Emily Haithwaite
Group Partner, Ogier Legal L.P. | Legal
Jersey
Group Partner, Ogier Legal L.P.
Jersey
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For a more recent update on this issue read our briefing updated economic substance requirements for Jersey fund managers.
The Taxation (Companies - Economic Substance) (Jersey) Law 2019 came into force on 1 January 2019. The substance requirements apply to Jersey tax-resident companies which carry on certain specified geographically mobile activities, including fund management business. They have been implemented in order to comply with the requirements of the EU Code of Conduct Group for the purpose of demonstrating that the profits generated by such companies are commensurate with their economic activities and presence in Jersey. Jersey was put on the EU whitelist on 12 March and the Crown Dependencies issued joint Guidance Notes on aspects of the Substance Requirements on 26 April 2019.
Fund managers are in scope of the law where they have gross income in relation to their fund management activities. Fund vehicles themselves are outside the scope of the Law.
The substance requirements establish economic substance tests which require companies to demonstrate the following:
They are "directed and managed" in Jersey in relation to that activity
In particular:
Whilst it is not necessary for all of the company's meetings to be held in Jersey, it is expected that the majority of board meetings will be held in the Island and that a quorum of directors will be physically present. It is acknowledged that it may be necessary for certain meetings to be held outside Jersey.
The board of directors must be the decision-making body and not simply approve decisions taken outside the Island. A fund management company is unlikely to meet the Substance Requirements if strategic decisions have been delegated to entities outside Jersey which make such decisions without reference to, or real oversight by, the board.
Adequate employees, expenditure and physical premises
Having regard to the level of relevant activity carried on in Jersey, the company has adequate:
In this context, "employees" is not limited to persons who are employed by the company, but includes persons deemed to be employees under Jersey law, owner-managers and directors. The resources of any outsourced service provider in Jersey will also be taken into consideration.
All of the "core income-generating activities" (CIGA) undertaken are carried out in Jersey
Fund managers must conduct all of their CIGA in Jersey and must be able to monitor and control any CIGAs carried out by another entity in Jersey. CIGA in respect of fund management business include any of the following:
Outsourcing
It is common for fund managers to outsource activities to other entities and the law does not prohibit this as long as the board monitors and retains the ability to control the activities of service providers in Jersey. Furthermore, as long as the company has set the strategic decisions and parameters within which investment decisions may be implemented by entities outside the Island, and it receives reports and is able to monitor and control the outsourcing, those activities will not undermine the fact that CIGA is conducted in Jersey.
Implications and Sanctions
The Substance Requirements are significant because, with effect from the 2019 corporate tax return, companies will be required to declare that, on their own analysis, they have met the Substance Requirements in respect of their activity
The Law provides sanctions for non-compliance including financial penalties, strike-off from the register of Jersey companies and reporting to relevant tax or regulatory authorities.
Emily Haithwaite
Group Partner, Ogier Legal L.P. | Legal
Jersey
Group Partner, Ogier Legal L.P.
Jersey
Ogier is a professional services firm with the knowledge and expertise to handle the most demanding and complex transactions and provide expert, efficient and cost-effective services to all our clients. We regularly win awards for the quality of our client service, our work and our people.
This client briefing has been prepared for clients and professional associates of Ogier. The information and expressions of opinion which it contains are not intended to be a comprehensive study or to provide legal advice and should not be treated as a substitute for specific advice concerning individual situations.
Regulatory information can be found under Legal Notice
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