6
How to set up a Company in Peru

Peru offers foreign investors a wide-freedom climate and rights guaranteeing juridical stability.

Foreign investments to be made in the country in any economic activity are not required from prior authorization. There is no restriction as to the amount of investment and transfer of shares.

Foreign investment, made in freely convertible currency, shall be channelled through the National Financial System. The full amount of profits is allowed to be remitted abroad by foreign investors, without restrictions.

This booklet includes general guidelines to set up a company in Peru. The main procedures are also herein indicated.

I. NEW COMPANIES OR BRANCHES:

Foreign investors and/or companies shall decide if they will operate either through new companies, branches or joint ventures.

Peruvian Legislation recognizes various entrepreneurial forms. Some of them are as follows: corporation, limited liability company, general partnership, noncommercial limited company, limited partnership issuing shares, partnerships and branches.

The Corporation and Branches of foreign companies are the most common form used in Peru, because of the advantages it grants.

A. CORPORATION:

1. Business Name  
Corporations may adopt any name; nevertheless, they must include the terms Sociedad Anónima (Corporation) or the main letters S.A.

2. Capital  
Capital stock is represented by registered stocks and formed by the shareholders' contributions, who do not support, by themselves, the corporation debts.

Incorporation requires that the capital stock be fully underwritten, and paid up, at least in 25%. There is no minimum capital amount.

3.Shareholders  
Shareholders must be at least three individuals or juridical persons, residents or nonresidents.

 

4.Incorporation  
There are two types of incorporation: By one action (Direct Creation) or by successive creation (Public Subscription). In both cases, a Notary is required. Also in both cases, the company's founder shareholders must supply the Notary with the documents necessary to start the incorporation (shareholder's identification documents and a deposit of the capital equity in a peruvian bank)

a) Direct Creation:  
The capital stock must be deposited in an account opened with a Peruvian Financial Institution. Once the money has been deposited, the shareholders will draw up the Incorporation Papers, which must be duly countersigned by an attorney; and then submit them to the Notary, who will make a Public Deed for the registration thereof with the Commercial Registry corresponding to the place where it is incorporated.

b) Public Subscription:  
The founder shareholders shall draw up a foundation program, which will be submitted to the notary, for the authentication of their signatures. Once the signatures have been certified, the program must be deposited in the Commercial Registry to be further published in order to find potential subscribers. A meeting of subscribers must be held within six months as from the date in which the program was deposited in the Commercial Registry. Within the thirty days following the meeting, the appointed person or persons shall provide for the company's Incorporation Public Deed, which shall be registered with the Commercial Registry where the company is addressed. 

5. Setup Costs:  
The expenditures involved in the incorporation are the following:

·         Notary's expenses, calculated on the total capital stock and the length of the Public Deed.

·         Registration Expenses, the rate to be paid is the 3/1000 of the capital stock.

·         Other expenses, include the registration of the appointment of Directors and attorney's fees, etc.

6. Corporation's Term

Unless otherwise specified in the articles of association, the corporation term is unlimited.

7.Contributions

These can be made in national and/or foreign currency; or, in physical or tangible goods. It is also allowed intangible technological contributions, which can adopt the form of physical goods, technical papers and instructions, in order to be appraised.

Non-money contribution shall be duly evaluated.

8. Company's Bodies:  
8.1. General Meeting of Shareholders, is the meeting duly called to decide on inherent matters thereof. This body decides by majority, taking into consideration the proportion to the total capital equity.

This is the maximum body of the company. Meetings may be Special or Regular.

8.2. Board of Directors, it is elected by the General Meeting of Shareholders. This appointment must be registered with the Commercial Registry of the place where the company is domiciled.  To become a Director, it is not necessary to be shareholder, unless the by-laws specify so. There is no residence or nationality requirement. The number of directors shall be fixed by the by-laws, or, otherwise, by the General Meeting. The Board of Directors is empowered with legal and management representation, necessary for the administration of the company, within its purpose.

The Board of Directors must prepare, in a maximum term of 180 days, counted as from the end of the fiscal year, the balance sheet with the profit and loss account, proposal of profit allocation and the annual report. The aforementioned documents shall establish, in a clear and exactly way, the partnership assets, gained profits or suffered losses and the state of its business.

8.3. Management: The manager is appointed by the Board of Directors, except the by-laws empower the General Meeting therefor. More than one manager may exist, if the by-laws or the General Meeting establish so. The term of post is unlimited, except the by-laws establish otherwise or the appointment has been made for specific term. Manager's duties are set forth in the by-laws, or at the time of the appointment; otherwise, it is assumed that the manager is empowered to perform acts and execute contracts inherent to the corporate business.

9. Accounting requirements  
Companies shall keep accounting books, considered as main books, which shall be in Spanish and in national currency, unless the company is expressly authorized to keep it in foreign currency, because it receives or makes foreign investments; provided that the company contracts with the State or with Public Enterprises or Institutions. The taxable base shall be determined in foreign currency; nevertheless, the payment of the corresponding taxes shall be made in national currency at the current exchange rate.

The main accounting books are:

Stock Book
Trial-Balance Book
Day-Book
Ledger
Wages and Salaries Payroll Book
Minute Book

For using the mentioned books, the certification by a Notary Public is required. The payroll book shall be certified with the Ministry of Labor and Social Promotion.

10. Profits  
Dividends on shares can be paid only from real gained profits or free-availability reserves, provided that the asset value is not under the total share capital. Dividends allocation between the shareholders will be made in proportion to the amounts paid and the time of integration to the capital stock.

B. BRANCHES:

Foreign companies may freely set up branches in Peru, which shall be recorded with the register where these operate. For purposes of formalities, the registration must include the indicated address in Peru; capital appointed or assigned for the branch; appointment and powers of its legal representative in the country; branch's business line, including the business and operations it is engaged in; and the contract or equivalent document governing the branch in its main place. The certificate, proving the existence and force of the company, from the competent authority duly certified by the Peruvian Consular Representative; a document stating the power of the company to set up branches in other countries; and, the company's resolution to set up a branch in Peru shall be also included.

The legal representative appointed in Peru shall have enough powers to solve any matter related to the company's activities; to involve the company in transactions it carries out; to appear in court; and to answer to a claim.

II. JOINT VENTURE AND PARTNERSHIPS

Joint Ventures and Partnerships are contracts concluded by the parties, which do not require their registration with the Commercial Registry. These have no corporate existence, nor corporate's name.

Resources destined to the aforementioned contracts shall be considered as Direct Foreign Investment, provided that these grant foreign investors participation in the installed capacity, not involving necessarily capital contribution. Besides, these contracts shall correspond to contractual commercial transactions through which the foreign investor provides goods or services to the receiving enterprise in exchange of participation in the volume of the physical production, in the aggregate amount or in the net profits of the enterprise which receives the investment.

III.ADMINISTRATIVE FORMALITIES

In addition to the legal requirements mentioned above, certain formalities must be completed by foreign companies wishing to establish new companies or branches.

A. Tax Card or Unique Registry of Taxpayer (URT):

In accordance with the legislation thereon, the Superintendencia Nacional de Administración Tributaria - SUNAT - (National Superintendency of Tax Administration) has, among its duties, the taxpayers' registration providing them the respective certificate proving its registration with the Unique Registry of Taxpayer.

The following papers must be submitted:

·         Incorporation Documents of the company, or branch, prior registered with the notary.

·         Format given by the SUNAT.

B. REGISTRATION OF FOREIGN INVESTMENT

Foreign investment destined to the capital of a company shall be registered with the Comisión Nacional de Inversiones y Tecnologías Extranjeras - CONITE - (National Commission on Foreign Investments and Technologies).

Foreign investments contractually formalized with Peruvian enterprises, including joint ventures and any other form of partnerships, shall be also registered with CONITE.

For purposes of registration with CONITE, an application shall be submitted along with the following documents:

1)  In freely convertible currency:

In cases of incorporation of companies; investments physically placed in the country; contracts of partnerships or similar, a copy of the document proving the entrance of foreign currency through the National Financial System must be enclosed. Such copy shall include the remitter's business name against an open account in a bank and/or financial entity abroad in the name of the receiving enterprise. In case of contributions destined to the incorporation of enterprises, the remittance may be drawn in the name of the authorized representative or attorney of the investor, duly certified.

2)  Contributions product of the capitalization of the private obligations with abroad:

The existence of outstanding obligations shall be proved by the submission of the copy of the respective accounting documents. 

3)  In physical or tangible goods:

Including the case of contracts of partnerships or similar, a copy of the commercial invoice, free of charge, and the customs import document issued by the corresponding Customs Administration shall be enclosed.

4)  In technological intangible contributions:

A copy of the certificate of registry of the trademark, patent or any other element of industrial property, issued by the Instituto Nacional de Defensa de la Competencia y Proteccion a la Propiedad Intelectual (INDECOPI) proving the concession, in force, of the right in the investor's name and the copy of the Minutes of the Board of Directors or Board of Shareholders, where states the confirmation of the valorization made, or copy of the corresponding contract, in case of associations in participations or similar.

5)  In case of contributions in national currency with right of remittance, for the concept of profits, dividends, royalties or any other type of amounts due:

The availability of funds with right of remittance shall be proved with the copy of the respective accounting documents. Besides, in the case of royalties, the copy of the resolution of registration of the contract generating the obligation shall be submitted to the national competent agency.

For all the cases, the following papers shall be also enclosed:

·         Copy of the Incorporation Public Deed of the new company or branch, with the proof of registration in the respective Registry.

·         Copy of the capitalization bookkeeping entry.

·         In case of contracting joint ventures a copy of the corresponding contract shall be enclosed.

C. UNIFIED REGISTRY

Any person or corporate body, of any economic sector, proposing to engage in any commercial, industrial or any other activities shall be registered with the Unified Registry.

The following papers shall be submitted for the registration:

·         Format of the Unified Register, duly filled out (this format is available at the Banco de la Nación).

·         Copy of the Incorporation Public Deed with proof of its reception at the Notary's office.

·         Payroll Book.

D. MUNICIPAL LICENSE FOR OPERATION  
It is required to operate commercially. It is applied for to the Municipality of the jurisdiction where the company is located.

 

hola
Business contact: Commentaries, proposals or details for negotiation: Mr. Jorge Perazzo
51 1 2638212 (spanish please) 1—602-499 2708 (USA)
jperazzo@miningperu.com
Web Design: www.creatimedia.com