BVI Amendments and Updates 2023

1. Is it necessary to provide supporting documentation with the annual return?

It is not necessary to provide supporting documents with an annual return.

This should not be confused with the accounting records that must be held by the company. In the case of accounting records, the registered agent must be aware of the address where they are held and the person who holds them.

2. When did the law (the amendment to the BVI Business Companies Act) regarding the requirement to file an annual return come into force?

January 1, 2023

3. As of when will it be necessary to file an Annual Financial Return?

As of 1st of January 2024. The actual due date will vary depending on the company’s financial year (i.e., some companies will have a financial year that runs with the calendar year, whereas others will not). Please contact OMC should you require further clarification.

4. Can OMC assist with the preparation of the annual return?

Yes, OMC Group offers this service. For further information please contact us at [email protected].

5. Is there a specific format for the annual return?

Yes, this can be downloaded here: BVI Annual Financial Return Form 2023.

6. What is the ‘financial period’ of a company?

This varies by company and is approved by the directors.
BVI registered agents must be informed of the relevant financial period (i.e., the dates of the beginning and end of a company’s financial period, which may be a calendar year, running from January to December, or may run from X month to X month during any given year).

7. Can the Company report the same fiscal or financial period in the Annual Financial Return that is shown on its Economic Substance statement?

Yes and should be approved by directors.

8. Should the financial period be included in the Memorandum and Articles of Association?

No.

9. Is it necessary to submit the details of the company’s financial period to the regulator?

Yes.

10. Does the exception referred to in the Act for a regulated company providing financial statements to the regulator apply only to regulated companies in the BVI?

Yes.

11. Does the exception referred to in the Law for companies that report tax returns and financial statements to the Internal Revenue Department (“IRD”) apply only to the BVI’s “IRD”?

Yes.

12. Which companies are exempt from filing an annual return?

• A publicly traded company.
• A company regulated by the BVI Financial Services Commission.
• A company that files its tax return with the BVI Internal Revenue Department.
• A company in the process of dissolution unless the annual return became due before the dissolution began.

13. What are the penalties for not filing the annual return?

USD $300.00 for the first month.

USD $200.00 for each subsequent month, up to a maximum of USD $5,000.00.

14. Must the registered agent provide a copy of the annual return to the regulator?

No, however, the Registered Agent is obligated to report companies that have not filed an annual return if there is a delay of over 30 days after its due date.

15. Do “struck off” companies need to file an annual return?

No.

16. Which companies are required to file an annual return? Does the fact that they have complied with the economic substance requirements affect this requirement?

No. All active companies must submit annual returns regardless of whether they have economic substance or not.

17. If a Company does not file an annual return, can it apply for a Certificate of Good Standing?

No.

1. Which are the “existing struck-off companies” under the amended BVI Business Companies Act?

An “existing struck-off company” is a company that was “struck off” by the BVI Registry before the entrance into force of the BVI Business Companies (Amendment) Act, on the 1st of January 2023.

2. When were “existing struck-off companies” that were not restored to good standing by the 30th of June 2023 considered dissolved?

Those companies were dissolved on the 1st of July 2023, when the “transitional provisions” expired. The transitional provisions gave companies that were struck off the BVI Register before the entrance into force of the BVI BC (Amendment) Act on the 1st of January 2023 a six-months’ grace period.

3. When will companies “struck off” on the 1st of May 2023, for non-payment of the annual license fee that was due in November 2022, be dissolved?

Those companies were dissolved on the 1st of May 2023.

4. Is it possible for an “existing struck-off company” to be restored to good standing after the 30th of June 2023?

Yes, it is possible by petitioning the Court following the new requirements.

5. When will first-period companies that have not paid their 2023 annual license fee be dissolved?

Those companies were dissolved on the 1st of November 2023.

1. What is the difference between a company that is automatically dissolved under the amendments to the BVI Business Companies Act vs. a company that is voluntarily dissolved?

If a company is voluntarily dissolved:
• A Certificate of Dissolution is issued by the Registry, which is often necessary if the company wishes to engage in future transactions or needs to provide a certificate of dissolution to third parties. (In the case of automatic dissolution of a company under the amendments to the BVI Business Companies Act, or because of a lapse of time after it was struck off the Register, no Certificate of Dissolution will be issued).
• The Company’s records will be in order.
• The Company will have formally ceased operations.
• The Company will have liquidated its assets, cancelled debts and outstanding obligations, and paid dividends where applicable.

1. How should an “Existing Struck-Off Company” be restored to good standing?

It is necessary to apply to the Court for the restoration of the company to good standing. Once the Court has issued the order for restoration, the outstanding license fees, surcharges, and restoration costs shall be paid to the Registry. The Court costs and lawyer’s fees shall also be settled.

2. Are there any fines when a “Existing Struck-Off Company” is restored to good standing via the BVI Court?
   

“Existing struck-off companies” that are not restored to good standing by the 30th of June 2023, will be fined USD$5,000, in addition to all other applicable restoration fees, penalties, legal fees, and Court costs. The law states that the penalty shall not apply if the application for restoration was made by a person other than a creditor, former director, former member, or former liquidator of the company.

3. How should a company that was dissolved after the 1st of January 2023 be restored to good standing?
   

It is important to consider the individual circumstances of each company to determine if it should be restored via the BVI Registry or via the BVI Court.

4. What are the conditions for a company to be restored to good standing via the BVI Registry?
   

• The company was operating when it was “struck off”.
• A registered agent has consented to act (as a registered agent) for the company.
• The registered agent shall issue a declaration that the records have been updated, in accordance with section 213 (3B) of the BVI BC Act. If the company held any property at the time of being “struck off” and dissolved, a statement of consent from the Financial Secretary authorizing the restoration, or a statement that no response to the petition has been received (from the Financial Secretary) must be provided.
• The company must have paid all outstanding fees for restoration and all applicable penalties.
• The Registry considers that it is just and reasonable to restore the company to good standing.

5. When shall a company be restored to good standing via the BVI Court?

• The company was “struck off” and dissolved following the completion or termination of its voluntary liquidation, or liquidation under the Insolvency Act;
• At the time of the dissolution, the company was not operating;
• The purpose of the restoration is to commence, continue, or discontinue, legal proceedings in the name of or against the company; or to make an application to recover property vested in the Crown; or
• In any other case in which the company could not be restored via the BVI Registry and the Court considers that it is just and reasonable to restore the company to good standing.

6. Is there a time limit for restorations?
   

Yes, 5 years as of the date of dissolution. This time limit is the same regardless of whether the company needs to be restored via the BVI Registry or the BVI Courts. Companies already dissolved on 1st of January 2023 may be restored to the Court 5 years from the 1st of January 2023.

1. What is the new procedure to continue a company under foreign law?
   

The new procedure is as follows.
• Shareholders and creditors must be notified in writing.
• A notice must be published in the BVI Gazette stating the intention of the company to continue as a company incorporated under the laws of a jurisdiction outside the BVI and especify the jurisdiction which it intends to continue.
• 14 days after publication of the notice (in the BVI Gazette)? the notice of intent to discontinue in the BVI must be filed in the BVI Registry.
• The company is registered in the new jurisdiction.
• The discontinuation of the company is registered in the BVI Registry.

1. When will the requirement to hold a Register of ‘Persons with Significant Control’ be implemented?

It is expected to be implemented by December 2023. We are awaiting notification from the BVI government.

2. Will the information contained in the Register of Persons with Significant Control be shared with the BVI Registry?

The regulations (regulations to the amended BVI BC Act)? will state whether the information contained in the Register of Persons with Significant Control will be available via the BVI Registry.

1. Who can apply to the BVI Registry for the list of directors of a BVI company?

Any person can apply to the BVI Registry directly and must pay the corresponding fee.

2. Is the list of directors of a BVI company the same as the Register of Directors of a BVI company?

No, the list of directors of a BVI company is an extract from the Register of directors of a BVI company.

3. What information is included in the list of directors of a BVI company available from the BVI Registry?

Only the names of the current directors of the BVI company, without any additional personal data (address, date of birth, place of birth, nationality, etc.).

4. What information is not included in the list of directors of a BVI company available from the BVI Registry?

The names and personal data of the previous directors of the BVI company.

1. Does a liquidator of a BVI company have to be resident in the BVI?

Yes.

2. What qualifications/experience must the liquidator have?

• Experience as a liquidator for a minimum of 2 years.
• Professional competence.
• Knowledge of the FSC and BVI Business Companies Act.

3. Can there be joint liquidators of a BVI company?

Yes, one of which must be a BVI resident .