British Virgin Islands: Types of Company

On this Page:

- BRITISH VIRGIN ISLANDS COMPANY LIMITED BY GUARANTEE
- BRITISH VIRGIN ISLANDS HYBRID 'CAP 285' COMPANY
- BRITISH VIRGIN ISLANDS PUBLIC COMPANY
- BRITISH VIRGIN ISLANDS INTERNATIONAL BUSINESS COMPANY
- BRITISH VIRGIN ISLANDS LIMITED PARTNERSHIP
- BRITISH VIRGIN ISLANDS TRUSTS

On 1 January 2007 the British Virgin Islands Business Companies Act 2004 (the BVI BC Act) became the sole Business Companies Act in the jurisdiction, creating an environment where financial institutions and corporations can undertake a wide range of structured asset and project finance transactions in the BVI.

In October 2004 Chief Minister Dr. D. Orlando Smith had informed the country’s Legislative Council that a two-year transition period would be put in place to smooth the changeover to the new Business Companies Act, which lowered the income tax rate to 0% for both local and International Business Companies and effectively removed the distinction between 'offshore' and 'onshore' entities.

The new IBC legislation was drafted to ensure the territory was fully compliant with the European Union (EU) Savings Tax Directive and EU Code of Conduct on Business Taxation, as required by the United Kingdom of all its Overseas Territories.

Under the transition arrangements, new incorporations were possible under old legislation throughout 2005. From 2006, new incorporations had to be made under the new Business Companies Act, although companies already on the register were permitted to operate under the old IBC Act or Companies Act for an additional year.

The Act requires companies to use a registered agent to ensure compliance with the new laws.

Under the 1984 IBC Act, which preceded the 2004 Business Companies Act, just one corporate form was available, that of the company limited by shares. Under the new regime, several different types of companies can be incorporated. These are:

The Act also allows companies to be registered as Restricted Purposes or Segregated Portfolio Companies. The former would likely be used primarily in structured finance transactions, while the latter's use will be limited to mutual funds and insurance companies.

The legislation allows more flexibility on the name that can be used by a BVI business company, and allows the re-use of the name of a company which has been previously struck off from the register, has changed their name, or been dissolved. The Act also permits company names to contain foreign characters, which should be particularly attractive to company owners in the Far East.

The BVIBC Act has abolished the concept of authorised share capital and replaced it with a maximum number of shares that the company is entitled to issue.

It has also removed the requirement that a dividend can only be declared and paid out of 'surplus', leaving in place the pre-existing solvency test requirement, and has boosted the rights of minority shareholders.

As previously stated, a registered agent must apply to form the company and provide a written consent to act, but the registered office of the company need not be the address of the registered agent, although it must be within the BVI.

The Act has also formalised and tightened the record keeping obligations of companies.

Bearer shares are now prohibited unless authorised by the memorandum or articles of association, and bearer share certificates must be deposited with a custodian who has been approved by the BVI Financial Services Commission.

A company which had existing bearer shares (created before 1 January 2005), and which re-registered on 1 January 2007, was obliged to deposit its bearer shares with an appropriate custodian on or before 31st December 2009.

Those eligible to apply as an “authorised” custodian are service providers licensed under any BVI financial services legislation, as well as bodies corporate incorporated or formed outside the BVI that are not resident in, and do not have a place of business in, the BVI. Those eligible to apply as a “recognised” custodian are investment exchanges or clearing organizations that operate securities clearance or settlement systems in a jurisdiction which is a member of the Financial Action Task Force.

All applicants to be “authorised” custodians have to satisfy the Financial Services Commission that they meet certain “fit and proper” criteria and have the necessary systems in place for safe custody of their bearer shares. For bodies corporate, the Commission will consider the prudential regulation and anti-money laundering regulations with which the bodies have to comply.

A company issuing bearer shares must provide the Custodian with:

However, in July 2007, the British Virgin Islands Financial Services Commission (FSC) announced that several amendments were being readied to the new Business Companies Act that would, among other things, establish new, simplified provisions for the transitioning of bearer share companies to non-bearer share companies.

The original transitional provisions required companies to fully immobilise their shares by 31 December 2010. However, the FSC said that it had become aware of industry concerns that compliance with the transitional arrangements would place a huge burden on the sector, given the recent introduction of new companies legislation and a new online companies registry.

"Perhaps even more important, it would cause considerable inconvenience to the directors and owners of former IBCs who will have to pass resolutions amending their memoranda of association," the FSC observed.

"The BVIBCA and the IBC Act before it were designed to provide a legal mechanism for incorporating companies without unnecessary administrative burdens. The effort that would be required to comply with the existing transitional provisions is not consistent with this underlying philosophy," the Commission noted.

The FSC said that it had listened to the representations that it had received from industry, and had tried to find a workable solution that would achieve the immobilisation of all bearer shares before 2010, but which would impose the minimum administration on BVI companies.

An Order by the Executive Council attempted to achieve this by deeming that the memorandum of every former IBC will be amended with effect from the transition date to prohibit the issue of bearer shares, unless the company elects that the deeming provision should not apply; and by abolishing the staged increases in annual fees between 2008 and the transition date.

The FSC announced that, given this will make the transitioning of most bearer share companies to non-bearer share companies a straightforward process, the transition date was brought forward one year from 31 December 2010 to 31 December 2009.

During the years 2008 and 2009, a former IBC that is a bearer share company paid the same fee as a non-bearer share company. On 31 December 2009, the memorandum of a bearer share former IBC was deemed to be amended to prohibit the issue of bearer shares, and the company became a non-bearer share company. It was open to any bearer share former IBC to elect to disapply this deeming provision. As a consequence, the vast majority of former IBCs needed to do nothing, according to the FSC. An IBC that wished to continue to issue bearer shares had to disapply the provisions of the new Act.

The full text of the BVI Business Companies Act 2004 can be found in the Tax News Resources section.

BACK TO TOP

British Virgin Islands Company Limited by Guarantee (Updated: See Above)

Under the Companies Act, a company limited by guarantee must have a minimum of two members; the Memorandum of Association contains a statement of the amount up to which the members guarantee the company's debts. The Articles can provide for the members to have differing 'shares' of the assets and liabilities.

The Company Limited by Guarantee has certain advantages, including that there is no list of members on the annual return, and that control over assets can be achieved without the use of shares; in some jurisdictions, profits realised from such companies are classified as capital gains rather than as income. Specialist advice is required by anyone considering the use of a company limited by guarantee.

The fee payable on incorporation is USD100, and annual registration fees are as for companies limited by shares.

BACK TO TOP

British Virgin Islands Hybrid 'Cap 285' Company (Updated: See Above)

A hybrid company under the Companies Act usually has a group of shareholding members which is distinct from the group of guarantors. The shareholders can have 100% of the voting power, and can execute a trust deed in respect of their shareholdings; under the BVI's trust legislation (see Law of Offshore) a trust Protector can be appointed to oversee the trustees' actions. The result, if the company is set up correctly (specialist advice needed!), is to separate control and membership of the company from beneficial interest, which is sometimes desirable.

The fee payable on incorporation and the annual registration fees are as for companies limited by shares.

BACK TO TOP

British Virgin Islands Public Company

A public company formed under the Companies Act is similar to a private company limited by shares except that it must have five or more members, and the restrictions listed above do not apply.

BACK TO TOP

British Virgin Islands International Business Company (Updated: See Above)

The International Business Company was the most widely used vehicle for offshore operations in the BVI; it normally took the form of a private company limited by shares. The governing legislation is the International Business Companies Act 1984, updated by the International Business Companies (Amendment) Act 1990 and the International Business Companies (Amendment) Acts of 2003 and 2004, which immobilise bearer shares (see above) and impose record-keeping requirements on professional intermediaries. The Memoranda of Association of existing IBCs were deemed to have been amended to state that they are authorised to issue only registered shares and that these may not be exchanged for bearer shares.

Under the International Business Companies (Amendment) Act 2003, from December 31, 2004, all international business companies (IBCs) located in BVI are required to establish and maintain a Register of Directors, and must appoint their first director within 30 days of the IBC's incorporation. As from 2007, all IBCs are known as BVI Business Companies. Other statutory requirements remain minimal, and flexible:

IBC status is granted subject to certain conditions:

IBCs are permitted to own shares in other BVI companies, maintain bank accounts in the jurisdiction and employ the services of local professionals. IBCs are exempt from BVI taxes by statute.

It is usual to use a registered agent in the BVI to incorporate an IBC (eventually it is obligatory to appoint one anyway; there are about 70 of them, licensed by the Government). Fees for incorporation of an IBC are based on the company's authorised share capital. Normally, the incorporation process takes no more than one day; however, for banks, trust companies and insurers the process is lengthier (see Offshore Legal and Tax Regimes).

Statutory incorporation fees are USD350 for capital up to USD50,000 and USD1,100 thereafter. The annual license fee is:

IBCs which disapplied the bearer share regulations of the new Business Company Act pay higher fees.

BACK TO TOP

British Virgin Islands Limited Partnership

BVI Limited Partnerships are governed by the Limited Partnerships Act 1996; as regards general partnerships this act reproduces almost exactly the common law provisions of the English Partnership Act 1980, but the clauses dealing with limited partnerships follow modern US Delaware precedent.

Formation of a limited partnership is normally carried out by a registered agent (it is obligatory to nominate one on formation in any event). The agent files the Memorandum and Articles of Association with the Registrar of Limited Partnerships, who issues a Certificate of Limited Partnership; the partnership then exists; but if there is no certificate, the partnership will be deemed to be a general partnership. The fee payable on registration if USD500 and there is an annual license fee, also USD500.

The rights and limitations of limited partnerships under the Act mirror those of the International Business Company (see above); however the Act distinguishes between local and international partnerships - local partnerships may transact local business but are not tax-exempt, while international partnerships are tax-exempt but barred from local business.

The BVI limited partnership legislation was designed to facilitate the use of such vehicles in investment and mutual funds. As is usual in limited partnerships, there are one or more general partners with unlimited liability and management responsibility, while limited partners are liable only to the extent of their capital contributions, and their identity does not need to be disclosed. It is possible for the same person to be both a general and a limited partner in the same partnership. A limited partner's interest in the partnership is assignable. There are no minimum capital requirements or prescribed debt:equity ratios.

BACK TO TOP

British Virgin Islands Trusts

The trust law of the British Virgin Islands is based on English trust law. The Trustee Amendment Act 1993 (the "Amendment Act") updated the original British Virgin Islands Trustee Act (itself largely based on the English Trustee Act 1925).

The Amendment Act introduced a fixed perpetuity period not exceeding 100 years, and has modern 'wait-and-see' provisions to deal with interests that might vest outside the perpetuity period. The Amendment Act also introduced purpose trusts. See Law of Offshore for a fuller description of the legal regime for Trusts in the BVI.

BVI trusts are exempt from registration under the Registration and Records Act, and trustees are exempt from any need to file annual returns and from any other reporting requirements.

The majority of BVI trusts are exempt from all taxes provided there are no beneficiaries resident in the BVI, and that the trust does not conduct any business in the BVI or own any land in the jurisdiction; see Offshore Legal and Tax Regimes for further details. A trust duty of USD50 is imposed on each trust instrument subject to BVI proper law.

The Amendment Act provided for the appointment of a 'protector of trust', effectively a supervisor of the trustee(s), and also managing and custodian trustees. A company offering trust services must obtain a licence under the Banks and Trust Companies Act 1990 and conform to various conditions. See Offshore Business Sectors: Trust Management.

With effect from 1 March 2004, three new pieces of Trust Legislation came into force in the BVI:

The Vista Act allows trustees of VISTA trusts which hold a shareholding in a BVI International Business Company to disengage the trustee from management responsibilities. The use of trusts to cater for the succession of shares in companies has historically been impeded by the 'prudent man of business' rule of English trust law which is designed to help preserve the value of trust investments. The new legislation leaves the responsibility for managing the company to the directors of the company.

The new Act applies only where there is an enabling provision in the trust instrument. Where the new Act applies, designated shares will be held on “trust to retain” and the trustee’s duty to retain the shares as part of the trust fund will have precedence over any duty to preserve or enhance their value. It is also possible to amend existing trusts to allow the provisions of the VISTA Act to apply to them.

The Act is confined to shares in BVI International Business Companies and Companies Act companies; and the trustee of a VISTA trust must be a company which holds a licence to undertake trust business under the Banks and Trust Companies Act, 1990.

The Trustee (Amendment) Act makes a number of amendments to the BVI Trust law. These include: new regulations improving the BVI's purpose trusts regime and some amendments in relation to conflicts of laws provisions, including robust, comprehensive and carefully crafted provisions protecting BVI trusts (and dispositions to their trustees) against “forced heirship” claims.

Trust duty is USD100.

The Property (Miscellaneous Provisions) Act provides that deeds executed by individuals no longer need to be sealed.

In July, 2005, the BVI said it would amend its trusts legislation so that special trust vehicles can hold shares in private trust companies (PTCs), thus broadening the appeal of the vehicles.

The Virgin Islands Special Trusts Act (VISTA), which came into effect in March 2004, allowed trustees of VISTA trusts which hold a shareholding in a BVI International Business Company to disengage the trustee from management responsibilities.

The British Virgin Islands introduced new laws on private trust companies from January 1, 2007.

According to Robert Mathavious, Managing Director and Chief Executive Officer of the BVI Financial Services Commission, speaking in November 2006, the legislation has been introduced by amending the Financial Services Commission Act and issuing a new Regulatory Code under that Act which enables certain categories of companies to apply, on a fast-track basis, for exemptions from the licensing requirements and other provisions of the BVI’s Banks and Trust Companies Act.

The changes were applauded by the Society of Trust and Estate Practitioners (STEP), which has said that the introduction of the measures would make the BVI a highly attractive jurisdiction to use for the incorporation of private trust companies.

Deputy Chairman of STEP-BVI, Christopher Mckenzie observed that that the element of certainty that would be created by the new measures would attract those who are seeking a reputable jurisdiction in which to set up these sorts of structures.

On 1 August 2007, regulations enabling the establishment of private trust companies (Financial Services Exemption Regulations 2007) came into force. A private trust company is exempt from obtaining a trust license. An Order made by the Executive Council, in anticipation of the new regulations, set the fees payable by private trust companies.

According to the Order, the incorporation fee and annual fee for a private trust company are as follows:

BACK TO TOP