Premier and Minister of Finance Dr. the Honourable D. Orlando Smith, OBE, has announced that the BVI has passed important legislation which addresses the European Union’s concerns over “economic substance” and came into force on 1st January 2019.
The Economic Substance (Companies and Limited Partnerships) Act, 2018, concluded its passage through the House of Assembly on 19th December. This was ahead of the deadline of 31st December set by the EU for the BVI and other international financial centres.
The EU is compiling a list of non-cooperative jurisdictions on the basis of certain criteria it has set covering tax transparency, fair taxation and compliance with the OECD’s Base Erosion and Profit Shifting (BEPS) requirements. As part of this process the EU screened 92 countries in 2017 – including large nations such as the US and China.
The BVI has already and continues to respond constructively to the EU’s listing exercise. It is expected that the formal response of the EU will not be known for a few months.
Premier Smith, said:
“The international business and financial services sector makes a vital contribution to the economy of the British Virgin Islands and facilitates cross-border investment and trade to the benefit of the global economy.
The Government has engaged closely with EU officials over the last 18 months to understand and address the concerns that have been raised and has consulted on a regular basis with representatives of the financial services industry. Dialogue with the industry will continue to ensure smooth implementation of the new requirements and the International Tax Authority is issuing a guidance note to accompany the new Act.
The Government recognises that the legislation will create challenges for some companies and limited partnerships, especially given the compressed timeline in which we had to pass this legislation. The BVI is not alone in facing these challenges. But in every challenge, there is an opportunity and the Government will engage closely with the BVI’s international business and financial services sector to ensure that the jurisdiction continues to provide services that benefit the global economy.”
The Act imposes economic substance requirements on all BVI companies and limited partnerships with legal personality (LPs) which are carrying on “relevant activities” unless they are resident for tax purposes in a jurisdiction outside the BVI (provided that the other jurisdiction is not on Annex I to the EU list of non-cooperative jurisdictions), and on all foreign companies and limited LPs doing business in the BVI.
Relevant activities mean any of the following: banking business, insurance business, fund management business, finance and leasing business, headquarters business, shipping business, holding business, intellectual property business, distribution and service centre business.
While the legislation came into force on 1st January 2019, existing legal entities will have until 30th June 2019 to comply with the substance requirements contained within the Act. They then have up to a year to make a compliance report to the BVI International Tax Authority. Any legal entities incorporated or formed on or after 1st January 2019 are immediately subject to substance requirements. These entities must make their compliance report within one year of the date of their incorporation or formation.
The BVI Government has been engaging with the EU on this issue over the past 18 months.
- The House of Assembly has passed the Economic Substance (Companies and Limited Partnerships) Act, 2018.
- The Government has participated in ongoing dialogue with the European Commission both in plenary sessions in Brussels (with other jurisdictions) and in bilateral meetings to better understand and address EU concerns.
- The Government has held discussions with the OECD’s Forum on Harmful Tax Practices.
- Discussions have also taken place with individual EU Member States.
- The Government will continue to update the international business and financial services sector through the International Tax Authority and BVI Finance.
- BVI Finance has held an industry forum updating on the direction of travel relating to this process.
- The Government will engage closely with the industry to deliver the smooth implementation of the new requirements and to ensure that BVI continues to provide services that benefit the global economy.
In December 1997, the Council of the European Union adopted a resolution on a Code of Conduct for business taxation with the objective of curbing harmful tax competition and established the Code of Conduct Group (COCG) to oversee its implementation.
In 2016, the European Union adopted criteria covering tax transparency, fair taxation and anti-base erosion and profit shifting (BEPS) against which countries were assessed during a screening process conducted by the COCG during 2017.
No concerns were raised by the COCG regarding the BVI’s standards of tax transparency and implementation of anti-BEPS measures. The BVI was also regarded by the EU as compliant with the general principles of fair taxation.
Jurisdictions with low or zero rates of corporate income tax were also assessed against criterion 2.2 (under the “fair taxation heading) which states:
“The jurisdiction should not facilitate offshore structures or arrangements aimed at attracting profits which do not reflect real economic activity in the jurisdiction.”
Following the screening process, the COCG expressed concerns about BVI’s possible compliance with the criteria regarding a “legal substance requirement for entities doing business in or through the jurisdiction”. The COCG also expressed concern that the lack of legal substance requirements in BVI “increases the risk that profits registered in a jurisdiction are not commensurate with economic activities and substantial presence.”
In response, the Government made a commitment to implement reforms by the end of 2018 which it has now completed following the passage of the Economic Substance (Companies and Limited Partnerships) Act, 2018 to ensure that BVI businesses have sufficient economic substance. Other jurisdictions (including the Crown Dependencies, Bermuda and the Cayman Islands) made similar commitments.
The BVI was placed in “Annex II” of the list of jurisdictions produced by the COCG and endorsed by the EU Economic and Financial Affairs Council. Annex II lists jurisdictions that were identified as raising concerns but had made appropriate commitments to resolve them.
The EU is expected to review legislation passed by BVI and other criterion 2.2 jurisdictions in early 2019.
It is then the EU’s intention to announce an updated list of non-cooperative tax jurisdictions by March 2019.
The OECD has recently adopted substance requirements to be applied to jurisdictions that levy low or (like the BVI) zero corporate income tax. This means that substance rules will no longer be an EU standard but a global standard. The BVI has always adhered to global standards and will continue to do so.