A Captive is simply an insurance company that is owned and controlled by its insured. Captives are normally being domiciled in an offshore jurisdiction because the regulatory environment onshore may not be conducive to the creation and operation of a captive insurance company.
This document provides a general overview of Captives with particular information regarding Labuan International and Business Financial Centre (Labuan IBFC).
WHAT IS A CAPTIVE?
A Captive is simply an insurance company that is owned and controlled by its insured. Captives are normally being domiciled in an offshore jurisdiction because the regulatory environment onshore may not be conducive to the creation and operation of a captive insurance company
- A Labuan Captive Insurer may underwrite direct insurance / reinsurance (general or life) business risks :
- of their own Group; or
- third party risks subject to Labuan FSA’s approval
- A Labuan Captive Insurer may obtain reinsurance coverage from any insurance company in or outside Labuan irrespective of whether it is licensed under the Labuan Financial Services and Securities Act 2010 (“LFSSA”).
- Labuan Captive Insurer may deal with direct Malaysian risks for activities as prescribed by law.
APPLICATION FOR LIICENSE
Kensington Trust Labuan Limited is a licensed trust company in Labuan and may assist you with license application, establishment and administration of your Labuan Company or branch.
TYPES OF CAPTIVE
- Pure / Single Captive - owned and controlled by one owner, typically the parent organization, and is formed as a subsidiary company. The captive subsidiary underwrites policies for the parent, and solely bears the risks of the parent.
- Group Captives / Association captives - owned and controlled by multiple insured. They may or may not be related entities or a part of a homogeneous group like industry or trade groups.
- Master rent-a-captive – acts as a master captive, which provides captive facilities and services to subsidiary rent-a-captive.
- Subsidiary rent-a-captive – an entity with separate licenses, assets and accounts but at the same time using the working capital of master captive.
- Cell captives - Protected Cell Companies (“PCC”) where legislation protects each individual cell or account from the liabilities of other cells within the captive.
- Multi owner captive - owned by two or more unrelated persons or organisations and writing the risks of its owner and/or affiliates and is designed to insure the risks of these different entities.
REASONS FOR FORMING A CAPITIVE INSURANCE COMPANY
- Lower insurance costs
- Cash flow
- Risk retention
- Unavailability of coverage
- Risk management
- Access to the reinsurance market
- Writing unrelated risks for profit
- Tax minimization and deferral
- Every Labuan Captive Insurer must -
(a) Have an operational management office in Labuan managed by a management team that has an adequate knowledge and expertise in insurance business including captive; or
(b) Appoint a licensed Labuan underwriting manager.
- At least 2 directors (preferably a natural person) with insurance or insurance related experience. There is no residency requirement with respect to the
- Paid-up Capital / Working Funds
(a) Pure/Single captive / Group, Association & Multi-owner captives
Unimpaired by losses of RM300,000 or its equivalent in any foreign currency
(b) Rent-a-captive / Master-rent-a-captive / Cell captive / Other similar vehicles
Unimpaired by losses of RM500,000 or its equivalent in any foreign currency
- Margin of solvency
(a) A Labuan Captive Insurer is required to maintain at all times a surplus of assets over liabilities, which is equivalent to, or more than the amount of its working fund; or
(b) 20% of the net premium income for the preceding year in respect of the general insurance business, or 3% of the actuarial valuation of the liabilities for life insurance business as at the last valuation date,
whichever is greater.
LABUAN IBFC TAXATION SYSTEM
- Labuan Business Activity Tax Act 1990 (“LBATA”) governs the imposition, assessment and collection of tax on a Labuan business activity carried on in, from or through Labuan.
- Labuan entities that carry on a non-Labuan business activity are subject to the provisions of the Malaysian Income Tax Act, 1967 (ITA).
- “Labuan business activity” means:
- a Labuan trading or a Labuan non-trading activity carried on in, from or through Labuan,
- excluding any activity which is an offence under any written law.
- “Labuan trading activity” includes banking, insurance, trading, management, licensing, shipping operations or any other activity which is not a Labuan non-trading activity. The Labuan entity shall pay 3% of net profits as per audited accounts.
- “Labuan non-trading activity” means an activity relating to the holding of investments in securities, stock, shares, loans, deposits or any other properties by a Labuan entity on its own behalf. Such activity is not subject to tax under LBATA.
- Labuan companies carrying on both Labuan trading and non-trading activities will be deemed to be carrying on Labuan trading activities. Hence, it will have the same tax treatment as those undertaking Labuan trading activity mentioned above.
- Substance requirements under Labuan Business Activity Tax Regulations 2018:
- To benefit under LBATA, a Labuan captive will need to comply with the substance requirements of minimum number of four (4) full time employees in Labuan and an annual operating expenditure in Labuan of RM100,000.
ELECTION TO PAY TAX UNDER INCOME TAX ACT 1967
A Labuan captive may make an irrevocable election for its profits for any basis period for a year of assessment and subsequent basis period, to be subject to tax under the provisions of the Income Tax Act 1967, in respective of that Labuan business activity.
This election shall be made and furnished to the Director General of Inland Revenue Board within three months after the beginning of the basis period for a year of assessment.
DEALINGS WITH RESIDENT
All Labuan entities are allowed to conduct transactions with residents of Malaysia in Ringgit Malaysia. “Resident” here means:
- in relation to a natural person, a citizen or permanent resident of Malaysia; or
- in relation to any other person, a person who has established a place of business, and is operating in Malaysia.
- and includes person who is declared to be a resident pursuant to s.43 of the Malaysian Exchange Control Act 1953.
The amount of deductions allowed in respect of payments made by Residents to Labuan entities are as follows:-
|> Interest expense||67% deductible|
|> Lease rental||67% deductible|
|> General reinsurance premiums||100% deductible|
|> Other type of payments||3% deductible|