BVI FSC Newsletter: May 2023

Statement by New Minister with Responsibility for 
Financial Services

As the first Government Minister with a specific titular portfolio of Financial Services, I am excited to lead a team of professionals who continue to set the bar, which permits the Territory to stay on the cutting edge of global financial services business.

I am no stranger to financial services, as I have worked in the industry for decades in various capacities. I believe, however, that this will by far be my most important role in supporting the industry. Those of you whom I have had the pleasure of meeting know my passion for seeing the industry’s sustainability and continued success.

Through BVI Finance, the Territory has been tirelessly marketed as a jurisdiction of choice. That pitch has not been simple lip service. The Commission’s dedication to best practices and maintaining canons set by global standard-setting authorities is reflected in policies, legislative directives, and the involvement of industry players. Likewise, the BVI continues to make strides and to achieve remarkable levels of success in the financial services arena. We can agree that one of the most important things that underpin the success which this important industry characterizes is our maintained strong and independent regulatory regime.   

With the compliance of our regulated entities and guiding support from international partners, I believe that we can continue to maintain our leading position in the international financial services marketplace as a model trendsetter when it comes to not only product offerings but also commendable regulatory and supervisory leadership.

I mention all of this to say that as the subject Minister, I pledge to support continued good regulation. I also commit to doing whatever is necessary and required to assist and promote the industry to better represent the interests of its clients. 

To this end, I pledge the full support of my government to uphold the competitive and cutting-edge strategic direction of the BVI financial services toward the industry’s anticipated long-term viability.

Honourable Lorna Smith, OBE
Deputy Premier and Minister for Financial Services, Labour and Trade

Legislative Summary

BVI BUSINESS COMPANIES (FINANCIAL RETURN) ORDER, 2023

The Requirement to File
This update relates to the new requirement for BVI business companies to prepare and file annual financial returns. These requirements were introduced by the BVI Business Companies (Amendment) Act, 2022, which updates the BVI Business Companies Act, Revised Edition 2020 ('the Act').

Section 98A(1) of the Act requires BVI business companies to file an annual financial return with their registered agent within nine (9) months after the annual return becomes due. In determining the due date, one should refer to the specific company's fiscal or financial year-end.  

Where a company's year-end was not previously determined or would be impacted by a desired change to the year-end, such a decision should be recorded by the usual board resolution.

If a company fails to file annual returns with its registered agent within 30 days of the expiry of the due period, such registered agent is duty-bound to notify the Registrar of the company's failure to file.

The Form of Filing
The form of annual financial return is set out in the schedule to the BVI Business Companies (Financial Return) Order, 2023 (the Order), which came into force on 1 January 2023.

Privacy of Filed Returns
As the annual returns are filed with the registered agent, the details of such remain confidential and within the custody of the agent, who must make the information available whenever requested pursuant to an obligation under an enactment. For example, the BVI Financial Service Commission may request the information in accordance with the powers granted to it under the Financial Services Commission Act, 2001; such would also be the case with regard to a request by the International Tax Authority under the Mutual Legal Assistance (Tax Matters) Act, 2003, the Financial Investigation Agency under the Financial Investigation Agency Act, 2003 and the Attorney General under the Criminal Justice (International Co-operation) Act, 1993.

Companies Exempt from Filing Annual Returns
The Order exempts the following entities from filing annual returns in line with section 98A(5) of the Act:
(a)    Companies listed on a stock exchange;
(b)    A company that is already compelled by other BVI financial services legislation to provide financial statements to the Commission, i.e. regulated entities;
(c)    A company which files its annual tax returns and financial statements with the Inland Revenue Department; and
(d)    A company in liquidation whose annual return becomes due after liquidation commenced.

Implications of Failure to File
Where a company fails to file its annual return within the nine (9) months allotted, such company will have failed the test of good standing in accordance with section 235 of the Act. The company will also become subject to penalty fees as outlined in Schedule I, Part II of the Act, and risk subsequent striking off the register and dissolution in accordance with section 213 of the Act.

BVI BUSINESS COMPANIES (AMENDMENT) ACT, 2023

The BVI Business Companies (Amendment) Act, 2023 (the Amendment Act 2023), which came into force on 1 January 2023, imposed a number of new requirements on companies incorporated in the BVI; those changes, which are in addition to the 2022 amendments to the principal BVI Business Companies Act, are summarized below:

First Registered Agent Address
Before the amendment, corporate memoranda were only required to state the name of the first registered agent; however, BVI business companies are now required also to input the address of the first registered agent.  

Beneficial Owner Details for BVI Business Companies
In addition to the memorandum and articles of association, register of members, register of directors or copies thereof, and copies of notices filed within a 10-year period, BVI business companies must now also maintain with their registered agent's information regarding the company's beneficial owner. There is a continuing duty to keep the information accurate and up to date.   

The definitions of 'information' and 'beneficial owner' are those ascribed to them in the Anti-money Laundering Regulations, Revised Edition 2020.

Filing Annual Return
BVI business companies are now required to file an annual return with their registered agent, which adheres to the form found in the schedule to the BVI Business Companies (Financial Return) Order, 2023, within nine months of the year-end to which the annual return relates. The year-end relates to a company's financial year-end, which may be a calendar year, or another yearly period appointed by the company. 

Filing Requirements for Foreign Companies 
The Amendment Act 2023 requires foreign companies to maintain the following at the office of their registered agent:
(a)    The memorandum and articles of the company.
(b)    A current register of members and a list of directors or copies thereof.
(c)    Copies of all notices and other documents filed by the company in the preceding ten years.
(d)    Information on the beneficial owner of the company. 

The register of members is specifically required to state the following:
(a)    The names and addresses of registered shareholders.
(b)    Details of registered shareholders' class and series of shares held and associated voting rights.
(c)    Names and addresses of guarantee members.
(d)    Names and addresses of persons listed as unlimited members.
(e)    The date when each member was entered in the register of members and the date when they ceased to be a member.

IMPORTANT NOTE: These summaries should be read in conjunction with the substantive legislation.

Money Matters BVI Launches Publication on BVI Insurance Consumer Rights

MONEY MATTERS BVI (MMBVI), the financial literacy education programme at the BVI Financial Services Commission (‘the Commission’), launches a new publication titled – BVI Insurance Consumer Rights.

With its basis in the Insurance Act, 2008, the Regulatory (Insurance Code of Conduct) Code, 2021 and the Financial Services Commission Act, 2001, MMBVI today launched the BVI Insurance Consumer Rights brochure (‘the brochure’). The brochure will serve as a guide to help residents seeking insurance and those who have already subscribed to better understand their rights and responsibilities as consumers of insurance products.

The brochure is MMBVI’s newest publication in keeping with its mission to develop and implement initiatives that motivate residents to achieve enhanced levels of financial literacy, which then contributes to the making of sound decisions, in this instance, regarding insurance. The brochure seeks to raise awareness of the provisions made in BVI legislation to protect insurance consumers.

The rights addressed in the brochure are:

• Right to Fair and Equitable Treatment
• Right to Disclosures and Transparency
• Right to Privacy and Confidentiality 
• Right to Make a Claim
• Right to Redress of Complaints

Chief Executive Officer and Managing Director of the Commission – Mr Kenneth Baker, commented, “The launching of this brochure is timely as the Territory approaches the start of the 2023 Atlantic hurricane season on 1 June 2023.  As the regulatory and supervisory authority for insurance in the BVI, the Commission is required to promote a safe financial services environment in the Territory and to inform the public on matters relating to financial services business.” Mr Baker added he “hoped that the brochure, along with the guidance contained in the substantive legislation – Insurance Act, Insurance Regulations, and Regulatory (Insurance Code of Conduct) Code – would become a valuable reference point for insurance consumers in the Territory”.

The brochure will be widely circulated in print and electronic form. To download a copy of the brochure, residents may visit www.moneymattersbvi.org or click here. For hard copies of the brochure and questions related to the brochure’s contents, please email MONEY MATTERS BVI at [email protected] or call 852-4777.

Registry's Corner

In accordance with the BVI Business Companies (Amendment) Act, 2022 ('the Amendment Act'), which came into effect on 1 January 2023, all BVI business companies should take note of the following:

1. Where a BVI business company has been struck off the Register, it is considered dissolved when the Registrar publishes a notice of striking off in the Gazette.  
2. Before effecting the striking off, the Registrar is required to: 
   1.    send the defaulting company a notice stating that unless it shows cause to the contrary, it will be struck from the Register; and,
   2.    publish a notice in the Gazette of intention to strike the company off the Register.
3. Notwithstanding the Amendment Act's requirement for notice on the company and in the Gazette, the striking off of a company shall not be affected by any failure on the part of the Registrar to serve the notice on the registered agent or to publish it in the Gazette.
4. Transitional Provisions in the BVI Business Companies Act provide that a company which retained the status of struck off on 1 January 2023 but which was not restored to the Register within six months will be deemed dissolved six months later, i.e., on 1 July 2023, and the registered agent will be deemed to have resigned as of that same date unless such resignation was effected prior.
5. As 1 July 2023 falls on a weekend followed by a public holiday, BVI business companies impacted by the Transitional Provisions, as referenced in point four above, will be deemed dissolved on 4 July 2023 (i.e., the next business day).