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BERMUDA ECONOMIC SUBSTANCE REGULATIONS 2018

ECONOMIC SUBSTANCE REGULATIONS 2018

BR 154 / 2018

TABLE OF CONTENTS

Citation

Interpretation

Economic substance requirements

Minimum economic substance requirements

Substance test for economic substance requirements: core income generating activities

Exchange of information


Non-IP Related Relevant Activities

Banking

Insurance

Fund management

Financing and leasing

Headquarters

Shipping Distribution and service centres

Holding entity


IP Related Relevant Activities

Intellectual property

Enhanced IP economic substance requirements

Powers of Registrar regarding non-compliance with economic substance requirements Commencement


The Minister of Finance, in exercise of the power conferred by section 11 of the Economic Substance Act 2018, makes the following Regulations:


Citation

1. These Regulations may be cited as the Economic Substance Regulations 2018.

Interpretation

2. In these Regulations, unless the context otherwise requires—

“Act” means the Economic Substance Act 2018; “

Companies Act” means the Companies Act 1981;

“core income generating activity”, with respect to a relevant activity, means the core income generating activity set forth in regulations 7 to 16, as the case may be;

“economic substance requirements” means the requirements set forth in section 3 of the Act and regulation 3;

“entity” means an entity to which section 3 of the Act applies;

“foreign affiliate” means an affiliate incorporated, formed or registered outside Bermuda;

“high-risk IP activities” means the IP activities set forth in regulation 16(3);

“IP” means intellectual property;

“IP assets” means intellectual property rights held by an entity in relation to an intangible asset which includes patents, copyright, technical know-how, trademark, brand or goodwill that generate IP income;

“IP income” means income which accrues to the business from IP assets and IP activities (such income being separately identifiable from any income generated from any tangible asset);

“minimum economic substance requirements” means the requirements set forth in regulation 4(2);

“Partnerships Acts” means the Partnership Act 1902, the Exempted Partnerships Act 1992 and the Limited Partnership Act 1883;

“pure equity holding entity” has the meaning given in regulation 14(2);

“relevant activity” has the meaning given in section 2 of the Act; “relevant financial period” means the financial year of the entity.

[Regulation 2 definitions "IP assets" and

"pure equity holding entity" amended, and definition "IP income" inserted by BR 34 / 2019 reg. 2 effective 22 February 2019]


Citation

1 These Regulations may be cited as the Economic Substance Regulations 2018.

Interpretation

2 In these Regulations, unless the context otherwise requires—

“Act” means the Economic Substance Act 2018;

“Companies Act" means the Companies Act 1981;

“core income generating activity", with respect to a relevant activity, means the core

income generating activity set forth in regulations 7 to 16, as the case may be;

“economic substance requirements" means the requirements set forth in section 3

of the Act and regulation 3;

“entity" means an entity to which section 3 of the Act applies;

“foreign affiliate" means an affiliate incorporated, formed or registered outside

Bermuda;

“high-risk IP activities" means the IP activities set forth in regulation 16(3);

“1P" means intellectual property;

“I? assets" means intellectual property rights held by an entity in relation to an

intangible asset which includes patents, copyright, technical know-how,

trademark, brand or goodwill that generate IP income;

“I? income" means income which accrues to the business from IP assets and IP

activities (such income being separately identifiable from any income generated

from any tangible asset);

“minimum economic substance requirements" means the requirements set forth in

regulation 4(2);

“Partnerships Acts" means the Partnership Act 1902, the Exempted Partnerships

Act 1992 and the Limited Partnership Act 1883;

“pure equity holding entity" has the meaning given in regulation 14(2);

“relevant activity" has the meaning given in section 2 of the Act;

“relevant financial period" means the financial year of the entity.

[Regulation 2 definitions '1? assets" and "pure equity holding entity"amended, and definition '1? income"

inserted by BR 34 / 2019 rug. 2 efiectfiye 22 February 2019]


Economic substance requirements

3 (1) In respect of each relevant financial period, an entity shall provide the following

information related to economic substance requirements—

(a) the nature and extent of the relevant activity engaged in by the entity

including, in particular, its core income generating activities undertaken

with respect to such relevant activity;

(b) the nature and extent of the entity‘s presence in Bermuda including—

(i) the physical offices or other premises occupied by the entity or its

affiliate in Bermuda; and

(ii) an adequate level of annual expenditure of the entity in Bermuda;

(c) whether the entity is managed and directed in Bermuda or from Bermuda,

having regard to—

(i) the location of strategic or risk management and operational decision-

making or where the management of the entity meets to make decisions

regarding business activities;

(ii) the presence of an adequate number of senior executives, employees or

other persons in Bermuda who are suitably qualified and responsible

for oversight or execution of its core income generating activities or

both;

(iii) the location—

(A) where the entity is a company, of its board meetings;

(B) where the entity is a limited liability company, of its managers‘

meetings;

(C) where the entity is a partnership, of its partnership meetings,

and the nature and frequency of those meetings held in Bermuda in

relation to the overall number of meetings;

(1) the nature and extent of outsourcing arrangements (if any) to affiliates or

service providers in Bermuda; and

(e) whether minimum economic substance requirements set forth in

regulation 4 apply with respect to the entity.

(2) For the purposes of paragraph (1)(d), an entity must provide information as to

whether—

(a) the employees or other persons in the entity who are responsible for, or

involved in, oversight and assessment of the implementation or execution

of such outsourcing arrangement—

(i) are suitably qualified and able to monitor and control the carrying out

of the outsourcing arrangement by the affiliate or service provider; and

(ii) monitor and control each outsourcing arrangement in order to ensure

that the outsourced entity has adequate capacity to execute the

outsourcing arrangement;

(b) the affiliate or service provider responsible for, or involved in, the

implementation and execution of such outsourcing arrangement—

(i) has adequate capacity for the implementation and execution thereof;

(ii) has employees who are suitably qualified to implement and execute the

outsourcing arrangement;

(iii) complies with the economic substance requirements that apply to the

outsourcing entity; and in respect of such compliance, employees,

expenditure and premises must not be counted multiple times by

multiple entities when evidencing such compliance.

(3) For greater clarity, an entity engaged in one or more relevant activities during

a relevant financial period shall comply with economic substance requirements in respect

of each applicable relevant activity.

[Regulation 3 amended by BR 34 / 2019 rug. 3 reflective 22 February 2019]


Minimum economic substance requirements

4 (1) Minimum economic substance requirements set forth in paragraph (2) shall

apply in relation to an entity if—

(a) the entity is a pure equity holding entity as set forth in regulation 14(2); or

(b) subject where applicable to regulations 7 and 8, the entity is a local entity.

(2) For the purposes of paragraph (1), minimum economic substance requirements

to be applied pursuant to this regulation are—

(a) compliance with applicable corporate governance requirements set forth in

the Companies Act, the Limited Liability Company Act 2016 and

Partnerships Acts including keeping records of account, books and papers

and financial statements; and

(b) submission of an annual economic substance declaration form.

[Regulation 4 amended by BR 34 / 2019 rug. 4 reflective 22 February 2019]

Substance test for economic substance requirements: core income generating

activities

5 (1) Where an entity engages in a relevant activity, economic substance

requirements shall be applied in relation to the core income generating activities of the

entity.

(2) To satisfy the economic substance requirements, the core income generating

activities of an entity with respect to a relevant activity must be undertaken in Bermuda.

(3) Where an entity outsources any or all of its core income generating activities

to an affiliate or service provider, core income generating activities so outsourced must be undertaken in Bermuda and the Minister shall take into account the outsourcing arrangement.

[Regulation 5 paragraph (3) amended by BR 34 / 2019 rug. 5 eflective 22 February 2019]

Exchange of information

6 (1) Subject to section 6 of the Act, the International Cooperation (Tax Information

Exchange Agreements) Act 2005, in particular, section 4A, and any agreement made under

that Act, information received by the competent authority for Bermuda under section 6 of

the Act shall be exchanged by way of the spontaneous exchange of information.

(2) For purposes of paragraph (1), spontaneous exchange of information means an

unrequested automatic exchange of information set forth in section 6 of the Act by the

competent authority for Bermuda with the foreign competent authority (as those terms are defined in the Act).


Non-IP Related Relevant Activities

Banking

7 (1) An entity engages in banking if it engages in deposit taking business for which a licence is required in accordance with the Banks and Deposit Companies Act 1999.

(2) The core income generating activities of an entity engaged in banking include

the following—

(a) raising funds;

(b) managing risk including credit, currency and interest risk;

(c) taking hedging positions;

(d) providing loans, credit or other financial services to customers;

(e) managing regulatory capital; and

(f) preparing regulatory reports.

(3) A bank that is licensed under the Banks and Deposit Companies Act 1999 complies with the economic substance requirements if it complies with the requirements applicable to the matters in section 3 of the Act and regulation 3 as set forth—

(a) in the Companies Act relating to corporate governance; and

(b) in the Banks and Deposit Companies Act 1999, regulations, rules and other instruments made thereunder.


Insurance

8 (1) An entity engages in insurance if it engages in business for which registration

is required in accordance with the Insurance Act 1978.

(2) The core income generating activities of an entity engaged in insurance include

the following—

(a) predicting and calculating risk;

(b) insuring or re-insuring against risk;

(c) providing client services; and

(d) preparing regulatory reports.

(3) An entity engaged in insurance activities complies with the economic substance

requirements if it complies with the requirements applicable to the matters in section 3 of

the Act and regulation 3 as set forth—

(a) in the Companies Act relating to corporate governance; and

(b) in the Insurance Act 1978, regulations, rules or other instruments (including the code of conduct) made under that Act.


Fund management

9 (1) An entity engages in fund management if it manages investments for funds and

in respect of which a licence is required in accordance with the Investment Business Act

2003 or for which a licence would be required if such activity were taking place in Bermuda.

(2) The core income generating activities of an entity that engages in fund

management include the following—

(a) taking decisions on the holding and selling of investments;

(b) calculating risk and reserves;

(c) taking decisions on currency or interest fluctuations and hedging

positions; and

(d) preparing relevant regulatory or other reports for government authorities

and investors.

(3) For the purposes of paragraph (1), “managing investments" has the meaning

given in the Investment Business Act 2003.


Financing and leasing

10 (1) An entity engages in financing if it provides funds, other than by way of

subscription for shares or other equity contributions, for the business activities of one or

more other entities (whether or not affiliated).

(2) The core income generating activities of an entity that engages in financing

include the following—

(a) agreeing funding terms;

(b) setting the terms and duration of any financing;

(c) monitoring and revising agreements; and

(d) managing risk associated with such agreements.

(3) An entity engages in leasing if it provides leasing arrangements in respect of

which it is the lessor of one or more assets leased to one or more affiliates or third parties.

(4) The core income generating activities of an entity engaged in leasing include

the following—

(a) identifying and acquiring assets to be leased;

(b) setting the terms and duration of any leasing;

(c) monitoring and revising agreements; and

(d) managing any risk associated with such agreements.


Headquarters

11 (1) An entity engages in business as a headquarters if the entity engages in the

general management and administration of its affiliates within or outside Bermuda.

(2) The core income generating activities of an entity engaged in business as a

headquarters include the following—

(a) taking relevant strategic or management decisions;

(b) incurring expenditures on behalf of affiliates; and

(c) coordinating group activities.


Shipping

12 (1) An entity engages in shipping if it engages in ownership, leasing, operation or

management of a ship that is used to transport goods.

(2) The core income generating activities of an entity engaged in shipping include

the following—

(a) managing the crew (including hiring, paying and overseeing crew members);

(b) hauling and maintaining ships;

(c) overseeing and tracking deliveries;

(d) determining what goods to order and when to deliver them; and

(e) organising and overseeing voyages.


Distribution and service centres

13 (1) An entity engages in business as a distribution centre if it engages in resale of

goods purchased from a foreign affiliate.

(2) The core income generating activities of an entity engaged in business as a

distribution centre include the following—

(a) transporting and storing goods; and

(b) managing stock and taking orders.

(3) An entity engages in business as a service centre if it primarily provides

consulting or administrative services to a foreign affiliate.

(4) The core income generating activities of an entity engaged in business as a

service centre include providing consulting or administrative services to a foreign affiliate.


Holding entity

14 (1) An entity engages in business as a holding entity if it engages in activities

including holding or managing any assets or equity participations.

(2) A holding entity is a “pure equity holding entity" where it only holds or manages

equity participations, and earns passive income from dividends, distributions, capital gains

and other incidental income only.

(3) A pure equity holding entity that is engaged in a relevant activity complies with

the economic substance requirements if the entity—

(a) complies with minimum economic substance requirements; and

(b) has adequate employees for holding and managing equity participations,

and adequate premises in Bermuda.

(4) For a holding entity that holds a variety of assets and earns different types of

income (such as interest, rents and royalties), the core income generating activities are

those activities that are associated with the income that the holding company earns.

[Regulation 14 revoked and replaced by BR 34 / 2019 rug. 6 effective 22 February 2019]

1? Related Relevant Activities


Intellectual property

15 (1) An entity engages in IP business if the entity engages in the exploitation of IP

assets (including non-trade intangible assets).

(2) For the purposes of paragraph (1), the core income generating activities

associated with an intangible asset will depend on the following—

(a) the nature of the IP asset, that is to say, whether it is a patent, technical

know-how, trademark, customer lists or brand or goodwill; and

(b) how the IP asset is being used to generate income for the entity.

(3) The core income generating activities for entities engaged in IP activities include

the following—

(a) conducting research and development in relation to IP assets, such as

patents;

(b) marketing, branding and distribution of non-trade intangible assets, such

as trademarks;

(c) taking the strategic decisions and managing and bearing the principal

risks related to the development and subsequent exploitation of an IP

asset;

((1) taking the strategic decisions and managing and bearing the principal

risks related to any third party acquisition and subsequent exploitation of

an IP asset; and

(e) carrying on the underlying trading activities through which IP assets are

exploited and which lead to the generation of income from third parties.

[Regulation 15 amended by BR 34 / 2019 rug. 7 effective 22 February 2019; Regulation 15 paragraph

(2) revoked and paragraph (3) renumbered as paragraph (2) by BR 34 / 2019 rug. 7 reflective 22 February

2019; Regulation 15 paragraph (2) sub-paragraphs (c) to (e) revoked by BR 34 / 2019 rug. 7 effective 22

February 2019; Regulation 15 revoked and replaced by BR 38 / 2019 rug. 2 reflective 4 March 2019]


Enhanced 1P economic substance requirements

16 (1) Where an entity engaged in IP business owns an IP asset that—

(a) was developed or created by the entity; or

(b) has been acquired from an entity other than an affiliate; and

(c) is licensed to an entity other than an affiliate, paragraph (2) applies.

(2) Where such entity‘s IP core income generating activities (as set forth in

regulation 15(3)(a) and (b)) are not undertaken in Bermuda during a relevant financial

period, it is presumed that the entity does not comply with economic substance

requirements, unless it is shown to the contrary that the entity—

(a) undertakes other core income generating activities associated with IP

income in Bermuda as demonstrated by—

(i) taking the strategic decisions and managing and bearing the principal

risks related to the development and subsequent exploitation of an IP

asset;

(ii) taking the strategic decisions and managing and bearing the principal

risks related to any third party acquisition and subsequent exploitation

of an IP asset;

(iii) carrying on the underlying trading activities through which IP assets

are exploited and which lead to the generation of IP income from third

parties; and

(b) has an adequate number of employees with the suitable qualifications who

reside and perform the IP related relevant activities and adequate premises

in Bermuda.

(3) An entity engages in high risk IP activities where the entity owns an IP asset

that—

(a) has been acquired from an affiliate or has been obtained through the

funding of overseas research and development activities; and

(b) is licensed to a foreign affiliate or is used to generate IP income through

activities performed by such foreign affiliate, and in such case, paragraph (4) applies.

(4) Where this paragraph applies, it is presumed (whether or not the entity‘s IP

core income generating activities as set forth in regulation 15(3) are undertaken in

Bermuda) that the entity does not comply with economic substance requirements unless it

is also shown to the contrary that—

(a) the entity satisfies the requirements set forth in paragraph (2)(a) and (b)

above; and

(b) the entity does not merely passively hold and generate IP income from IP

assets in Bermuda, but a high degree of control over the development,

exploitation, maintenance, enhancement and protection of the IP asset is,

and historically has been, exercised by an adequate number of employees

with suitable qualifications who reside and perform their IP related

activities in Bermuda as demonstrated by the following—

(i) a detailed business plan;

(ii) information demonstrating the presence of an adequate number of

employees in Bermuda during the relevant financial period who are

suitably qualified and are responsible for control and oversight or

execution of, and decisions in respect of, its IP core income generating

activities; and

(iii) such additional information as the Minister may reasonably require for

this purpose.

[Regulation 16 revoked and replaced by BR 34 / 2019 rug. 8 effective 22 February 2019; Regulation 16

amended by BR 38 / 2019 rug. 3 effective 4 March 2019]


Powers of Registrar regarding non—compliance With economic substance

requirements

17 For the avoidance of doubt, it is hereby declared that if it is determined that an

entity has failed to comply with economic substance requirements, the Registrar shall

exercise the powers by section 13 of the Act conferred on the Registrar for the purposes of

ensuring compliance with the Act, and such powers shall include the following—

(a) the issue, under the Registrar of Companies (Compliance Measures) Act

2017, of a notice to the entity to comply with economic substance

requirements;

(b) if the entity does not comply with the notice to comply referred to in

paragraph (a) or any further notice to so comply, the Registrar shall impose

a civil penalty under the procedure set forth in the Registrar of Companies

(Compliance Measures) Act 2017 with respect to each such failure; and

(c) where an entity's non-compliance with economic substance requirements

continues after the issue of a final notice to comply and the imposition of

a civil penalty under the Registrar of Companies (Compliance Measures)

Act 2017, the Registrar shall apply to the Court for—

(i) an order for regulation of the conduct of the affairs of the entity; or

(ii) an order restricting the entity from carrying on business, and a

direction to exercise the power conferred on him under the relevant Act

(as the term “relevant Act" is defined by the Registrar of Companies

(Compliance Measures) Act 2017), to strike-off the entity.


Commencement

18 These Regulations shall come into operation on 31 December 2018.

Made this 28th day of December 2018

Minister of Finance

[Operative Date: 31 December 2018]

[Amended by:

BR 34 / 2019

BR 38 / 2019]