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US
AND FOREIGN CORPORATIONS DOING BUSINESS ON GUAM
When
is an off-island company "transacting
business" in Guam such that it needs to Register
and Obtain a Business License?
A foreign corporation, limited partnership or LLC, may not
transact business in Guam until it obtains both a
business license and a certificate of authority to do
so from
Guam’s Director of the Department of
Revenue and Taxation. The definition of what
constitutes "transacting business"
is complicated and if there is any doubt, it is better
to obtain professional advice, and/or error on the
side of obtaining a permit.
18
GCA §
7102. License and Authority to Transact Business
Required.
(a) A foreign
corporation shall not transact business in
Guam
until it obtains both a business license and a
certificate of authority to do so from the Director of
the Department of Revenue and Taxation.
(b) Without
excluding other activities which may not be considered
to be transacting business, a foreign corporation
shall not be considered to be transacting business
merely because its subsidiary transacts business in
Guam
, or merely because of its status as any one (1) or
more of the following:
(1) a
shareholder of a domestic corporation;
(2) a
shareholder of another foreign corporation transacting
business;
(3) a
limited partner of a foreign limited partnership
transacting business;
(4) a
limited partner of a domestic limited partnership;
(5) a member
or manager of a foreign limited liability company
transacting business;
(6) a member
or manager of a domestic limited liability company;
(7) a
limited partner of a foreign limited liability
partnership transacting business; or
(8) a
limited partner of a domestic limited liability
partnership.
(c) Without
excluding other activities which may not be considered
to be transacting business in Guam, a foreign
corporation shall not be considered to be transacting
business in Guam within the meaning of this
Subdivision solely by reason of carrying on in
Guam
any one (1) or more of the following activities.
The following
activities, among others, do not constitute
transacting business within the meaning of Subsection
(1) of this Section:
(1)
maintaining, defending or settling any proceeding;
(2) holding
meetings of the board of directors or shareholders, or
carrying on other activities concerning internal
corporate affairs;
(3)
maintaining bank accounts;
(4)
maintaining offices or agencies for the transfer,
exchange and registration of the corporation's own
securities, or maintaining trustees or depositaries
with respect to those securities;
(5) selling
through independent contractors;
(6)
soliciting or obtaining orders, whether by mail or
through employees or agents or otherwise, if the
orders require acceptance outside
Guam
before they become contracts;
(7) creating
or acquiring indebtedness, mortgages and security
interests in real or personal property;
(8) securing
or collecting one's own debts or enforcing mortgages
and security interests in property securing one's own
debts;
(9) owning,
without more, real or personal property;
(10)conducting
an isolated transaction that is completed within sixty
(60) days and that is not one in the course of
repeated transactions of a like nature; or
(11)transacting
business in interstate commerce.
(d)
The list of activities in this Section are not
exhaustive.
18 GCA § 4304. Annual
Report of Domestic and Foreign Corporations.
(a) Each domestic corporation and each foreign corporation
authorized to transact business on
Guam
shall deliver to the Director of the Department of
Revenue and Taxation for filing a sworn annual report
that sets forth:
(1) the name of the corporation and the state or country under
whose law it is incorporated;
(2) the date of incorporation or, if a foreign corporation,
the date on which it was authorized to transact
business on
Guam
;
(3)I where the corporation is required by law to have a
registered office and registered agent on Guam, the
street address of its registered office of the
corporation on Guam, and the name of its registered
agent on Guam at that address;
(4) the address of its principal office;
(5) the names and business addresses of the corporation
directors and principal officers;
(6) a brief statement of the character of the business in
which the corporation is actually transacted on
Guam
;
(7) the aggregate number of shares which the corporation has
authority to issue, itemized by class, par value of
shares, shares without par value, and series, if any,
within each class;
(8) the aggregate number of issued and outstanding shares,
itemized by class, par value of shares, shares without
par value, and series, if any, within each class;
(9) if the domestic or foreign corporation has less than
fifteen (15) shareholders, for each shareholder state
the name, citizenship, and the number and class or
series of shares held.
(b) The information contained in the annual report shall be
current as of the date the annual report is executed
on behalf of the corporation.
(c) The first annual report must be delivered to the Director
of the Department of Revenue and Taxation between July
1 and September 1, or such other date as the Director
of the Department of Revenue and Taxation may specify
by rules or regulations, of the year following the
calendar year in which a domestic corporation was
incorporated, or a foreign corporation was authorized
to transact business on Guam. Subsequent annual
reports must be delivered to the Director of the
Department of Revenue and Taxation between July 1 and
September 1, or such other date as the Director of the
Department of Revenue and Taxation may specify by
rules or regulations, of the following calendar years.
(d) If an annual report does not contain the information
required by this Section, the Director of the
Department of Revenue and Taxation shall notify the
reporting corporation in writing, and return the
report to it for correction. If the report is
corrected to contain the information required by this
Section and delivered to the Director within thirty
(30) days after the effective date of notice, it shall
be deemed to be timely filed.
(e) A corporation may deliver to the office for filing an
amendment to the annual report if a change in the
information set forth in the annual report occurs
after the report is delivered to the office for filing
and before the next anniversary. This Subsection
applies only to a change that is not required to be
made by an amendment to the Articles of Incorporation.
The amendment to the annual report must set forth:
(1) the name of the corporation, as shown on the records of
the Department of Revenue and Taxation; and
(2) the information as changed.
(f) Any corporation failing to file an annual report that
complies with the requirements of this Section, within
sixty (60) days after it is due, shall pay, in
addition to the regular annual report fee, the sum of
Fifty Dollars ($50.00), providing the report is
received by the Director of the Department of Revenue
and Taxation prior to revocation as provided in this
Title, and shall be subject to dissolution or
cancellation of its certificate of authority to
transact business as provided in this Chapter.
(g) The filing fee for an annual report shall be One Hundred
Dollars ($100.00), with the exception of nonprofit
corporations. The filing fee for an annual report for
nonprofit corporations shall be Ten Dollars ($10.00).
(h) Any corporation which is required to file or provide an
annual report with another government agency or
regulating body may satisfy the annual report required
by this Section by filing the same report with the
Director of the Department of Revenue and Taxation;
provided, the Director of the Department of Revenue
and Taxation has determined in writing that the report
contains the same or substantially similar information
pursuant to this Section.
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