Panama has a territorial taxation system that levies taxes only on operations that take place or that have effects within the country’s territory. Income tax, in particular, is levied only on income that arises from a Panamanian source, regardless of the nationality or residence of the income recipient.
Likewise, any service that a company established in Panama provides outside of the country would not be subject to income tax, as long as this service is not related to its taxable activities in Panama. Moreover, sales of merchandise by a Panamanian company, when the goods do not enter into Panama’s territory, are considered to produce foreign source income and are therefore not subject to income tax. However, if they do enter Panama, the income arising from the operation will be subject to income tax.
Corporate & Personal Income Tax
Article 694 of the Fiscal Code defines taxpayer as any natural/individual person or legal entity (corporation or partnership), national or foreign, receiving or generating taxable or assessable income. The applicable rate for legal persons is 25% whereas for natural persons there is a progressive rate that exempts the first $11,000 of income and charges a rate of 15% for income between $11,000.01 and $50,000, and a rate of 25% on income over $50,000 a year. Taxable income is defined as income produced from any source within the Panamanian territory, regardless of the place where the income is perceived. That definition applies not only to income that is physically generated within Panama, but also to income that is considered as such by the law. For example, Article 694.e of the Panamanian Fiscal Code states that income received by natural or legal persons residing outside of Panama due to any kind of service benefitting people located within Panama is subject to income tax at a rate of 50% of the ordinary tax rate, as long as the person receiving the services treats the sums paid for them as deductible expenses. In the case of legal persons, this means that an effective tax rate of 12.5% applies. The applicable tax has to be withheld by the recipient of the services and remitted to the tax authorities.
In the case of domestic taxpayers, there are two methods for calculating corporate income tax. The first method is the traditional one, under which taxpayers deduct the costs and expenses they have incurred during the fiscal year from their Panamanian source income and apply the 25% income tax rate to that amount. The alternative method applies the 25% rate on 4.67% of the taxpayer’s gross Panamanian source income to calculate the applicable tax.
The higher resulting tax between the two methods shall be the tax payable, although only taxpayers who have taxable income in excess of $1.5m are obliged to make the alternative calculation. Moreover, if a taxpayer incurs losses due to the application of the alternative method or if their effective tax rate under such a method is higher than 25%, a waiver can be requested before the tax authorities.
Under the traditional method, taxpayers are allowed to deduct from their taxable income any costs and/or expenses which are necessary for the generation of Panamanian source income or for the conservation of the income’s source. Costs and expenses associated with foreign or exempt income are not deductible, and those associated with taxable income are subject to a proportional limitation based on the percentage that taxable income represents out of the taxpayer’s total income. The proportion of deductible expenses vis-á-vis total expenses shall not exceed the proportion taxable income represents for the taxpayer’s total income. Losses can be carried forward for five years and applied in that time frame at a rate of 20% per year, as long as the losses applied in each year do not exceed 50% of the taxpayer’s taxable income for that year.
Unlike income tax, dividend tax is paid on the distribution of profits arising from both Panamanian and foreign source income, from export operations, and according to Article 106 of Executive Decree No. 170, on the profits arising from interest received on securities issued by the state and the profits arising from their transfer and interest received from banking institutions established in Panama. According to Article 733 of the Fiscal Code, dividend tax shall be withheld by the company distributing the profits at a rate of 10% on Panamanian source profits and 5% on foreign source profits. This provision also establishes that when a person distributes dividends or participation quotas, he or she shall distribute the profits corresponding to the Panamanian source income before distributing those corresponding to the foreign source income. Moreover, the tax regime established by any double taxation agreement that Panama may enter into in the future will be applicable in case of dividend distribution to a foreign shareholder, and if there is no such agreement with the shareholder’s country of origin, the applicable rate will be either 10% for profits arising from Panamanian source income or 5% on profits arising from exempt or foreign source income.
Complementary tax is an advance to the dividend tax and is charged when a legal person distributes less than 40% of its net profits for a given fiscal year. The complementary tax is assessed on a yearly basis and it is calculated with the preparation of the corresponding income tax return by fiscal year end (filed by March 31).
In this case, the company will be obliged to pay the complementary tax at an effective tax rate of 4% (applying the statutory tax rate of 10% to a tax basis represented by the difference between the effectively distributed sum and the amount representing 40% of the total net profits, which would result in an effective rate of 4%). Once the rest of the profits are distributed, the amount paid as complementary tax will be considered as a tax credit on dividend tax. In practice, the complementary tax represents a 4% advanced dividend tax if there is no distribution. As with dividend tax, complementary tax is applicable to Panamanian and foreign source income. According to Article 733 of the Fiscal Code, this 4% rate will apply to profits subject to a 10% dividend tax rate, and in the case of profits subject to a 5% dividend tax, that same article states they will be subject to a 2% complementary tax, in case the distributed amount is less than 20% of total profits.
Transfers Of Securities
Taxable gains on the sale of securities will be subject to a capital gains treatment under which the definite tax will be calculated at a rate of 10% on the gains, and the buyer will be obliged to withhold a sum equivalent to 5% of the sale price as an advance on income tax, and to remit said sum to the National Public Revenues Authority (“ANIP”, as per its acronym in Spanish) within 10 days after the purchase. If he fails to do so, the company which issued the securities will be jointly responsible for the unpaid tax, as well as for the late payment charges that may apply. The seller may opt to consider said withholding as the definite payable tax, which would benefit him if the withholding were lower than 10% of the actual gain.
The capital gains tax is triggered by any transfer of shares, regardless of what percentage the transfer represents in the capital of the company. According to Article 117-C, if the 5% withholding on the purchase price turns out to be higher than 10% of the actual gain, the seller may file a refund request before the ANIP, together with an affidavit stating the amount on which the refund is requested.
Article 701.e of the Fiscal Code establishes the possibility for the taxpayer to request either a refund in cash or a tax credit for the amount paid in excess. Moreover, Article 117-C also mentions that the gain will be equivalent to the result of deducting from the sale price, the acquisition cost (whether in cash or in kind) and the expenses necessary to carry out the transaction, such as purchase and sale commissions, attorney fees and notary expenses.
According to Article 117-D, when a transfer of shares is done for free, despite the fact that in principle no withholding will have to be made, the transferor will have to file a capital gains tax return, to which he will have to annex a duly notarised affidavit in which the parties to the transaction certify that the transfer was done for free and an affidavit from a certified public accountant in which such a situation is certified. Based on this, the ANIP will determine if effectively no capital gain was generated.
Gains generated on the sale of shares registered at the Securities Market Superintendence will be subject to the provisions of Law Decree No. 1 of 1999, which regulates the Securities Market, and when the transfer of the shares is due to a merger, the gains and losses arising from such a transfer will be regulated by Executive Decree No. 18 of 1994, which regulates the Tax Regime of Corporate Mergers. Executive Decree No. 170 considers as Panamanian source income that income which is generated by the direct or indirect transfer of securities economically invested within the territory of the Republic, while the transfers of securities which are not invested in that way will not be subject to income tax in Panama, since they do not generate Panamanian source income. Article 117-G states that when the transferred securities are economically invested both within and outside Panamanian territory, the portion of the total value invested will be taxable. This portion will be calculated on the basis of the company’s equity and the assets invested; the highest between them shall be applied. The parties to the transaction must submit, with the tax return form, an affidavit detailing the calculation.
Taxation Of Real Estate
Real estate is subject to a Real Estate Property Tax, which is levied at the following progressive rate:
• Under $30,000: 0% (accumulated amount: $0)
• $30,001-50,000: 1.75% (accumulated amount: $350)
• $50,001-75,000: 1.95% (accumulated amount: $837.50)
• Over $75,000: 2.1%. There is an alternative progressive rate applicable to real estate property that has been appraised to adjust its cadastral value for tax purposes, as follows:
• Under $ 30,000: 0% (accumulated amount $0)
• $30,001-100,000: 0.75% (accumulated amount $525.00)
• $100,000: 1.0%
Since 2010 Panama has been signing treaties to avoid double taxation. Tax treaties already passed as laws have demanded reforms of domestic tax laws, to include concepts such as residence for tax purposes, permanent establishments, the arm’s length principle and related parties for transfer pricing purposes. For a number of years Panama has had tax treaties in force and applicable with Mexico, Barbados, Spain, The Netherlands, Luxembourg, Qatar, Singapore, Portugal, France, South Korea, Italy and Ireland. New treaties with the Czech Republic, the UK and the UAE were entered into force in early 2014, and a treaty with Israel has been signed but was not active when OBG went to print.
Panama enacted transfer pricing rules in 2010, which were originally only applicable to transactions between Panamanian entities and their related parties in states with which Panama had concluded a tax treaty. Nonetheless, a subsequent modification to the law resulted in a broadening of the scope of application of transfer pricing rules, and at the moment they are applicable to transactions between Panamanian entities and any related parties they may have abroad, regardless of the jurisdiction in which the related party may be established. In general, Panama’s transfer pricing regulations follow the OECD’s guidelines closely.
Such taxpayers must prepare a transfer pricing study documenting the functions, assets and risks involved in the operations carried out with their related parties abroad, as well as the valuation methods selected to verify the company’s compliance with the arm’s length principle in the operations under analysis, the selection of comparable entities and/or operations, among others. This study shall be kept in the taxpaying company’s offices and shall be submitted upon the request of the ANIP. On June 30 at the latest, taxpayers whose fiscal year ended December 31 of the previous year must present an informative declaration before the ANIP (known as the Form 930) with the details of the operations carried out with related parties, the total amounts for each type of operation and the valuation method selected to prove the application of the arm’s length principle. The data in the Form 930 must be congruent with that in the transfer pricing study prepared by the company and with the corresponding Income Tax return. Taxpayers who fail to submit their Form 930 will be subject to fines equivalent to 1% of the gross amount of the operations carried out with related parties abroad during the fiscal year.
Article 1057-V of the Fiscal Code establishes the ITBMS, a tax on the transfer of movable property and the provision of services. ITBMS, which is the Panamanian equivalent to VAT, is levied on activities carried out by taxpayers within Panama. The ITBMS rate is 7% of the total amount of the contract invoiced. According to Panamanian domestic tax law, the general rule to recover input ITBMS (in the case of services) only provides for the credit mechanism applicable on ITBMS tax returns. In other words, there are no cash refunds available.
Notice Of Operation (Licence Tax)
An annual tax is levied on companies which carry out commercial or industrial activities in Panama, based on the net worth of the company at a rate of 2% with minimum and maximum sums. For these purposes, net worth is understood as the difference between total assets and total liabilities. The minimum tax is $100 and the maximum is $60,000.
The import of goods is subject to import tax, except for those types of goods which are expressly exempt from the tax. The rates vary from product to product as in the import tariffs chart.
Free Trade Agreements (FTAs)
Panama has FTAs with Canada, Costa Rica, Chile, China (Taiwan), Dominican Republic, El Salvador, Guatemala, Honduras, Nicaragua, Peru, Singapore and the US.
Municipal regimes have specific rules in the Panamanian Constitution and Law 109 of 1973. Taxes are based on the type of activity and the gross income amount or sales volume. Taxes may be assessed by municipalities, among other taxes, on automobile licences, buildings and improvements, sidewalks, streets and municipal grounds.
Also, most commercial and industrial activities are subject to municipal taxes, from small businesses and workshops to power generating companies. Private piers, for instance, generate $20,000 per month of tax in Panama City. The Municipality of Panama has its own clearance certificate (“paz y salvo municipal”). It costs $1 and is required for signing contracts with the municipal government; obtaining a new automobile licence each year; and for receiving a licence or permission to operate profit-oriented businesses within the Panama City municipality.
Special Economic Zones & Regimes
To attract foreign investment, Panama has several special tax regimes which provide certain tax incentives to companies. We hereby mention the most relevant.
The Colón Free Zone (CFZ) is a segregated free trade area for wholesale operations. Located on the Atlantic entrance to the Panama Canal and 90 km from Panama City, the CFZ offers a unique place for international commerce, becoming the leading free zone in the Western hemisphere and one of the largest global logistics centres. Goods (except firearms or petroleum products) may be imported, stored, modified, repackaged and re-exported without being subject to any Customs regulations, and those goods entering the CFZ are exempt from import duties. More than 2000 companies are operating from the area; the re-exportation of products is the most important activity carried out.
Companies in the CFZ are entitled to the following tax incentives: no income tax on profits obtained from external operations; dividends paid on profits obtained from export operations and from direct sales (drop shipments) are subject to dividend taxes at a reduced rate of 5%, instead of the ordinary 10% rate; companies established within the zone are exempt from taxes on the re-export of capital; royalties paid to companies established abroad are not taxable to the recipient, but the expense is not deductible for the payee; there are no consular fees, nor any other charges, levied on shipments destined to the free zone or on shipments from this area to consignees abroad; free movements of goods and exemption from import duties; municipalities are not allowed to collect taxes or any other charge for goods entering or departing the CFZ.
The City of Knowledge regime was created to promote educational and scientific research within an area formerly used as a military base (Clayton). The International Techno-Park of Panama is located in the City of Knowledge and its objective is to host innovative businesses that produce, assemble, process or render services for high-tech products destined for sale in the local or international market. This area is given with the following tax exemptions:
• Import tax on materials and equipment related to projects;
• Real estate tax;
• Taxes on funds related to projects remitted abroad;
• Taxes on equipment related to innovative enterprises with high technology standard goods and services.
• Also, private foundations with non-lucrative purposes may be settled at this special area in order to accomplish a social mission such as education or conduct research. The Panama-Pacifico Special Economic Area (PPSEA) is a segregated area adjacent to Panama City which is being developed by a private Developer (London & Regional Properties). PPSEA, located in the former Howard US Air Force Base on the Pacific coast of Panama (west of the Canal), is a tax-free zone with a special legal, tax, Customs, labour and immigration regime. It carries the purpose of increasing the trading of goods, services and capital, offering real estate opportunities (over land and installations) and also promoting investment and employment.
Unlike the CFZ, which is mainly geared to import and export operations, the PPSEA has an extremely broad scope of business, and indeed, Law No. 41 of 2004 states that natural or juridical persons that establish themselves in the PPSEA will be allowed to carry out all kinds of activities as long as they are not expressly forbidden by law.
The PPSEA is another tax-free zone where companies are exempt from income tax, income tax on dividends, withholding tax, import tax and ITBMS that may arise from certain specific activities. Other exemptions are applicable to all types of activities. However, the Multinational Enterprises Headquarters (SEM as per its acronym in Spanish), unlike the above-mentioned regimes, is not limited to a specific geographical location, but it is rather an open regime under which companies can be registered, regardless of the place within Panama where they operate. To qualify as a SEM, companies must provide services from a headquarter in Panama to its head office/parent company abroad, its subsidiaries, affiliated or associated companies.
Law No. 41 of 2007, which regulates the SEM regime, defines multinational enterprise as a legal person whose head office/parent company is in one country and commercial operation takes place in different countries or different regions of such country, which decides to establish a branch, affiliate, subsidiary or associated company in Panama, with the purposes of doing business under premises of commercial transactions within the region.
Stability Of Investments Regime
Freedom of investment such as private property acquisition is allowed under the Constitution. For foreigners, protection of property is not limited to measures found in the Constitution and other domestic laws. Foreign investors’ intellectual and industrial property is subject to the same regulations as national investors. The benefits and conditions of investing in Panama offered under international agreements and signed by the Panamanian authorities apply to national and international investors alike. Apart from bilateral trade agreements, Panama is also a signatory to the Multilateral Investment Guarantee Agreement for promoting and protecting investments.
Among other benefits, the stability of investments made in Panama is guaranteed by Law No. 54 of 1998 which defines investment, provides equal treatment for national and foreign investors, grants stability for direct taxes regime and guarantees repatriation of capital, dividends, interests, profits and capital gains. The stability regime applies to investment activities within the Panamanian territory, such as the tourism industry, agro-export, agro-forest, mining, export processing zones (now named free trade zones), commercial and oil free zones, telecommunications, construction, railroad and port developments, electric energy generation, distribution and transmission, irrigation projects and efficient use of hydro resources, as well as all other approved activities for improving technology.
All national and foreign business entities have equal rights under the Panamanian Constitution and must fulfil the same basic requirements to operate in Panama. However, there are some restrictions for foreigners operating retail trade activities and certain professional practices.
Types of Legal Entities
Different types of legal entities may be formed based on Panamanian civil and commercial laws. A foreign entity may also re-domicile in Panama or open a Panamanian branch. Partnerships: There are several types of partnerships. In general partnerships (“sociedades colectivas”) partners’ responsibilities are unlimited, unless the partnership instrument establishes that a partner will be liable only for a limited sum (which cannot be lower than her/his contribution to the partnership). Simple limited partnerships (or “sociedades en comandita simples”) are limited partnerships with both general and limited partners. General partners share management responsibilities and are jointly liable for partnership debts.
Limited partners are liable only up to the amount of capital that they invested. Joint-stock partnerships (“sociedades en comandita por acciones”) are limited partnerships, similar to simple limited partnerships, but with the partners’ capital represented by shares. Under limited liability companies (LLCs, “sociedades de responsabilidad limitada”) liability of shareholders is limited to the individual capital participation. The name of the partnership must include the words “Sociedad de Responsabilidad Limitada”, the initials “S. de R. L.”, or the abbreviations “Sdad. Ltda.”; otherwise, partners’ liability is unlimited. Joint ventures (Asociaciones Accidentales o Cuentas en Participación): This partnership type is used for temporary associations for commercial purposes without incorporation. Joint ventures are widely accepted, although they have no separate juridical registry. Therefore, for this type of association to carry out a single business enterprise to profit, the directorate general of revenue may assign a tax number to the joint ventures to pay taxes. Private interest foundations: This type of organisation is not profit-oriented, but may engage in commercial activities in a non-habitual manner, or exercise rights deriving from titles representing the capital of business companies held as part of the assets of the foundation provided that proceeds are used exclusively towards the foundation’s objectives. The law also allows for one or more natural or juridical persons to register under their own name, or through another, to constitute a private interest foundation. The following requisites must be met:
• No less than $10,000 authorised capital;
• A name to identify the foundation;
• The objectives, duration, residence, and board of the foundation must also be indicated, along with beneficiaries; and
• Its charter of organisation must be notarised and registered. The private interest foundation is very similar to a trust in its operation, except that there is no need to transfer the assets to a third party. Moreover, when its assets are located outside of the territory of Panama, no taxes are levied on it when these assets (whether they are movable or immovable, shares, bonds and others) are transferred. Corporations: Two or more persons, either nationals or foreigners, may establish a corporation known as a stock company (“sociedad anónima”), for which minimum paid-in capital is required. A single person or a corporation may own all shares, and bearer shares are also permitted. Every corporation must prepare its articles of incorporation (“pacto social”), and register in a public deed before a notary. The public deed must then be registered in the Mercantile Section at the Public Registry. The identification of the shareholders does not need to be disclosed in the articles of incorporation unless there are exceptions. A lawyer or law firm is required to be appointed as the corporation’s resident agent.
Law No. 32 of 1927 and its amendments regulate corporations. The following requirements must be satisfied in order to incorporate a company:
• Registration of a name for the corporation;
• A statement of the main objectives of the corporation, although the law entitles it to perform any legal business aside from the principal objective;
• Disclosure of information regarding the amount of authorised capital, including number of shares;
• In the event of shares without a par value, information regarding the amount of authorised capital, including the number and nominal value of shares. Shares may be issued with or without par value and there may be different classes of shares, with different values and rights. Shares may be issued in a nominative or bearer form, or both. A minimum of three directors is required, with no restriction on a maximum number of directors or their nationalities, as long as their full names and addresses are provided. Legal persons may act as directors for a corporation. Full names and addresses of corporate officers must also be provided. The Panamanian law requires a president, secretary and treasurer, but the same person may hold more than one position on the board. Corporations are required to hire a local attorney to act as resident agent. Fees for this service start at $250 per year. Additionally, there is an annual franchise duty of $300.
The procedure to form a corporation is as follows:
• Provide required information to the resident agent;
• A corporation chart must be prepared by the resident agent (articles of incorporation). A notary public must notarise this chart;
• The notarised document will be registered at the Public Registry;
• The resident agent will prepare the corporation’s share certificates and legal books;
• Foreign corporations may register in Panama.
In such a case, documents certifying the authenticity and good standing of the corporation are requested. These documents have to be certified by the Panamanian Consulate at the place of orgin.
Registration fees vary according to the registered authorised capital, as follows: for the first $10,000, fees are $50; from $10,001 up to $100,000 plus for each $1000 or fraction from $10,001 up to $100,000, $50 plus $0.90; from $100,001 up to $1m plus for each $1000 or fraction from $100,001 up to $1m, $131 plus 0.60 cents; and for over $1m plus for each $1000 or fraction from $1,000,001, $671 plus $0.12.
All companies are required to maintain their accounting records according to the International Financial Reporting Standards (IFRS). A general journal, a general ledger, a minute book, and a stock register (shareholders registry) are the minimum requirements, although only two books are mandatory for merchants: the general journal and the general ledger.
Accounting records, supporting documents and correspondence must be kept in Spanish and in Panama, as long as the operations are carried out locally. They must be up to date and ready to be inspected by authorities at any time. According to the Commercial Code, endorsement by a certified public accountant is required when capital is higher than $100,000 or sales volume is over $50,000. For companies that exclusively perform offshore operations, the legal and accounting records and correspondence may be maintained anywhere in the world. Tax regulations require taxpayers to maintain financial statements at the disposal of the ANIP and attested by a certified public accountant according to the generally accepted auditing standards in Panama. Although it is not required, financial statements can be registered at the Public Registry of Panama.
Banks, insurance companies and reinsurance companies, as well as companies registered under the Securities Market Superintendence and companies operating in a free trade zone are required to have their financial statements certified annually by independent auditors. Also, when the accounting records are kept by electronic means, a specific certification from a certified public accountant is required.
Legal Entity Annual Fee
Every registered corporation, limited liability company or any other legal person, domestic or foreign, must pay the Treasury an annual fee of $300 (“tasa única anual”). For private interest foundations the fee is $350 for the first year and $400 for all subsequent years.
Penalties are to be applied when a company fails to make the payment for either two consecutive periods or two alternate periods. Payments should be made by the legal representative, or to the registered or resident company agent.
Banks and trust companies must obtain operating licences from the Superintendence of Banks. Insurance companies, insurance brokers, reinsurance companies, reinsurance brokers, captive insurance companies and insurance administrators must also obtain authorisation from the Superintendence of Insurance and Reinsurance, while securities brokers must obtain licences from the Securities Market Superintendence.
Panamanian law protects and recognises the rights of the author of any invention, through a patent of invention licence issued by the Ministry of Commerce and Industries, which will assure the inventor exclusive rights for a term of 20 years. Inventors who have obtained patents in other countries can obtain a corresponding patent of invention in Panama, provided that the inventions are not considered to be in the public domain.
No patent will be issued if it conflicts with previously acquired rights. Patents will be cancelled when they are issued to the detriment of third parties’ rights, or when they are not used.
Trademarks may consist of a word, a phrase and a symbol, or a combination of these elements, or any other means capable of individualising a product or service in commerce. They should be sufficiently different from one another, so that a given trademark can be clearly distinguished and no confusion arises in the course of its use.
Any owner of a trademark, either foreign or Panamanian, may request a registration from the Ministry of Commerce and Industries, to acquire the exclusive right to use it in Panama. The application should be published once in the Industrial Property Bulletin, and if after 60 days no claim to the contrary is filed, registration of the trademark should be made.
Registration is granted for a 10-year term, renewable for equal periods of time, provided that the renewal is requested a year in advance or six months following the date of expiration. If renewal is not requested within this period, the registration will be cancelled, and the rights acquired will be lost.
In addition to the international agreements approved by Panama, Law No. 15 of 1994 protects the intellectual property rights of literary, educational, scientific or artistic works regardless of kind, manner of expression, merits or destination. Proof of title to the work is required, but the work does not need to be registered to obtain the protection granted by the law. The copyright is granted to the author while she/he is alive and to his/her heirs for a 50-year period after her/his death.
Electronic Commerce & Related Issues
Law No. 51 of 2008 defines and regulates electronic documents and electronic signatures and the provision of storage of technological documentation and certification of electronic signatures and takes other provisions for the development of electronic commerce. This law allows all traders to keep their records using books, electronic documents or other legal mechanisms as long as it can be ensured that such records cannot be modified or eliminated. An authorisation from the ANIP is required for a taxpayer to issue invoices by electronic means.
Panamanian commercial regulations require that accounting records be kept on file for at least five years. Supporting documentation such as invoices issued or received, withholdings made, and so on must be retained for a period similar to the statute of limitation of any action that could arise from them. However, information regarding social security contributions must be kept for at least 20 years, according to the Social Security Law.