Jersey substance proposals – company perspective

Introduction
'Direction and management' test
CIGAs
What is the impact of carrying on a relevant activity?
Comment

Introduction

New proposed requirements for an economic substance test for Jersey tax-resident entities have been published to meet the requirements of the EU Code of Conduct Group.

The legislation, once approved by Privy Council, will apply with effect from 1 January 2019 and will establish new tests for certain tax-resident companies carrying on relevant activities in respect of demonstrating that they are directed and managed in Jersey and that their core income generating activities (CIGAs) are undertaken here.

'Relevant activities', for the purposes of this article, include:

• companies carrying on holding company activities; and
• companies headquartered in Jersey.(1)

Specific consideration should be given to outsourcing arrangements, to each company within a relevant structure and to updating policies and procedures. Further consideration also needs to be given in respect of the detailed guidance on the definition of 'adequacy' that is anticipated soon and in respect of companies generating income from intellectual property, which will be subject to more stringent tests.

'Direction and management' test

The requirements are as follows:

• There must be meetings of the board of directors in Jersey at adequate frequencies, given the level of decision making required.
• During these meetings, there must be a quorum of the board of directors physically present in Jersey.
• Strategic decisions of the company must be set at meetings of the board of directors and the minutes must reflect those decisions.
• All company records and minutes must be kept in Jersey.
• The board of directors, as a whole, must have the necessary knowledge and expertise to discharge its duties as a board.

CIGAs

Jersey tax-resident entities which carry on relevant activities will need to demonstrate that they carry out CIGAs in Jersey. The nature of the CIGAs varies by industry sector and is summarised below.

CIGAs for holding companies
The law requires holding companies to carry out all activities related to their business in Jersey. This will require each holding company to carry out an analysis as to what functions need to be carried out in Jersey, which is likely to vary depending on the function and purpose of the holding company.

CIGAs for companies headquartered in Jersey
Companies headquartered in Jersey will need to demonstrate that the following CIGAs take place in Jersey:

• taking relevant management decisions;
• incurring expenses on behalf of group entities; and
• coordinating group activities.

What is the impact of carrying on a relevant activity?

Companies carrying on a relevant activity must be able to demonstrate:

• an adequate level of (qualified) employees in Jersey, or adequate level of expenditure on outsourcing to service companies in Jersey proportionate to the activities of the company;
• an adequate level of annual expenditure incurred in Jersey, or adequate level of expenditure on outsourcing to service companies in Jersey, proportionate to the activities of the company; and
• adequate physical offices and/or premises in Jersey, or adequate level of expenditure on outsourcing to service companies in Jersey, for the activities of the company.

The new law proposes sanctions for non-compliance to include financial penalties, strike-off from the register of Jersey companies and reporting to any relevant tax or regulatory authorities.

Comment

The following information should be considered:

• Affected companies should review outsourcing arrangements (where relevant) in respect of Jersey tax-resident companies that fall within the scope of the new law and whether the third-party service provider agreements in place meet the tests set out therein.
• It is anticipated that many structures will be compliant with the new requirements already – consideration should still be given to whether amendments and updates are required to any policies and procedures as a result of the new law.
• IP income generating companies (ie, tax-resident companies with income from intellectual property) will be subject to enhanced requirements, which will be the subject of a separate briefing in due course.
• Further detailed guidance on the precise definition of activities to fall within the scope of the law is anticipated, along with the definition of adequacy in respect of employees, expenditure and premises under the CIGA test.

For further information on this topic please contact Matthew Shaxson at Ogier by telephone (+44 1534 514 000) or email (matthew.shaxson@ogier.com). The Ogier website can be accessed at www.ogier.com.

Endnotes

(1) Please see here for Ogier's briefing applicable to fund managers and here for Ogier's briefing in respect of banks, insurance businesses and finance and leasing vehicles.