How to Setup a Company in Malaysia

How to Setup a Company in Malaysia

Business Regulations

Business operations may be carried out in several legal forms. This section describes the different types of business organisations and the associated legal requirements. A brief discussion of employment legislation, exchange control and related issues is included for the benefit of those contemplating to set up a business in Malaysia.

1. Types of Business Organization
A business organisation may take any of the following forms:

• Sole trader or proprietor
• Partnership
• Unincorporated association
• Branch of a foreign company
• Locally incorporated company
• Representative office
• Operational headquarters
• International procurement centre
• Labuan offshore company

Sole Trader or Proprietor

A sole trader or proprietor is an individual engaged in a business or profession on his own account. A sole proprietorship has to be registered under the Registration of Business Act. It is an easy procedure to register a sole proprietorship. There is no requirement for a sole trader to maintain accounts for auditing purposes. For tax purposes, a balance sheet or statement of affairs as at the end of the year and a detailed profit and loss account must be submitted to the tax authorities.

The sole proprietor is required, where applicable, to register as a contributor (for his employees) to the Employees Provident Fund (EPF) and Social Security Organisation (SOCSO) and as an employer with the tax authorities for the purpose of deducting tax from the employees' salaries and filing a tax return. The sole proprietor may also, be required to register for sales tax and service tax, where applicable.

Partnership

Persons carrying on a business in partnership are required to register the partnership with the Registrar of Business as does a sole trader or proprietor. A partnership is not a legal entity such that the partnership has to sue or be sued in the names of the partners. The liability of each partner is unlimited. Limited partnerships are not provided in the law, although prior to 1997, a company limited by shares was permitted to be a partner in a partnership that must have at least one individual as a partner. However, effective from 1997, the Registrar of Businesses no longer registers any partnership established by any company incorporated under the Companies Act, 1965, notwithstanding that the partnership has at least one individual as a partner.

A partnership consisting of foreign individuals or persons is generally not registered by the Registrar unless there are special circumstances warranting its registration.

The rights and liabilities of the partners are governed by the Partnership Act in the absence of a partnership deed or specific provisions in the deed.

Unincorporated Association

Unincorporated associations are usually used for social, recreational or charitable purposes. Trade associations, foundations, cooperative societies, trade unions and political parties are usually unincorporated bodies. Generally, unincorporated bodies are registered under the Societies Act.

A branch of a foreign company and a locally incorporated company are covered in the section entitled 'Company Law and Accounting'.

Representative Office

Foreign companies which desire to set up a coordination centre or regional base in Malaysia may apply to the Ministry of International Trade and Industry (MITI) to establish a representative office in Malaysia. In the past, the setting up of a regional office was also allowed, However, since 1997, regional offices are no longer encouraged.

A representative office of a foreign company is permitted to provide certain qualifying services. These include collecting information regarding investment opportunities in Malaysia, gathering market statistics, promoting trade between Malaysia and its home country and carrying out research and development as well as acting as a regional base and coordination centre for the corporation's affiliates, head office and related companies in the region. The representative relocated to Malaysia must apply for a work permit. Generally, the number of expatriate posts permitted depends on the activities to be carried out in the region and one has to justify the need for work permits.

It must be noted that a representative office is not permitted to undertake any business transactions that generate income. Contracts solicited locally must be referred to the head office for concluding and signing. No invoicing of any goods or services must be done by the representative office.

The representative office is required to submit information on its activities to the MITI. On the other hand, they are not required to file returns to the Registrar of Companies or tile income tax authorities. The individuals working with the representative office must, however, file personal income tax returns to the tax authorities and comply with all the provisions of the Income Tax Act.

The representative office should employ locals for supporting services.


2. Licensing Requirements
Most businesses in Malaysia are required to obtain a licence in one form or another. The main licensing requirements are discussed below.

Manufacturing

Under the Industrial Coordination Act, 1975, any person engaging in any manufacturing activity in Malaysia must obtain a manufacturing licence from MITI. This only applies to manufacturing companies with shareholders' funds of RM2.5 million and above, or those engaging 75 or more full time employees. It is normal for conditions such as local participation, restriction of employment of expatriates and transfer of technology to be imposed. Concessions that are required should be negotiated with the authorities at the time of application for the licence.

It should be noted by existing licensed manufacturing companies that if they diversify into the manufacture of related products for export or for the domestic market, or expand their production capacity, MITI and the Malaysian Industrial Development Authority (MIDA) should be informed. Manufacture of a new product or relocation of the existing facility to another location requires the company to apply for the necessary amendments to be made to its existing manufacturing licence.

Banking and Related Businesses

Under the provisions of the Banking and Financial Institutions Act, 1989, the Central Bank (Bank Negara Malaysia) licenses and regulates businesses such as banking, money broking, discount houses, provision of credit and finance, merchant banking, deposit taking and certain other financial businesses. This includes all foreign banks which are required to operate in Malaysia through incorporated local companies. The Central Bank also supervises leasing, factoring, insurance and other finance related activities carried on in Malaysia.

Oil and Gas Industry

The entire ownership and the exclusive rights, powers and privileges of exploring, winning and obtaining oil and gas, whether onshore or offshore Malaysia, are vested in the national oil corporation, namely, Petroliam Nasional Bhd. (PETRONAS). Oil companies wishing to explore, exploit and win any oil and gas in Malaysia have to enter into a production sharing contract with PETRONAS. Any person wishing to conduct or carry on any business related to upstream petroleum activities is required to be licensed by PETRONAS. Licensing power of downstream petroleum activities is vested with MITI.

Wholesale and Retail Trade

Under the policy on foreign participation in wholesale and retail trade, all proposals for foreign involvement in wholesale and retail trade must obtain the approval of the Committee on Wholesale and Retail Trade (CWRT). This includes the opening of new branches and relocation.

The objectives of the policy are:

• to ensure a fair and orderly development of the industry, including the interest of local traders;
• to streamline the industry with the national objective of increasing Bumiputera (indigenous people) participation in the economic sector, in line with the National Development Policy; and
• to encourage modernisation and to increase the efficiency of the industry and its continued contribution to the growth of the economy.

Foreign involvement in the wholesale and retail trade is subject to the following rules and conditions:

a) Local incorporation. Wholesale and retail businesses must be registered under the Companies Act, 1965.
b) Equity structure. Foreign equity of 30% is allowed with the balance of 70% to be held by Malaysians, of which at least 30% is to be reserved for Bumiputeras.
c) Minimum capital requirement.
Minimum paid-up capital required:
• RM10 million for departmental stores
• RM5 million for supermarkets
• RM1 million for specialty outlets
• RM500,000 for direct selling businesses
For other types of businesses, the requirement is based on merit and contribution to the socio-economic development of Malaysia.
d) Managerial/technical posts for expatriates.

One key post per company, on the condition that the person applying for the post must hold or has held a managerial position in the company's wholesale and retail business outside Malaysia for a period of not less than three years preceding the date of application for the work permit; and

A maximum of 10 posts per company, approved for a period of two to three years and a maximum of five years for executives or experts who possess the necessary' qualification and practical experience, including holding an equivalent or related position in the company's business for not less than three years. Approval for such posts are granted on the condition that Malaysians are trained to eventually take over tile posts.

Building and Construction

All persons, whether local or foreign, must register with the Construction Industry Development Board (CIDB) before they can undertake to carry out and complete any construction works in Malaysia.

Construction works by virtue of the CIDB Act, 1994, covers not only activities directly referring to building and construction, but also activities that form an integral part of it, such as extension, installation, repair, maintenance, renewal, removal, renovation, alteration, dismantling, or demolition. The CIDB Act has not limited the activities to those relating to the building and its construction. They may also include the following:

• road, harbour works, railway, cableway, canal or aerodrome;
• drainage, irrigation or river control works;
• any electrical, mechanical, water, gas, petrochemical or telecommunication works; or
• any bridge, viaduct, dam, reservoir, earthworks, pipeline, sewer, culvert, drive, shaft, tunnel or reclamation works.

Registration is prescribed by the law to include payment of fee and submission of forms to the CIDB.

Other

Most professions are required to be licensed and are governed by regulatory bodies. These include the accounting, legal, appraisal, medical, architectural, teaching and engineering professions. Radio and TV broadcasting, transportation services and mining industries are also regulated by government authorities.


3. Guidelines on Foreign Equity
Foreign equity participation in manufacturing projects is governed by the. following guidelines. Exception to these guidelines can be represented to the authorities under special circumstances.

• Generally, no equity condition will be imposed on projects that export 80% or more of their production. Factors such as industrial linkages, capital investment and technology are taken into consideration.
• For projects exporting 51% to 79% of their production, foreign equity ownership up to 79% may be allowed depending on the level of technology, capital investment, location and use of local materials and components as well as economic benefits generated by the project.
• For projects exporting between 20% to 50% of their production, foreign equity ownership up to 51% may be allowed, depending on the factors mentioned above.
• For projects exporting less than 20% of their production, foreign ownership is limited to 30%.
• Projects involving high technology or promoted products or activities may be owned up to 51%.
• Where foreign equity is less than 100%, the balance of the equity is to be taken up by Malaysians, of which an allocation of 30% of equity thereof is to be allocated to Bumiputeras. In some circumstances, Bumiputera participation may be reduced to below 30%.
• Certain projects have predetermined foreign equity set by the Government that deems tile above guidelines as being not applicable.
• Investors are recommended to provide details of their projects so as to ascertain the foreign equity guidelines that apply to them before making the application to MIDA.

Definition of 'Export'

Since the level of foreign equity permitted in a manufacturing enterprise depends largely on the level of export, the interpretation of 'export' is critical to a foreign investor targeting 100% foreign equity in the Malaysian company.

It should be noted that, from 1 July 1993, sales to free zones and licensed manufacturing warehouses (LMW) are considered as domestic sales. As such, existing foreign owned companies that sell mainly to companies located in the free zones and LMWs after 1 July 1993, are required to comply with the equity guidelines for non-export oriented manufacturing companies. However, as a concession, the Government has agreed to allow the foreign-owned companies to retain their foreign equity provided that:

• the approved project remains unchanged; or
• on undertaking diversification, only related products within the industry are manufactured.

For the purpose of the Customs Act, sales of goods to free zones are still considered as exports since a free zone is deemed to be a place outside Malaysia. Additionally, the Customs authorities consider sales to LMWs as exports although a LMW is outside a free zone.


4. Guidelines for Acquisition of Assets, Mergers & Takeovers
To ensure an equitable distribution of equity ownership in the corporate sector the acquisition of assets or any interests, mergers and takeovers of companies and businesses incorporated or registered in Malaysia, are subject to the guidelines (listed below) of the Foreign Investment Committee (FIC). The FIC was established, within the Prime Minister's Department, to implement these guidelines.

The guidelines for acquisitions, mergers and takeovers of Malaysian companies apply to:

• Any proposed acquisition by foreign interests or any substantial fixed assets in Malaysia.
• Any proposed acquisition of assets or any interests, mergers and takeovers of companies and businesses in Malaysia by any means, which will result in ownership or control passing to foreign interests.
• Any acquisition of 15% or more of the shares in a local company by one foreign interest or associated group of foreign interests, or any acquisition by foreign interests such that at least 30% voting rights pass to foreign interests.
• Control of Malaysian companies or businesses through joint ventures, management agreements or technical assistance agreements or other arrangements.
• Any other proposed acquisition of assets or interests exceeding RM5 million.

Note: Acquisition and control by any Malaysian or foreign interests of assets or interests of RM5 million or less way be subject to other conditions in respect of their acquisition.


5. Securities Commision
As at 1 March 1993, with the coming into force of the Securities Commission Act, 1993, the functions of the Capital Issues Committee and panel of Takeovers and Mergers had been integrated under the Securities Commission.

The Securities Commission (SC) was established to oversee the securities and futures industries. Its functions include regulating, monitoring and developing the securities industry, as well as advising the Government and Bank Negara Malaysia on policy matters. As far as submission of proposals for issues of securities to the public are concerned, the SC also acts as the liaison agency for FIC, MITI and Bank Negara Malaysia, where the approval of these bodies are required.

Other regulatory or coordinating bodies in the securities industry include the Kuala Lumpur Stock Exchange, the Malaysian Exchange for Securities Dealing and Automated Quotation (MESDAQ) the Kuala Lumpur Options and Financial Futures Exchange (where stock index futures are traded), the Malaysia Monetary Exchange (where interest rate futures are traded) and the Kuala Lumpur Commodities Exchange. The various exchanges are responsible for vetting and licensing responsible and financially sound members and their representatives and implementing the rules for orderly and transparent securities markets. Note that MESDAQ is intended to develop young but high growth potential companies, preferably in the high technology industries.


6. Exchange Control Rules
Malaysia's exchange control regulations have been liberalised recently and apply uniformly to transactions with all countries except Israel, Serbia and Montenegro.

Direct and Portfolio Investment

Permission is not required from the Central Bank for a non-resident to undertake direct or portfolio investments in Malaysia. Remittances to Malaysia for funding of investments are freely permitted.

Remittance Abroad

Payments to countries outside Malaysia may be made in any foreign currency other than the currencies of Israel, Serbia and Montenegro. Payments within Malaysia must be made in Ringgit, the Malaysian unit of currency.

All payments including repatriation of capital and dividends are freely permitted. A form has to be completed for remittance abroad of more than RM100,000 and is readily approved by any commercial bank.

Prior permission of the Central Bank is required for payments exceeding RM100,000 or its equivalent in foreign currency made by a resident who has domestic credit facilities. These payments include:
• purchase of securities issued outside Malaysia or immovable properties abroad;
• lending or placing deposits offshore;
• acquiring of investments outside Malaysia; and
• purchase of commodity futures not transacted at a commodity exchange in Malaysia.

Export Proceeds

A form must be completed only for all exports, the value of which exceeds RM100,000 (f.o.b) per shipment, except where the customs declaration forms are not submitted to the Port Klang Community System or the Subang Airport Community System (Electronic Data Interchange System). In both cases, export proceeds must be repatriated to Malaysia within the period of payment specified in the export contract, but not later than six months from the date of export.

Generally exporters, regardless of size, are allowed to maintain either one foreign currency account or one multi-foreign currency account with certain designated banks without having to seek specific approval from the Central Bank provided they comply with the limits as prescribed below. Exporters are allowed to retain a portion of their export proceeds in foreign currency, without the need to first convert such proceeds into Ringgit.

The maximum overnight limits allowed in the foreign currency account, depending on the average monthly export receipts are as follows:

Average monthly export proceeds | Amount allowed to be retained in foreign currency
Exceeding RM20 million | Up to USD10 million
Between RM10 million and 20 million | Up to USD5 million
Between RM5 million and Rm10 million | Up to USD3 million
Less than RM5 million or new exporter without 12 months track record | Up to USD1 million

Exporters with proceeds of more than RM2 million (f.o.b) are required to submit quarterly reports certified by an independent professional auditor. Notwithstanding the amount of export proceeds, any changes or items that may require the approval of the Central Bank should be submitted at the end of the relevant month.

Inter-Company Accounts

Inter-company accounts with associated companies, branches or other companies outside Malaysia are freely permitted, provided that monthly returns are submitted to the Central Bank. Offsetting of payables against receivables from export proceeds and from external credit facilities extended to the Malaysian companies are prohibited from the inter-company accounts. A monthly statement of the inter-company account has to be submitted to the Central Bank.

Domestic Borrowing by Non-Resident Controlled Companies (NRCC) Operating in Malaysia

A NRCC in Malaysia is allowed to obtain unlimited credit facilities for short term trade financing. It may borrow up to RM10 million in Ringgit or foreign currency for other credit facilities, from Malaysian sources without the permission of the Central Bank, provided it obtains at least 60% of short term trade financing and 60% of other types of credit facilities from Malaysian-owned banking institutions. For borrowings in excess of RM10 million, the permission of the Central Bank is required and the domestic debt to eligible capital funds ratio is 3:1.

Borrowing in Foreign Currency

A resident may obtain credit facilities in foreign currency up to the equivalent of RM5 million in aggregate from licensed banks, licensed merchant banks and non-residents, provided that where the aggregate amount exceeds the equivalent of RM1 million, the resident must furnish the Controller of Foreign Exchange with information on the foreign currency credit facilities within two weeks of obtaining the facilities, and must also inform the Controller when the credit facility has been repaid in full within two weeks of the repayment.

Foreign borrowing in ringgit from non-residents is generally not encouraged. However, a resident may obtain credit facilities in Ringgit up to a total amount of RM50,000 from any non-resident individual. Financial guarantees may be in Ringgit or foreign currency if obtained from licensed offshore banks or from non-residents who are not financial institutions, if the guarantee payments are made in foreign currency. Licensed banks may only issue guarantees in foreign currency.

Foreign Currency Accounts other than Exporters

Residents, other than individuals with domestic credit facilities, may operate one or more foreign currency accounts to retain foreign currency receivables other than exports, up to:
• overnight balance equivalent to USD 0.5 million with a designated bank;
• overnight balance equivalent to USD 0.5 million with a licensed offshore bank.
• Approval is required if the foreign currency account is maintained with an overseas bank.
For resident individuals, a foreign currency account may be maintained for educational purposes and employment overseas up to:
• an overnight balance of USD100,000 with a designated bank or a licensed offshore bank;
• an overnight balance of USD50,000 with an overseas bank.

Approved Operational Headquarters (OHQ)

To encourage the setting up of approved operational headquarters (OHQ) in Malaysia, certain exemption from exchange control rules are accorded to OHQs.

An OHQ is allowed to do the following:
• Retain export proceeds in either one or more foreign currency account or multi-currency account maintained up to a maximum of USD 10 million; as long as they comply with the aggregate new limits as laid out in the revised schedule of the export proceeds;
• Open one or more foreign currency accounts with any designated bank, licensed offshore bank in Labuan or overseas bank for the purpose of crediting foreign currency receipts (except export proceeds) without any limit;
• Obtain any amount of foreign currency credit facilities from any source, provided the OHQ does not on-lend to, or raise the funds on behalf of any resident in Malaysia, without the prior approval of the Central Bank;
• Obtain domestic credit facilities in Ringgit up to RM10 million from any source in Malaysia as long as the Ringgit funds are used within Malaysia;
• Extend any amount of loans in foreign currency to its related companies outside Malaysia, or invest abroad in any form, provided the OHQ's aggregate domestic credit facilities in Ringgit do not exceed RM10 million. Effective from the year of assessment 1995, the funds for providing such services may be obtained from both outside or within Malaysia; and
• Obtain with the approval of the Central Bank, domestic credit facilities in Ringgit exceeding RM10 million to lend in foreign currency to its related companies outside Malaysia.
• International Procurement Centre (IPC)
In order to encourage the establishment of centres for the procurement of raw materials, components and export of finished goods to economize on the costs involved, the following incentives have been provided:
• The IPC is to be allowed to maintain multiple foreign currency accounts with any designated bank to retain its export proceeds without any limit on the amount;
• The IPC is allowed to enter into foreign exchange forward contracts with any designated bank to sell forward export proceeds based on projected sales;
• Customs duties will not be imposed on raw materials, components or finished products imported into Free Zones or Licensed Manufacturing Warehouses for repacking, cargo consolidation and integration before distribution to the ultimate consumer; and
• Expatriate posts will be granted based on the requirements of IPC.
Applications must be made to MITI, and approval will be based on the following criteria:
• locally incorporated under the Companies Act, 1965, with a minimum paid up capital of RM 0.5 million;
• a minimum business spending (operating expenditure) of RM1.5 million annually;
• incremental usage of Malaysian ports and airports

Companies are also required to submit their audited financial reports to MITI annually.


7. Immigration
Foreign visitors entering Malaysia for the purpose of a social or tourist visit or business may be issued a social or business visit pass at the point of entry. Business visit passes are issued to foreign visitors who enter Malaysia for purposes of conducting business negotiations. These passes cannot be used for purposes of employment or for supervising the installation of new machinery or the construction of a factory. Business passes are valid up to three months and may be renewed. Most expatriates who are relocated to Malaysia arrive in Malaysia on a business pass and then follow up with an application to the Immigration authorities for a work permit for a specified period.


8. Foreign Workers Levy
As a measure to ensure that employers employ foreign workers only when necessary, an annual levy is imposed as follows:
Sector | RM
Domestic/ Estate | 360
Others | 1,500

In addition, a processing fee is charged for each worker as well as an expatriate working in Malaysia.

The levy on foreign workers will need to be paid upfront based on the duration of the approved work permit. The 1998 Budget stated that any levy paid in 1997 onwards will be rebated against income tax chargeable on the expatriate.


9. Labor Law
The Malaysian Government's objective is to promote cordial employer-employee relations, and industrial peace based on social justice, equity and good conscience to bring about a productive, contented labour force and to ensure a favourable climate for investment and sustained economic growth.

As of 1997, the Employment Act, 1955 regulates the minimum terms and conditions of service of an employee earning RM1,500 per month and below. The Act also provides for payment of compensation to workmen not covered by the Employees' Social Security Act, 1969 for injuries caused by accidents arising in the course of employment.

All companies, with one or more employees whose wages do not exceed RM2,000 a month, are required to insure their employees under the two schemes administered by the Social Security Organisation (SOCSO) namely, the Employment Injury Insurance Scheme and the Invalidity Pension Scheme, Under these schemes, employers and employees are required to contribute based on the employees' gross salary. However, if the employee's salary exceeds the minimum level at any time during his employment, the employee and employer are still required to contribute to the schemes.

Companies employing manual foreign workers must insure their workers with a local insurance company as required by the Workmen Compensation Act, 1952.

The Trade Unions Act, 1959 provides for the registration and administration of trade unions in line with the policy of the Government to encourage the growth of democratic, healthy and responsible trade unionism, within the context of public and national interests. A trade union should confine its membership to employees within a particular trade, occupation or industry and should apply for registration upon its formation. The Trade Unions Act provides sufficient safeguards against militancy or unlawful activities of trade unions. All trade unions are inspected periodically to ensure compliance with the law. The industrial Relations Act, 1967 provides for the regulation of relations between employers and workmen and their trade unions, and the prevention and settlement of labour disputes. The Act protects the legitimate rights of employers and workmen and their trade unions. It also provides for the protection of pioneer industries during the initial years of their establishment against any unreasonable demands from a trade union.


10. Human Resource Development Fund (HRDF)
Employers in the manufacturing sector and in selected industries in the services sectors are required to pay a monthly levy of 1% of the employees' monthly wages to the HRDF. Monthly wages are defined in the Human Resource Development Fund Act, 1992.

Employers in the manufacturing sector with 50 employees and above are required to pay monthly levies at the rate of 1% of the employees' monthly wages. Manufacturing companies with at least 10 and less than 50 employees will contribute to the fund in the following manner:

• with paid-up capital of at least RM2.5 million, the employers have to contribute at the rate of 1% of monthly wages rate; or
• with paid-up capital of less than RM2.5 million, the employers will be given the option of whether they want to register under the HRDF Act, 1992. Those who choose to register will be required to pay contribution at the rate of 0.5% of the monthly wages.

Companies in the services sector such as hotel, air transport, tour operating and travel agency business, telecommunication, freight forwarders, shipping, postal or courier services, advertising and computer services are required to contribute to the HRDF at the rate of 1% Of monthly wages. Effective from 1997, the scheme will be extended to other fields such as energy, education and consultancy.

Employers who have contributed to the HRDF for a period of five months are eligible to apply for training grants (financial assistance) from the HRDF to defray part of the 'allowable costs' of training the employees. The rates of financial assistance will depend on the skill areas in which the training is undertaken and range from 50% to 80% of the allowable costs. As of 1997, the Government has proposed that the securities industry establish their own training scheme.

Frequently Asked Questions:

1) Can a foreigner set up a sole proprietorship or partnership?
Foreigners cannot set up sole proprietorships or partnerships unless in very specific professional industries like medical or engineering whereby there is also culpability for personal indemnities.

2) What is the difference between a shelf company and a newly formed company?
A shelf company is an existing company formed with a RM2/= paid up share capital, 2 local directors and shareholders, and a RM100,000 authorised share capital (stamp duty paid). Upon purchase of a shelf company, the existing directors resign & blank transfer forms are delivered to transfer the share to the purchasers. Business can commence immediately upon purchase.
In order to form a new company, first we have to get approval from the register of companies to use this proposed name. This process can sometimes take a long time depending on the name chose. Upon approval of use of name, the company secretary then prepares the necessary documents for incorporation for filling. This may take another 5-10 day from the date the entire relevant documents are signed.

Business can only commence after the certificate of incorporation has been issued by the register of companies.

3) How long does a name search take for the Registrar of Companies to approve?
The result are out normally within 5 working days of submission according to the Client's Charter of the Companies Commission (though it is normal for a few days delay) and you will have a time period of 3 months from the date of the results to register your company.

4) Is the shelf company free from liability?
Yes. There is a pre-signed indemnity letter from the previous shareholders admitting liability for transactions before the purchase date but also absolving for liabilities after the purchase date.

5) What is included in the purchase or formation price quoted?
Processing of relevant documents for shares transfers or subscriber's shares.Filing or documents to ROC for relevant changes in directors' secretaries.
RM2/= paid up share capital and stamp duty on RM100,000 authorised share capital. Any excess stamp duty to be borne by client.

Secretarial books consisting of minute's book. Share register, member's register 10 copies of memorandum & articles of association & 1 no. common seal.

6) How long does it take to register a new company?
From the submission of all necessary paperwork to the ROC it normally takes 5 days for the result to be available but as the ROC's internal information technology systems do breakdown often, it may take up to 2 weeks for the Business Registration Certificate to be issued.

7) Who is the company secretary & what responsibility does she have?
According to Section 139 of the Companies Act 1965, all limited companies must have a licensed company secretary who is an officer of the company. Her/his duties are set out in the Act itself and are primarily to ensure the companies are adhering to the procedures set out in the Companies Act. Which is why the company secretary charges a retainer fee for his/her expertise in this field.

8) From the list of shelf companies, what is the difference between the names listed under B9 and the rest?
B9 refers to the names of companies that have been approved but isn't incorporated yet. It will take about 5 days to incorporate the company. The memorandums & articles and incorporation documents can then be filed with the names of the shareholders & directors (the persons buying the company in this case) and these names will be the ones appearing in the M & A unlike the ready made ones which carries the name of someone else who incorporated the company first.

9) What do you consider as a dormant company, a semi-active company and an active company?
A dormant company is one that has ceased operation.A semi-active company is one that is in operation but does not require frequent resolutions to be alone e.g. a trading company.An active company is one take frequently requires resolutions to be done for purpose of obtaining licenses, bank facilities, transactions involving large sums of monies e.g. Developer company.

10) Can the secretarial books be kept at the company's office or anywhere else other that the company secretary's address?
Yes, the company secretarial books can be kept at another location but this location must be made public by filing a form with the Registrar of Companies.

11) Can any other company personnel draw up their own resolutions without having to go through the company secretary?
Yes, the company can have anyone draw up the resolution document itself but these documents have to be verified by the company secretary since the company secretary shall be held responsible for the preparation of the documents. In most cases, to minimise risks resolutions are done by the company secretary.

12) What are the qualifications require to become a director of a private limited company?
- He/she must be of age 18 years and above.
- He/she person must not be an un-discharged bankrupt.
- He/she must not have been convicted of an appointment.
- He/she must be a resident of Malaysia or having a permanent residential address in Malaysia. "Having a permanent residential address" is interpreted as "having the right of abode in the country on a long term basis". A person with a valid work permit will qualify for a permanent residential address status.

13) I have come across foreign directors of companies who do not have a work permit nor a long term stay visa of any sort but have been installed as local directors in their companies. The Companies Commission has not rejected the installation. This would be contrary to what is stated above.
We have written in to the Commission once regarding this matter and their response is that it is not their duty to check on the immigration status of the director. The onus then would fall on the company secretary to define the clause "permanent residential address" status according to the Immigration law. In our opinion, we would prefer to define the clause according to Immigration & tax laws as we see and that is what has been stated in the answer in the previous question. Ultimately, the important question here is: "If anything should go wrong with the business, where does the company stand legally? Is it an illegal entity?" "Enemies" may use this point to get rid of unwanted partners.

14) Can a non-director be a signatory to the company's bank account?
Yes, if he is named as a manager of the company in the Form 49. Some banks do allow third parties to sign cheques without any supporting documents like Form 49 but most do make a big fuss about it.

15) Can foreigners owned shares & what is the maximum shareholding allowed in a local private company & the minimum share capital in a foreign owned company?
There is no restriction on maximum shareholding i.e. foreigners can own 100% of a company. If they own more than 30% of any company, they will be required to apply for Foreign Investment Committee approval, the process of which takes more than 6 months but approval is normally given. Normally, small businesses will not apply for any FIC approval unless there is business with the government departments. If the company intends to transact with government departments which will require licensing, the minimum local "bumiputra" (ethnic Malay) participation must be 30% and above. The minimum share capital is the same as any other local company which is RM2.

16) Are the foreign shareholders allowed to work in Malaysia? Is there a way to circumvent this local director requirement?
Foreign investors are allowed to work if they hold a valid work permit. Shareholders can be locals or foreigners but for foreigners to become directors, they must have a valid work permit. A foreigner on a dependent's visa or with the Malaysia My Second Home visa will qualify as a passive director but not a working director. The alternative is to seek nominees or trustees. The cost of a nominee or trustee is between RM1,500 and RM2,500 per annum.

17) I understand that the minimum share capital for any company to employ an expat under a work permit is RM250,000. What if I do not have the requisite amount to be banked into the company?
Cash or assets can be pumped in as share capital. If you do not have the cash, assets will also qualify. For every RM250,000 share capital, you can qualify for 1 expat work permit; RM1 million will give you 5 work permits.

18) Can the RM250,000 capital that put in be used and taken out immediately?
Yes, the money can be used immediately for anything the company chooses to use it for. It cannot make loans to the shareholders if the ultimate result is that the shareholders owes the company money as this contravenes the Companies Act which states that the company cannot apply funds to purchase its own shares. Even though this is the case, frequently most company still practices making loans to its directors/shareholders and at year end during audit, re-invest the amount owing to comply with the Act.

19) What if the foreigner is a Malaysian spouse? Will the minimum capital be RM250,000?
Any local company can sponsor the Malaysian spouse. No minimum share capital is required.

20) Can the visa applicant go and apply to the Immigration Dept. instead of going through an agent? What is the advantages of using an agent?
It is absolutely possible for the applicant to go through the application process him/herself. Just be prepared to make numerous trips, long waiting period each time and dealing with unhelpful immigration officers at the counters. If your time cost is very high, then the agents will go through the same application procedures on your behalf. Over at Masson, we guarantee our quality service with refund if work permit is not approved. How? This sensitive information will be divulge on a more person to person basis - so contact us at info@massongroup.com.

21) Is there any way to get a work permit in a company without having to put up RM250,000 share capital?
Yes, by setting up a representative office of a foreign company. If you have an existing foreign company, you can set up a branch office in KL . There are no capital requirements here but there are restrictions i.e. the company cannot do trading but it can perform marketing and research functions. For more info. on representative office, please email info@massongroup.com.

22) What if I do not want a representative office set up and do not have RM250,000 to put up?
There are several proposals that are temporary measures for the increase of paid up capital which have worked out for some people. The details of these proposals are sensitive and should be discussed on a more personal basis. You can contact us for a preliminary discussion at +603-78044684 or +6016-2629339.

23) How long is the Professional EP valid for (a) under a private limited company and (b) a representative office?
Standard 2 years for both. The EP under the private limited company shall be extendable for an unlimited time period provided it satisfies all the immigration criterias. The work permit for the representative office is normally extendable for another 3 year up to a maximum of 5 years without question but after the fifth year, you will have to justify why you have already set a local private company up after 5 long years of market research and development. Extensions of another 2 years is possible selectively.

24) What are the charges for a EP?
The average service fee exclusive of government levies is between RM3,500 to RM5,000 depending on nationality, applicant's qualification and complexity of each individual case.

25) What do you mean by depending on nationality, applicant's qualification and complexity of case?
A straight forward genuine case complying with all the immigration criterion with all relevant documents intact will be relatively easier than a conjured up post for an applicant not really qualified for the job but wants to get a long term work permit. There are about 10 nationalities that are blacklisted and these nationalities will have to pay the higher fee as there is double scrutiny from different government departments (not just immigration) and so double the work. So the scale for the straight forward genuine case starts at RM3,500 and the not so genuine and blacklisted cases RM5,000 upwards.

26) What is the cost of setting up or buying a company?
A shelf company cost between RM2,200 and RM2,500 depending on how good the name sounds but is up to each individual company secretarial firm.

27) What are the cost implications of setting up your own business?
Whether or not you have business or income, the annual statutory maintenance costs for accounts, audit, tax and filing with the Companies Commission would be at least RM1,500 a year depending on how active your company has been.

28) What if at the end of the day we decide to close the company if there is no business? Can we do that and what is the cost?
Yes, you can de-register the company if the company does not have any debts to any third party. If there are debts, you will have to liquidate. The difference between liquidation and de-registering , other than having (or not having) debts to third party is the cost and time. The cost for de-registering is around RM1,200 but the cost for receivership and liquidation will start at RM4,000 onwards depending on how messy the company is.


Source:
US-ASEAN Business Council (http://www.us-asean.org/Malaysia/business_guide/busregs.asp)
Masson Group (http://www.massongroup.com/settingup.html)