’s the deal. You’re going to need to pay yourself enough salary to support an EP. And, it’s perfectly reasonable to have cash reserves in order to pay your EP salary until the breakeven point. In fact, most people that apply to get an EP fail to do so because they don’t provide a source of funds, which, for any startup, would also include contributed funds to keep you and company alive. So, having a source of funds is a good thing because you can pay yourself. It’s also possible that you can pay yourself less by characterizing your business as a developmental startup.

In most circumstances, a company reaches breakeven and starts paying all of its expense out of revenues. You are suggesting that your company is not going to do that but rather that you will keep injecting capital into the company. Things become gray and I don’t have any solid advice as to what might happen next. IRAS/MoM probably will not care so long as your IR8A tax form shows that you’ve been paid your full EP income.

IRAS is probably not going to care if your company is loss making for at least one or two years, maybe three, even, because, you’ve come to Singapore to grow it and profits are not expected immediately. If you’re injecting money into the company then it has to be a loan from a director (even though you are also a shareholder), or it has to be in the sale of more shares of stock. I have no inside information regarding this, and, I would be very surprised if IRAS didn’t red flag something like this, not because they give a shit about your circumstances but because loaning money in and taking it back out as expenses is a great way to launder money.

Doing this over anything other than a short period of time is going to create all kinds of bizarre situations on your financial statements. If you’ve got directors loans, they must be paid off. If equity contributions, then you have a huge paid up capital account, offset by a huge negative retained earnings. In my view, if you’re planning on staying long term, you need to bring the company to a level of profitability that pays for your salary.

Taxes are so much fluff in this whole conversation. You’re EP status isn’t going to be determined by how much tax you did or didn’t pay. Yes, your salary reduces your corporate profits and so you pay taxes on your salary and not on your corporate profits. Within a few percentage points, it’s a wash. What will raise flags is to pay yourself dividends as a shareholder, but not pay yourself a salary... this is personal income tax avoidance. But, since you’re loss making, you can’t pay dividends out of paid up capital anyway… although, I _think_ that you can pay them out of a loan.

Bottom line: If your resident director is willing to do the work to get the necessary documents to MoM for evaluation, I think you have a pretty good shot at getting an EP. But, I don’t think your idea of indefinite funding while loss making is going to work for very long.

[Narcisse]

Here is my SGD 0.02 on the subject.

Which is always appreciated, so I thank you very much for your detailed reply, I was hoping you would see this post.

You mention that you are aware that non-resident directors are subject to a 22 percent withholding tax. Have you actually paid yourself anything as the non-resident director?

No, after last discussing the issue with yourself on this notice board, I never wound up taking any money out of the company in any form. It was only a small profit that year, so after considering everything it made sense to leave the money in the company. But after our past conversation and my own research, it was fairly clear that if I paid myself anything as a non-resident it would have to be declared as a director fee and tax withheld at 22%, I had no interest in doing anything dodgy.

My view is that you want to position yourself as making a move to Singapore in order to hands on manage a small company that has been profitable for 5 years, and take it to the next level. This is the best light in which to cast your EP application; take a successful Singapore company and run it locally in order to expand its revenues.

This makes perfect sense, and this is how I will frame my application, thank you for the suggestion.

IRAS is probably not going to care if your company is loss making for at least one or two years, maybe three, even, because, you’ve come to Singapore to grow it and profits are not expected immediately. If you’re injecting money into the company then it has to be a loan from a director (even though you are also a shareholder), or it has to be in the sale of more shares of stock. I have no inside information regarding this, and, I would be very surprised if IRAS didn’t red flag something like this, not because they give a shit about your circumstances but because loaning money in and taking it back out as expenses is a great way to launder money.

Doing this over anything other than a short period of time is going to create all kinds of bizarre situations on your financial statements.

This would be a short period of time, 1-2 years. I don't have bottomless pockets, within that 1-2 years I either need to:

1. Find business opportunities while in Singapore that improve profitability of the company to the point where the company can pay the salary required for EP out of profits.
2. My wife finds employment in Singapore with a decent enough salary that I can apply for a dependent pass for myself, stay in Singapore and not have to pay the salary that justifies an EP (since I no longer need the EP).
3. Leave Singapore after 1-2 years.

If you’ve got directors loans, they must be paid off.

Just to check that my understanding is not wrong, a director's loan from the company to the director has to be paid off within 6 months, but a loan from the director to the company to fund the company has no time limit I believe? Or am I mistaken?

Taxes are so much fluff in this whole conversation. You’re EP status isn’t going to be determined by how much tax you did or didn’t pay. Yes, your salary reduces your corporate profits and so you pay taxes on your salary and not on your corporate profits. Within a few percentage points, it’s a wash.

After spending a full day running different profit and loss scenarios and how they affect corporate tax and personal tax (if I become Singapore resident), I agree. The scenarios resulted in a small amount less tax overall, to a small amount more tax overall. Overall, a wash as you say. I'm glad to have someone with more experience than me say the same thing, as I was worried I was missing something. I don't care about a a small amount more or less tax. I just wanted to make sure I wasn't stepping into something that would cost an absolute fortune because I was forgetting about some tax that I would suddenly become liable for. Thanks.

What will raise flags is to pay yourself dividends as a shareholder, but not pay yourself a salary... this is personal income tax avoidance. But, since you’re loss making, you can’t pay dividends out of paid up capital anyway… although, I _think_ that you can pay them out of a loan.

This isn't significant in this case, as I only have interest in paying a salary to obtain an EP. But I'm guessing what you are saying is that if in the past the company has chosen to pay dividends instead of a salary to a non-resident director (which would have had tax withheld at 22% as a director fee), then it is not illegal (tax evasion), but looks like tax avoidance, which raises red flags and would make the EP application more likely to be rejected. I seem to remember another post (to another OP) where you wrote something along the lines of "that form of tax avoidance was legal, yes, and you had the right to do it, just like they have the right to tell you to p!ss off when you apply for an EP." I'm guessing this is what you are saying here too?

Bottom line: If your resident director is willing to do the work to get the necessary documents to MoM for evaluation, I think you have a pretty good shot at getting an EP. But, I don’t think your idea of indefinite funding while loss making is going to work for very long.

Thank you, this is very helpful and encouraging. My fault, I should have clarified that this scenario was only for 1-2 years until either the company could generate enough profits to justify the salary, or my wife secures a decent job where I can apply for a dependent pass off her EP, or we just leave Singapore. It was never intended as a long term solution, I should have been clearer.

Thanks again.

[PNGMK]

Narcisse, I have a CPA who sets my stuff up if you need help and he was experience in drafting plans and getting EPs for these type of ventures. Not to push business his way, but he is pretty good and is an actual CPA as opposed to a book keeper (but not the cheapest).

[Narcisse]

Narcisse, I have a CPA who sets my stuff up if you need help and he was experience in drafting plans and getting EPs for these type of ventures. Not to push business his way, but he is pretty good and is an actual CPA as opposed to a book keeper (but not the cheapest).

Thank you, I will keep his details on file and if I decide that doing it myself (with the local director) is too difficult and I need professional help, I will reach out to him. Appreciate you giving me the contact. Have a great day!

[Myasis Dragon]

Just to check that my understanding is not wrong, a director's loan from the company to the director has to be paid off within 6 months, but a loan from the director to the company to fund the company has no time limit I believe? Or am I mistaken?

There is no time limit to repayment of loans by a director made into the company. This is a common way to fund a company and is an alternative to taking an equity position. So, the company might never pay the loan back for years and years, if ever.

But a loan to a director from the company is different. It's a scam way to compensate the director in lieu of salary or fees and it avoids tax (and if you're a Singapore citizen or PR, it also avoids CPF payments). Therefore, these loans are more closely scrutinized, and I don't know all the details, but if you have a lot of loans to directors hanging on the books for a long time, it might set off a red flag or two at IRAS.

This isn't significant in this case, as I only have interest in paying a salary to obtain an EP. But I'm guessing what you are saying is that if in the past the company has chosen to pay dividends instead of a salary to a non-resident director (which would have had tax withheld at 22% as a director fee), then it is not illegal (tax evasion), but looks like tax avoidance, which raises red flags and would make the EP application more likely to be rejected. I seem to remember another post (to another OP) where you wrote something along the lines of "that form of tax avoidance was legal, yes, and you had the right to do it, just like they have the right to tell you to p!ss off when you apply for an EP." I'm guessing this is what you are saying here too?

It's not only if you are non-resident, the same thing applies to resident company owners. In Singapore, dividends are not taxed on your personal income return.

Corporations in Singapore have very generous tax exclusions from corporate tax rates for the first 3 to 5 years (no tax at all on the first $100,000 of profits).

So, the game is this. You own the company. You don't pay yourself a salary. Because you don't pay yourself a salary, the company makes $100,000 in profit, which is not taxable. So, you issue yourself $100,000 in dividends which attracts no tax on your personal return, and shazam!, you haven't paid any tax at all.

Two things: Like most countries, Singapore has a salary standard for various positions. So, if you're the managing director of an IT services company, IRAS will expect that your paying yourself at least X dollars per month. If you're not, and you're paying dividends instead, IRAS may force you to recharacterize your remuneration, and add some penalties on as well.

Second thing: If you're on EP or PR (and this is anecdotal on my part), you risk your pass by not paying tax. I am aware of a Brit (if I don't have CRS syndrome) who did exactly as stated above. When it came time for is PR REP to be renewed, it wasn't. Now, he may have been a shit in other ways, but he did brag about how clever he was, tax wise.

[Narcisse]

There is no time limit to repayment of loans by a director made into the company. This is a common way to fund a company and is an alternative to taking an equity position. So, the company might never pay the loan back for years and years, if ever.

Thank you, this was my understanding and it is how I have funded the company. I misinterpreted your post and started to worry that there was a time limit to repay the loan. Crystal clear now.

But a loan to a director from the company is different. It's a scam way to compensate the director in lieu of salary or fees and it avoids tax (and if you're a Singapore citizen or PR, it also avoids CPF payments). Therefore, these loans are more closely scrutinized, and I don't know all the details, but if you have a lot of loans to directors hanging on the books for a long time, it might set off a red flag or two at IRAS.

No intention of ever taking a loan from the company, but thanks for the information.

So, the game is this. You own the company. You don't pay yourself a salary. Because you don't pay yourself a salary, the company makes $100,000 in profit, which is not taxable. So, you issue yourself $100,000 in dividends which attracts no tax on your personal return, and shazam!, you haven't paid any tax at all.

Ah, I understand now. Nope, no intention of every doing anything like that. Our first 3 years has passed, I was very grateful for the tax exemptions for new start ups, but left all the money in the company, so we could re-invest in the company, and didn't pay any dividends.

Second thing: If you're on EP or PR (and this is anecdotal on my part), you risk your pass by not paying tax. I am aware of a Brit (if I don't have CRS syndrome) who did exactly as stated above. When it came time for is PR REP to be renewed, it wasn't. Now, he may have been a shit in other ways, but he did brag about how clever he was, tax wise.

Understood. I wouldn't be doing anything like this. Would be paying myself a salary that has to be fairly high to qualify for the EP, and paying full income tax as a Singapore tax resident on that salary. As we already discussed, the extra personal income tax being paid would probably roughly cancel out with the less corporate tax being paid due to more expenses (salary). But I'm not concerned about small differences.

Summary

Everything would be above board. The only thing that could be considered even a little dodgy at all is that it's probably a personal desire to live in Singapore at the moment rather than a purely business decision to base myself there. But I am a business person, and if I'm in Singapore I definitely going to be looking at ways to grow the business there, as opposed to just sitting on my butt and drinking beer all day.

Thanks for the advice. If I go ahead with the application, I will report back here with how it went.

Cheers!

[Myasis Dragon]

No intention of ever taking a loan from the company, but thanks for the information.

There are circumstances where such loans make sense. For example, you wish to send an executive to some area of the country that doesn't have housing equivalent to what he had where he previously was.

You loan money to the director to purchase a new place before the old place is sold (or maybe he keeps his old place as well). Point being, the company doesn't buy the director a new house but does enable her to get a new place without having to go out for a mortgage loan.

[Narcisse]

There are circumstances where such loans make sense. For example, you wish to send an executive to some area of the country that doesn't have housing equivalent to what he had where he previously was.

Understood, I didn't mean to give the impression I thought it was dodgy, just indicating that we didn't have a need for this type of loan in the near future for our circumstances.

Thanks again for the advice.