Jersey: The International Comparative Legal Guide to Private Client 2013

Pre-entry Tax Planning

1.1 In Jersey, what pre-entry estate and gift tax planning can be undertaken?

Jersey has its own independent system and law of taxation. The governing laws are the Income Tax (Jersey) Law 1961 and the Goods and Services Tax (Jersey) Law 2007. There are no inheritance taxes, capital gains taxes or wealth taxes under Jersey law.

1.2 In Jersey, what pre-entry income tax planning can be undertaken?

Tax on income is charged at a flat rate of 20%. It is payable by resident individuals on their worldwide income, including certain benefits in kind. Non-resident individuals are taxed only on income arising in Jersey other than, by concession, interest arising on bank deposits. Jersey's authorities exercise control over the acquisition and occupancy of residential property in Jersey and statutorily defined housing qualifications are required before consent is given. However for those persons who are perceived to be 'high-value' individuals seeking to take up residence in Jersey, such consent is available together with tax concessions, reducing to a rate of 1%, in respect of non-Jersey source income in excess of a certain level. Likewise, Jersey's authorities are open to applications from new business entrants seeking, in particular, to avail themselves of the 10% tax rate applicable to regulated financial services businesses and to take advantage of the tax neutral status in Jersey of certain investment fund vehicles.

1.3 In Jersey, can pre-entry planning be undertaken for any other taxes?

Apart from income tax, the only tax payable in Jersey is a domestic tax on the supply of goods and services, which, since 1 June 2011, has been levied at a rate of 5%.

2 Connection Factors

2.1 To what extent is domicile relevant in determining liability to taxation in Jersey?

Jersey has concepts of both domicile and resident. However the concept of domicile is principally only relevant to the rules governing the succession to movable property under Jersey law.

2.2 If domicile is relevant, how is it defined for taxation purposes?

This is not relevant to Jersey.

2.3 To what extent is residence relevant in determining liability to taxation in Jersey?

Liability for payment of tax is mainly based upon residence.

2.4 If residence is relevant, how is it defined for taxation purposes?

What constitutes residence for the purposes of attributing liability to Jersey tax is not statutorily defined. A person who is resident and ordinarily resident in Jersey is charged to income tax on all of his or her Jersey and worldwide source income, whether remitted to Jersey or not. A person who is habitually resident in Jersey is charged income tax on all Jersey source income and any worldwide source income which is remitted to Jersey. A non-Jersey resident is charged to income tax on Jersey source income only (although, by concession, Jersey bank interest and social security pensions are deemed to be non-Jersey source income for these purposes). If an individual whose home has been abroad maintains an abode in Jersey which he uses, he is regarded as resident for any year in which he visits Jersey, for whatever length of time. In addition, if his visit spans one complete calendar year, he is regarded as ordinarily resident and if his visits are habitual after four years, unless intention to make them habitual is shown earlier, he is regarded as ordinarily resident. However, an individual whose main activities are abroad, in the sense that he has a home and a business or professional activities abroad which keep him more or less continuously outside Jersey, is not regarded as ordinarily resident, unless the annual average period spent in Jersey amounts to or exceeds three months. Where the individual's professional or business activities have ceased due to him having retired from work, he is not refused the concession to the charge of income tax if he can show that, in the ordinary course of his life, his permanent home is settled at one specific place abroad.

2.5 To what extent is nationality relevant in determining liability to taxation in Jersey?

This is not relevant to Jersey.

2.6 If nationality is relevant, how is it defined for taxation purposes?

This is not relevant to Jersey.

3 General Taxation Regime

3.1 What gift or estate taxes apply that are relevant to persons becoming established in Jersey?

With the exception of stamp duty payable on an application for a grant of probate or letters of administration, there are no gift or estate taxes under Jersey law.

3.2 How and to what extent are persons who become established in Jersey liable to income tax?

See the answer to question 2.4 above.

3.3 What other direct taxes (if any) apply to persons who become established in Jersey?

Income Tax is the only form of direct taxation under Jersey law.

3.4 What indirect taxes (sales taxes/VAT and customs & excise duties) apply to persons becoming established in Jersey?

The principal form of indirect tax payable in Jersey is a domestic tax on the supply of goods and services. The payment of this tax is governed by the Goods and Services Tax (Jersey) Law 2007 and was originally applied at a rate of 3% which was increased to 5% on 1 June 2011.

3.5 Are there any anti-avoidance taxation provisions that apply to the offshore arrangements of persons who have become established in Jersey?

There are no anti-avoidance provisions which apply specifically to the offshore arrangements of a person who becomes resident in Jersey. Article 134A of the Income Tax (Jersey) Law 1961 as amended does, however, confer upon the Comptroller of Income Tax to make an assessment to tax (or an additional assessment to tax) upon a person in relation to a transaction which, in the opinion of the Comptroller, had the main purpose of "the avoidance, or reduction, of the liability of any person to income tax".

4 Taxation Issues on Inward Investment

4.1 What liabilities are there to direct taxes on the remittance of assets or funds into Jersey?

By longstanding concession, an assessment to income tax is not made on a person who is not resident in Jersey in relation to Jersey bank interest and/or a Jersey social security pension. However, if a non-resident relief claim is made in respect of other Jersey income, any Jersey bank interest and social security pension is included in the calculation as income tax subject to Jersey tax. If the calculation results in a liability greater than tax suffered by deduction and/or charged at the standard rate on other Jersey income, no action is taken to collect the excess. The concession in respect of Jersey bank interests also applied to a non-resident person entitled to interest from designated accounts, trustees of trusts with no Jersey resident beneficiaries, the attorney executor of the estate of a deceased non-resident and the executor of the estate of a deceased Jersey resident, to the extent that the income is payable to beneficiaries who are not resident in Jersey.

4.2 What taxes are there on the importation of assets into Jersey, including excise taxes?

Jersey collects three different duties and taxes on imported goods:

• Goods & Services Tax (GST) at 5%.
• Excise duty on alcohol, tobacco and fuel.
• Common customs tariff (CCT) on all goods imported from outside the EU.

GST is charged on imported goods at the rate of 5% upon the value of the goods at import. The import value is the sum of the cost of the goods, plus any shipping charges and insurance costs. Other duties or taxes paid are taken to be part of the value of the goods and so GST is charged on top of these duties or taxes.

Customs duty is charged according to what the goods are and where they are imported from. There is currently an additional 15% duty charged on certain items imported from the USA.

4.3 Are there any particular tax issues in relation to the purchase of residential properties?

The only tax in relation to the purchase of Jersey residential property is stamp duty or, if the acquisition is made by way of purchasing a company which holds the property in question, land transaction tax. The rate at which these taxes are levied varies according to the value of the property purchased. The current maximum rate is ￡59,500 in relation to the first ￡2,000,000 and a further 5% on the value of the property beyond ￡2,000,000.

5 Succession Planning

5.1 What are the relevant private international law (conflict of law) rules on succession and wills, including tests of essential validity and formal validity in Jersey?

Succession to movable property situated in Jersey is governed, as a matter of Jersey law, by the law where the deceased was domiciled at the time of his or her death. However, a will dealing with movable property in Jersey need not be governed by the laws of Jersey. Since 2 January 1999, when the Probate (Jersey) Law 1998 came into force, a will of personal estate is treated by the Jersey courts as properly executed if, at the time of its execution or at the time of your death, its execution conforms to the laws of Jersey or the internal law in force either in the territory (i) where it was executed, (ii) where the deceased was domiciled, (iii) where the deceased habitually resided, or (iv) that of the deceased's nationality.

Jersey law has a forced heirship regime relating to the movable property of a person domiciled in Jersey. This regime is set out in the Wills and Successions (Jersey) Law 1993 (as amended). The ability of persons domiciled in Jersey to dispose of movable estate is restricted as follows:

5.2 Are there particular rules that apply to real estate held in Jersey or elsewhere?

Succession to immovable property is governed by the law of the jurisdiction in which the immovable property is situated. Therefore, the formal and essential validity of wills in respect of any Jersey realty are governed by the laws of Jersey and the formal and essential validity of wills in respect of French realty are governed by the laws of France and so on.

A will dealing with immovable property in Jersey must be executed in accordance with the strict formalities required by Jersey Law. If it does not, it will be invalid and ineffective. There are certain peculiarities of Jersey Law which may not be complied with if the will is not prepared by Jersey lawyers. For example, the will must be read out loud and, if signed in Jersey, one of the witnesses must be an advocate or solicitor of the Royal Court, or one of a limited number of other categories of witness. If the will is made outside Jersey, one of the witnesses must be a notary public.

Immovable property in Jersey is not subject to any forced heirship regime. A testator can leave his Jersey immovable property by will almost entirely as he wishes. However, in the case of a married man, his widow has a right to dower, that is, a life interest in one third of his immovable property at the date of his death. In the case of a married woman, her widower has a right of viduité, that is, a life interest in the whole of the immovable estate of his deceased wife, providing a child has been born during the marriage. Further, the widower's life interest is lost if the husband remarries.

6 Trusts and Foundations

6.1 Are trusts recognised in Jersey?

Yes, see the Trusts (Jersey) Law 1984 (as amended).

6.2 If trusts are recognised in Jersey, how are they taxed in Jersey?

A trustee resident in Jersey is prima facie assessable to Jersey income tax. However, the Comptroller of Taxes is generally willing to look through the trust, to asses any Jersey resident beneficiaries directly on their share of the income arising within the trust. Where a trustee is resident in Jersey but none of the beneficiaries are resident in Jersey, the Comptroller generally does not seek to subject the trustee or any of the beneficiaries to Jersey income tax. If the trustee is not resident in Jersey but one or more of the beneficiaries are resident in Jersey, any Jersey resident beneficiary is liable to pay Jersey income tax on income he received from the trust fund.

6.3 If trusts are recognised, how are trusts affected by succession and forced heirship rules in Jersey?

Any question concerning the validity or interpretation of a trust, the validity or effect of any transfer of other disposition of property to a trust or the capacity of a settlor shall, under Article 9 of the Trusts (Jersey) Law 1984 (as amended), be determined in accordance with the law of Jersey and no rule of foreign law shall affect such a question. Article 9 goes on to state that any such question shall be determined without consideration of whether or not the trust or disposition avoids or defeats rights, claims, or interest conferred by any foreign law upon any person by reason of forced heirship rights.

Further, the law of Jersey relating to legitime and conflict of laws shall not apply to the determination of such a question unless the settlor is domiciled in Jersey.

6.4 Are foundations recognised in Jersey?

Yes, see the Foundations (Jersey) Law 2009.

6.5 If foundations are recognised, how are they taxed in Jersey?

A foundation incorporated under Jersey law is taxed in accordance with Jersey's "zero/ten" regime. However, the proposed constitution of any foundation which includes benefitting any Jersey resident individuals as one of its objects must be submitted to the Comptroller of Taxes for pre-clearance.

6.6 If foundations are recognised, how are foundations affected by succession and forced heirship rules in Jersey?

Article 32 of the Foundations (Jersey) Law 2009 provides that any question that arises in relation to a Jersey law foundation or the founder shall be determined in accordance with Jersey law. It goes on to say that the incorporation of a foundation and any endowment of a foundation is not void, voidable, liable to be set aside, invalid or subject to an implied condition because of any foreign forced heirship rights.

7 Immigration Issues

7.1 What restrictions or qualifications does Jersey impose for entry into the country?

Anybody wishing to buy or lease property in Jersey is legally required to have the consent of the Minister for Housing who may attach conditions to the consent. The Regulations of the Housing Law 1949 detail who may obtain consent, and under what conditions. Relevant Regulations to consider include the following:

Jersey born - Regulation 1(1)(a) - Jersey born people who have lived an aggregate of ten years in Jersey may rent at age sixteen, and buy from the age of eighteen. No restriction on the type of property exists. Qualifications can never be lost e.g., after time spent outside the Island.

10 years' residence - Regulation 1(1)(f) - People who have lived continuously in the Island for 10 years up to the date of application will be granted qualifications. Such qualifications will be lost if they leave the Island other than in accordance with the "five-year break" rule. Short breaks in residency within this time may be allowed, contact the Population Office for more detailed information.

People who have rented with consent for ten years (usually under 1(1)(j)) - Regulation 1(1)(e) - People who have rented continuously for ten years with the consent of the Minister for Housing under any regulation, (including 1(1)(j)) may apply to buy or lease property. Such qualifications will be lost if they leave the Island other than in accordance with the "five-year break" rule.

Essentially employed - Regulation 1(1)(j) - This regulation allows the Minister for Housing to grant consent to enable an employee to purchase a property, or lease accommodation, and to remain in occupation in that accommodation so long as he/she continues to hold a position to which a "j" category licence has been granted. A "j" consent will only be granted where it can be demonstrated that a person is essentially employed and consent can, in the best interests of the community, be justified. Once a "j" employee has completed ten years' continuous residence s/he gains residential qualifications in her/his own right under Regulation 1(1)(e).

Regulation 1(1)(k) (consent to buy only) - The wording of this regulation refers to "consent that can be justified on social or economic grounds or both and as being in the best interests of the community". Normally, this implies a major contribution to tax revenues and other social benefits that would be derived by the Island should consent be granted. The types of property classified for occupation under this regulation are invariably very substantial expensive houses or luxury flats. Each application is viewed individually on its merits. Any client seeking to apply for consent under this regulation should be referred to Jersey legal advisers, accountants or bankers whose references would be necessary. Applicants would need to have assets of ￡12m and a taxable income of ￡750,000 to be considered.

"Five-year break" rule - This regulation, introduced in March 2001, allows people who have gained qualifications under Regulations 1(1)( b), (c), (d), (e), (f) and certain categories of Regulations 1(1)(h) and (n) to leave the Island for a single period of up to five years without losing their qualifications.

7.2 Does Jersey have any investor and other special categories for entry?

Jersey's authorities are open to applications from new business entrants seeking, in particular, to avail themselves of the 10% tax rate applicable to regulated financial services businesses and to take advantage of the tax neutral status in Jersey of certain investment fund vehicles.

7.3 What are the requirements in Jersey in order to qualify for nationality?

See question 7.1 above.

7.4 Are there any taxation implications in obtaining nationality in Jersey?

The Income Tax (Jersey) Law 1961 will apply in full.

8 Taxation of Corporate Vehicles

8.1 What is the test for a corporation to be taxable in Jersey?

A Jersey resident corporate body is now subject to income tax under Jersey's "zero/ten" regime, that is, the rate of income tax is either 0% or 10%, depending on the business activities of the corporate activity. A company incorporated in Jersey is generally regarded as being resident in Jersey, unless both its business is centrally managed and controlled in a country/territory where the highest rate at what any company can be charged to tax on any part of its income is 20% or higher and the company is resident for tax purposes in the country/territory. A company incorporated outside Jersey is regarded as not being resident in Jersey unless its business is managed and controlled in Jersey.

A 'zero/ten' tax system for companies has applied from 2009. This was achieved by introducing a standard rate of corporate income tax of 0% and a special rate of 10% for specified financial services companies into the Island's existing schedular tax system. Utility companies, rental income and property development profits continue to be charged at the standard rate of income tax of 20%.

All companies resident for tax purposes in Jersey prior to 3 June 2008, switched to a tax rate of either 0% or 10% for the year of assessment 2009 onwards. However, a company that became resident for tax purposes in the Island on or after 3 June 2008, was taxed at either a 0% or a 10% rate immediately. Companies have been unable to elect for exempt company status from this date.

8.2 How are branches of foreign corporations taxed in Jersey?

A branch of a foreign corporation will be taxed in Jersey if it has a permanent establishment. In relation to a company, a branch of the company, a factory, shop, workshop, quarry or a building site, and a place of management of the company will amount to a permanent establishment. The fact that the directors of a company regularly meet in Jersey will not, of itself, make their meeting place a permanent establishment. For the avoidance of doubt, it is the Comptroller's view that clerical functions, such as: invoicing operations; and management and administration services; and the entering into of contracts in respect of a company's international business (to include, for example, swap financing and loan funding agreements) at the address of the company's registered office, will not amount to the carrying on of a trade through a permanent establishment in the Island. All the profits of such entities are taxed. Taxable profits are determined under normal and existing tax law and principles.

9 Tax Treaties

9.1 Has Jersey entered into income tax and capital gains tax treaties and, if so, what is their impact?

Until recently, Jersey did not normally enter tax treaties as a matter of policy; for some time Double Taxation Agreements ("DTAs") existed only with the United Kingdom and Guernsey, and a limited agreement with France exempting a resident of either country from tax in the other country on profits from shipping and air transport. However, in response to the growing demands of the OECD and its member governments for greater fiscal transparency, Jersey has been keen to foster an image as a reputable international finance centre and has begun to sign more tax treaties, and agreements for the exchange of tax information. In addition to the DTAs with the UK and Guernsey and the limited agreement with France, Jersey has entered into tax treaties with Malta, Denmark, Finland, Iceland, Sweden, the Faroe Islands, Greenland, and Norway (the latter seven countries being collectively known as the 'Nordic Group'), Estonia, Hong Kong and Qatar. Further, treaties with Singapore, Bahrain, Belgium and Luxembourg are largely agreed and are expected to be signed imminently.

Jersey has signed twenty-nine bilateral Tax and Information Exchange Agreements, specifically with France, the UK, Germany, Sweden, Norway, Iceland, Greenland, Finland, the Faroe Islands, Denmark, the Netherlands, Ireland, Australia, New Zealand, the United States, Portugal, China, Turkey, Mexico, Canada, Argentina, Indonesia, the Czech Republic, South Africa, India, Japan, Poland, Italy and Austria. All are already in force save those with Turkey, Indonesia, Japan, Italy and Austria (which are all likely to come into force prior to mid-2013). As noted in the previous paragraph, limited double taxation avoidance agreements have also been concluded with some of these countries. Agreements initialled and ready for signing include those with Brazil, Greece, Republic of Korea and Spain, whilst draft agreements have been exchanged with Chile, Hungary, Kenya, Latvia, Lithuania, Slovakia, Slovenia and Romania.

9.2 Do the income tax and capital gains tax treaties generally follow the OECD or another model?

The UK and Guernsey treaties predated and thus do not conform to the OECD standard model treaty. Their main features are as follows:

• the profits derived from an industrial or commercial enterprise in one country will not be taxed in the other country except to the extent that they are attributable to a permanent establishment;
• profits of shipping or air transport attributable to a resident of either country are not taxed in the other country;
• an individual resident in only one of the two countries is exempt from tax in the other country on personal, including professional, services performed in the other country on behalf of a resident of his own country (but they must be taxed in his own country); and
• if, despite the above, tax is payable in both countries, the tax paid in one country is allowed as a credit against tax due in the other. However, as far as Jersey is concerned, allowance for tax paid is only up to 20% of the taxable income in the other country, i.e., the Jersey rate of tax is applied to, say, UK taxable income rather than the amount actually levied by the UK Inland Revenue. This means that there is effectively only a partial double taxation agreement between Jersey and the UK.

The agreement with the United Kingdom specifically excludes dividends and debenture interest from its provisions. On 25 January 2010, Jersey signed a comprehensive DTA with Malta. It is the Island's first DTA which is based on the OECD model convention. At the time, this DTA also represented Jersey's sixteenth international tax agreement to meet the OECD tax standards on transparency and information exchange.

9.3 Has Jersey entered into estate and gift tax treaties and, if so, what is their impact?

Jersey does not have any estate or gift tax.

9.4 Do the estate or gift tax treaties generally follow the OECD or another model?

This is not applicable to Jersey.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.