Qué es una «Shell corporation»: aspectos legales e ilegales del funcionamiento de una «Shell corporation»

Shell corporations are legitimate, legal entities that do not possess actual assets or run business operations. Shell companies include multiple layers of companies that have been created for the purpose of diverting money or for money laundering. Shell companies are non-traded corporations, meaning that they are not listed on any stock exchanges for buying and selling by investors. The vast majority of shell corporations serve legitimate purposes:

·           To save up funds to open a business;

·           As a front for product development that a well-established company may want to keep private until it is ready;

·           Facilitate financial institutions to perform financial activity in foreign markets;

·           They are used to obtain financing, maintaining control over Conglomerate Company;

·           Realize a “tax haven” abroad.

The most common offshore shell company jurisdiction is the British Virgin Islands. You can even set up a shell company in the United States. To become a shell corporation, an interested party must first file with the U.S. Securities and Exchanges Commission (SEC). 

Most shell companies do not manufacture any product or deal in any product or render any service. One of the most important tools is a «shell company» – this is a company that exists only on paper and has no office and no employees. It’s usually registered to the address of a company that provides a service setting up shell companies in a tax haven. They are mostly used to make financial transactions. Generally, these companies hold assets only on paper and not in reality. These companies conduct almost no economic activity. 

Shell companies are legal. They only become criminal when they are used for criminal purposes. Setting up a shell company doesn’t require much identification, and, in any case, customers are promised their identity won’t be exposed. For this reason, they can easily involve in criminal actions, such as: Money laundering, Tax evasion, Corruption, Terrorism, Drug trade.

Shell companies do not necessarily carry risks because of what they are, but used in combination with other instruments such as international tax agreements or poor transparency requirements, they can increase and facilitate the concealment of the origin of assets, the hiding of beneficial owners or fraud workers ‘rights.

There are some, suspected actions that trigger the investigation over the functioning of shell company. For example:

·           Insufficient information available to positively identify originators or beneficiaries of funds transfers.

·           Company has little or no internet presence.

·           Unusually large number of beneficiaries receiving transfers from one company.

·           Payments flow from one Shell Company to another with no apparent legitimate business purpose.

Within the EU, shell corporations are divided into 3 groups:

1.      Anonymous shell companies: The first category of ‘shell’ company has anonymity as a key element – such a company provides anonymity for the actual owner while simultaneously guaranteeing control over the shell company and its resources. The ultimate beneficial owner (UBO) remains hidden behind such a company.

2.     Letterbox companies: This second type of ‘shell’ company is usually referred to as a ‘letterbox’ or ‘mailbox’ company. These are generally companies registered in one Member State while the substantive economic activity takes place in another Member State. Such companies are sometimes used to circumvent labour laws and social contributions in the Member State in which the substantive economic activity takes place.

3.     Special purpose entities: The third type of ‘shell’ company, the special purpose entity (SPE), refers to entities whose core business consists of group financing or holding activities. These are entities with no or few employees, with little or no physical presence in the host economy, and whose assets and liabilities represent investments in or from other countries.

The main problem in this context is that the number of shell companies in the European Union and the corresponding impact of shell companies on the EU economy cannot be determined from the data available. In the EU, the main legal basis to regulate the performing of shell companies is the, so called Anti-Money-Laundering Directive (Directive 2005/849).