A FIRST LOOK AT THE NEVIS BUSINESS CORPORATION ORDINANCE 2017[1]

by Dia C. Forrester

 

The island of Nevis continues to take steps to improve the quality of the financial products and services offered by the jurisdiction.  On 20th July 2017, the Nevis Island Assembly passed the Nevis Business Corporation Ordinance 2017[2] (“new NBCO”) which replaces the Nevis Business Corporation Ordinance 1984 as amended Chapter 7.01(N) (“old NBCO”).  It is noteworthy that the old NBCO as amended started the offshore financial sector, which offshore sector has evolved and furnished people throughout the world with unique financial products and services, which products and services have been adopted and utilised in various other jurisdictions.

In this review of the new NBCO, one highlights some of the new features of the legislation and how it impacts the financial product and services being offered by the jurisdiction of Nevis whilst preserving the features of the industry that keeps it high quality and competitive:

1. All existing Nevis International Business Corporations validly registered under the old NBCO shall continue to be registered under the new NBCO. This provision allows for a smooth transition to the new legislative regime with no peculiar steps having to be taken by existing entities to be subject to the new NBCO.

2. Section 3(3) of the new NBCO provides that in construing the Ordinance reference may be made to the common law, Regulations to the Ordinance and or to construction of similar laws in other jurisdictions. Firstly, there are no Regulations to complement the new NBCO. Despite the absence of Regulations, which was a wanting feature also under the old NBCO, the provisions of Section 3(3) have made it abundantly clear what tools can be used in the application and interpretation of the legislation.  This is extremely important for dealing with commercial issues and disputes that Nevis International Business Corporations may face as it offers clients, litigants and practitioners clarity as to which laws may be applied, and gives them sufficient leeway to guide the Courts and clients by utilising the experiences of other jurisdictions with similar financial products and services, which permits jurisprudence and business practices in this area to evolve in a dynamic manner alongside those of competing jurisdictions.

3. Section 4(4) of the new NBCO sees the introduction of business-friendly provisions which permits the registered agent for Nevis International Business Corporations to sign instruments on behalf of corporations with the written authority of the Board of Directors of those corporations. Registered agents have the option of filing the written authorisation with the Registrar of Corporations. That is an unlikely option to be utilised by a Registered Agent given that voluntary public filing of information with respect to the Board of Directors and or Shareholders of a corporation is not the norm and that practise is unlikely to change at this time.

4. In Section 13 of the new NBCO, a stalwart provision is maintained which protects the directors, officers, employees and shareholders of a corporation from being held liable for any corporate debts or obligations.[3]

5. Section 21 of the new NBCO permits corporations to be named using characters of the Latin Alphabet or any other alphabet. The world currently uses eight alphabet groups and Section 21 permits any of those alphabets to be used when naming a Nevis International Business Corporation once an authenticated translation is provided. This provision eases the incorporation process and widens the potential clientele scope of the jurisdiction.

6. Part VII of the new NBCO (Sections 54-67) introduces new provisions with respect to the registration of charges. Nevis International Business Corporations are able to create charges which may be governed by the law of such jurisdictions as agreed between the parties and if not specified, by the laws of St. Christopher and Nevis. Charges must all expressly indicate an intention to create a charge, the amount secured by the charge, and how the interest and fees on such amount is calculated.  The registration of a charge is optional, as Section 56 states that an application “may be made to the Registrar of Corporations” for a charge to be registered.  Though not mandatory, one recommends that it is best to register a charge as registration is taken as notice to the world of the existence of the charge.  Additionally, it assists in determining the priority status of a charge, and only registered charges can be received into evidence in any legal action before the Nevis High Court[4]. Copies of a charge, variation of a charge or satisfaction of a charge may be maintained in any such data storage form now known or thereafter invented or adopted, that the directors of the corporation approve, which allows legible evidence of its terms.  The Registrar of Corporations has a right on reasonable notice to inspect the register of charges and failure to maintain the Register of Charges attractions a $5,000 Eastern Caribbean Currency penalty.

7. Part X Corporate Records and Reports of the new NBCO brings the reporting requirements of Nevis in line with international reporting standards evidenced in Sections 101-107:

  1. Section 103 provides that a corporation shall keep proper books and records including where applicable, material underlying documentation including contracts and invoices and should reflect details of:
  2. all sums of money received and expended by the corporation, and the matters in respect of which the receipt and expenditure takes place; and
  3. all sales and purchases and other transactions and the assets and liabilities of the corporation.
  4. The books and records should:
    1. correctly explain all transactions;
    2. enable the financial position of the corporation to be determined with reasonable accuracy at any time; and
    3. allow financial statements to be prepared.
  5. The books and records which a corporation is required to keep shall be preserved by it for a minimum period of five (5) years from the date on which they are prepared.
  6. The books and records of a corporation shall be kept at the registered office of the corporation or at such other place or places as the directors think fit.
  7. The Section 103 record keeping requirements are far more extensive than what was previously stipulated in the old NBCO. This new regime is viewed as a protective measure to reduce corporations being used as instruments of fraud.
  8. Further, Section 102 places a heavy burden on Registered Agents who are required to keep bearer share certificates and maintain a record of each such certificate issued by a corporation, failing which a registered agent may be fined $30,000.00 Eastern Caribbean Currency and or suspension or revocation of their licence.

 

8. Part XV Taxes and Exemptions (Sections 136-143) has several new features which are salient to highlight:

  1. Firstly, Nevis International Business Corporations continue to be tax exempt, once that corporation does no business in Saint Christopher and Nevis. There will be no corporate tax, income tax, withholding tax, stamp tax, asset tax, exchange controls, or other fees or taxes based upon or measured by assets or income originating outside of Saint Christopher and Nevis or in connection with other activities outside of Saint Christopher and Nevis or in connection with matters of corporate administration which may occur in Saint Christopher and Nevis.  Additionally, dividend payments or distributions by a corporation are exempt from general tax or withholding tax.
  2. Nevis International Business Corporations have the option of becoming tax resident, wherein a tax resident certificate will be issued. That tax resident certificate is a certificate issued by the Minister of Finance to a corporation which has elected to be tax resident in Nevis for all intents and purposes.  Once tax resident, corporate residency taxes will have to be paid.  Corporations have the option of any time during the income year for which it is tax resident to cease to be tax resident on completion and signing the prescribed form requesting from the Minister of Finance a change in its status.
  3. None of the following activities will be viewed as doing business in Nevis for the purposes of being taxed, unless a corporation has elected to be tax resident:
    1. maintaining bank accounts in Nevis;
    2. holding meetings of directors or shareholders in Nevis;
    3. maintaining corporate or financial books and records in Nevis;
    4. maintaining an administrative office in Nevis with respect to assets, business or activities done outside of Nevis;
    5. maintaining a registered agent in Nevis;
    6. investing in shares of a Nevis company, international business corporations or investing in the interest of Nevis limited liability companies, acting as a partner of partnership registered under the Partnership Act or the Limited Partnership Act, or as a beneficiary of an international trust or qualified foreign trust; or
    7. acquires real property in a local, industrial or tourist facility provided always that such property shall be situated in a project or development approved and authorized by the Nevis Island Administration.
    8. With respect to the maintenance of an administrative office, no corporation shall maintain an administrative office in Nevis unless licensed to do so by the Minister of Finance. The penalties for having an unlicensed administrative office attracts a fine of $30,000.00 and the corporation being struck from the Register of Corporations.  A license may be obtained on application to the Minister of Finance.  Nevis International Business Corporations incorporated before the new NBCO who have administrative offices have a 30 day grace period from the commencement of the new NBCO to obtain a license.
    9. Tax resident Nevis International Business Corporations are subject to the penalty provisions of the Tax Administration and Procedures Ordinance Chapter 6.11(N). Late filing of tax returns incurs a penalty equal to five percent of the amount of the tax owing and a further one percent of the amount of tax owing for each month or part of the month during which the failure to file continues.  If the Comptroller makes a demand for tax returns to be filed or for any information relevant to determining a taxpayer’s tax liability and that demand is not fulfilled, a penalty of $1,000 in the case of a taxpayer’s income tax liability and $5000 in the case of a taxpayer’s other tax liability will be incurred.  The underpayment of tax due to fraud or negligence incurs a penalty of 25 per cent of the underpayment.  It is crucial to note that the Tax Administration and Procedures Ordinance holds directors of corporations liable for unpaid taxes.

 

9. There is now a general penalty clause for any violation of the new NBCO which does not specify a penalty. The penalty sum is a fine not exceeding $10,000.00 Eastern Caribbean Currency.

 

10. At the time of writing, there has not yet been any changes in government fees related to the new NBCO.

 

Written by Dia C. Forrester: Ms. Forrester is a Partner at Daniel Brantley and may be contacted via email at dia.forrester@danielbrantley.com.

 

[1] The views expressed in this Article are solely those of the author.

[2] The Nevis Business Corporation Ordinance 2017 comes into force when gazetted.  At the date of writing, the legislation was not yet gazetted.

[3] See tax resident provisions discussed in paragraph 8(2) herein.

[4] That consideration should be coupled with whether or not the corporation is minded to have on public record who the signatories of a transaction are and details of the transaction – one takes the position that ensuring priority status should prevail.

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