Final approval of the amending legislation from the BVI Government has now been granted with the BVI Business Companies (Amendment) Act, 2015 being Gazetted late on New Year’s Eve. On 5 January 2016 a further notice was issued bringing into force the new provisions relating to the register of directors on 1 April 2016, and all other provisions on 15 January 2016.
Record Keeping Requirements
In addition to the current statutory record keeping requirements (copy registers, seal impression, director’s letters of consent to act, record keeping confirmations), the new requirements mean that each company will have to supply a new written confirmation of the location of the original company books, records, registers and accounting records and the name of the person responsible for keeping those accounting records at that address. Existing companies have until 31 December 2016 to comply. We have available and are ready to send you the template first director resolutions and record keeping resolutions which must be used to meet these new requirements.
Please be aware PO Box addresses can no longer be accepted as a record keeping address. The address and name supplied must be that of a real business or personal address. A specific person must be named who is responsible for holding the required records at that address and who could be contacted to produce this information.
In addition to this, we also require a client profile to be completed for each client company, both existing and new to satisfy the recent changes made to the AML legislation. Agents and ourselves will review all companies and if we are missing any information in respect of filling in our client profile, agent will revert to us for assistance in collection thereof so then we will be addressing the matter to you.
Due Diligence information
The AML legislation has been amended to strengthen the requirements concerning who a registered agent in the BVI can place reliance on; the information that must be provided to the BVI agent when placing reliance; the introduction of a time limit for all documentation to be provided to the registered agent on request; and specific clauses that must be included in the agreement between the registered agent and its introducers.
Whilst the introducer (ie. our firm)who is being relied on by the BVI registered agent can continue to maintain the original, correctly certified, due diligence documents at their offices, our reg. agents in BVI are now required to hold information on the client company’s beneficial owner as well as additional information on the client company itself. They will be using the client profile template to satisfy this requirement. They do not need to see copies of the due diligence documentation that the introducer holds.
Registers of directors
Before the end of 2016 each company in our portfolio will have to file its register of directors at the BVI registry, through the registered agent in BVI. Unless the company elects for the register to be made public, it will only be accessible on an order of the court, or on a written request by a competent authority acting within its powers. It will also be accessible to the registered agent and any other person authorised by the company. An updated register of directors must be filed within 21 days of any changes taking place and within 14 days of first appointment following the formation of the BVI Company. An existing company must file its register of directors by 31 December 2016.
Our 2016 annual invoice (to be invoiced soon, following the respective charges received from BVI reg. agent for each company) will therefore include an additional administration fee as agent fee which we are now trying to confirm with the various agents.
In addition to these agents’ fees, the BVI Government has confirmed the registry fee structure for filing the register of directors:
(a) For registration of an existing company’s register between 01 April 2016 and 30 September 2016 – $0
(b) For registration of an existing company’s register after 30 September 2016 and before 31 March 2017 – $25
(c) For registration of an existing company’s register after 31 March 2017 – $50
(d) For new companies, there is an initial filing fee of $50 and a fee of $50 is payable for each change that is registered.
The work required to file the register of directors is unfortunately more time consuming when compared to previous voluntary filings made at the registry, as each directors details must now be entered separately rather than submitting a scanned copy of the register. This is also the fee to be charged at point of incorporation, and when updated registers are filed at the registry.
Please be aware that this fee covers up to 5 directors, with an additional $15 charge made per additional director thereafter.
The 2016 annual invoices for your existing portfolio will include your usual registered office and agent fee, the annual licence fee and the register of directors filing fee.
When we agreed fees with you, we negotiated carefully based on the requirements of the legislation at that time. Under the new legislation we have considerably increased obligations in relation to existing and new companies. Therefore, as mentioned above, we will be introducing the following additional fees:
- The agent fee plus disbursement fee for the filing of the register of directors on existing companies, at point of first directors appointed following the formation of a new client company and when making further filings due to changes in the register.
- Agent compliance fee to be charged when the agent receives the updated client profiles and at point of incorporation. This charge will then become an annual compliance charge from 01st January 2017.
We recognise that the legislative changes and the registered agents’ associated fees will impact ourselves as secretary/directors/or service providers of your companies, as well as yourselves directly, and the agents alike. We had hoped to provide you with more advance warning of these changes but unfortunately the time frame between the changes being enacted and required, as notified to us by the registered BVI agents only a few days ago is a short one.
We will therefore invoice you as and when we are invoiced ourselves by the reg. agent in BVI, depending on their applied policy. It seems that it will be, when the register is received and filed. Incorporation invoices prior to the 01st April will most probably include the compliance charge previously communicated but not the register of directors filing fee.
Please note that our reg. agents in BVI will require the register of directors for filing before they are able to pay the annual licence fee there and potentially prior to the completion of ad hoc work. We will also require the register for filing on those companies that were active at the registry as at the 01st January 2016 even if they become struck off or not in good standing before the 31st December 2016.
Where we are providing secretarial services to the BVI Company we will proceed to file the register and invoice accordingly.
The BVI Government has inserted one final and significant change to the legislation by inserting a new section 118A. This prescribes the information that must be included in the register of directors:
“Section 118A. (1) A company’s register of directors shall contain the following
(a) in the case of an individual director, the individual’s –
(i) full name;
(ii) former name, if any, unless the former name was changed by deed poll or other legal means or disused for more than 10 years;
(iii) date of appointment as director or nomination as reserve director;
(iv) date of cessation as director or reserve director;
(v) address for the service of documents;
(vi) usual residential address, unless that address is the same as the individual’s address for the service of documents;
(vii) date of birth;
(viii) nationality and, if more than one nationality is held, all nationalities; and
(ix) occupation; and
(b) in the case of a corporate director, the corporate director’s –
(i) corporate name;
(ii) corporate or registration number, if any;
(iii) registered office or principal office;
(iv) address, but if the corporate director is incorporated or registered in the Virgin Islands, its corporate or registration number only; and
(v) place of incorporation or registration and date of such incorporation or registration; and
(c) such other information as may be prescribed.
(2) Where a person is or was formerly known by more than one name, each name must be stated.”
As mentioned above, this provision will come into force on 1 April 2016.
If you are responsible for the preparation of the registers of directors (possibly as directors and secretary), it is important that the registers you supply to us contain all directors (current and resigned for existing companies) and that all current and new directors contain these new particulars. Otherwise, if we are responsible for the preparation of the registers of directors, we will be contacting you separately to ask for the additional information to satisfy these new requirements. It is very important to note that we will not be able to file a register of directors if there is missing information.
We have available and ready to send you the template register of directors for both individual and corporate directors.
Written consent of directors to act
You will know that a director must consent in writing to his appointment. Given that an initial copy of the register of directors must be filed with the Registry within 14 days of the appointment of the first directors and that the registered agent in BVI is responsible for appointing a company’s first directors, we must have the consents to act before we make first appointment. Clients wishing to have first appointment of directors dated from incorporation will need to provide to us the consent when sending through their order or within 14 days of the company being incorporated. If we do not have the consent in this timeframe we will be unable to make the appointment of first directors on the date of incorporation. We have available and ready to send you the template consents to act for individual and corporate directors.
Also kindly note, that once we sell a shelf company, we will need the consent to act prior to the appointment of first directors, in order that the register of directors can be filed within 14 days of the appointment.
Changes in Relation to new companies in 2016:
The register of directors will have to be filed at the registry once the first director is appointed (within 6 months of incorporation). Your formation invoice will include the usual fees for incorporation and registered office services, plus the fee for filing of the register of directors and compliance fee.
You will need to supply beneficial owner information before an incorporation can proceed. Once you buy a shelf company you will need to provide to us the statutory documents within 14 days in order that we can update the company’s BVI records and arrange the filing of the register of directors. We are in the process of preparing new order forms to be used for all future incorporations. These order forms will include the information in the Company Profile so that no additional Company Profile will be required for new formations. When you are ready to form a new BVI company please contact us and we will guide accordingly.