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Sunday, May 05, 2019

Economic Substance Requirements and Tax Haven Jurisdictions

Not receiving much attention are new economic substance requirements that have recently been enacted in several tax haven jurisdictions, including the Cayman Islands, Bermuda, and the British Virgin Islands.

Tax planning structures often involve the use of corporations and other entities formed in tax haven jurisdictions. To give one example, tax haven companies are often used as blocker holding companies to insulate foreign persons from U.S. estate taxes on their U.S. assets. These new economic substance requirements threaten to complicate such planning structures.

The new requirements are an outgrowth of pressure from the EU and OECD to limit the use of tax haven companies for tax planning and base erosion purposes, especially where the companies have little or no activity, assets, or staff in the subject jurisdiction. When applicable, such companies will require adequate local premises, employees, activities, income, and expenses. Companies that do not comply are subject to civil penalties in the hundreds of thousands of dollars, criminal penalties if not properly reported, and being struck-off the register as a company in good standing. Thus, applicable companies will have to increase their local activities (and concomitant costs) to be compliant – many times this may not be practical or cost-effective.

Companies will be subject to these rules if they engage in “relevant activities.” These typically include banking, insurance, shipping, fund management, finance/leasing, holding company activities, IP holding activities, and service center or distribution center activities. The scope of what is required to comply may be reduced for pure equity holding companies, so this may allow continued use of pure holding companies, but it remains to be seen exactly how those reduced requirements will play out.

Companies already situated in these jurisdictions should review the application of these new rules to them – the use of companies in the future should include a review of the impact of these rules on their circumstances.