BVI Economic Substance – Frequent questions

BVI Economic Substance – Frequent questions

Tag: BVI Company

1. Could my BVI company be conducting “banking business”?

2. Could my BVI company be conducting “insurance business”?

3. Could my BVI company be conducting “fund management business”?

4. Could my BVI company be conducting “finance and leasing business”?

5. Could my BVI company be conducting “headquarters business”?

6. Could my BVI company be conducting “shipping business”?

7. Could my BVI company be conducting “holding business”?

8. Could my BVI company be conducting “intellectual property business”?

9. Could my BVI company be conducting “distribution and service centre business”?

Tax Residency


Could my BVI company be conducting “banking business”?

1.            Is the company subject to any banking regulations or supervision anywhere?

If “Yes”, your BVI company is conducting banking business.

2.            Will the company be receiving funds or deposits from the public in any manner?

If “Yes”, your BVI company is conducting banking business.

3.            My company has a bank account; does this count as banking business?

No, it does not.  Having one or several bank accounts is not considered banking business.

4.            Are you still in doubt? Confirm whether the company is conducting any of these activities:

(i) raising funds, managing risk including credit, currency and interest risk;

(ii) taking hedging positions;

(iii) providing loans, credit or other financial services to customers;

(iv) managing regulatory capital;

(v) preparing regulatory reports and returns;

If “Yes”, your BVI company is conducting banking business.

Banking Business: Has the meaning specified in section 2(1) of the Banks and Trust Companies Act, 1990, to wit:

“banking business” means the business of accepting deposits of money which may be withdrawn or repaid on demand or after a fixed period or after notice, by cheque or otherwise and the employment of such deposits, either in whole or in part,

(a) in making or giving loans, advances, overdrafts, guarantees or similar facilities, or

(b) the making of investments,

for the account and at the risk of the person accepting such deposits.

Could my BVI company be conducting “insurance business”?

1.            Is the company subject to any insurance regulations or supervision?

If “Yes”, your BVI company is conducting insurance business.

2.            Is the company undertaking liability under contract?

If “Yes”, your BVI company is conducting insurance business.

3.            My company has an asset that is insured, does that count as insurance business?

No, it does not.

4.            Are you still in doubt? Confirm whether the company is conducting any of these activities:

(i) predicting and calculating risk;

(ii) insuring or re-insuring against risk;

(iii) providing insurance business services to clients;

If “Yes”, your BVI company is conducting insurance business.

Insurance business: Has the meaning specified in section 3 (1) of the Insurance Act, 2008, to wit:

Insurance business means the business of undertaking liability under a contract of insurance to indemnify or compensate a person in respect of loss or damage, including the liability to pay damages or compensation contingent upon the happening of a specified event, and includes life insurance business and reinsurance business.

Could my BVI company be conducting “fund management business”?

Is the company subject to any fund or securities management regulation or supervision anywhere?

If “Yes”, your BVI company is conducting fund management business.

Is the company licenced to sell securities, pension schemes, mutual funds or other types of investments?

If “Yes”, your BVI company is conducting fund management business.

Does the company have a licence to manage any financial product?

If “Yes”, your BVI company is conducting fund management business.

Are you still in doubt? Confirm whether the company is conducting any of these activities:

(i) taking decisions on the holding and selling of investments;

(ii) calculating risks and reserves;

(iii) taking decisions on currency or interest fluctuations and hedging positions;

(iv) preparing relevant regulatory or other reports for government authorities and investors;

If “Yes”, your BVI company is conducting fund management business.

Fund management business: Means the conduct of an activity that requires the legal entity to hold an investment business license pursuant to section 4 and category 3 of Schedule 3 of the Securities and Investment Business Act, 2010.

Category 3 of Schedule 3 of the Securities and Investment Business Act, 2010 reads as follows:

Investment Management

Sub-category A: Managing Segregated Portfolios (excluding Mutual Funds)

Sub-category B: Managing Mutual Funds

Sub-category C: Managing Pension Schemes

Sub category D: Managing Insurance Products

Sub-category E: Managing Other Types of Investment.

Reference should be made to SIBA and to the FSC Code for a more detailed understanding of these concepts. It should be noted that management of funds is contrasted with the business of being a custodian of investments, which falls within Category 5 of SIBA.

Could my BVI company be conducting “finance and leasing business”?

1.            Is the BVI company subject to any financing or leasing regulations or supervision anywhere?

If “Yes”, your BVI company is conducting finance and leasing business.

2.            Does the company lend money and collects interests?

If “Yes”, your BVI company is conducting finance and leasing business.

3.            Did you know that consideration is an elegant legal word for payment or money?

It is a vital element in the law of contracts and is the essential reason for a party entering into a contract.

Therefore, if you lend money for interest or payment, you company is carrying on finance and leasing business.

4.            Are you still in doubt? Confirm whether the company is conducting any of these activities:

(i) agreeing funding terms;

(ii) identifying and acquiring assets to be leased (in the case of leasing);

(iii) setting the terms and duration of any financing or leasing;

(iv) monitoring and revising any agreements;

(v) managing any risks;

If “Yes”, your BVI company is conducting finance and leasing business.

Finance and leasing business: Refers to the provision of credit facilities of any kind for consideration (which may include consideration by way of interest).

The provision of credit may be by way of instalments for which a separate charge is made and disclosed to the customer in connection with

(i) the supply of goods by hire purchase,

(ii) leasing other than any lease granting an exclusive right to occupy land, or

(iii) conditional sale or credit sale.

Where an advance or credit repayable by a customer to a person is assigned to another person, that other person is deemed to be providing the credit facility for the purposes of the definition.

Any activity falling within the definition of “banking business”, “fund management business” or insurance business” is excluded from the finance and leasing business.

A company that provides credit facilities as an incidental part of a different sort of business is not considered as carrying finance and leasing business.

Could my BVI company be conducting “headquarters business”?

1.            Is your BVI company part of a structure or group of companies where it provides administration services to other group members?

If “Yes”, your BVI company is conducting headquarters business.

2.            Do the decisions taken in the company affect other companies in the same group?

If “Yes”, your BVI company is conducting headquarters business.

3.            Is the company acting as multinational corporate headquarter?

If “Yes”, your BVI company is conducting headquarters business.

4.            Are you still in doubt? Confirm whether the company is conducting any of these activities:

(i) taking relevant management decisions;

(ii) incurring expenditures on behalf of  affiliates;

(iii) co-ordinating group activities;

If “Yes”, your BVI company is conducting headquarters business.

Headquarters business: The business of providing any of the following services to an entity in the same group:

(a) the provision of senior management,

(b) the assumption or control of material risk for activities carried out by any of these entities in the same group,

(c) the provision of substantive advice in connection with the assumption or control of risk referred to in paragraph (b) but does not include banking business, financing and leasing business, fund management business, intellectual property business, holding company business or insurance business.

Could my BVI company be conducting “shipping business”?

1.            Does owning a private pleasure vessel constitute shipping business?  No, it does not.

If the company is chartering or renting the vessel to third parties under contract, then “Yes”, your BVI company is conducting shipping business.

2.            Does the company provide general HR and/or payroll services to crewmembers?

If “Yes”, your BVI company is conducting shipping business.

3.            Does the company provide placement of crew-members in ships or vessels and the repatriation of outgoing crewmembers?  Does it participate in the relevant logistics, like getting the plane tickets, airport transfer etc.?

If “Yes”, your BVI company is conducting shipping business.

4.            Does the company sell travel tickets, promotions or others?

If “Yes”, your BVI company is conducting shipping business.

5.            Is the vessel owned by the company, more than 24 meters in length?

If “Yes”, your BVI company is conducting shipping business.

6.            Are you still in doubt? Confirm whether the company is conducting any of these activities:

(i) managing the crew (including hiring, paying and overseeing crewmembers);

(ii) hauling and maintaining ships;

(iii) overseeing and tracking deliveries;

Shipping business: Means the following activities involving the operation of a ship anywhere in the world than solely within Virgin Islands waters (as defined in section 2 (2) (a) of the Merchant Shipping Act, 2001), to wit:

(a) the business of transporting, by sea, persons, animals, goods or mail;

(b) the renting or chartering of ships for the purpose described above;

(c) the sale of travel tickets or equivalent, and ancillary services connected with the operation of a ship;

(d) the use, maintenance or rental of containers, including trailers and other vehicles or equipment for the transport of containers, used for the transport of anything by sea;

(e) the management of the crew of a ship.

The definition of “ship” for the purpose of the relevant activity definition does not include a “fishing vessel”, “pleasure vessel”, or a “small ship” (under 24m) as defined in the Merchant Shipping Act, 2001.

Could my BVI company be conducting “holding business”?

What does a “pure equity holding entity” mean exactly?  It is a company that only holds equity participations and only earns capital gains or dividends.  Bear in mind that equity participations are only shares or quotas.  Owning any other type of asset brings the company out of scope.  You might want to ask yourself the following questions:

1.            Does the company only hold equity participations in other entities?

If “Yes”, then your company is subject to reduced Economic Substance requirements, that might be met by having a Registered Agent and a Registered Office.

2.            Does the company only receive capital gains or dividends?

If “Yes”, then your company is subject to reduced Economic Substance requirements, that might be met by having a Registered Agent and a Registered Office.

3.            Does the company hold any other asset different to equity participations in other entities? Examples of other assets might be, real estate, works of art or a private yatch.

If “Yes”, then your company is not subject to Economic Substance requirements.

4.            Does the company earn any income other than dividends and capital gains; for example, rent, fixed income from bonds?

If “Yes”, then your company is not subject to Economic Substance requirements.

Holding business: Means the business of being a “pure equity holding entity” which in turn means a legal entity that only holds equity participations in other entities and only earns dividends and capital gains.  

Companies holding other types of assets that are not only equity participation (such as investments in the way of an interest-bearing bond) in other entities fall outside the definition.

Could my BVI company be conducting “intellectual property business”?

1.            Does the company own Intellectual property assets?

If “Yes”, your BVI company is conducting intellectual property business.

2.            More importantly, does the company receive “income” from such assets?

If “Yes”, your BVI company is conducting intellectual property business.

3.            Are you still in doubt? Confirm whether the company is conducting any of these activities:

(i) where the business concerns intellectual property assets such as patents, research and development;

(ii) where the business concerns non-trade intangible assets such as brand, trademark and customer data, marketing, branding and distribution.

If “Yes”, your BVI company is conducting intellectual property business.

Intellectual property business: The business of holding intellectual property assets, meaning any intellectual property right in intangible assets, including but not limited to copyright, patents, trademarks, brand, and technical know-how, from which identifiable income accrues to the business (such income being separately identifiable from any income generated from any tangible asset in which the right subsists). 

“Income” in respect of an intellectual property includes

(a) royalties;

(b) capital gains and other income from the sale of an intellectual property asset;

(c) income from a franchise agreement; and

(d) income from licensing the intangible asset. 

The relevant activity consists merely of holding an intellectual property asset from which identifiable income accrues (if no identifiable income accrues there is no intellectual property asset at all).  The definition does not therefore apply to a business which owns some form of intellectual property merely as adjunct to its business.  Most businesses will own some form of intellectual property- trademark protection, copyright in their advertising material, technical know-how relation to their processes, but this property, like premises or plant and machinery, does not earn specific amount of revenue – it simply contributes to (or protects) the general profitability of the business.

Could my BVI company be conducting “distribution and service centre business”?

1.            Is the company part of a group or structure and provides the other group members with logistic services?

If “Yes”, your BVI company is conducting distribution and service centre business.

2.            Does the BVI Company purchase or store materials or goods for other group members?

If “Yes”, your BVI company is conducting distribution and service centre business.

3.            Is the company taking and dispatching orders on behalf of other group members?

If “Yes”, your BVI company is conducting distribution and service centre business.

4.            Are you still in doubt? Confirm whether the company is conducting any of these activities:

(i) transporting and storing goods;

(ii) managing stocks;

(iii) taking orders;

(iv) providing consulting or other administrative services;

If “Yes”, your BVI company is conducting distribution and service centre business.

Distribution and service Centre business: Means the business of either or both of the following:

(a) purchasing from foreign affiliates (i) component parts of materials or goods; or (ii) goods ready for sale; and (iii) reselling such components parts, materials or goods;

(b) providing services to foreign affiliates in connection with the business, but does not include any activity included in any other relevant activity except “holding business”.

Tax Residency

1.            My BVI company has an Investment Account in either the United States or Switzerland, in which country is it Tax Resident? In the BVI, in the United States, in Switzerland, or in the Beneficial Owner’s country of origin? 

The company will only have a tax residency, if it has applied to become Tax Resident in any of these countries.

2.            Does your company prepare and file tax returns in BVI?

If “Yes”, your BVI company is Tax Resident in BVI.

3.            Does your company prepare and file tax returns in another country?

If “Yes”, your BVI company is Tax Resident in such country.

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