The Department for International Tax Cooperation (DITC) has extended the reporting deadline for the 2019 CRS Compliance Form to 15 September 2021.
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 relevant activities 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 an Entity Tax Entity Resident in Another Jurisdiction (TRO)
|28 February 2021|
|1 March 2020 – onwards||ES Return with Type Income:|
Relevant Activity – IP Business
|12 months after the period end date|
The Cayman Islands Monetary Authority
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.
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.
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. 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 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.
In light of the easing of restrictions in the Cayman Islands, persons can now 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.
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 regulations set out in some detail the requirements for a remote notarial act.
The regulations shall cease to have effect on 16 April 2022 or at such other date as Cabinet may appoint by Order.
The Property (Miscellaneous Provisions) (Amendment) Act came into force on 7 January 2021, providing for the virtual witnessing and attestation of required signatures for the execution of a deed or instrument under seal.
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.
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 – updated
Covid-19 has been very successfully controlled in Cayman with, among other measures, an extensive testing and contact-tracing regime. There are currently only 29 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 indoor public spaces are now limited to 500 persons (and 1000 persons for outdoor gatherings). 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).
Cayman’s vaccination rate per capita is ranked fifth in the world, according to a tally by the New York Times, updated 30 March 2021. As of 06 April 2021, 48% of the population had received at least one dose of the Pfizer-BioNTech vaccine and 32% had received the full two-dose course, according to the Cayman Compass.
Government officials have said that once 75-80% of the adult population has been vaccinated, Cayman could consider dropping its mandatory quarantine requirement for incoming travellers and safely reopen the borders.
There has 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 a quarantine period 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 22 March 2021, the quarantine period was reduced to 10 days (from 14 days) for those who have completed a valid vaccination program at least two weeks before travel, and where everyone in their quarantine group has also been vaccinated. A negative PCR test will still be required no more than 72 hours before departure. Travellers will be tested again on arrival and again before they can be released from quarantine.
Unvaccinated persons including children will still need to undergo a 14-day quarantine. Family members quarantining with the children would also need to remain in isolation for 14 days. 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.
By law, no one is permitted 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 penalties for breach of the regulations are serious, with a maximum of USD10,000 and imprisonment to two years.
Currently, the Port Authority of the Cayman Islands will remain closed to cruise ships until further notice.
The Port Authority of the Cayman Islands remains closed to cruise ships until further notice.
7. GLOBAL CITIZEN PROGRAMME
The Immigration (Transition) (Global Citizen Exemption) Regulations, 2020 provide that a person meeting certain qualifications may apply for the grant of a Global Citizen Certificate. Successful applicants (and their dependents) may 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. The programme has proved very appealing 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, which may in turn affect the ability of some entities to hold their board of directors meetings in Cayman. 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. Appleby considers it prudent for all entities in scope of the ES regime to carefully document their meetings and specify the challenges faced in addressing the “directed and managed” requirement.