前因：延續 BEPS 行動綱領工作推展OECD發布新的遵循標準，此標準適用於〝無稅負（傳統租稅天堂）或僅有名義上稅負（譬如：海外所得免稅）〞的司法管轄區，並且要求該管轄區註冊企業應具有〝實體營運〞以避免濫用稅務安排，此此次發布標準的目的是為防止低稅負管轄區在沒有相應經濟活動的情況下，從事利潤移轉或稀釋。
譬如：列出總部、配銷中心、服務中心、融資、租賃、基金管理、銀行、保險、航運、控股公司及提供無形資產均需有一定程度的實體要求。例如必須要有全職員工、必須支付一定程度的營運費用以創造收入等。配合國際大環境的變化租稅天堂地區已紛紛修法因應新的規範，目前已知：BVI、Cayman、模里西斯、塞席爾、貝理斯、聖文森等均已傳出修法訊息並自2019年1月1日實施。我們可以簡單理解為這是來自於註冊地區的〝PEM 實際管理處所、CRS取得當地稅務居民身份〞要求（當然，實際上有差異）至於配合採行相應措施後是否能對應國內PEM＆CRS，未必、國內外規定未必一致。不過，可以確定的是；
British Virgin Islands
Subject: Update on EU Blacklist Process on Economic Substance
On 5 December 2017, the European Union (EU) proposed their list of "non-cooperative" taxation jurisdictions, popularly referred to as the 'EU Blacklist'. As part of this exercise, several of the traditional offshore jurisdictions, including the BVI, Cayman, Jersey and others, have been deemed by the EU to 'facilitate offshore structures or arrangements aimed at attracting profits that do not reflect real economic activity ('substance') in the jurisdiction', and added to a Greylist.
The BVI, and other such international finance centres, committed to address the EU's concerns about a supposed 'lack of economic substance' by introducing so-called substance legislation by the end of 2018, in order to stay off the proposed EU Blacklist. Please note that each jurisdiction has taken a slightly different approach; the BVI's approach is outlined below at a high level.
The BVI passed the Economic Substance (Companies and Limited Partnership) Act, 2018. This law was gazetted on 19 December 2018 and came into force on 1 January 2019. We are awaiting further guidance from the BVI as to more detailed definitions of the relevant activities and also what substance might be required.
Companies in scope
Substance requirements are expected to apply to BVI entities that are tax resident in the BVI and which conduct relevant activities. A relevant entity includes:
1. All BVI companies and limited partnerships with legal personality (LPs) that are tax residents of BVI. Companies that are tax resident elsewhere outside of the BVI are not in scope.
2. All foreign companies and limited partnerships with LPs doing business in the BVI.
Relevant activities identified by the EU and more recently by the OECD include:
•Banking business
•Insurance business
•Fund management business
•Finance and leasing business
•Headquarter business
•Shipping business
•Holding business
•Intellectual property business
•Distribution and service centre business
How it could affect you
Broadly speaking, if BVI companies that are BVI tax resident are conducting any of the relevant activities listed above, then substance may be required in the jurisdiction; if not, additional substance should not be required.
If required, existing companies will need to comply with economic substance requirements by 30 June 2019 and meet the reporting obligation within one year of 30 June 2019.
New companies must comply with the economic substance requirement immediately and are required to meet the reporting obligations within one year of the date of incorporation or formation.
Cayman Islands
Subject: Update on EU Blacklist Process on Economic Substance
On 5 December 2017, the European Union (EU) proposed their list of "non-cooperative" taxation jurisdictions, popularly referred to as the 'EU Blacklist'. As part of this exercise, several of the traditional offshore jurisdictions, including the BVI, Cayman, Jersey and others, have been deemed by the EU to 'facilitate offshore structures or arrangements aimed at attracting profits that do not reflect real economic activity ('substance') in the jurisdiction', and added to a Greylist.
The Cayman Islands, and other such international finance centres, committed to address the EU's concerns about a supposed 'lack of economic substance' by introducing so-called substance legislation by the end of 2018, in order to stay off the proposed EU Blacklist. Please note that each jurisdiction has taken a slightly different approach; the Cayman Islands's approach is outlined below at a high level.
The Cayman Islands Legislative Assembly passed the International Tax-Co-operation (Economic Substance) Law, 2018 (the Law). This law was gazetted on 27 December 2018 and came into force on 1 January 2019. we are awaiting further guidance from the Cayman Islands as to more detailed definitions of the relevant activities and also what substance might be required.
Companies in scope
Substance requirements are expected to apply to Cayman entities that are managed, controlled and are tax resident in the Cayman Islands and which conduct relevant activities. A relevant entity includes:
1. A Cayman company that is,
- incorporated under the Companies Law
- a limited liability company registered under the Limited Liability Companies Law
2. A limited liability partnership registered under the Limited Liability Partnership Law, 2017
3. A company that is incorporated outside of Cayman and registered under the Companies Law
Relevant activities identified by the EU and more recently by the OECD include:
•Banking business
•Insurance business
•Fund management business
•Finance and leasing business
•Headquarter business
•Shipping business
•Holding business
•Intellectual property business
•Distribution and service centre business
How it could affect you
Broadly speaking, if Cayman companies that are Cayman Islands' tax resident are conducting any of the relevant activities listed above, then substance may be required in the jurisdiction; if not, additional substance should not be required.
From 2020, all relevant entities must include a declaration in their annual return as to whether or not they are conducting a relevant activity. If required, companies will need to comply with economic substance requirements and submit a filing to the Tax Information Authority in the Cayman Islands, no later than 12 months after the last day of each financial year.
