On 2 November 2020 the Department for International Tax Cooperation (DITC) advised industry that the DITC Portal will open in early November 2020. Initially, the portal will be available for CRS and FATCA purposes, with functionality for Economic Substance and Country-by-Country reporting being launched in subsequent phases.
The DITC further advised that reporting deadlines for CRS & FATCA have been extended. The new reporting deadlines are as follows:
|New Entity Registration||16 December 2020|
|CRS Reporting & CRS Filing Declaration||16 December 2020|
|FATCA Reporting||16 December 2020|
|CRS Compliance Form||31 March 2021|
Questions relating to the DITC Portal, CRS & FATCA may be emailed to CaymanAEOIPortal@gov.ky.
On 12 November 2020 the DITC advised that the DITC Portal is open for CRS and FATCA reporting purposes, and functionality for Economic Substance reporting will be launched in the coming weeks.
On 11 January 2021, the DITC announced that reporting deadlines for Economic Substance (ES) have been further extended as outlined below. The revised reporting deadlines, which apply only for this first year, are as follows:
Period End Date (for purposes of the ES Return)
|31 December 2019 – 30 April 2020||ES return (all except IP Business)||30 April 2021|
|1 May 2020 – onwards||ES returns||12 months after the period end date|
|31 December 2019 – 29 February 2020||ES Return with Type Income: Relevant Activity – IP Business and Form for Entity Tax Resident in Another Jurisdiction||28 February 2021|
|1 March 2020 – onwards||ES Return with Type Income: Relevant Activity – IP Business and TRO||12 months after the period and date|
On 18 December 2020 the DITC issued the following advisories:
The deadline to submit a CRS XML Return for the 2019 Reporting Period has now passed and this functionality has been disabled on the DITC Portal. An Financial Institution (FI) whose Principal Point of Contact (PPoC) was unable to login and complete reporting prior to the deadline will not be automatically issued an Administrative Penalty, but will still be expected to submit a CRS XML Return for the 2019 reporting period by a date to be specified by the TIA upon re-enabling the CRS Reporting functionality in March 2021. Administrative Penalties will apply if the FI subsequently fails to submit reporting by that date.
Users will still be able to register new FIs on the Portal, complete AP/PPoC/Secondary User updates, submit the CRS Compliance Form, and submit FATCA XML Returns. The deadline to submit the CRS Compliance Form remains 31 March 2021.
The FATCA reporting functionality for the 2019 Reporting Period is still available on the DITC Portal. Any outstanding FATCA XML Returns are to be uploaded to the Portal as soon as possible. The DITC Portal will begin to accept FATCA XML Returns for the 2020 Reporting Period in March 2021.
Country-by-Country Reporting (CbCR)
As the CbCR Portal has been offline since 25 March 2020, it has not been possible for MNE Groups to submit notifications and reports to the DITC. The Portal will be reopened on 5 January 2021, and the new deadline for submitting notifications and reports for all entities defined below is 28 February 2021.
Key dates and obligations:
|5 January 2021||Cayman Islands CbCR Portal is reopened to permit Reporting Entities to make a CbCR Notification in respect of their Constituent Entities and to permit Reporting Entities resident in the Islands to make a CbC Report.|
|28 February 2021||Deadline for Constituent Entities, where their Reporting Entities are resident in the Islands, to make the CbCR Notification for all Constituent Entities resident in the Islands for those MNE Groups with a Fiscal Year which ends on or before 28 February 2020. Deadline for Reporting Entities resident in the Islands to make the CbC Report for their MNE Groups for any Fiscal Year that ended on or before 28 February 2020 (otherwise, the deadline for reporting in respect of any subsequent Fiscal Year is within 12 months of the end of that relevant Fiscal Year).|
Outsource Service Providers
On 26 November 2020 the DITC advised the DITC Portal is open for registration of outsource service providers (OSPs). OSPs should register in order for the Cayman Islands Tax Information Authority to consider the OSP’s services, provided to any relevant entity, in the assessment of whether that entity has satisfied the economic substance test (ES Test) under the International Tax Co-operation (Economic Substance) Act (2020 Revision).
While there is no fixed date for the filing of this form, it should be filed by the OSP before an economic substance return is made which claims outsourcing of core income generating activities to the OSP. Where the OSP is not registered, the outsourcing claim made by the relevant entity cannot be considered when assessing whether that entity has satisfied the ES Test.
OSPs who provide services to pure equity holding companies only are not required to register.
Economic Substance Notification
On 26 November 2020 the DITC also confirmed that entities are now able to submit economic substance notifications (ESNs) for the financial year commencing in 2020. This notification is required as a prerequisite to filing an Annual Return and will be due annually. The ESN is based on the financial year of the entity and not the calendar year.
The submission window for the financial year commencing in 2021 is also now available on the DITC Portal to facilitate entities who wish to file their ESN in advance of dissolving / winding up during the financial year which commences in 2021.
BENEFICIAL OWNERSHIP FILINGS
On 20 April 2020, the Ministry of Financial Services & Home Affairs (MFS) issued an Industry Advisory notifying that future submissions are required to capture the new legal definition for “beneficial owner”. Effective 15 May 2020, a beneficial owner under the Companies Act and the Limited Liability Companies Act is one who holds ‘25% or more’ (rather than ‘more than 25%’) of the shares or voting rights in a company.
On 30 April 2020, the MFS issued a notice advising that the MFS and its related entities had instituted a number of changes to increase efficiency of their operations to better support the work of the financial services industry in the midst of the COVID-19 pandemic. Most of the changes can be seen in the registration of company details with the Registrar of Companies and the filing of intellectual property through the Cayman Islands Intellectual Property Office. Both sections of the General Registry department increased the amount of staff able to work remotely.
On 15 July 2020, the Cayman Islands Government published a statement on beneficial ownership. Read the full statement here.
ANNUAL FEE PENALTY
Companies and exempted liability partnerships that failed to file their annual returns and/or pay their annual fees by the 30 June 2020 deadline are subject to penalties as of 1 July 2020. The penalty fee in effect will be 33.33% of the annual fees due. All companies would be subject to the penalty, including limited liability companies and foundation companies.
The Cayman Islands Monetary Authority – UPDATED
On 1 April 2020, the Cayman Islands Monetary Authority (CIMA) issued a notice (the contents of which are set out below) inviting banking licensees, particularly those providing essential retail services to the local community, to contact CIMA should there be any specific regulatory issues or circumstances that CIMA can assist with, including assistance with regulatory ratios, filing requirements or other regulatory matters, all of which will be considered on a case by case basis.
CIMA appreciates that licensees and registrants may experience challenges as a result of disruptions to normal business operations during these unprecedented times. Therefore, CIMA wishes to invite banking licensees, particularly those providing essential retail services to the local community, to contact them should there be any specific regulatory issues or circumstances that they can assist with. This may include assistance with regulatory ratios, filing requirements or other regulatory matters, all of which will be considered on a case by case basis. Requests or enquiries should be sent via email to Head of Banking Supervision Division, Mrs. Gloria Glidden at GloriaGlidden@cima.ky , copying Managing Director, Mrs. Cindy Scotland at CindyScotland@cima.ky and Deputy Managing Director – Supervision, Mrs. Anna McLean at AnnaMcLean@cima.ky .
In the face of this pandemic, CIMA will continue to remotely engage and consult with industry representatives to provide aid and regulatory forbearance to licensees wherever possible.
Other measures undertaken by CIMA to assist the financial services industry thus far include extensions for filing regulatory returns, waived fees for such filing extensions and acceptance of alternatives for notarised documents.
On 21 April 2020, CIMA also issued an advisory to assist regulated entities with AML/CFT compliance during COVID-19. It included helpful guidance on matters such as possible threats and vulnerabilities and how entities may verify information (both at the time of establishing relationship or as a part of ongoing customer due diligence) whilst observing curfew, social distancing or self-isolation.
In keeping with the overall uptick in cybercrime during COVID-19, on 2 June 2020 CIMA warned of fraudulent emails in circulation purporting to be from CIMA. The emails contain the subject “CIMA – Due Diligence & Questionnaire Request”. Recipients are advised not to click on any links or attachments within such emails. Further details are set forth in the notice attached here.
On 26 June 2020, CIMA published a notice advising of its soft re-opening. The notice followed the announcement made by the Cayman Islands Government on 17 June 2020 regarding the safe reopening of businesses. CIMA has taken preliminary steps in transitioning back to its main offices at Cricket Square, George Town, Grand Cayman. Those offices are now open with appropriate protocols in place. Read the full notice, including details of those protocols here.
In lieu of a notarised affidavit, CIMA will accept written confirmation from an operator of a fund, applying to be registered/licensed pursuant to the Mutual Funds Act or Private Funds Act, authorising the registered office or other service provider to file the fund’s registration/application on behalf of the operator. CIMA will accept uncertified resolutions that confirm the de-registration/cancellation date of a fund.
Private funds (as defined in the Private Funds Act) are generally required to file their audited accounts and annual return for the 2020 financial year with CIMA within six months after their fiscal year end. On 22 July 2020, CIMA published a notice advising that private funds with a fiscal year end falling between 7 February 2020 to 31 July 2020 would be granted an additional three months in which to file this documentation.
On 7 August 2020, the transition period for the registration of private funds that were in existence prior to 7 February 2020 ended. For more information on the Private Funds Act, 2020 (as amended), see Appleby’s latest article on the subject here.
On 15 January 2021 CIMA issued a Supervisory Circular reminding entities of the registration/notification requirements under the Virtual Asset (Service Providers) Act, 2020 (VASP Act).
To comply with registration/notification obligations under the VASP Act, all New Market Entrants, Pre-Existing Service Providers and Other Authorized Entities (as defined in the Supervisory Information Circular issued on 30 October 2020) are required to complete the following Forms via CIMA’s Regulatory Enhanced Electronic Forms Submission (REEFS) platform.
- VASP Registration Process — APP-101-84 (the Registration/Notification Application); and
- AML/CFT Inherent Risks – Virtual Asset Service Provider – AIR 157-84 (the Inherent Risk Form).
The Registration/Notification Application and the Inherent Risk Form must be submitted on or before 31 January 2021. Entities providing virtual asset services that fail to be registered with or provide notice to CIMA on or before 31 January 2021, in respect of the conduct of virtual asset services, will be in breach of the VASP Act as of 1 February 2021; and consequently, must cease the conduct of virtual asset services. Failure to do so, may result in enforcement measures being taken by CIMA.
You can find more information on CIMA’s latest developments here.
Ministry of Financial Services & Home Affairs
On 16 April 2020, the MFS issued a Q&A relating to its operations during COVID-19.
On 22 August 2020, the Cayman Compass reported that the General Registry would resume certain services for the public at its Government Administration Building counter on 24 August 2020. With social distancing (six feet) and hygiene protocols encouraged, members of the public are able to file in person on the public records register (under the Public Recorder Act) documents such as deed polls, promissory notes, bills of sale and debentures.
This Bill, gazetted on 6 November 2020, seeks to amend the principal Law to provide for the virtual witnessing and attestation of required signatures for the execution of a deed or instrument under seal. At least for the period from the commencement of the Law until 16 April 2022 (or such other date as may be appointed by Cabinet by Order), a deed or instrument could be signed in the virtual presence of a witness.
The Chief Justice has issued a practice direction that formalises the e-filing that had been introduced as a response to the difficulty of paper filings. The direction provides for the court file to exist in electronic form and for documents to be sealed using an electronic, digitally certified seal. The electronic file and seal have the same status as their hard copy counterparts. The practical importance of this is that it allows originating process, such as writs and petitions to be validly issued in electronic form at a time when paper filing is not possible. It prevents the legal process being stymied by an inability to complete the formality of issuing using paper filing.
It is expected that the system will become the new norm and that paper filing will become redundant before long.
The Chief Justice has also issued a practice direction giving guidance on the remote notarisation and attestation of documents and the administering of oaths by electronic means. This is to be read in conjunction with enabling regulations made on 17 April 2020. The practice direction identifies the formalities that must be satisfied regarding presence in the Islands, the transmission of documents, the recording of the notarial act and identification. The practice direction also applies to attestations by Justices of the Peace. While the immediate spur to pass these measures was the need for social distancing, it is clear that the measures will remain in place after the threat of COVID-19 has passed, promoting the efficient transaction of business long into the future.
The Courts resumed all services and public attendance at the Court on 7 July 2020, subject to social distancing regulations and limitations on public gatherings. The Courts Office continues to accept filings electronically, but with an undertaking that the documents being filed are the final versions to be filed with the Courts. However, the Courts Office now also permits in-person filings at the counter. On-line payments must be made in the case of on-line filings and in-person filings must be accompanied by payment in cash or by credit card. Court searches should continue to be done on-line, but if there is an absolute need for an in-person search, appointments can be scheduled through the Supervisor of the Civil Registry. Affidavits that are filed electronically must now be fully sworn.
The Cayman Islands Judicial Administration announced on 10 September 2020 that, in light of the lifting of many COVID-19 restrictions, as of 14 September 2020 the registries will be open to the public from 9:00 am to 1:00 pm daily. All applications and payments are to continue to be made on-line (hard copy hearing bundles will still be accepted if the Judge hearing the case requires it). All documents filed electronically should not be delivered in hard copy at this time until specifically requested by the Courts.
The Cayman Islands Judicial Administration announced in late July that, in keeping with its push for continuity of service through electronic means, it had made available to members of the public, as of 22 July 2020, access to the public registers via its website. Upon registration, full access is available to all registered users.
On 17 April 2020, the Registrar of Lands issued a notice advising of the availability of an updated Statutory Declaration to be completed by attorneys at law in private practice, an employee undertaking lodgments on behalf of a Class A Bank, and the Credit Union. The amendment will allow submission of documents currently being held by another private practice attorney, Class A Bank or the Credit Union which will allow a number of essential transactions to proceed.
The Registrar noted: “For the protection of all the parties, including the Office of the Registrar there must be delivery of the executed instruments. The proposal would allow constructive delivery between attorneys and the financial institutions, so that the attorney submitting the instruments can demonstrate or confirm that the transaction was validly executed and is being treated as delivered on the basis that it will be physically delivered to the submitting party immediately after the Land Registry re-opens.”
As of 19 May 2020, Lands & Survey implemented a DropBox Facility for document registration at the Cayman Islands Government Administration Building. However, with Government’s easing of restrictions, persons can now once again file their documents and pay their fees in person at the counter. Lawyers and banks may still pay fees by domestic transfer (it is not an on-line facility as such), but hard copies of the registerable documents are required to be delivered to the Registry.
The Passport and Corporate ServiceS Office
The Passport and Corporate Services Office is accepting documents for legalisation/apostille purposes. Normal services have been restored.
A Notary will still be required to sign and seal documents, and affix the commission date stamp as usual, ensuring that the Notary’s name is legible. No express service will be offered with this provisional system.
Regulations were gazetted on 17 April 2020 to allow a notary public to use, on prescribed conditions, “communication technology” to carry out virtually a notarial act, such as witnessing the execution of a document by a “remotely located individual” (who must demonstrate that he or she is physically situated in the Cayman Islands).
The term “communication technology” is defined to mean “any electronic device or process that facilitates communication of visual images and audio in real time between a notary public and a remotely located individual, including a remotely located individual who has visual, hearing or speech impairment”.
A “remotely located individual” means “an individual who is not in the physical presence of the notary public who is required to perform a notarial act under the Law”.
Under regulation 3, of the regulations, notwithstanding any requirement under any other acts, a notary public may, subject to the conditions set out in regulation 4, use communication technology to carry out virtually:
- any of the notarial acts listed in Schedule 5 to the Notaries Public Act; or
- any act that is required to be performed by a notary public under any acts including the provisions of any treaty or convention and any protocol to such treaty or convention that is applicable to the Cayman Islands.
A notary public who uses communication technology to
- administer an oath shall record, or cause to be recorded, the performance of the notarial act; and
- perform an act under regulation 3 other than the act of administering an oath, may, upon prior notification of the remotely located individual, record, or cause to be recorded, the performance of the act.
A notary public may repeat the notarisation of a relevant document in relation to which notarial acts were performed where the notary public receives the relevant document together with a copy of the notarised document within 30 days after the date of execution.
A notary public who becomes aware that a notarial act was not performed in compliance with the regulations must, within three days of becoming aware of the non-compliance, notify the Clerk of the Grand Court in writing of that fact and provide the Clerk with details of non-compliance. The appointment of a notary public who fails to so inform the Clerk may be suspended immediately.
Contravention of the regulations constitutes an offence that, on summary conviction, may attract a fine of $1,000 or imprisonment for a term of six months or both.
The regulations shall cease to have effect on 16 April 2022 or at such other date as Cabinet may appoint by Order.
ApplebY advises on neW recovery fund foundation
Appleby has recently advised on the structuring of a new Cayman Islands foundation company established to manage a private sector-led recovery fund to assist the Cayman Islands in the wake of the COVID-19 pandemic. The fund received an initial injection of $1 million, a personal donation from Cayman businessman, Mr. Kenneth Dart. The fund will be managed by the newly established foundation known as R3 Cayman Foundation. The goal of the fund, as listed by the foundation, is to “support readiness, relief and recovery efforts in the Cayman Islands in response to emergencies and disasters, such as but not limited to the COVID-19 pandemic”. Following its establishment, R3 Cayman Foundation was registered as a non-profit organisation.
2. Can searches be conducted?
The Cayman Online Registry Information Service (CORIS) is the main means of obtaining publicly available information about exempted limited companies, LLCs and exempted limited partnerships. It is an electronic register and its functionality has not been affected by measures put in place to deal with COVID-19.
Court searches involve the inspection of the register of writs and originating process and the register of judgments. The Cayman Islands Judicial Administration recently launched an online platform for performing these searches and these searches are not affected by COVID-19.
3. Certificates of good standing – if and how these are being ISSUED
Certificates of good standing are being issued by the Registrar of Companies within normal processing timeframes.
4. Other searches – how are these being conducted?
Land Registry searches can be conducted electronically by those with subscriptions to the online search service. Personal searches at the Registry are also an option, although this is not in practice the way the legal profession conducts searches. These searches may now be conducted by email in order to avoid unnecessary face to face contact.
5. Court sessions and position (including filings and hearings)
The Chief Justice has made two practice directions to facilitate remote hearings. These remove restrictions on holding trials by video, remove the requirement for parties to attend the courtroom in person and enable greater use of paper only hearings. The practice direction also explains what has to be done to satisfy the need for hearings to take place in public when they are taking place entirely online. A recording must be made of the hearing and the recording must be placed on the Judicial Administration website. The Court of Appeal’s most recent session has been successfully held with the Justices of Appeal presiding from their homes in the UK. The Financial Services Division and other civil courts have carried on their business using technology to hold remote hearings at which there is no appearance in person. The Courts resumed all services and public attendance at the Court on 7 July 2020, subject to social distancing regulations and limitations on public gatherings.
6. Any travel restrictions
COVID-19 has been very successfully controlled in Cayman with, among other measures, an extensive testing and contact-tracing regime. There are currently only 45 known active cases of COVID-19 (all arriving travellers, isolated in government quarantine facilities or other approved form of isolation). As a result, restrictions for suppressing COVID-19 are now minimal and, aside from the tourism/travel/hospitality sector, life in the Cayman Islands has mostly returned to normal. Generally, permitted gatherings in public spaces are now limited to 500 persons. Social distancing is no longer mandated and face masks are now only mandatory where required by the Medical Officer of Health or by the owners or operators of certain facilities (e.g. health care or residential home care facilities and airports). Starting on 1 October 2020, the borders are being reopened cautiously, in phases, to protect these hard-earned gains.
There has now been a soft reopening of Cayman’s international airports with approved passengers (having applied for and received travel approval from the Cayman Islands Government via its Travel Time website prior to travel) required, on arrival, to spend 14 days either (a) in isolation at home or another approved location, wearing an electronic monitoring device (on a wristband); or (b) in a Government quarantine facility, at their own expense. On day 15, they will be tested for COVID-19 and will be released from isolation or quarantine if they test negative (test results are typically returned within 24 hours). Anyone who has not obtained the Government pre-approval for entry will not be permitted to board the inbound flight. Government anticipates that during the first phase of reopening, flights will be carried out only by British Airways (London), Cayman Airways (Miami, Kingston and La Ceiba) and approved private charters.
Repatriation flights continue to operate on an ad-hoc basis and the air bridge between the UK and the Cayman Islands remains open. The latter has now been replaced with regularly scheduled British Airways flights (currently, one flight per week). The Control of COVID-19 (No. 2) Regulations, 2020, established the monitoring regime applicable to those who, upon arrival in the Cayman Islands, choose isolation at home or another approved location over quarantine in a Government facility. Every person arriving in the Islands, will be required to complete a medical and travel questionnaire in respect of that person or his or her dependents and to undergo a medical examination if the customs and border control officer considers that a medical examination is necessary. By law, no one is permitted to visit or permit a person to visit a place or facility of quarantine or isolation other than the Medical Officer of Health, a person designated by the Medical Officer of Health for the purposes of surveillance or management of a person in quarantine or isolation, or any person who has the written permission of the Medical Officer of Health or a person designated by the Medical Officer of Health.
Currently, the only additional categories of persons (beyond Caymanians, permanent residents, work permit holders and their families) allowed to enter the Cayman Islands are homeowners, students holding a valid visa to study in the Islands and persons with close family ties to residents or work permit holders. Inbound travelers who are not Caymanian or Cayman Islands residents will be required to confirm that they (a) have a valid health insurance policy that includes coverage for COVID-19; or (b) understand the financial risks they are taking and that they have independent means to cover their medical costs.
The regulations state that any person who contravenes certain of its provisions (including the requirement to isolate or go into quarantine on arrival and follow the directions of the Medical Officer of Health) commits an offence and is liable on conviction to a fine of USD1,000 and to imprisonment of six months. On 21 September 2020, the Public Health (Amendment) Bill, 2020 was gazetted. If it is enacted as drafted, the fine could be increased to USD10,000 and imprisonment to two years.
Currently, the Port Authority of the Cayman Islands will remain closed to cruise ships until some time next year.
7. GLOBAL CITIZEN PROGRAMME
Government previously announced that it was drafting a “global citizen” programme that would allow foreigners to apply for permission to reside in the Cayman Islands for a limited period. On 16 October 2020, the Immigration (Transition) (Global Citizen Exemption) Regulations, 2020 were gazetted. They remain in effect until 30 November 2023 (unless extended to a later date by Cabinet). A person meeting the qualifications set out in the regulations may apply for the grant of a Global Citizen Certificate that would allow the successful applicant (and any dependent named in that certificate) to reside in the Cayman Islands for a period of up to 24 months under an exemption from the immigration and work permit requirements that would otherwise apply under Cayman’s immigration legislation. The applicant must be employed abroad and must not offer any goods or services to any person or entity in the Cayman Islands. Accordingly, we expect the programme to appeal to digital nomads who can work remotely. The deadline for making the application is 31 October 2021 (or, if the regulations are extended, no later than two years before the new expiration date of the regulations). For the full text of our eAlert on this topic, click here.
8. Implications for economic substance compliance and residency
With respect to economic substance (ES) requirements, the DITC has acknowledged that COVID-19 may impact travel in 2020, which may in turn affect the ability of some entities to hold their board of directors meetings in Cayman during the year. The DITC has noted that the “directed and managed” requirement is only one element of the ES test, and whilst travel restrictions may be taken into consideration on a case-by-case basis when determining whether an entity has passed or failed the ES test, the DITC has been clear in pointing out that this consideration would impact on 2020 reports, which are due in 2021.
On 13 July 2020, the Tax Information Authority released long-awaited ES Guidance Notes version 3.0. Read more here.
On 11 August 2020, the International Tax Co-operation (Economic Substance) Regulations, 2020 came into force. The regulations prescribe information to be filed annually under section 7(4)(k) of the International Tax Co-operation (Economic Substance) Act (2020 Revision). A copy of the new regulations is available here.