The Economic Substance Act 2018 (the “Act”)1 requires Bermuda-based entities that are carrying on a “relevant activity” in a relevant financial period and entities claiming “non-resident entity” status under the Act to file an Economic Substance Declaration Form (a “Declaration Form”) with the Bermuda Registrar of Companies (the “Registrar”). Such Declaration Forms must be filed annually, within six months of the last day of the entity’s financial year. For example, an entity with a financial year-end of 31 December 2022 will be required to file its completed Declaration Form by 30 June 2023.
Relevant Activities
The following are relevant activities, as defined by the Act:
- Banking
- Insurance
- Fund management
- Financing and leasing
- Headquarters
- Shipping
- Intellectual property
- Distribution and service centres
- Holding entity
Economic Substance Declaration
Every entity carrying on a relevant activity in respect of the relevant financial period must file a Declaration Form. The Declaration Form requires the disclosure of certain financial and other information, and the extent of the information required will depend on the nature of the relevant activity and the particular circumstances of the entity.
Nil Gross Revenue – Relevant Activity
Entities that do not earn any gross revenue in respect of a relevant activity are only required to file a “nil” Declaration Form. Any entity conducting a relevant activity that does not earn gross revenue in a relevant financial period in relation to a relevant activity is not required to comply with economic substance requirements beyond completing and filing the “nil” Declaration Form. Unless an entity is publicly traded2 , a “nil” Declaration Form requires details of the entity’s “beneficial owners”, as defined in the Companies Act 1981 of Bermuda (the “Companies Act”).
Entities Carrying on Fund Management
Due to the amendment to the Economic Substance Regulations 2018, which came into effect on 1 January 2022, an entity carries on the relevant activity of fund management if it provides fund management to investment funds whether or not such entity requires to be licensed under the Investment Business Act 2003.
For a fund management entity which has a financial year-end of 31 December, the first relevant financial period is the financial year-end 31 December 2022. Such an entity will therefore be required to file its Declaration Form on or before 30 June 2023.
Where a fund management entity has a financial year-end of 31 March, such an entity must make the relevant filing on or before 30 September of the same calendar year (i.e. within 6 months following the financial year-end).
“Non-resident Entity” Status
Entities that are tax resident outside Bermuda (in a jurisdiction outside Bermuda that is acceptable to the Registrar3 and that is not on the European Union’s list of non-cooperative jurisdictions for tax purposes) are only required to file evidence or confirmation of their tax residency and, unless the entity is publicly traded, details of their “beneficial owners” (as defined in the Companies Act). Where documentary evidence of tax residency is not available for the entire relevant financial period at the time of filing the Declaration Form, it is possible for the entity to file a provisional claim of residency for tax purposes. Final evidence of tax residency must be supplied by a date specified to the entity by the Registrar, or, in any event, no later than 12 months from the date of the provisional claim. Non-resident entities are not required to comply with economic substance requirements beyond completing and filing the Declaration Form and evidence or confirmation of their tax residency status.
The Registrar has advised that one or more of the following is sufficient final evidence to demonstrate an entity’s tax residency outside Bermuda:
- a letter or certificate from the competent authority or tax authority of the jurisdiction in question, stating that the entity is considered to be resident for tax purposes in that jurisdiction; or
- an assessment to tax on the entity, a confirmation of self-assessment to tax, a tax demand, evidence of payment of tax or any other equivalent document issued by the competent authority or tax authority for the jurisdiction in question.
Where an entity made a provisional tax residency claim in its Declaration Form filed in 2022, we recommend such entity provides the Registrar with the final evidence once it is available, if this has not yet been done.
If an entity intends to make a claim for “Non-resident Entity” status in its upcoming Declaration Form, we suggest such entity requests final evidence of this tax residency from the relevant tax authority as soon as practicable.
Economic Substance Requirements
Where an entity is (i) not a non-resident entity, (ii) has conducted a relevant activity and (iii) earned gross revenue in a relevant financial period in respect of such activity, its economic substance requirements will depend on the nature of the relevant activity and the particular circumstances of the entity.
The Conyers website has an overview of economic substance requirements for Bermuda-based entities. However, we recommend seeking legal advice in Bermuda concerning the individual situation of any entity or proposed entity.
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1 In 2018, Bermuda enacted legislation with respect to economic substance requirements for relevant entities based in the jurisdiction. All other major offshore jurisdictions have enacted similar legislation.
2 An entity is publicly traded if its shares (or other securities) are listed on the Bermuda Stock Exchange or an appointed stock exchange (as defined in the Companies Act).
3 An entity will not be deemed by the Registrar to be resident for tax purposes in a jurisdiction if that jurisdiction does not have a corporate tax regime and/or residency for tax purposes in such jurisdiction does not result in the entity being subject to the equivalent economic substance requirements in that jurisdiction. The Registrar has advised that such jurisdictions may include Anguilla, Bahamas, Bahrain, Barbados, British Virgin Islands, Cayman Islands, Turks and Caicos Islands and the United Arab Emirates.
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