Doing Business in the US Virgin Islands: an Introduction

Background

The US Virgin Islands (USVI) is an unincorporated territory of the United States of America (USA) located approximately 1,100 miles south-east of Miami, Florida. Acquired from Denmark in 1917, the USVI is made up of the islands of St Croix, St John, St Thomas and Water Island, plus numerous uninhabited cays, with a total population of just over 90,000. The USVI uses US currency, and no exchange controls exist.

The USVI’s prime natural resources include pristine beaches, crystal-clear seas, a mild year-round climate, the natural harbour on St Thomas, the Virgin Islands National Park on St John, and the rainforest on St Croix. These assets, combined with the investment security of a US jurisdiction and a variety of federal and local incentives, have cemented the territory as a stable place to do business, with tourism as the major local economic activity.

Beyond tourism, the USVI attracts a growing number of consulting businesses and technology businesses owned by US citizens who have moved to the USVI to take advantage of its specialised economic incentive programmes for entrepreneurs who want to live and work in paradise. In 2020, the USVI completed a long-term economic strategy and action plan (Vision 2040), with goals that include diversifying the territory’s economic base through growth in target industries, including professional and technical services, renewable energy, agribusiness, coastal/ocean resources and health sciences.

The USVI is particularly well suited to attract and utilise all types of renewable energy, and is actively working with investors on a significant solar power expansion and implementation of wind power.

The USVI also offers banks that are insured by the Federal Deposit Insurance Corporation (FDIC), and is covered by the USA’s extensive network of bilateral investment treaties (but not tax treaties). The USVI has two federal judges and is part of the Third Circuit Court of Appeals. It has direct flights to many mainland cities and attracts many yachts seeking a secure, well-located and attractive home base.

With respect to transportation, the Virgin Islands Port Authority recently embarked on a public-private partnership with the goal of redeveloping and modernising the territory’s two airports: the Henry E. Rohlsen Airport on St Croix, and the Cyril E. King Airport on St Thomas. Among other goals, the project is intended to stimulate economic growth in the USVI by increasing the efficiency and safety of airport operations, expanding airport capacity and attracting private investment to the territory.

Tax system overview

The Internal Revenue Code of 1986, as amended (the “Code”), applies in the USVI under a “mirror” system whereby “the USVI” is effectively substituted for “United States” wherever the latter appears. Consequently, the income tax provisions of the Code, the Treasury Regulations promulgated thereunder, and revenue rulings and revenue procedures issued by the Internal Revenue Service are generally applicable in the USVI, with certain limitations.

As a US territory, the USVI occupies a unique status; although it is part of the US, it has been granted authority by the US Congress to enact special tax laws to encourage investment in business operations. The USVI therefore offers many opportunities for investors and especially entrepreneurs who seek a politically stable jurisdiction with targeted economic incentives, legitimate protection of their assets from taxes, and an enticing location with excellent telecommunications. The three major USVI incentive programmes available to entrepreneurs are as follows.

Economic Development Commission Program

The infrastructure to support hotels and tourism businesses (among others) in the USVI has largely been in place for more than 63 years through the Economic Development Authority (EDA) and its various investment programmes and their predecessors. The Economic Development Commission (EDC) Program, administered by the EDA, offers exemptions and reductions to entities qualified as EDC beneficiaries, and reductions to direct and indirect owners of entities qualified as EDC beneficiaries if the owners are bona fide residents of the USVI (see discussion below).

Benefits under the EDC Program include the following.

• A credit equal to 90% of the otherwise applicable income tax, which applies to the income from the benefitted business as distributed to bona fide USVI resident owners on their allocations or dividends. A USVI corporation pays an effective tax rate of approximately 23.1% on its eligible income; with the 90% tax credit, the effective rate is 2.31% (salaries and other forms of compensation, such as guaranteed payments, are fully taxable).
• Beneficiaries are also exempt from the territory’s 5% tax on gross receipts on revenue received from the approved business activities.
• Beneficiaries are also exempt from USVI property tax for the property occupied by the beneficiary for its approved business activities.
• Beneficiaries also receive an exemption from USVI excise tax on building materials and machinery used in the construction of their business facilities and on raw materials brought into the USVI to produce goods.
• In addition, a beneficiary’s customs duties are reduced from 6% to 1% on raw materials and component parts imported from outside the USA. No local customs duties are imposed on US-made products.

No withholding tax is imposed on payments to US corporations or US-resident individuals. Beneficiary companies with foreign owners are exempt from withholding tax on interest payments, and are subject to a reduced withholding tax rate of 4.4% on dividend payments made overseas to corporate owners. Similarly, no income tax is withheld on interest paid to non-resident alien individuals, and the tax rate on dividends paid to non-resident individual owners is 4%.

Finally, to be eligible for EDC Program benefits, the income must satisfy applicable federal source and effectively connected income regulations, as set out in Section 937(b) of the Code and the Treasury Regulations promulgated thereunder.

To qualify under the EDC Program, an applicant in a qualifying business must generally make a minimum capital investment of USD100,000 (exclusive of inventory) and meet certain minimum employment requirements. Typically, a business must employ at least ten full-time employees, but “designated service businesses” – which are typically financial or consulting firms exclusively serving clients outside the USVI – are only required to employ five full-time employees, and the EDA has the authority to lower the five-employee minimum or permit a business to have several years to meet the five-employee minimum upon a showing of good cause. A full-time employee is someone who works at least 32 hours a week. A beneficiary must post all positions with the USVI Department of Labor (DOL) and notify the DOL when positions are filled, among other reporting requirements.

At least 80% of the beneficiary’s employees must be USVI residents, unless a waiver is granted. Beneficiaries must purchase goods and services locally when available, make certain contributions to scholarships and public education, and provide a plan for civic participation. Beneficiaries must also provide employee benefits and enact a management training programme.

The application process requires a detailed application, including details of the beneficiary’s ownership, financial information and a background check for beneficial owners with more than a 5% interest. Submission of the application is followed by the application’s presentation at a public hearing before the EDC commissioners and a review of the application by the EDC commissioners. Since 2020, the public hearings have been held virtually and the EDC has not yet indicated when, if ever, public hearings will return to being in person.

Upon approval by the EDC, benefits are available for initial periods of 20 years for investments on the islands of St Thomas and St John, and for 30 years on St Croix. Beneficiaries that make an additional investment in the beneficiary business in infrastructure, new construction or refurbishment during the term of their existing certificates may be entitled to extensions of their benefits upon the expiration of their certificates. Separate from the above options, a beneficiary may seek an extension of 100% of benefits for an additional ten years on the same terms.

In 2016, an International Financial Service Entity (IFSE) was added to the list of businesses eligible for benefits. An IFSE must also be licensed as a bank pursuant to the International Financial Services Center Regulatory Act administered by the Division of Banking, Insurance and Financial Regulation in the Office of the Lieutenant Governor.

In recent years, new hotel applicants under the EDC Program have committed to constructing low-density developments, including “glamping” style accommodation designed to promote environmental sustainability and low-impact construction. Other hotel beneficiaries have restored historic structures in the USVI to showcase local culture and traditions.

Hotel Development Program

The Hotel Development Act (HDA) Program is also administered by the EDA, and was initially passed in 2011 to provide a means for financing new hotel development projects (and hotels seeking substantial upgrades) in the USVI. In 2019, the HDA Program was amended to provide for the development, construction, reconstruction and renovation of commercial facilities and other hotel facilities. The hotel room occupancy tax (HROT) can now be 100% utilised by developers of new hotels, or up to 50% of the HROT for existing hotels where at least 70% of the units were previously damaged – by hurricanes, for example – for the development, construction, reconstruction and renovation of the facility.

The 2019 amendment also provides for the imposition of an economic recovery fee (ERF) to finance, fund or cover the costs incurred in the renovation, reconstruction, construction, improvement and development of hotel properties and related facilities or infrastructure. The amount of the ERF is the difference between the percentage rate of HROT applicable at the time of the application (currently set at 12.5%) and a percentage rate over such tax, not to exceed 7.5%, which is determined by the applicant and subject to implementation protocols. The ERF can be collected and deposited into an ERF trust account for a period of 30 years, and is only available to applicants applying before 31 December 2028. Any funds remaining after completion of the approved project can be used by the developer for other expenditures for improving or enhancing the ERF project.

Enterprise Zone Commission Program

Businesses seeking to invest in historic preservation have additional opportunities available through the Enterprise Zone Commission (EZC) Program administered by the EDA, which offers tax incentives to businesses investing in designated historic and commercial districts. The mandate of the EZC Program is to facilitate the investment of private resources in productive business enterprises located in severely distressed Enterprise and Commercial Zone areas on St Croix and St Thomas, and to provide jobs for the residents of these areas.

The benefits available to beneficiaries under the Enterprise Zone Plan Program are an income tax credit of 90%, a gross receipts tax exemption of 100% and a property tax benefit of 100%. Applicants must have businesses/activities that are in accordance with the incentivised activities in the plan for the zone in which the applicant is applying. For example, applicants in the Garden Street area of downtown Charlotte Amalie, St Thomas, must be engaged in “live work”, sports and entertainment, good community, experiential tourism or arts and restaurants.

To qualify under the EZC Program, an applicant must (among other things) make a minimum capital investment of USD10,000 and employ a minimum of two full-time USVI resident employees, either directly or through a contractor. The application process requires the submission of a description of the history and current condition of the property within the Enterprise Zone and details of the construction or rehabilitation efforts to be undertaken. Applications are considered by the EZC commissioners; upon approval, benefits are available for five years.

Research and Technology Park Program

The Research and Technology Park (RTPark) Program seeks to support the USVI’s expanding technology and knowledge-based sectors to promote the growth, development and diversification of the USVI economy. In addition, the RTPark works to broaden the capabilities of the University of the Virgin Islands (UVI) by providing it with financial support and training opportunities for UVI students and creating a research environment that combines the resources of UVI with those of the public sector and private industry.

RTPark beneficiaries currently operate in the areas of data analytics, web content development, interactive media management, e-commerce, software development and licensing, technology-based management and business process services, internet advertising, telecommunications and information technology, application development, financial technology and medical device technology. Oversight of the RTPark Program is vested in the seven-member RTPark board of directors (the “board”), which includes the chairperson of the UVI board of trustees and the president of UVI.

In most cases, an applicant, through a legal representative, negotiates the terms of its tenancy with the RTPark’s executive director. Negotiations include:

• the amount of the one-time entry fee paid by the applicant (typically at least USD50,000 and up to USD100,000, depending on the size of the applicant);
• the applicant’s obligation to pay annual management fees to the RTPark (typically between 2% and 4% of the applicant’s gross income);
• the structuring of a charitable donation to UVI that can include scholarships, internships, faculty support, funds for specific programmes and in-kind contributions of time, typically starting at a total of USD35,000 annually; and
• the percentage of equity interest to be awarded to the RTPark (which can be non-voting and have different distribution rights to those of other owners), which is typically 1%.

Once negotiations have been finalised, a term sheet is entered into between the applicant and the RTPark, providing the basis for the formal application that covers the applicant and its owners. The final terms are memorialised in the Protected Cell’s Park Tenant Agreement, which serves as the operative document defining the relationship between the Protected Cell and the RTPark. Each RTPark application requires payment of a USD2,500 application fee.

Benefits under the RTPark Program are initially available for 15 years and can be renewed for an initial period of ten years, followed by subsequent renewal periods of five years, subject to board approval. As with the benefits under the EDC Program, the RTPark offers numerous tax exemptions and reductions, the most notable of which is a 90% reduction on tax liability for the business and also for owners of beneficiaries if the owners are bona fide residents of the USVI. Furthermore, a Protected Cell in the RTPark 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 conducting a USVI trade or business under Sections 934(b)(1) and 937 of the Code. For a corporate Protected Cell, the reduction results in an effective tax rate of approximately 2.31% on eligible income. If the beneficiary’s owners are individual residents of the USVI, they will receive a reduction in their dividends or allocations. Salaries, however, are fully taxable.

No withholding tax is imposed on payments to US corporations or individual residents. Furthermore, RTPark beneficiaries with foreign corporate owners are exempt from withholding tax on interest payments and enjoy a reduced withholding rate of 4.4% on dividend payments overseas (while the withholding rate on non-resident individuals is 4%). The tax rates on royalties paid to non-resident individuals or foreign corporations are 4% and 4.4%, respectively. The withholding tax is paid by the withholding agent (typically the RTPark beneficiary) to the Virgin Islands Bureau of Internal Revenue (BIR) on Form 8109 and then reconciled annually on Form 1042.

As with the EDC Program, beneficiaries receive an exemption from USVI gross receipts tax, otherwise imposed at 5% on the gross receipts of a business, with no deductions. This exemption does not apply to gross receipts from business activities that are not covered by a beneficiary’s grant of RTPark benefits. Moreover, the BIR requires each beneficiary to report its gross receipts (monthly, assuming annual gross receipts of more than USD225,000) on Form 720 VI and then indicate that the beneficiary is exempt from payment of the tax pursuant to its status as an RTPark beneficiary.

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. In addition, several statutory exemptions from excise tax apply, regardless of beneficiary status.

Beneficiaries receive an exemption from the USVI property tax, although the personal homes of beneficiary owners do not receive the property tax exemption, even if the respective owners maintain home offices. Moreover, if a beneficiary rents an office, the property tax exemption does not pass through to its landlord.

Because the USVI is outside the US customs zone, it has enacted its own customs law, imposing a 6% duty on items not manufactured in the US. An RTPark 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 US are exempt from any customs duty. As with the excise tax, several statutory exemptions from customs duties apply, regardless of beneficiary status.

Manufacturing and agriculture as growth sectors

The USVI legislature has provided a number of tax benefits and economic incentives to encourage agriculture, including the Farmers, Fishermen and Consumers Assistance Act, which gives certain tax exemptions to the farming and fishing industry, including an exemption from gross receipts tax on sales of products derived from the agricultural business. The EDC Program includes agriculture, food processing, product assembly and manufacturing as eligible activities. The USVI Economic Development Bank, administered by the EDA, provides low-interest loans and micro-credit for USVI farmers and fishers, and farmers can qualify for property tax exemptions on agricultural land.

In addition, in 2020 the USVI legislature enacted the Virgin Islands South Shore Trade Zone Act (the “SSTZ Program”), which designates 3,000 acres on the south shore of St Croix as an Enterprise Zone and entitles approved applicants under the SSTZ Program to a credit equal to 90% of the otherwise applicable income tax, in addition to exemptions from the gross receipts tax, property tax, excise taxes and customs duties.

The goal of the SSTZ Program is to designate an area that eliminates traditional barriers to commercial trade and investment in support of light manufacturing, trans-shipment, industrial development and the territory’s blue economy initiative. Among other requirements, an applicant in a qualifying business must make a minimum capital investment of USD100,000 (exclusive of inventory) and employ a minimum of ten full-time employees and one paid apprentice. The SSTZ Program will be administered by the EDA, and benefits under the programme will be available for a 20-year term.

Opportunity Zones – federal benefits for USVI investments

Several US programmes are also available for investors in the USVI. The Tax Cuts and Jobs Act was passed in December 2017 and established the Opportunity Zone Program, which provides immediate and long-term tax advantages to US investors in Opportunity Zones. Investors can defer capital gains taxes on earnings from many types of investments up to 2027, can reduce taxes on the capital gain invested into an Opportunity Fund by 10% or 15%, depending on whether the qualifying investment is held for five years or seven years, and can gain permanent exclusion from capital gains taxation on Opportunity Fund investments held for at least ten years. The USVI has 14 designated Opportunity Zones.

Other tax credits are also available in the USVI, such as the 20% income tax credit for preserving historic properties and income tax credits for owners of certain newly constructed or substantially rehabilitated low-income rental housing projects.

Choice of entity

The USVI provides many options when choosing to form a legal entity within the jurisdiction, including corporations, limited liability companies and partnerships, such as:

• general partnerships;
• limited partnerships;
• limited liability limited partnerships;
• limited liability partnerships; and
• trusts.

The USVI has adopted the Uniform Limited Liability Company Act, and the formation and governance of an LLC are similar to that imposed in the 50 states and the District of Columbia.

Except for general partnerships (which are formed by the agreement of the partners) and trusts, all entities are formed through filings with the Office of the Lieutenant Governor of the USVI, Division of Corporations and Trademarks. Federal law applies in the USVI, including the Securities Act of 1933 and the Securities Exchange Act of 1934. In addition, the USVI has adopted the Uniform Securities Act for territorial-level securities regulations. The USVI imposes an annual franchise tax on LLCs and corporations, based on the capital used in the USVI trade or business, with the minimum franchise tax being USD300 annually. Partnerships pay a set annual fee of USD150.

Residency requirements

Many USVI economic incentives and related programmes provide personal tax benefits for bona fide USVI residents on their allocations or dividends. To be a bona fide USVI resident, a person must meet one of five alternative physical presence tests each year, have a closer connection to the USVI than any other location, and have a USVI tax home.

The most-used “physical presence” test involves being in the USVI for all or part of 183 days in a given year; however, individuals who travel frequently can satisfy the physical presence test by spending no more than 90 days in the USA each year or by not having a significant connection to the USA at any time during the year (like having a home located in the USA).

The establishment of a “closer connection” involves such factors as having a home, filing returns as a USVI resident, obtaining a USVI driver’s licence, registering to vote and voting in the USVI, and having a USVI bank account, although no single factor is determinative. A “tax home” is an individual’s principal place of business. In most cases, the individual must be a bona fide resident of the USVI for the entire year to get benefits on their income from the benefitted business, although there is a “year of move” rule permitting individuals to be bona fide residents if they move to the USVI in the first half of a year and remain USVI residents for the next three years.

Applicability of the net investment income tax

Finally, Section 1411 of the Code imposes a Medicare contribution on unearned income, and specifically imposes a tax equal to 3.8% of an individual’s net investment income for a taxable year. The Treasury Regulations promulgated under Section 1411 of the Code provide that bona fide residents of US territories are subject to the tax only if they have a US income tax filing requirement. However, bona fide residents of the USVI have no income tax obligation (or related return filing requirement) with the USA, provided that they properly report income and pay income tax to the BIR. Therefore, the tax imposed by Section 1411 does not apply to bona fide residents of the USVI because they will not have an income tax liability to the USA if they fully comply with the tax laws of the USVI.