08 May 2019

Conference told detailed record-keeping is a key ingredient of compliance with new economic substance requirements

Good corporate governance is a crucial component of new economic substance requirements, according to taxation and substance experts at Carey Olsen.

Speaking to more than 200 attendees at the offshore law firm's regulatory and substance conference in Guernsey last week, counsel Laila Arstall and senior associate Chris Hutley-Hurst outlined the key takeaways from the recently published joint guidance document issued by the tax authorities of Guernsey and Jersey (along with the Isle of Man). The document outlines how each island's economic substance legislation, which has been in effect since 1 January 2019, will be applied to businesses which fall within scope of the legislation.

The introduction of new legislation is the result of a coordinated policy effort by the EU Council to ensure that companies tax resident in Guernsey, Jersey or other offshore finance centres meet certain requirements in order to demonstrate they have sufficient economic substance in those jurisdictions. In scope companies will have to demonstrate for substance purposes that, in relation to 'relevant activities' and intellectual property holding, they are directed and managed in the relevant jurisdiction, that they have an adequate level of employees, expenditure and physical presence in that jurisdiction and that their 'core income generating activity' (CIGA) takes place there. A failure to comply with the new legislation could result in enforcement action including substantial penalties and, ultimately, strike-off.

"The expectation is that the island's regulated corporate and trust service providers should be able comfortably to meet the requirements as they reflect the professional standards expected under applicable codes of conduct.  Yes, there will be some additional responsibilities in terms of demonstrating that you have taken certain steps in practice to meet applicable substance requirements but any good business should be comfortable with documenting their approach," said Mrs Arstall.

In Guernsey, the Director of the Revenue Service has been given powers to enforce the legislation, including the power to enter premises and inspect documents, although the legislation expressly excludes from that power of inspection any documents that are legally privileged. What this means in practice is that advice from a law firm (as distinct from guidance or support from other types of service-providers in this area) remains confidential and protected from legal disclosure. 

Mr Hutley-Hurst said it was clear that companies must have detailed records in relation to relevant activities and decisions.

"It comes down to more record-keeping, detailed timesheets for staff so that you can attribute staff time to various clients and having sufficient board and other meetings in Guernsey, along with comprehensive minute taking," he said.

"A substance register is something that we've been advising clients about and they're finding useful. It's not a formal register of the company, rather a summary document so that each time  you have a board or committee meeting you note down the time, date and who was present, as well as whether they were physically present when they attended, a summary of what was discussed and whether CIGA occurred. That record keeping is going to be very useful when it comes to doing the tax return in the following year or if the tax return is audited."

As a firm, Carey Olsen has been working closely with a wide range of local businesses to provide practical advice and tailored solutions to help remedy any gaps or other issues that could prevent compliance with economic substance requirements, including conducting substance audits on existing structures, procedures and documents.

To further support businesses across its network of offshore offices in Bermuda, the British Virgin Islands, the Cayman Islands, Guernsey and Jersey, the firm has also developed an interactive 'Taxation and Economic Substance Tool' that enables businesses, via a series of questions, to ascertain whether the new economic substance requirements apply to them.

Mr Hutley-Hurst commented: "The tool is designed to be user-friendly. It's perfect for any internal review or preliminary analysis a company may be doing as it takes the user through a series of questions with the ultimate goal of being able to establish whether a company is subject to the substance requirements or not."

The conference, which was held at the Duke of Richmond Hotel, also covered regulatory and legislative developments in relation to international sanctions and key changes to Guernsey's Handbook on Countering Financial Crime and Terrorist Financing. In addition to Mrs Arstall and Mr Hutley-Hurst, other speakers at the conference were partners Russell Clark, David Crosland, Mark Dunster and Elaine Gray, counsels Simon Florance, Carly Parrott and senior associate Luke Sayer.

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