The Bahamas: Economic Substance Legislation

Fanny Evans, associate at Morgan & Morgan

The Bahamas has passed legislation requiring that certain legal entities carrying on relevant activities have to demonstrate adequate economic substance in said jurisdiction. The beneficial owners of any company or limited partnership incorporated, registered or continued in The Bahamas should be aware of this legislation and consider how they may be affected.

The Commercial Entities (Substance Requirements) Act, 2018 (“CESRA”) came into force on December 31^st, 2018. It addresses the concerns of the European Union’s (“EU”) Inter-governmental Code of Conduct Group (Business Taxation) guidance for determining substance when considering whether a tax measure is harmful or ‘fair’ and the Organization for Economic Cooperation and Development’s (OECD) Base Erosion Profit Shifting (BEPS) Project.

What is the effect?

CESRA imposes economic substance requirements on all legal entities carrying on “relevant activities”.

The relevant activities are:

1)     banking business
2)     insurance business
3)     fund management business
4)     finance and leasing business
5)     headquarters business
6)     shipping business
7)     distribution and service centre business
8)     intellectual property business
9)     any holding company engaged or where one or more of its subsidiaries is engaged in one of the activities listed above (1) to (8).

A company engaged in a relevant activity is, henceforth, called an “included entity”. 

How can an included entity demonstrate substantial economic presence?

It must carry on core income generating activities (CIGA) in The Bahamas and the entity must be directed and managed within The Bahamas.

Firstly, it is the primary responsibility of an included entity to demonstrate that it conducts CIGA in The Bahamas proportionate to its business activities. This can be proven by having, for example, the following:

• an adequate amount of annual operating expenditure;
• an adequate level of qualified full-time employees;
• an adequate number of physical offices.

An included entity is prohibited from outsourcing any of its core income generating activities to an entity or person outside of The Bahamas; but it may outsource such activities to a service provider within The Bahamas. The included entity shall be able to demonstrate adequate supervision of the outsourced activity.

Second, an included entity will be deemed to demonstrate management and control in The Bahamas if it satisfies the following criteria:

• an adequate number of meetings of the board of directors are conducted in The Bahamas given the level of decision making required;
• there is a quorum of the board of directors physically present within The Bahamas during the meetings of the board of directors;
• strategic decisions of the included entity made at the meetings of the board of directors must be recorded in the minutes of the meetings;
• all included entity records and minutes are be kept in The Bahamas; and
• the board of directors, as a whole, has the necessary knowledge and expertise to discharge its duties.

Here we must highlight some of the permissions granted by CESRA with respect to the directors and the employees that may be positive for an included entity. One is that despite the fact that employees must be residents in The Bahamas, there is no residency requirement for board members, who only need to be physically in The Bahamas whenever a board meeting is required. No number of board meetings that must be held in The Bahamas is prescribed in CESRA. Also, CESRA is not prescriptive in stipulating which employees should attend the board meetings, this will be at the determination of the company. 

What is a non-included entity?

A non-included entity is one that is:

• a tax resident in another jurisdiction and centrally managed outside of The Bahamas, even if it conducts a relevant activity;
• not engaged in a relevant activity itself or by any of its subsidiaries;
• owned by residents and centrally managed in The Bahamas, even if it conducts a relevant activity.

What are the obligations for a non-included entity?

Companies which do not carry on a relevant activity are not subject to the economic substance requirements but are subject to annual reporting obligations and will be required to register as such. An example is a holding company that is not an included entity. This passive holding company is not required to have substantial economic presence in The Bahamas but will have to comply with the annual reporting obligations.

How an entity claims to be tax resident in another jurisdiction?

As per the Guidelines, the tax residency test may be satisfied by the entity providing the following documents to the Ministry of Finance of The Bahamas:

• tax identification number issued by a foreign jurisdiction;
• tax resident certificate issued by a foreign jurisdiction;
• official receipt or statement issued by a foreign tax authority;
• certification by the entity that the majority of meetings of the Board of Directors or controlling persons took place in a foreign jurisdiction;
• the ordinary residence of the majority of the Board of Directors or controlling persons.

This certification of foreign tax residence must be filed by the entity as part of its annual filing requirements. 

What are the penalties?

An administrative penalty of $150,000 for failing to comply with the requirements of CESRA with a possible further administrative penalty of $300,000 and in certain circumstances the entity concerned being struck off of the Registrar of Companies. 

What is next?

All companies will need to undertake an internal review to confirm whether they conduct a relevant activity. With our guidance, they can determine what measures, if any, they should take in order to achieve compliance. In most cases, we believe that compliance will not be a convoluted matter. 

What is the time period for compliance with CESRA?

Included entities incorporated prior to the 31^st December, 2018 have six (6) months from January 1^st, 2019 to comply. Newly incorporated entities must comply immediately. Whilst this may be an alarmingly short period of time, we believe this period can be extended or will not be enforced immediately as many questions regarding the legislation still abound.  

We will leave, in our opinion, the best news for the end because we assume that after having read the above, the most important question to answer is: 

Are these efforts being welcomed by the EU?

The EU has confirmed that The Bahamas has not been included on the EU’s updated list of non-cooperative jurisdictions for tax purposes (known as the EU blacklist), which was published on 12^th March, 2019.

The Bahamas presented the necessary structural changes that were required; another milestone in its tax transparency regime that sends a message to the international business community that The Bahamas is open for legitimate business. The Bahamas is a premier International Financial Centre conducting business with reputable jurisdictions and financial markets. Because they have demonstrated it consistently, it is safe to say that The Bahamas will continue doing what it takes to remain as a well-regulated compliant and competitive jurisdiction.

Disclaimer

The information contained herein is not intended to be read, accepted or used and is not provided as legal or tax advice and should not be treated as a substitute for legal and tax consultations with a professional. It is merely a summary of the latest regulations in The Bahamas that, as well as in many other jurisdictions, are being modified regularly in agreement with the OECD and the EU.