Asset Holding Company Regime – A Jersey Perspective

While the driver of this regime is to promote the UK, it is noted that in order to qualify as an AHC, a company does not need to be a UK incorporated company.  To qualify as an AHC, a company must (amongst a number of other conditions) be UK tax resident but it can be a Jersey incorporated company.

We therefore expect to see funds and managers continuing to use Jersey incorporated companies for their AHCs under this regime with the following benefits:

• Familiarity and reputation of Jersey as a jurisdiction
• Flexibility of Jersey corporate law
• Advantages on an exit

Familiarity and reputation of Jersey as a jurisdiction

Jersey has an excellent reputation as a well-regulated and transparent international finance centre. It has robust anti-money laundering laws and has entered into over 30 Tax Information Exchange Agreements based on the OECD model.

In addition, Jersey has a world-class professional infrastructure with numerous law and accountancy firms and corporate service providers. Investors will find that they receive robust and expedient advice based on a high degree of expertise and deep and broad experience.

Most major UK, USA and EU financial institutions (including both clearing banks and alternate debt lenders (such as funds)) have knowledge of Jersey structures, meaning that the involvement of Jersey entities would not be a hurdle to overcome to obtain credit approval for financing.

The Security Interests (Jersey) Law 2012 (SIL) creates a modern, effective security regime permitting security interests to be created over present and future intangible moveable property in Jersey. Security can be easily taken, by way of a Jersey law security interest agreement, over (amongst other things):

• bank accounts maintained in Jersey;
• shares in a Jersey incorporated company;
• units in a Jersey property unit trust; and
• interests in a Jersey limited partnership.

SIL also makes available wide-ranging enforcement powers which provide lenders with a number of options upon any default in the financing arrangements (including both power of sale and power to appropriate).

Flexibility of Jersey corporate law

Jersey company law is very closely aligned to English company law and so there is a sense of familiarity in the constitution of a Jersey company and when navigating the legal framework of Jersey incorporated entities.

However, there are some key differences which can provide a number of advantages, being:

• a Jersey company may make distributions based upon a forward looking cashflow solvency analysis and is not restricted to making distributions out of accrued profits. This allows a Jersey company to still make distributions even where it has not yet accumulated profits or has accumulated losses;
• similarly, a Jersey company’s shares can be repurchased or redeemed out of any company account (including most capital accounts) based on a forward looking cashflow solvency analysis (in the form of a prescribed solvency statement from the directors) from the date the payment for the shares is proposed;
• shares can be denominated in any currency, which may be different from the functional currency used in the company’s accounts;
• Jersey law permits companies to issue shares either with a par value or with no par value. No par value companies can provide additional flexibility where needed (such as converting shares into different classes);
• capital contributions – where contributions from shareholders can be credited to share premium or stated capital accounts without the issue of further shares – are permitted;
• there are no restrictions under Jersey law on financial assistance in connection with the acquisition of shares in a Jersey company; and
• only public companies (or companies deemed by law to be public companies) are required to prepare audited accounts, unless the articles of association state otherwise. In addition, private companies are not required to publicly file their accounts.

Advantages on an exit

There is no stamp duty payable on a transfer of shares in a Jersey company and nor is any stamp duty payable upon the repurchases of share and loan capital.  This is a wider relief than proposed currently under the AHC regime.

As a further alternative to a traditional sale or transfer of shares, Jersey also has a statutory merger and de-merger regime.  Jersey companies are able to merge with one or more other companies (which need not be other Jersey incorporated companies) to form one successor company.  In addition, the de-merger regime, which was introduced in 2018, provides flexibility on how the assets and liabilities (and therefore the final structure) of the relevant company are to be dealt with upon the de-merger.  It is noted that the flexibility offered by the regime allows shareholders to be cashed out so may be used as a way to facilitate takeovers etc.

Companies are also permitted to continue (otherwise known as migrate or redomicile) into and out of Jersey whilst maintaining their corporate existence.  As the UK government is currently considering whether to permit companies to continue into the UK, this may create a further element of flexibility.

In the context of an IPO, a Jersey company can also issue uncertificated securities which can be traded electronically via CREST on exchanges that utilise that system (such as the LSE Main Market and AIM). Save for domestic UK companies, there are more Jersey incorporated companies trading on LSE and AIM than from any other jurisdiction.  Jersey companies can qualify for inclusion in the FTSE indices.

Conclusion

Jersey companies have always been a popular vehicle for acquisition and investment structures in respect of UK real estate and other assets.  For the reasons set out above, the use of Jersey companies should only increase under the AHC regime.

Our lawyers in Jersey provide a full range of legal services to a domestic and international client base and a broad range of sectors, advising them in relation to corporate & financial services, disputes, and property matters. We also provide legal advice in relation to private wealth and corporate trusts.

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