Podcast: Lessons from the first reporting period of Economic Substance in the BVI

Icaza, González-Ruiz & Alemán has launched its Legal Insider podcast

 

Legal Insider is a podcast by Icaza, González-Ruiz & Alemán, in which our team of experts will decode essential information on jurisdictional regulatory updates, provide insights into the policies and services that are shaping our industry, and detail their implications in your business.  

 

In our first episode, Liz Barahona, Deputy Manager of Icaza (BVI) Trust Limited, and newly appointed Chairwoman of the BVI Association of Registered Agents, Mariano Oteiza Jr., our Associate expert in Company Formation and Management services, and Domingo Diaz de la Guardia, our Associate in charge of the implementation of the Economic Substance system will be discussing the Lessons from First Reporting period of Economic Substance in the British Virgin Islands. 

 

 The main points discussed are the following:

  1. Economic Substance background and a brief recap of the Act’s requirements.
  2. Initial implementation Challenges.
  3. Reporting process implementation.
  4. Reporting and dealing with the COVID-19 pandemic: The short period provided to make the necessary filings in the BOSS system was made even more complicated by the pandemic. Due to global restrictions, directors were unable to travel to the BVI to hold their annual meetings, some companies ceased their operations temporarily, and overall the implementation of economic substance for companies was delayed. Local authorities allowed companies to indicate the difficulties they were having to implement economic substance and properly assess their situation on a case-by-case basis.
  5. Recommendations for the next reporting period:
    1. Directors must be fully engaged with the day to day operations of their entity,
    2. Directors must ensure that the entity is in good standing with all of its records updated,
    3. Registered agents must be informed of any changes to the company’s core income-generating activities,
    4. Changes to the financial period must be informed and registered,
    5. Organize the entities’ activities from the beginning of the year, such as annual meetings and other affairs.
    6. Start planning your filings early and request your filing confirmation.

Listen to Episode 1 here:

Group of Business Talking in a Meeting

Overwhelmed with Economic Substance requirements? Compliance is easier than you think!

Let’s review why Economic Substance requirements were implemented, and how to keep your companies compliant with jurisdictional regulations.

 

In response to the European Union and the OECD’s efforts to enhance tax transparency, Economic Substance legislation has been introduced in major offshore jurisdictions such as the British Virgin Islands, Bahamas, the Cayman Islands, among others. Once these laws were in force, many aspects of compliance were not clear, nor were there final guidance notes available for agents managing entities to adequately explain the effects of these regulations on their client’s companies. This caused a high level of uncertainty, raising questions whether these companies were appropriate for their structures.

 

In the following months, final guidance documents were issued, and after analyzing these regulations, a considerable percentage of entities resulted to be out of the scope of these laws, and for those who are, complying with the law is more straightforward than initially thought. Below we describe the necessary steps to take to ensure compliance:

 

Economic Substance Compliance process

1. Classify the activity of your company: Take into consideration the relevant core income-generating activities that fall within the scope of Economic Substance Laws. For this case, we will use the British Virgin Islands (BVI) jurisdiction as an example:

 

 

Relevant activities:

–        Banking

–        Distribution and Service center

–        Financing and leasing

–        Fund Management

–        Headquarters

–        Holding company

–        Insurance

–        Intellectual Property

–        Shipping

 

Ask yourself the following questions:

  1. Does my entity perform any of the above-mentioned relevant activities?
  2. Do I receive income from one of these activities?

If the answer to these questions is yes, your entity is within the scope of the law.

 

2. Verify if your company is under any of the exceptions to the law:

 

  • Companies that are tax resident in a jurisdiction other than the BVI (that is not in the EU non-cooperative list), and can provide evidence to prove their tax residence, are outside the scope of the law.
  • Companies that do not conduct relevant activities, such as property investment business, property holding, property trading, investment funds, among others, are not within the scope of the law.
  • Companies that do not generate income during the reporting period are not within the scope of the law.

 

3. Determine the substance requirements applicable to your company:

A. For holding companies: Pure equity holding entities which carry on no relevant activity other than holding equity participations in other entities and earning dividends and capital gains have reduced economic substance requirements, namely:

 

  • Complying with its statutory obligations under the BVI Business Companies Act, 2004, or the Limited Partnership Act, 2017, meaning the standard yearly requirements for all entities. For example: Maintaining all company records updated, such as the register of directors, beneficial owners’ information, etc.
  • Adequate employees and premises for holding equitable interests: The premises and the employees must be maintained locally, and outsourcing these services is allowed. This requirement can be fulfilled by retaining the services of the registered agent which is currently providing registered office services for the company.

 

B. For other activities: Substance requirements include:

  • Physical premises: in the jurisdiction,
  • Adequate employees: in the jurisdiction, proportionate to the activity,
  • Managed and directed (board) locally: board meetings in the jurisdiction, adequate number of meetings held, the quorum of the board to be physically present in the jurisdiction, drafting minutes of the strategic decisions of the company, and keeping minutes of the meetings in the jurisdiction.
  • Core income-generating activities: conducted locally,
  • Operating expenditure: must be proportionate to the relevant business activity taking place.

 

4. Report required information to the registered agent: As details on your BVI entity will need to be added to the Beneficial Ownership Secured Search (BOSS) system, you must provide your agent with the necessary information in a timely manner so your company will remain compliant and to avoid penalties.

 

5. Conduct a review of the company’s structure annually, and determine what works best for your situation: As economic substance requirements must be complied with on an annual basis, changes in your structure, activities, or business model may affect your company’s status; therefore, it is necessary to conduct a yearly review to build substance and report information accordingly.

 

For Economic Substance requirements in other jurisdictions, view our Economic Substance – Comparison chart.

 

What can we do to help?

To assist you in complying with this legislation, we can classify your entity, confirm the applicable substance requirements, and provide outsourced services to build substance. Further, we can assist you in the review of your company’s structure and advise you on the best route forward.

 

If you have any questions or if you would like to learn more about our services, contact us at bd@icazalaw.com.

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