Contributed By Marjorie Rawls Roberts PC
The legal system of the United States Virgin Islands (USVI) is, in most respects, similar to the legal systems of the fifty states of the United States of America. Federal sources of law, such as the Constitution of the United States, statutes enacted by the US Congress, regulations promulgated by US administrative agencies, and executive orders issued by the President of the United States are generally applicable in the USVI. However, because the USVI is an unincorporated territory of the United States, Congress may vary the applicability of most federal laws in the USVI in a way that deviates from the 50 states. For example, the USVI constitutes a separate customs zone with different tariff rates from the rest of the United States (based on the Danish customs law in effect when the United States purchased the USVI from Denmark in 1917) and Congress has authorised unique variations in the federal income tax laws in the USVI that differ from the uniform federal income tax laws in the 50 states.
Congress has, through the Revised Organic Act of 1954 (as amended) and its predecessor organic acts, also established a territorial government for the USVI that includes a locally elected governor, a locally elected unicameral legislature, and locally created administrative agencies (as well as a judicial system discussed below). The Virgin Islands Legislature is composed of fifteen senators serving two-year terms (seven elected from St. Croix, seven from St. Thomas and St. John, and one elected at large) and may enact general statutory laws for the territory (subject to the veto of the governor) to the extent they do not conflict with federal law. The legislature may also grant rule-making authority to the executive agencies and the governor has the power to issue executive orders.
Also, like most of the 50 states, the USVI follows the common law tradition in which judge-made case law informs legal decision-making through the application of analogical reasoning to precedential judicial opinions. Historically, the Virgin Islands judiciary tended to follow the common law as outlined in the Restatements of the Law (treatises published by the American Law Institute) but has embarked on a more independent common law path in the past decade.
The judicial system in the USVI comprises both federal and territorial courts. The jurisdiction of the federal District Court of the Virgin Islands is substantially similar to the federal district courts in the fifty states. The District Court is a trial court and hears cases involving federal law, cases in which the parties are from diverse jurisdictions, and cases in which the United States is a party (including criminal cases prosecuted by the local United States Attorney as well as civil cases). However, because Congress established the District Court of the USVI pursuant to its authority under Article IV of the US Constitution (which concerns, among other things, regulation of US territories) rather than Article III (which concerns the federal judiciary) there are some important differences between the District Court of the USVI and federal courts in the 50 states.
For example, the District Court has exclusive jurisdiction over questions of income tax in the USVI and may preside over some criminal cases based on local territorial law. Furthermore, District Court judges are only appointed to ten-year terms rather than life terms (as in the fifty states). Judges of the District Court of the USVI are appointed by the President of the United States with the advice and consent of the US Senate. Decisions of the District Court of the USVI are appealable to the US Court of Appeals for the Third Circuit (headquartered in Philadelphia, Pennsylvania) and, ultimately, to the Supreme Court of the United States.
In parallel with the federal District Court, there is a two-tier territorial judiciary. The Superior Court of the USVI is the trial court of general jurisdiction that presides over both criminal and civil cases, appeals from territorial administrative agencies, and has a specialised division for family cases, including juvenile matters. The Superior Court also has a magistrate division that presides over probate matters, landlord-tenant disputes, small claims, traffic violations, and certain misdemeanours.
Decisions of the Superior Court are appealable to the USVI Supreme Court. Judges of the Superior Court and the USVI Supreme Court are appointed for limited terms by the Governor of the USVI with the advice and consent of the USVI Legislature. Decisions of the USVI Supreme Court are also appealable to the Supreme Court of the United States.
The USVI is part of the United States so that Federal statutes governing foreign investment in the United States, such as the Foreign Investment Risk Review Modernization Act of 2018 and the Regulations promulgated thereunder apply in the USVI.
Further, the USVI is included within the definition of “United States” in the United States’ extensive network of Treaties of Friendship, Commerce, and Navigation and Bilateral Investment Treaties, officially known as Treaties Concerning the Encouragement and Reciprocal Protection of Investment. These treaties provide a number of important benefits, most notably protection in the case of expropriation. The US International Trade Administration lists Bilateral Investment Treaties currently in force between the United States and 39 countries including by way of illustration treaties with Argentina, Bolivia, Jordan, Lithuania, Rwanda, Sri Lanka, and Turkey.
In addition, the International Trade Administration lists six treaties that have been concluded but have not yet entered into force. In contrast, the USVI is not included in the United States’ network of income tax treaties (nor are other US territories) but is not able to enter into its own tax treaties. The USVI is included in the United States’ agreement for the exchange of information relating to taxes.
Legislating Foreign Investment
Regarding foreign investment in the USVI, the USVI does not have separate legislation or other rules limiting foreign investment in the USVI. In fact, the USVI has enacted a number of economic incentive programs to attract investment in the USVI, and these programs specifically encourage investment by foreign investors. By way of illustration, the USVI’s Economic Development Commission (EDC) program, which provides an effective tax rate on corporations of 2.31% on USVI source and effectively connected income and a withholding rate of 4.4% on dividends to foreign corporations, provides that a qualifying corporation must “be either incorporated under the laws of the Virgin Islands with its principal place of business in the Virgin Islands or under the laws of the United States, a state, territory, or commonwealth thereof, or a foreign country, and be duly registered to conduct business in the Virgin Islands”. Foreign investors under the EDC program do not have special commitments that they must make due to their foreign status, but every recipient of tax incentives must commit to certain capital investment and employment requirements.
Also, foreign investors in USVI real estate are subject to the Foreign Investment in Real Property Tax Act of 1980, which is codified in Sections 897 and 1445 of the Internal Revenue Code of 1986, as amended, as applicable to the USVI (“Code”). This statute imposes a withholding tax of 15% on the disposition of a USVI real property interest by a foreign person unless one of several statutory exceptions applies such as that the property is not being sold for a gain.
Finally, on 8 December 1986, the USVI legislature enacted the exempt companies’ legislation, which subsequently went into effect on 24 February 1987, upon the signing of the Tax Implementation Agreement Between the United States of America and the US Virgin Islands. On August 17, 1993, then-USVI Governor Alexander Farrelly signed into law the Exempt Company Amendments Act of 1993, which made significant changes to the USVI exempt companies’ legislation to enhance the use of exempt companies by foreign investors.
USVI exempt companies offer many of the benefits of other offshore jurisdictions’ international business companies but with the added advantages of US flag protection, access to US courts, non-coverage of the Common Reporting Standard (CRS), and the ability to obtain an “N” registration number from the US Federal Aviation Administration (FAA) for foreign-owned aircraft.
A USVI exempt company offers foreign investors substantial tax benefits. An exempt company is effectively exempt from tax on all income except for income derived from US sources and effectively connected with a US trade or business. A USVI exempt company is exempt on interest income received on deposits with banks or savings institutions located in the USVI or abroad, as well as on amounts held by an insurance company under an agreement to pay interest on the amounts.
A USVI exempt company is also exempt from tax on dividends and interest received from another exempt company and on gains or losses from the sale, exchange, or other disposition of the stock of another exempt company. Moreover, a USVI exempt company is exempt from all local USVI taxes, including the USVI five percent gross receipts tax. Shareholders of a USVI exempt company are not subject to any withholding tax, which is otherwise imposed at a 10% rate (for individual shareholders) or 11% (for corporate shareholders).
Stock held by a nonresident alien individual in a USVI exempt company is not subject to Federal estate tax or to USVI inheritance tax so that use of a USVI exempt company can be an important estate planning tool for foreign individuals. Such individuals can place their worldwide assets in a USVI exempt company to obtain the many benefits such an entity provides without subjecting those assets to any estate tax liability.
A USVI exempt company’s tax benefits are guaranteed under a 20-year contract between the exempt company and the USVI government. The contract is signed by the Lieutenant Governor of the USVI, who also has authority over the USVI Division of Corporations & Trademarks. A beneficiary under the USVI’s EDC program must apply for benefits as discussed in in 5.3 Available Tax Credits/Incentives.
USVI exempt companies are subject to annual filing requirements with the Office of the Lieutenant Governor, Division of Corporations & Trademarks, and are required to pay an annual franchise tax. A beneficiary under the USVI’s EDC program must meet certain commitments as set out in 5.3 Available Tax Credits/Incentives.
USVI exempt companies provide foreign investors with access to the US court system for dispute resolution. The USVI District Court has full jurisdiction like any US district court and operates under the same rules of procedure that apply to any US district court in the 50 states. Further, a beneficiary under the USVI’s EDC program can request reconsideration of the EDC’s decision if it does not approve the grant of benefits and can also request a modification or waiver if factors change.
The USVI provides many options when choosing to form a legal entity within the jurisdiction. Those include: Corporations, Limited Liability Companies, and Partnerships, including General Partnerships, Limited Partnerships, Limited Liability Limited Partnerships, and Limited Liability Partnerships.
Limited Liability Company
The most commonly formed entity in the USVI is the Limited Liability Company (LLC). The USVI has adopted the Uniform Limited Liability Company Act (the “LLC Act”) and the formation and governance of an LLC is similar to that imposed in the 50 states and the District of Columbia. An LLC is formed upon filing Articles of Organization with the Office of the Lieutenant Governor of the USVI, Division of Corporations & Trademarks (the “Division”), and requires at least one member, and may be structured as member-managed or manager-managed. The minimum capital required for an LLC to conduct business in the USVI is USD1,000.
LLCs must file an Annual Report with the Division and pay an annual franchise tax to the Division, which is set at a statutory minimum of USD300 per year. LLCs provide limited liability to its members and managers. Thus, a member or manager is not personally liable for any debt, obligation, or liability of an LLC solely by reason of being or acting as a member or manager.
The LLC is well-suited for a wide range of business activities and provides its members with flexibility in governance. For example, LLCs do not require mandatory annual meetings, the appointment of directors or officers, and, other than certain statutory fiduciary duties (duty of loyalty, duty of care, the obligation of good faith and fair dealing, and access to books and records), an LLC’s operating agreement may differ from the provisions found in the LLC Act.
Partnerships are another entity form often utilised in the USVI. The USVI has adopted the Uniform Partnership Act and the Uniform Limited Partnership Act. The most common forms of partnerships used in the USVI are Limited Partnerships (LPs) and Limited Liability Limited Partnerships (LLLPs), both of which are subject to the Uniform Limited Partnership Act. All partnerships require at least two partners and, similar to LLCs, partnerships provide governance flexibility in that there are no statutory meeting requirements, and appointment of directors and officers is not required.
Limited partnerships and limited liability limited partnerships
The business and affairs of an LP and an LLLP are controlled by a general partner, whereas the limited partners are passive investors and do not have rights in the management and control of the business operations of the partnership. With an LP, the general partner has unlimited liability and, so long as they do not engage in management and control of an LP, the limited partners have limited liability and are not liable for the debts and obligations of the LP solely by reason of being a limited partner. LPs are formed by filing a Certificate of Limited Partnership with the Division.
Once formed, an LP may elect to qualify as an LLLP. In order to make the election, a Statement of Qualification must be filed with the Division. Unlike LPs, LLLPs provide limited liability protection to both the general partner and the limited partner.
Therefore, neither the general partner nor the limited partner can be held liable for the debts and obligations of the partnership solely by reason of being a general partner or limited partner of an LLLP. Other than the liability protection afforded to general partners, the governance applicable to LLLPs is the same as that of LPs and the provisions of the Uniform Limited Partnership Act apply to both forms of partnership.
Limited liability partnership
In the event all partners of a partnership desire to engage in the management and control of the business operations of the partnership, and seek limited liability protection, a Limited Liability Partnership (LLP) is the desirable entity. LLPs are subject to the Uniform Partnership Act and are formed by filing a Statement of Qualification with the Division. Each form of partnership discussed above must file an Annual Report and pay an annual fee of USD150 with the Division.
Last of the partnership forms is the General Partnership, which is seldom used since all partners have unlimited liability. General Partnerships are simply formed by agreement among the partners; thus there are no filings with the Division required to form a General Partnership.
Another form of entity available in the USVI is the Corporation. Corporations are formed upon filing Articles of Incorporation with the Division. The minimum capital required for a Corporation to conduct business is USD1,000. Corporations must file an Annual Report with the Division and pay an annual franchise tax to the Division, which is set at a statutory minimum of USD300 per year. It is important to note that the USVI also imposes a 10% surcharge on the total USVI income tax liability of all corporations, both domestic and foreign.
In terms of governance obligations, and formalities, Corporations are the least flexible of the entity choices available in the USVI. Pursuant to the General Corporation Law of the USVI, Corporations are required to have a minimum of three directors and must also appoint officers consisting of a president, treasurer and secretary and may have such other offices as vice president, assistant secretary, etc, as determined by the board of directors. Despite the three-director minimum, a Corporation may have directors equal in number to its shareholders. Thus, if a Corporation has one shareholder it may also have one director.
As for officers, any one person may act in multiple offices, but the office of president and secretary must be held by separate individuals, and the president must be selected from among the members of the board of directors.
The USVI Office of the Lieutenant Governor, Division of Corporations & Trademarks, serves as the registry for all corporate filings in the USVI. Effective in 2018, the Division implemented an electronic filing system for entity formations and registrations. With the exception of exempt limited liability companies which require paper filings, all entity formations, registrations, and annual reporting requirements must be submitted to the Division using the Division’s online system, Catalyst.
Each USVI (and foreign) corporation, including an LLC, must file an “Annual Report on Domestic or Foreign Corporations” and “Report of Corporation Franchise Tax Due” with the Office of the Lieutenant Governor, Division of Corporations & Trademarks. The Annual Report is due by June 30th of each year. The annual franchise tax due is based on the type of entity created under USVI law. For example, LLCs pay a minimum of USD300 annually, based on their capital.
The most commonly formed entity in the USVI is the LLC. The USVI has adopted the Uniform Limited Liability Company Act and the formation and governance of an LLC is similar to that imposed in the 50 states and the District of Columbia. An LLC requires at least one member, and may be structured as member-managed or manager-managed.
Corporations provide limited liability protection to their shareholders; therefore shareholders are not personally liable for any debts, obligations, or liability of a Corporation solely by reason of being a shareholder. This liability shield does not extend to situations of fraud or failure to maintain a Corporation’s separate legal identity (eg, comingling of corporate funds with personal funds of its shareholders), or for consistently failing to follow corporate formalities (eg, failure to hold annual meetings of shareholders and directors and failure to appoint officers on a consistent basis). In such situations, courts in the USVI do allow a suit against a Corporation's stockholders if doing such prevents fraud or gross injustice to third parties.
This process is called piercing the corporate veil, and in situations where a corporation does not have sufficient assets or insurance coverage to cover a potential claim, a defendant may seek to pierce the corporate veil and hold the stockholders personally liable. Generally, courts in the USVI have a strong presumption against piercing the corporate veil and will only do so if there has been serious misconduct.
The USVI rules governing the employment relationship are derived from US federal laws, such as the Fair Labor Standards Act, and territorial statutes, rules and regulations governing occupational health and safety, labour relations, and employment discrimination. The Virgin Islands Department of Labor (DOL) and the Virgin Islands Public Employees Relations Board are two territorial agencies that oversee non-union employer/employee relations in the USVI. Oversight of union relations is provided by the federal National Labor Relations Board, Region 12.
The USVI does not follow the common law principle of at-will employment. An employee may terminate their employment relationship at any time without advance notice and for any reason or no reason but, absent a contract, an employer is subject to the USVI Wrongful Discharge Act discussed in more detail under 4.4 Termination of Employment Contracts. Employment may be limited by contracts, including collective bargaining agreements, and by laws to protect the employee such as the Virgin Islands Labor Relations Act, the Virgin Islands Plant Closing Act and, as mentioned before, the Virgin Islands Wrongful Discharge Act. Additionally, some labour laws in the USVI provide for preferential hiring of qualified residents of the USVI before hiring qualified non-residents.
As with all contracts, an employment contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement. There must be an offer, an acceptance, and consideration. It may be implied or expressed. Employment contracts usually state terms relating to the date of commencement of employment and date of termination of employment or terms of renewal of the contract, wages to be paid, benefits to be provided by the employer to the employee, circumstances in which the employment contract may be terminated, avenues of resolution of contract dispute, language relating to confidentiality, non-compete and other terms specific to the employer’s business.
Collective Bargaining Agreements
Collective bargaining agreements are employment agreements between an employer and a union representing a group of non-managerial employees. Since they are not written as an individual contract but as a group contract, they are substantially different but similarly have terms relating to employee benefits and termination only for “just cause”.
The contract must be in writing if the terms of the contract will not be performed within one year unless there is a written memorandum of the agreement. An exception to the rule that an agreement which by its terms is not to be performed within one year is void unless there is a written memorandum of the agreement applies to employment contracts for a duration of a year or more is recognised for lifetime employment contracts, which, in the event of the employee’s death, could be terminated within a year. Cooper v Vitraco, Inc, 320 . Sup. 239, 8 VI 112, 1970 US Dist LEXIS 9231 (DVI 1970)
Non-compete agreements are usually not governed by federal law, but by state and territorial law. In 2019, the Superior Court of the Virgin Islands held in Arvidson v Buchar, 71 VI 277, 2019 VI Super 122, 2019 VI Lexis 100, that a covenant not to compete was invalid and unenforceable when not only did it fail to make clear what legitimate business interests it was created to protect, it did so without giving a durational restriction, a territorial restriction, and a manner restriction, and it could not be equitably reformed, as supplying the time, place, and manner terms would equate to the court supplying the essential terms of the covenant. A non-compete agreement must be carefully written to ensure that the restrictions on the employee are not greater than necessary to safeguard the employer’s interest, or create a hardship for the employee that outweighs the employer’s need.
An arbitration agreement must not limit the remedies that an employee would have available in court. Pre-dispute waiver of remedies or substantive protections written into an arbitration agreement by the employer are not enforceable and are against public policy. Employees retain the right to elect arbitration at the time a dispute arises, or a reasonable time thereafter.
There can be nothing in the agreement to unfairly limit the employees’ access to arbitration due to economic reasons. If an employee cannot afford arbitration, the employer must absorb the expense, if both parties agree to arbitration.
The DOL is mandated to assist resident workers in the USVI to obtain, safeguard and protect their preference to be employed in occupations and industries in the USVI. Contracts let by the USVI Government for any public works projects paid for with money from the USVI Treasury must contain a clause requiring the contractor and any subcontractor of the contractor to give first preference to qualified, unemployed residents who are registered with the DOL before hiring qualified non-residents.
Employers in the USVI must comply with minimum wage standards, unemployment and workers compensation insurance, fair employment, safe working environment, and equal opportunity employment practices. The USVI follows the requirements of the United States Fair Labor Standards Act (FLSA) with a few local variations.
For example, the federal hourly minimum wage in the United States has been USD7.25 since 2009. The minimum wage in the USVI is USD10.50 per hour. The USVI has a maximum workweek of 40 hours for five consecutive days worked and compensation at a rate of one and a half times the regular rate at which an employee is employed in excess of 40 hours.
Due to the USVI’s economic dependency on tourism, there is an exception for an employer in either a tourist service or a restaurant industry where they may employ an employee for more than five consecutive days provided that the employee is employed for not less than 40 hours a week and a workday may not exceed eight hours, unless the employee is compensated at a rate not less than one and a half times the regular rate.
The Virgin Islands Code
The Virgin Islands Code defines an employee as any individual employed by an employer excluding:
Some salaried employees are considered exempt from the maximum working hours and the overtime hours regulation because they are employed in a bona fide executive, administration or professional capacity. Salaried employees of the USVI Government and the USVI Legislature are compensated for overtime based on their salaries at one and a half times the rate of salary and/or paid time off.
The USVI has a Wrongful Discharge statute under which, unless modified by a union contract, an employer may dismiss any employee for nine enumerated reasons. Any employee discharged for reasons other than those listed in the statute is considered to have been wrongfully discharged. The statute does not prohibit an employer from terminating an employee as a result of a business closing or layoffs due to economic hardship.
The USVI Plant Closing Act
The USVI Plant Closing Act requires an employer with fewer than 1,000 employees who is closing a facility or planning a relocation or any other action resulting in an employment loss to provide a 90-day advance written notification to the DOL and to the affected employees, and their union, as applicable. In the case of a mass layoff, at least 30 days’ advance notification must be given to employees and their union, as applicable, and at least ten days’ advance notification to the DOL. For an employer with more than 1,000 employees, 180 days’ advance notification must be given.
In case of a mass layoff that will not result in a plant closing, the employer shall give at least 30 days’ advance notification of the mass layoff to any affected employees and their respective labour unions, and at least 10 days’ advance notification to the DOL. An employer is not required to provide notice of a mass layoff, relocation, or employment loss if it results from a physical calamity or an act of terrorism or war. Severance pay to the affected employees must equal one week’s pay for every year of service with the employer in addition to any final wage payment owed to the employee.
Unions may negotiate for additional benefits for their membership. Employees affected by a plant closing must be given permanent preference in hiring and employment at other work locations of the employer.
There is no mandate in the USVI that employees must be represented. An employee may retain representation or represent themselves. Any individual employee or group of employees shall have the right at any time to represent grievances to their employer.
A union employee may be represented by his or her Union representative. Representatives designated or selected for the purpose of collective bargaining by the majority of the employees are the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment.
The Code applies in the USVI as the USVI tax code through the use of a substitution scheme known as the “mirror” system. Pursuant to the mirror system the words “Virgin Islands” are substituted for the words “United States” wherever they appear in the mirror Code. Also under the mirror Code, “any changes to, interpretations of, regulations and revenue rulings on and court interpretations of the substantive tax provisions of the Internal Revenue Code are applicable to Virgin Islands tax cases as long as the particular provision at issue is not manifestly inapplicable or incompatible with a separate territorial income tax...”
In addition, the Code contains several sections — notably Code Sections 932, 934, and 937 — that deal specifically with the USVI and, more particularly, govern the extent to which the USVI can grant tax incentives and how USVI residents and persons with USVI source income file their income tax returns.
In addition, guidance is contained in US Internal Revenue Service (IRS) Publication 570 (Tax Guide for Individuals with Income from US Possessions), which discusses the filing requirements of USVI residents and US citizens and residents with USVI source income and is updated annually.
Individuals who are bona fide residents of the USVI during the entire taxable year pay the full amount of their tax liability on their worldwide income to the USVI tax authorities (the Virgin Islands Bureau of Internal Revenue (BIR)). The top marginal rate of federal income tax is 37%. A bona fide resident of the USVI is defined in Code Section 937(a) as a person who meets three tests, as follows:
While providing a bright-line rule for residency that is more strict than the rules for determining the residency of foreign persons in the United States, the provision also grants to the US Treasury broad authority to create exceptions to the general rule as appropriate; the US Treasury has done so with regard to the physical presence test.
Income tax is withheld from the pay of most employees. An individual’s pay includes his or her regular pay, bonuses, commissions and vacation allowances. It also includes reimbursements and other expense allowances paid under a non-accountable plan.
If an individual’s income is low enough, such individual will not have to pay income tax for the year and may be exempt from withholding. Each individual has the responsibility of requesting their employer to withhold income tax from non-cash wages and other wages not subject to withholding. If such employer does not agree to withhold tax, or if an insufficient amount of tax is withheld, the individual may have to pay an estimated tax to the BIR.
In addition, the Federal Insurance Contributions Act (FICA) is made applicable by specifically defining “United States” to include the USVI for purposes of the Old Age, Survivors and Disability Insurance (OASDI) and hospital insurance taxes (“Medicare”). Also, the tax on self-employment income applies. These taxes are paid to the IRS and not the BIR because they are not “mirrored” to the USVI. The IRS has specific authority to administer and collect these taxes in the USVI.
The FICA tax is imposed in equal percentages on both the employer and the employee. The employer collects the employee’s percentage via withholding. The OASDI tax rate is 6.2% on annual wages up to a maximum of USD137,700 for 2020. The Medicare tax rate is 1.45% on all wages without limit. Self-employed individuals are required to pay the employer’s percentage of FICA tax in addition to their own.
Thus, the OASDI rate for self-employed individuals is 12.4% and the Medicare component is 2.9%. Individuals with high income are subject to an additional 0.9% Medicare tax on wages above a certain threshold (USD250,000 if married filing jointly; USD125,000 if married filing separately; USD200,000 if single or head of household).
In the case of an individual who is not a bona fide resident of the USVI, the taxation depends on whether the person is a US citizen or US resident or a resident of a foreign country.
In the case of a resident of the United States (US citizen, resident alien, or a person meeting the physical presence test set out for aliens who do not have a green card in the United States) deriving USVI source income, or income effectively connected with a USVI trade or business, the person must file a return with the IRS and the BIR, and a credit is granted against the US tax liability for taxes paid to the BIR. The person must sign each return and must attach Form 8689 (Allocation of Individual Income Tax to the USVI), which is used to allocate income and tax liability between the United States and the USVI.
A non-resident of both the USVI and the United States who is engaged in a trade or business in the USVI must pay tax on the income effectively connected with that USVI trade or business. The person must file a return with and pay tax on that income to the BIR. A non-resident of both the USVI and the United States who is not engaged in a trade or business in the USVI but who has USVI source income is generally subject to a 10% withholding tax, which is to be paid to the BIR by the USVI payor of the income. However, if the income is interest on a loan secured by USVI real property with a value equal to or greater than the loan then no withholding tax is due.
The determination of whether someone is a resident alien or non-resident alien of the USVI is made under the same principles under Code Section 7701(b) as in the United States, but as mirrored to the USVI. An alien (whether resident or non-resident) is an individual who is not a US citizen. For the purposes of determining whether a person is a resident alien or a non-resident alien under the mirrored Code Section 7701(b) definition of resident alien and non-resident alien, presence in the United States (meaning the 50 states and the District of Columbia) does not count as residency in the USVI, even though entry to the USVI falls under the immigration laws of the United States (that is, the USVI does not have its own immigration procedures and US law treats the USVI as part of the United States for all purposes).
Cash or property received as employment compensation by a non-resident of the USVI will not be USVI source income under mirrored Code Section 861(a)(3) if:
If income meets these four requirements, it is exempted from USVI taxation.
If income does not meet these four requirements, it is subject to USVI withholding tax at a rate of 10%.
Investment income consisting of interest and dividends is, under Code principles as mirrored to the USVI, generally sourced to the situs of the payor. Rents and royalties are generally sourced to the location where the property giving rise to the rents and royalties is located.
Such income from the USVI would be USVI source income not effectively connected with a USVI trade or business (assuming it is not related to a USVI trade or business) and taxed under Code Section 871(a). The tax imposed by Code Section 871(a)(1) and its attendant withholding under Code Section 1441 are reduced to 10% by the USVI with regard to non-resident aliens.
Capital Gains Income
Capital gains income is, under Code principles as mirrored to the USVI, generally sourced to the situs of the owner of the capital asset and recipient of the gain. Thus, capital gains income received from the sale of a USVI-situs capital asset by a non-resident is not subject to USVI tax, other than a gain from the sale of USVI real estate, which is treated as effectively connected with the conduct of a USVI trade or business and thus subject to USVI tax. Code Section 865 also contains a number of exceptions to the general rule that the source of income from the sale of personal property is based on the residence of the seller.
Exceptions exist for sales of inventory property, gain from the sale of depreciable personal property, intangibles, and sales of stock in an affiliate that is located in a foreign country. See Code Sections 865(b)—(f). In addition, Treasury Regulation Sections 1.937-2(f) provides special rules for gains from certain dispositions of property by former US residents.
Specifically, if an asset is transferred to the USVI by a US resident who then moves to the USVI, any gain on the sale of the asset is all US source for ten years, or if an election is made the gain must be allocated based either on the value of the asset as of the date of the change in residency (if publicly traded), or on a formula of USVI days over total days in the holding period (if not publicly traded).
As a US territory, the USVI occupies a unique status. Although it is part of the United States, it has been granted authority by the US Congress to enact special tax reductions to encourage investment in business operations and to develop a financial services industry.
The Economic Development Program
The USVI offers tax incentives to the following four categories of businesses:
Designated services include commercial distribution and trading services; public relations services; international banking and insurance entities licensed under the Virgin Islands Code; business and management consulting services; investment managers and advisors; call centres; family offices; venture capital management and investment; investment banking and financial services; film and print industry activities; computer, data, high technology, e-commerce and call services centre businesses; development/engineering of software, blueprints, and intellectual property; medical laboratories and specialty medical services; and any other businesses serving clients outside the USVI deemed appropriate.
The USVI government included a “catch all” category to offer tax incentives to any type of business, thus, shopping centres also can qualify for tax incentives under the statute. The USVI can offer targeted income tax benefits to qualifying investors because the US Congress has granted the USVI the authority to reduce the income taxes otherwise due on USVI source income and effectively connected income in Code Section 934(b)(1), and to exclude reductions to bona fide USVI residents under Code Section 934(b)(2).
Under the USVI economic development laws, qualifying businesses (corporations, partnerships, limited liability companies, trusts, and sole proprietorships) receive tax benefits if they meet certain investment criteria. The tax benefits are granted by the territory’s seven-member EDC. As of June 2020, approximately 66 businesses receive tax benefits under the EDC Program, including hotels and other tourism-related businesses, goods-producing businesses, and businesses serving customers outside the territory.
In order to meet the minimum qualifications for tax benefits, an applicant must invest at least USD100,000 (exclusive of inventory) in an eligible business, and employ at least ten persons full-time, eight of whom must be USVI residents. Owners of the applicant business are excluded from the employee count. Only five employees are required for designated service businesses engaged in “non-labour intensive financial services”. The minimum investment and employment numbers may be reduced by the EDC in specified circumstances. Beneficiaries are also required to purchase from local vendors meeting certain requirements imposed by the EDC.
The EDC grants tax benefits for 20 years for investments on the islands of St. Thomas and St. John, and for 30 years on St. Croix. In addition, beneficiaries that invest more than USD10 million are eligible to receive an additional ten years of benefits, and beneficiaries that invest between USD1 million and USD10 million are eligible for an additional five-year term of benefits. Benefits packages may be extended upon proper application and review.
However, benefits packages may not be extended for more than ten years at 100% of benefits. Historically, the Governor of the USVI had to approve all beneficiaries. However, in December 2017 the Legislature removed the Governor from the approval process for new applicants.
Income Tax Benefits
An EDC beneficiary receives a substantial reduction in, or exemption from, all taxes imposed on businesses operating in the USVI. A beneficiary under the EDC Program receives a 90% tax credit against its income tax liability on income from the business for which benefits are granted. Such income must be effectively connected with the conduct of a USVI trade or business under Code sections 934(b)(1) and 937 and the Treasury Regulations promulgated thereunder. The reduction results in an effective tax rate of approximately 2.31% on income from the business. Tax benefits also extend to passive income from certain qualifying investments, such as USVI government obligations.
The 90 percent income tax reduction also extends to dividends received by a corporate beneficiary’s USVI resident shareholders, and to distributions or allocations to the USVI resident shareholders or partners of a subchapter S corporation or partnership, respectively, that have been granted benefits by the EDC.
Beneficiaries of the EDC Program are exempt from withholding tax on interest payments and are subject to a reduced withholding tax rate of 4% on dividends. Other forms of passive income payments (such as royalties) are subject to withholding tax at a 10% (or 11% if a corporation) rate. However, no withholding tax is imposed on payments to U.S. entities.
Other Tax Benefits
Beneficiaries receive an exemption from the USVI gross receipts tax on their receipts from their approved activities, which is otherwise imposed at a 5% rate on the gross receipts of a business, with no deductions. USVI entities engaged in business activities that are not covered by their grant of EDC benefits must pay gross receipts tax on the gross receipts from such business activities. Although exempt from gross receipts tax for business activities covered by a beneficiary’s grant of benefits, the BIR requires that each beneficiary report its gross receipts (on a monthly basis, assuming annual gross receipts of more than USD225,000), and indicate that the beneficiary is exempt from payment of the tax pursuant to the EDC Program.
Beneficiaries receive an exemption from USVI excise tax on building materials and machinery used in the construction of their facilities and on raw materials brought into the USVI to produce articles. Otherwise, a tax ranging from 2% to 25% applies to the fair market value of many items. A number of excise tax exemptions exist, including exemptions for steel, concrete and lumber.
Beneficiaries receive an exemption from the USVI property tax. However, the personal homes of the owners of a beneficiary do not receive the property tax exemption, even if the respective owner maintains a home office. Moreover, if a beneficiary rents an office, the property tax exemption does not pass through to the beneficiary’s landlord.
Because the USVI is outside the US customs zone, it has enacted its own customs law, imposing a 6% duty on items that are not manufactured in the United States. An EDC beneficiary’s customs duties are reduced from 6% to 1% on raw materials and component parts imported from outside the USVI. Materials made in the United States are exempt from any customs duty. In addition, as with the excise tax, there are a number of customs duty exemptions.
Although the foregoing exemptions and reductions are imposed at the entity level, as mentioned above, a beneficiary’s owners receive the income tax benefit on dividends and/or distributions if the owners are bona fide USVI residents.
The University of the Virgin Islands Research and Technology Park Protected Cell Corporation
In addition to the tax benefits provided under the EDC Program, businesses in the USVI can qualify for tax benefits under the University of the Virgin Islands (UVI) Research and Technology Park Protected Cell Corporation Act. The UVI Research and Technology Park Corporation and its subsidiary, the UVI Research and Technology Park Protected Cell Corporation (RTPark), are structured as public corporations and autonomous instrumentalities of the USVI government. The purposes of the RTPark include developing a technology sector in the USVI in order to promote the growth, development and diversification of the USVI economy and more broadly to promote a sector focused on developing knowledge-based businesses.
Further, the RTPark exists to broaden the capabilities of UVI by training students and creating a supportive research environment that combines the resources of UVI with those of the public sector and private industry. Oversight of the RTPark program (the “RTPark Program”) is vested with the seven-member RTPark Board of Directors (the “Board”). The Board has the authority to approve or disapprove applications by potential beneficiaries, referred to under the RTPark Program as “Protected Cells”.
Unlike the EDC Program (for which qualification requires business activities generally to fall within the hotel, manufacturing or service business categories), qualification under the RTPark Program requires the applicant’s business to meet certain technology-based or knowledge-based criteria. Specifically, an applicant’s business must be an Electronic Commerce Business, or a Knowledge-Based Business. Pursuant to a Memorandum of Understanding between the RTPark and the EDC, the RTPark is given “first responder” status for all companies meeting one of the foregoing designations.
Consequently, all Electronic Commerce businesses and Knowledge-Based businesses must first apply for benefits under the RTPark Program rather than the EDC Program. Applicants must provide the RTPark an ownership interest in the business (which is often provided as a non-voting, non-equity 0.5% - 1% interest), must submit a proposal setting out their proposed interaction with UVI (such as internships) and are required to pay up-front and/or ongoing fees which are separately negotiated for each applicant. The USVI Governor has final approval of RTPark Program beneficiaries that previously have been in operation for over one year but does not review or approve applicants that are new to the USVI.
Income Tax Benefits
The income tax benefits granted to beneficiaries of the RTPark Program are substantially similar to those received by beneficiaries of the EDC Program. A beneficiary under the RTPark Program receives a 90% tax credit against its income tax liability on income from the business for which benefits are granted. Such income must be effectively connected with the conduct of a USVI trade or business under Code Sections 934(b)(1) and 937 and the Treasury Regulations promulgated thereunder.
The reduction results in an effective tax rate of approximately 2.31% on income from the business. If the beneficiary’s owners are bona fide residents of the USVI, they receive the reduction on dividends and/or distributions. Salaries and other forms of compensation such as guaranteed payments, however, are fully taxable.
With respect to income tax benefits, the main difference between the RTPark Program and the EDC Program concerns the duration of benefits granted to each program’s beneficiaries. As discussed above, EDC beneficiaries located on St. Thomas or St. John receive an initial 20 years of full benefits and EDC beneficiaries located on St. Croix receive an initial 30 years of full benefits. All beneficiaries can receive a ten-year extension and additional extensions of five or ten years based on capital investment. In contrast, RTPark Program beneficiaries receive an initial 15-year term of benefits, with an initial renewal period of ten years at full benefits, and subsequent renewal periods of five years at full benefits.
Other Tax Benefits
The tax benefits granted to beneficiaries of the RTPark Program are essentially the same as those received by beneficiaries of the EDC Program. The one exception is that royalties under the RTPark Program receive the reduced withholding tax rate that is only applicable to dividends paid under the EDC Program.
The US tax system allows eligible corporate groups to elect to file consolidated returns for federal income tax purposes in lieu of separate returns. As the USVI follows the mirror system, corporations organised in the USVI are also eligible to elect to file consolidated returns for USVI income tax purposes with the BIR in lieu of filing separate tax returns. However, USVI corporations that elect to file a consolidated return may not include corporations organised in the United States and vice versa.
A “consolidated group” is an affiliated group that files a taxable year consolidated return. An affiliated group is a group of “includible corporations”, which are connected through stock ownership with a common parent that is an includible corporation. Generally, all corporations are includible corporations, except those that are specifically excluded.
Such excluded entities that may not file consolidated returns include:
While many foreign jurisdictions combat perceived thin capitalisation abuse by mandating specific debt-to-equity ratios and by disallowing interest expense deductions on excess indebtedness, the United States (and thereby the USVI through the adoption of the mirror Code) has adopted a somewhat different approach. It must be determined in each case whether a purported loan is in fact indebtedness or whether the loan represents an equity investment in the corporation.
Concerning the classification of an investment in a corporation as either debt or equity, Code Section 385 sets out five factors that are to be considered, namely:
The United States does not have a debt-to-equity ratio that can be used as a safe harbour to ensure debt treatment. Instead, the debt-to-equity ratio is merely one factor taken into account by the IRS and the courts, although it is generally believed that the IRS will not challenge a ratio of 3:1 or less on debt instruments that do not have equity features.
Determining Debt and Equity
On 13 October 2016, the US Treasury and the IRS released final and temporary regulations under Code Section 385 that establish threshold documentation requirements that ordinarily must be satisfied in order for certain related-party interests in a corporation to be treated as indebtedness for US federal income tax purposes; and treat as stock certain related-party interests that otherwise would be treated as indebtedness for US federal income tax purposes.
In addition, IRS Notice 94-47 provides a list of the factors that it will consider in deciding the debt or equity character of an instrument. The characterisation of an instrument for federal income tax purposes depends on the terms of the instrument and all surrounding facts and circumstances. Among the factors that may be considered in making this determination are:
No particular factor is conclusive in making the determination of whether an instrument constitutes debt or equity. The weight given to any factor depends upon all the facts and circumstances, and the overall effect of an instrument’s debt and equity features must be taken into account.
The IRS stated that certain categories of instruments will be closely examined on audit to determine whether debt treatment is appropriate. This includes financial instruments that are treated as equity for regulatory, rating agency or financial accounting purposes, but sought to be treated as debt for income tax purposes; instruments with unreasonably long maturities; and instruments with provision for payment of principal using stock of the issuer.
The US transfer pricing regime of Code Section 482 applies to the USVI by virtue of the mirror system. Code Section 482 provides that gross income, deductions, credits and other allowances may be allocated among two or more organisations, trades or businesses under common ownership or control whenever it is determined that such action is necessary to prevent the evasion of taxes or to clearly reflect the income of the parties.
True taxable income is determined by evaluating transactions between commonly controlled taxpayers against the standard of comparable transactions between unrelated persons dealing at arm’s length. If a taxpayer’s results differ from its true taxable income, the taxpayer may be subject to a reallocation of income, deductions, credits or any other item or element affecting taxable income.
The permissible methods for determining an arm’s length price depend on the type of transaction and are fully set out in the Treasury Regulations issued under Code Section 482.
The US tax law and regulations as applicable in the USVI contain numerous anti-abuse rules that are intended to prevent taxpayers from claiming inappropriate tax benefits. USVI taxpayers are also subject to numerous reporting requirements, including with respect to interests in foreign assets and certain transactions that have the potential for tax avoidance or evasion.
The USVI does not have territorial merger control notification requirements. Federal law may still apply.
This is not applicable. See 6.1 Merger Control Notification.
The Virgin Islands Antimonopoly Law forbids agreements in restraint of trade between competitors. Forbidden agreements include agreements to fix prices, fix levels of production or distribution, and allocate territories and customers. The law is construed similarly to federal antitrust law.
The Virgin Islands Antimonopoly Law forbids the use of monopoly power for the purpose of excluding competition or manipulating prices. The law is construed similarly to federal antitrust law.
The laws of the United States relating to patents, trademarks, and copyrights, and the enforcement of rights arising thereunder, have the same force and effect in the USVI as in the continental United States. The District Court of the Virgin Islands has the same jurisdiction in causes arising under such law as is exercised by United States district courts.
Inventions are patented to grant the inventor the right to exclude others from making, using, offering for sale or selling the invention in the United States or importing the invention into the United States. Patents are issued by the United States Patent and Trademark Office (USPTO). The three types of patents are utility, design and plant patents.
Filing for a non-provisional patent requires patent law expertise, scientific knowledge, and extensive attention to detail and time. An inventor may apply for a provisional patent before a non-provisional patent, providing the means to establish an early effective filing date and permit the use of the term “Patent Pending” before filing a non-provisional patent application. The term of a provisional patent is 12 months.
The term of a non-provisional, new patent is generally twenty years from the date on which the application for the patent was filed in the United States or from the date an earlier related application was filed in special cases, subject to the payment of maintenance fees. US patent grants are effective only within the United States, US territories, and US possessions.
To apply for a provisional or a non-provisional patent, an inventor may file a paper or online application. Once a patent is issued, the patentee must enforce the patent without aid of the USPTO.
A trade mark is a device, name, symbol, or word used with goods to designate the source of the goods and to distinguish them from goods of others. A service mark identifies and distinguishes the source of a service rather than goods. The purpose of applying and obtaining trade mark or service mark rights is to prevent others from using a confusingly similar trademark or service mark. It does not prevent others from making the same goods or from selling the same goods or services under a different trade mark or service mark. Trade mark registrations can be filed by paper or online.
A registered trade mark requires regular maintenance. Six years after the registration date a Declaration of Use or Excusable Non-Use must be filed with applicable fees with evidence showing that use. If this declaration is not filed, the registration is cancelled.
The Madrid Protocol is a filing treaty to ensure protection for trade marks in multiple countries through filing one application. It is the right of each country whether or not trade mark protection is granted. If granted, the trade mark is protected in that country.
Industrial design is a combination of applied art and science to improve a product in its function, aesthetics, usability and ergonomics. The Hague Agreement is an international registration system which offers the possibility of obtaining protection for up to 100 industrial designs in designated member countries and intergovernmental organisations (referred to as “Contracting Parties”) by filing a single international application in a single language either directly with the International Bureau of the World Intellectual Property Organization (WIPO) or indirectly through the office of applicant's Contracting Party.
Applicants can file international design applications through the USPTO as an office of indirect filing. Industrial design patents have a 15-year term from issuance.
Copyright is a form of protection provided to the authors of “original works of authorship” including literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished. The 1976 Copyright Act generally gives the owner of copyright the exclusive right to reproduce the copyrighted work, to prepare derivative works, to distribute copies or phonorecords of the copyrighted work, to perform the copyrighted work publicly, or to display the copyrighted work publicly.
The copyright protects the form of expression rather than the subject matter of the writing. For example, a description of a machine could be copyrighted, but this would only prevent others from copying the description; it would not prevent others from writing a description of their own or from making and using the machine. Copyrights are registered by the Copyright Office of the Library of Congress, and applicants may file paper or online applications. For works created after 1January 1978, a copyright is good for 70 years after the death of the author.
A person, association or entity doing business in the USVI under any name other than its own, whether they are a resident or nonresident, must have their tradename approved, file an application for the tradename, and pay a USD50 fee to the Office of the Lieutenant Governor of the USVI, Division of Corporations & Trademarks. The application sets forth the name or style under which said business will be known, the location of the business, a brief description of the kind of business to be transacted under the tradename, and the real name or names of the party or parties conducting or intending to conduct business and the addresses of the party or parties. The application must be notarised before an officer authorised by the laws of the USVI to authenticate signatures.
A certificate of tradename is issued for a period of two years and is renewable. If the party or parties fail to renew its tradename within six months of the expiration date, the tradename becomes available to anyone who files for the tradename and pays the required fee.
If a person, association or entity doing business in the USVI fails to or refuses to obtain a tradename certificate, the USVI Attorney General may institute an action in the Virgin Islands District Court to enjoin the conduct of the business. Further, the violating entity may not commence or maintain any court action in the USVI.
When the party or parties cease to conduct business in the USVI, notice of the date of cessation, sworn to by a person, partner, corporate officer, member, executor or administrator must be filed within ten days after the business ceases.
The USVI does not have territorial statutes or regulations governing data protection generally. Contracts and common law tort doctrine may provide some legal remedies for data protection injuries, but case law is underdeveloped in this area.
Territorial laws are applied equally across the USVI.
The USVI does not have a territorial agency in charge of enforcing data protection rules generally. The Bureau of Information Technology within the Office of the Governor is responsible for data protection policy across and within territorial government agencies.