What is the main source of law authorising this entity form?

Companies Act 1993 (Companies Act).

Give a brief summary of the entity form:

Does the entity possess separate legal personality?

A Branch does not have separate legal personality from its overseas registered company (Parent). It does have separate legal personality from the shareholders and directors of the Parent.

(Maximum) period of existence

There is no minimum or maximum period of existence; the Branch will be registered for an indefinite period.

Governing document(s)

The Branch will not have separate governing documents from its Parent.

Liability of incorporators / shareholders

The Parent will be liable for the debts of the Branch. The liability of the shareholders of the Parent is subject to the laws of the jurisdiction of the Parent.

(Governing) bodies

The business and affairs of the Branch must be managed by, or under the direction or supervision of, the Parent.

Director, shareholder, and ultimate holding company details of the Parent must be registered with the NZ Companies Office and are publicly available on an online register.

Other particularities

An overseas company that carries on business in New Zealand must apply for registration (as a Branch) within 10 working days of starting to carry on that business. It is not possible to register a Branch in advance of starting to carry on business in New Zealand. “Carrying on business” is not defined by the Companies Act, but the Companies Act provides some examples of what would constitute carrying on business (i.e. establishing an office, or managing or dealing with property in New Zealand, whether through its employees or an agent), and examples of matters that would not, of themselves, be sufficient to constitute an entity carrying on business in New Zealand (e.g. isolated transactions, holding director or shareholder meetings, holding property, becoming party to a legal proceeding). It is not necessary that the business has a place of business in New Zealand, or has central management or control in New Zealand. Whether an entity is carrying on business in New Zealand depends on all of the circumstances surrounding the entity and its activities. Generally, there needs to be an element of continuity to the entity’s activities, such as regularly conducting business with clients in New Zealand.

Can this type of entity be involved in international transactions and restructurings (e.g. cross border mergers, asset acquisitions, equity acquisitions, etc.)?

A Branch has full capacity and powers to carry on and undertake any business or activity, to do any act, or enter into any transaction.

As the Branch is not a separate legal entity from the Parent, the involvement in international restructurings will be subject to the laws of the jurisdiction of the Parent.

Transactions to acquire NZ assets may be subject to Overseas Investment Office (OIO) approval where the value of the transactions or New Zealand assets involved exceed NZ$100 million in value, or the transactions involve sensitive land (such as residential land. Farm land, land adjoining parks, rivers, the coast and so on – even where only used under lease, not owned).

There is a separate OIO notification regime for transactions involving strategically important businesses. Strategically important businesses are businesses operating in industries that are, due to legislation, considered to be strategically important such as military, duel-use technology, ports or airports, electricity, water, telecommunications, and financial market infrastructure.

Can this type of entity be publicly listed or held?

Not the Branch. The Parent may be, subject to meeting the requirements of the relevant exchange.

Can this type of entity be used for a non-profit or charitable organization?

No.

Give a brief summary of the process of incorporation, formation, or organization, including:

Main documents required

• Application to reserve company name;
• If the Parent is an Australian company, limited information is required, as director, share, shareholder, and ultimate company shareholder details will be automatically completed with details from the Australian register under a mutual recognition arrangement. Must provide details of financial year end, and when carrying on business in New Zealand started, and the principal place of business in New Zealand.
• If the Parent is located in a jurisdiction other than Australia, documents required will include a Certificate of Incorporation, Constitution/Articles (if any), and director details (and identity verification information may be required). Must provide details of financial year end, and when carrying on business in New Zealand started, and the principal place of business in New Zealand.

Involvement of notary, company register, governmental authorities

Documents to be filed with the NZ Companies Office, with most details available on the publicly available online register.

Timing (estimate)

Assuming the name reservation is approved, and all company, shareholder, and director information is in order, registration can be completed within 1 – 2 business days.

Main costs, including registration and similar fees (excluding legal fees)

Main costs of registration (excluding legal and accounting fees) are NZ Companies Office fees for name reservation and registration – as of October 2022, NZ$140 (excluding GST of 15%, if applicable).

Is a description of the anticipated business or purpose of the entity required for incorporation, formation or organization?

The anticipated business or purpose of the Branch does not need to be specified on incorporation (although it may be specified).

Minimum number of incorporators / shareholders and residency requirements

The Branch is not a separate legal entity from the Parent. This will be subject to the laws of the jurisdiction of the Parent.

Minimum number of directors (or other applicable officers) and residency requirements

The Branch is not a separate legal entity from the Parent. This will be subject to the laws of the jurisdiction of the Parent.

Minimum share capital, or equivalent, and payment requirements (including opening a bank account)

The Branch is not a separate legal entity from the Parent. This will be subject to the laws of the jurisdiction of the Parent.

Is the physical presence of incorporators / directors required in the jurisdiction for incorporation, formation or organization?

No.

Is a tax identification number, or equivalent, required? If so, how is it obtained?

If operating a branch in New Zealand and deriving income from it, it is most likely that a tax identification number will be required.

In order to apply for a tax identification number, the following must be provided:

• A certified copy of the certificate of incorporation.
• A copy of the passport photo page and proof of residential address of an executive office holder or director.
• Certified bank account details if a resident of country with which New Zealand has a double tax agreement or an automatic exchange of information agreement.
• Stock exchange listing if listed.
• Names, addresses and tax identification numbers of all directors and all shareholders if the company has 5 or fewer shareholders.

What is the title of the applicable company registry?

New Zealand Companies Office.

What types of information must be filed at the (company) register, and which of them will it be publicly available, e.g.:

The following information relating to the Parent of the Branch must be filed with the NZ Companies Office (noting that if the Parent is an Australian company, much of this information will be automatically completed with details from the Australian register under a mutual recognition arrangement):

All of the above information will be publicly available, except for the date and place of birth details of the directors.

What is the title of the executive body and its members? What are their main duties, tasks and responsibilities?

The Branch is not a separate legal entity from the Parent. This will be subject to the laws of the jurisdiction of the Parent.

How are the members of the executive body appointed, dismissed and replaced?

The Branch is not a separate legal entity from the Parent. This will be subject to the laws of the jurisdiction of the Parent.

Is it possible to appoint corporate directors or must all directors be natural persons?

The Branch is not a separate legal entity from the Parent. This will be subject to the laws of the jurisdiction of the Parent.

Is there a requirement to have non-executive directors? How are they appointed, dismissed and replaced? Do non-executive directors serve on a separate body (two-tier structure) or can a one-tier board (with executive and non-executives) be appointed, or is some alternate structure used?

The Branch is not a separate legal entity from the Parent. This will be subject to the laws of the jurisdiction of the Parent.

What is the title of the body of owners / shareholders / members, and what are the main tasks / responsibilities / powers of that body?

The Branch is not a separate legal entity from the Parent. This will be subject to the laws of the jurisdiction of the Parent.

What are the majority and quorum requirements for decisions by the shareholders? Can they be varied or changed?

The Branch is not a separate legal entity from the Parent. This will be subject to the laws of the jurisdiction of the Parent.

Any special governance regimes (e.g. depending on size, being listed at a stock exchange, or other criteria)?

A Branch whose Parent, or whose New Zealand business, is “large” as defined in the financial reporting legislation is required to comply with certain financial reporting obligations (see accounting obligations section below).

A Branch whose Parent is listed must comply with the listing rules of the exchange on which the Parent is listed.

What are the periodic accounting obligations incumbent upon the entity? To whom must those accounts be submitted?

The Branch is not a separate legal entity from the Parent. This will be subject to the laws of the jurisdiction of the Parent.

In addition, if the Parent is “large”, the Branch is required to have financial statements prepared in accordance with GAAP within 5 months of balance date, and to have those audited and filed with the NZ Companies Office (see Financial Reporting Act 2013). If the New Zealand business of the Branch is also large, then financial statements for the Branch must be included. The Parent, and the New Zealand business of a Branch, will be large if, for the last 2 financial years, assets>NZ$20m or revenue>$10m.

Is the entity permitted to determine its own financial year?

The Branch is not a separate legal entity from the Parent. This will be subject to the laws of the jurisdiction of the Parent.

Is the entity subject to any statutory (external) auditor obligations?

Potentially. See accounting obligations response above.

Requirements to appoint other persons (officers, secretary, internal auditor / accountants). If so, what are their functions? Are there any residency requirements?

The Branch is not a separate legal entity from the Parent. This will be subject to the laws of the jurisdiction of the Parent.

What is the title designated for 'ownership interests' (e.g. shares, quota, interests, membership)?

The Branch is not a separate legal entity from the Parent. This will be subject to the laws of the jurisdiction of the Parent.

Are different classes of ownership interests possible? If so, what are some examples of different classes?

The Branch is not a separate legal entity from the Parent. This will be subject to the laws of the jurisdiction of the Parent.

What documentation is required for the transfer of ownership interests?

The Branch is not a separate legal entity from the Parent. This will be subject to the laws of the jurisdiction of the Parent.

Are there any additional formal requirements required for the transfer of ownership (notary, approvals, stamping, filings, corporate records)?

The Branch is not a separate legal entity from the Parent. This will be subject to the laws of the jurisdiction of the Parent.

Are there any applicable stamp duties imposed when transferring ownership interests?

The Branch is not a separate legal entity from the Parent. This will be subject to the laws of the jurisdiction of the Parent.

How are shares issued? (including information on payment obligations, registration requirements)

The Branch is not a separate legal entity from the Parent. This will be subject to the laws of the jurisdiction of the Parent.

Further information on equity contributions, e.g., non-cash payments on shares, (share premium) contributions without issuances of shares, can partially paid shares/ownership interests be permitted and what are the restrictions on them?

The Branch is not a separate legal entity from the Parent. This will be subject to the laws of the jurisdiction of the Parent.

Any requirements with respect to share cancellation, share repurchase and other capital reductions

The Branch is not a separate legal entity from the Parent. This will be subject to the laws of the jurisdiction of the Parent.

Any requirements with respect to distributions to shareholders?

The Branch is not a separate legal entity from the Parent. This will be subject to the laws of the jurisdiction of the Parent.

Can the owners or shareholders adopt a restrictive or governing agreement among themselves such as a Shareholders Agreement?

The Branch is not a separate legal entity from the Parent. This will be subject to the laws of the jurisdiction of the Parent.

Which are the typical annual maintenance costs of maintaining the existence and legal good standing of such an entity (excluding legal fees)?

A Branch must complete an annual return with the NZ Companies Office. As at April 2021, the NZ Companies Office filing fee (excluding legal fees) is NZ$46 (excluding GST of 15%, if applicable).

What are the general corporate tax rates? (Specify if there is a national versus local distinction).

A flat corporate income tax rate of 28% applies.

Summary of any specific matters, e.g. recent or prospective major legal developments

No current anticipated legal developments.

New Zealand has been named by the World Bank Doing Business 2020 Report as the number 1 jurisdiction for ease of doing business. One of the measures that make up the overall ease of doing business ranking is time and cost of starting a business. New Zealand has been the top ranked country in the world on this measure for over 10 years.