Morgan & Morgan
  November 23, 2020 - Panama

The Philosophy Behind the Successful Economic Substance Regime of the BVI

Following the introduction in the British Virgin Islands (BVI) of the Economic Substance (Companies and Limited Partnerships) Act, 2018 (ESA), which became effective on January 1st, 2019, some questioned the sustainability of BVI’s position as a leading international financial centre.

While we cannot underestimate those concerns, we believe that there is also evidence that ESA will not have a negative impact on the BVI. In fact, it will help to curb any irrational fears that may have been detrimental to businesses, families, investors, and professionals using BVI vehicles in the recent times.

Although the economic substance reporting period has not concluded, my recent research supports the premise that despite introduction of this new legislation, BVI’s legal system and corporate services platform will remain stronger than other jurisdictions for international business activity.

You may be asking how can we be so positive? It is because for years we have witnessed the BVI maintain the crucial “philosophy” of a financial centre that is necessary for its success.

This philosophy is composed of human capital, technology, and the ability of regulators to make effective new laws with the support of highly sophisticated service providers. This means that any issues arising from rapidly evolving financial markets or instructions given by the European Union and the OECD in their efforts to enhance tax transparency can be dealt more efficiently. Expertise, talent, and technology are the key driving forces for the world’s leading financial centres.

Over the last decade BVI has had various changes in its legislation that have impacted the financial industry positively such as:(1) maintaining beneficial owner’s due diligence in its territory, (2) the private registry of beneficial owners (BOSS), (3) mandatory filing of company’s register of directors (ROD), (4) maintaining accounting records and underlying documentation and, (5) reporting obligations on ESA just to name a few in no particular order. Some of these changes have been more challenging than others but they all have one thing in common: BVI´s successful “philosophy”.

By reading the ESA and the Rules issued by the International Tax Authority you can tell that the regulator consulted professionals from law firms, trust companies and corporate service providers of the highest caliber with presence in the BVI when drafting the legislation. Whereas, in other jurisdictions it seems that they just decided to play safe and please the requests of the European Union overlooking what their financial industry needs to, not only survive, but grow.

We have reviewed the law and guidance notes on the economic substance of various jurisdictions and concluded that the ESA has provisions that makes it practical and convenient. We will give you three important and clear examples. The first, is the treatment of the companies that serve as holding businesses under the ESA. BVI took a straightforward approach by only placing its interest on the pure equity holding companies which are subject to a reduced substance test that can be met through the company´s registered agent; instead of having different categories of holding businesses as it is in other jurisdictions. This has allowed us at Morgan & Morgan to develop suitable solutions for our clients.

The second example is the treatment of the financial periods. ESA has two financial periods depending if the company was incorporated before or after the implementation date of the ESA. Therefore, just by looking at the incorporation date of the company you can tell its financial period. This method is valuable for a corporate service provider because it may have positive impact in their workload when reporting and advising clients. Furthermore, this approach makes simpler the management of a portfolio of companies for a corporate service provider rather than having the financial period defined by the company´s fiscal year, as it is very likely that will be different for all the companies they represent.

The third example is the reporting period. In some jurisdictions the reporting period is 6 months and in others 9 months; but all jurisdictions have in common that the reporting period is counted from the end of the financial period or fiscal year. Unlike other jurisdictions, in the BVI all companies incorporated before the ESA effective date have the same financial period and therefore the same reporting period. This makes easy to manage the annual reporting obligations for a high volume of companies.

Now, let´s talk about the technical side of ESA. BVI tied the ESA with their Beneficial Ownership Secure Search System Act, 2017 (the “BOSS Act”). Same as in other jurisdictions, annual reporting is mandatory, but it is so easy to do that this should not scare clients away. The BVI government partnered with the same auditing firm that developed the BOSS system to create the system for ESA, called BOSSes. At Morgan & Morgan we developed a similar system that facilitates clients providing us with the information on their companies and also makes it easier for us to report to the competent authority because we both are up to the same level of technology. It is difficult for corporate services providers to convince clients to comply with economic substance legislation in jurisdictions where the reports are to be submitted manually. BVI knows that its stability and future prosperity is inextricably tied to the efficient and safe use of digital technologies.

In June 2020, the BVI Financial Services Commission published its Statistical Bulletin. We were pleased to read that at said date the Registry of Corporate Affairs has the impressive total of 375,832 companies that have placed their confidence in the BVI philosophy. This figure and the past decade show us BVI is very aware that it has a financial sector that is becoming increasingly complex. With a more discerning and savvier clientele, and the competition among financial centres is heating up, the BVI is ready to prevail as one of the world´s premier jurisdictions.

For more information on these topics, please contact:

Fanny Evans

Senior Associate

Morgan & Morgan

[email protected]