Dispelling offshore myths

Although the British Virgin Islands is often seen as an offshore tax haven, a closer look shows such opinions may be overstated

 
Tortola, Road Town, British Virgin Islands. The offshore tax haven often receives negative publicity 
Author: Michael James Killourhy, Partner, Ogier
January 5, 2016

There is a stereotypical image of the so-called ‘tax haven’ for ‘shady people to put their money’. While it is true that BVI Finance enjoys warm, sunny weather year round, the similarities with the stereotype stop there. BVI is a sophisticated, compliant financial services centre where the climate for wrong doers is not so attractive.

BVI offers an attractive combination of modern, flexible companies’ legislation backed with the confidence of an efficient and respected judicial system, secured ultimately by the Privy Counsel. Small wonder then why there are currently around 450,000 active BVI incorporated companies. Even today many of BVI’s competitor jurisdictions are unable to offer this combination. However, the company’s position as an incorporations jurisdiction of choice is by no means unassailable – BVI’s continued popularity will rest on its ability to improve and innovate.

Since the start of 2008’s global economic crisis, all offshore financial services centres have come under increasing pressure from policymakers

Innovating through design
The company’s flagship statute – BVI Business Companies Act, 2004 (the BCA) – lies at the very heart of its success as a financial centre. The BCA built upon the previous ground-breaking International Business Companies Act of 1984, (the IBC), to produce a framework for companies law that operates to be flexible and pragmatic, yet still affording appropriate protection to stakeholders. The BCA, like the IBC before it, was highly innovative. However, competitors, many of whom have introduced their own forms of international business company statute, have closely watched BVI’s success.

To remain ahead, BVI must continually review and improve not just the BCA but also its other financial services legislation too, to reflect changes in the global business environment and the threats and challenges it faces. Delaware, by far the leading incorporations jurisdiction (albeit not usually seen as being ‘offshore’), for example, reviews and amends its company’s law in the face of market and legal developments almost annually.

While BVI has not yet adopted such a regular overhaul process, the BCA has a built in mechanism that allows for constant review. Amendments to the BCA have been made a number of times since 2004, and recent developments, some emanating from the findings of the McKinsey Report recently commissioned by and published in respect of BVI, suggest that a more regular Delaware review and revised process may soon become part of BVI’s legislative landscape.

In that vein, last year BVI introduced changes to its investment funds’ legislation to create two new innovative fund products aimed at maintaining BVI as an attractive alternative funds destination to the Cayman Islands. Also in 2015, BVI enacted a series of modernising amendments to the BCA. In the words of BVI’s Premier, Dr Orlando Smith, OBE, on the enactment of the BCA amendments, BVI’s approach is one of “continually modernising financial services legislation to keep the Territory at the cutting edge of business innovation and development.”

However, not everyone sees the attributes and benefits of BVI as a financial services centre in the same light. Since the start of 2008’s global economic crisis, all offshore financial services centres have come under increasing pressure from policymakers and other interested groups in the developed world. The onshore perception of jurisdictions like BVI as secretive, insufficiently regulated and somehow a threat to security and prosperity at home is pervasive, and provides fertile ground for political initiatives represented as panaceas for the causes and consequences of the global recession.

Essential offshore practice
In October 2015, G20 ministers endorsed another round of BEPS proposals aimed at forcing corporations to provide greater transparency as to where profits are actually made, and reducing artificial transfer pricing measures. The aim being that profits diverted through low-tax or neutral jurisdictions like BVI, may instead become subject to onshore tax, thereby reducing the value of offshore structures.

From the very start however, BVI has been aware of the existential threat posed by onshore policies and decisions. While spending obligations of developed nations continue to grow, attempts to curb tax base erosion are unlikely to go away (albeit that campaigns against the offshore world tend to correlate with economic downturn in the developed world).

However, threats notwithstanding, offshore centres like BVI and other UK Overseas Territories continue to exist and have been allowed to do so – arguably the UK and the rest of the onshore world could have shut them down if so desired. This points to the intrinsic worth of the offshore sector. In fact, one could argue, that the real threat to BVI posed by onshore challenges is more indirect. The issue is not so much the challenge itself, but more how BVI responds to that challenge and how its response affects BVI’s positioning among its rivals.

The company’s strengths lie in its legislative regime, tax neutrality and judicial system – these are what have been behind the success of its brand since the 1980s, and none are under threat. There is, however, more to be said. BVI is a long-standing member of the Caribbean Financial Action Task Force (CFATF) and is an associate member of the Financial Action Task Force (FATF). The territory has comprehensive Anti-Money Laundering (AML) and Counter-Terrorism Financing (CTF) regulations, in many cases more stringent than onshore counterparts.

When the OECD’s Global Forum on Transparency and Exchange of Information for Tax Purposes published its latest assessment of BVI on August 3 2015, alongside 11 other new peer review reports, the company was given a ‘largely compliant’ rating. A result that not only places BVI alongside other leading finance centres such as the Cayman Islands, Guernsey, Jersey and Bermuda, but also gives it the same tax transparency rating as the UK, the US, Germany and Hong Kong.

BVI therefore, is an internationally compliant jurisdiction. However, the real task and challenge that the company faces is to be sufficiently compliant with global demands so as to maintain its position of respectability, which to some degree is an important part of the jurisdiction’s attraction, while not compromising those qualities to the extent that BVI ceases to be competitive with other offshore jurisdictions. The balance is not easy to maintain. The company does not want to be involved in a race to the bottom with jurisdictions that take the view that compliance is bad for business, but equally it has to be careful not to ‘throw out the baby with the bath water’.

Myths about BVI
The notion that BVI is a centre for private banking where monies can be safely hidden from legitimate enquiries of tax and other authorities also does not hold up to reality. The company is not, and never has been, a banking jurisdiction. Yes its vehicles are used in finance structures or as asset holding vehicles, but the idea that the streets of Road Town, as was once suggested, are lined with private banks is a myth. In fact when BVI established its modern financial services industry back in the early 1980s, there was a conscious decision to not enter the banking sector, partly in order to avoid the money laundering and criminal proceeds risk.

BVI entered into a formal written commitment to the OECD’s principles of transparency and exchange of information in April 2002, and ever since has been an active participant in the OECD Global Forum on Taxation. The company is party to almost 30 Tax Information Exchange Agreements and Intergovernmental Agreements (including the US IGA in relation to FATCA mentioned before) that allow for sharing of information with tax authorities and other governmental bodies in specific circumstances.

The notion that offshore centres are secretive places where funds derived from questionable activities can be hidden goes hand in hand with the view that their effect on the onshore economies is entirely prejudicial. The common view of base erosion is of course that funds are sucked out of economies into offshore entities avoiding tax and other obligations, leading to increased funding deficits and inequalities in developed nations and underdevelopment, due to lack of resource, in the developing world. However, there is actually an established body of academic research examining the mutual benefits that offshore financial centres, such as BVI and onshore jurisdictions, derive from one another.

The evidence suggests that, far from diverting activity, offshore centres actually enhance economic activity in onshore jurisdictions by increasing the cost-efficiency of both inbound and outbound cross-border capital flows. In this instance then, BVI would provide the tax neutral corporate platform and legal infrastructure required for the investment vehicle. As already said, the company offers vehicles with all of the legal certainty that investors could require (when compared with entities incorporated locally), while not being subject to an additional layer of tax leakage.

Studies have already shown how BVI entities performed this role in relation to China over the last two decades, and how, in doing so, it has contributed to the overall growth of that country during that same period. It is also expected that BVI entities could perform the same role in relation to Africa, where infrastructure projects will require increasing amounts of overseas capital. Offshore entities, and particularly BVI, offer a safe, efficient and low cost means of marshalling that capital. ■