Barbados: Barbados - An International Financial Centre With Tax Treaties

The traditional purpose for a tax treaty is to ensure that a tax payer is not subject to be taxed twice on the same income flows; and to determine an equitable split of the tax revenue derived between the participating countries given situations where an investor in one country of residence conducts business through a permanent establishment in another country which acts as the host of the business enterprise.

So that the important provisions in the tax treaty would deal with:

• What taxes are covered;
• How is residence determined for the purposes of tax and what are the tie-breaking rules;
• How is "permanent establishment" in order to determine the right to tax;

(Practical example: in a capital gains situation what Barbados would attempt to do is to make sure that the entity which will be liable to a capital gains tax say on the sale of shares is resident in Barbados for the purposes of the tax treaty and liable to tax there. Barbados has no capital gains tax , which means that the entity having been subject to tax in Barbados at a zero rate would not be subject to a further tax in the country of origin.

• What are the levels of withholding taxes on specified investment income?
• Does the treaty allow third parties to benefit from the provisions to the treaty? (Treaty shopping)
• Does the treaty have Tax sparing provisions?

1. BARBADOS /USA TAX TREATY

Let us look at the Barbados/USA tax treaty and its implications for International Business

1. The Limitation of Benefits Article:

Introduced by the Protocol, this Article contains some provisions valuable to the financial services sector provided an active business is conducted. Banking and insurance are considered to be active business.

The article provides four alternative tests which allow a resident to benefit from the treaty:

• the active business test
• the shareholder test
• the listed stock test
• the non-profit organization test.

The active trade or business test affords treaty benefits to the residents of one treaty country that earn income in the other if the resident carries on an active trade or business in its home country that is related to and substantial in relation to the income producing activity in the other country.

Excluded are the businesses of making or managing investments unless these activities are banking or insurance activities carried on by a bank or insurance company.

To qualify under the listed stock test, the company’s principal class of shares should be listed on a recognized stock exchange. Under the shareholder test a company will qualify if more than 50% of its shares are held by persons entitled to benefits under the Convention who are US citizens, and at least 50% of the gross income is used to meet liabilities of persons entitled to the benefits of the Convention. A non-profit organization may benefit if it is exempt from taxation in its state of residence once more than half its beneficiaries are entitled to the benefits of the Convention.

2. The Permanent Establishment

In Article 5 of the Treaty, Barbados has reverted to the 1977 OECD model permanent establishment provisions, in preference to the 1980 UN model provisions with a view to attracting investment to its offshore sector. The UN model lowers the components that constitute a threshold, so that the source country is able to increase its potential jurisdiction to tax inbound investment on trade from persons in the treaty country.

The accompanying memorandum of understanding recognizes several examples to utilize the treaty for telemarketing and purchasing and selling by a Barbados company in relation to the USA, joint venture investments, and philanthropic organizations. The memorandum expressly recognizes as eligible for treaty benefits:

• A Barbadian resident company owned by three persons, each resident in a different third country, and the company is engaged in an active international marketing business in Barbados. It purchases goods in Asia and sells them through the Western hemisphere including the US, but has no permanent establishment in the US.
• A company owned by three persons, each resident in a different third country. The company is the worldwide headquarters and parent of an integrated international business carried on through subsidiaries in many countries including Barbados. The Company’s wholly owned US and Barbados subsidiary manufacture, in their country of residence, different products, which form part of the group’s product line.

The rates of withholding taxes have been reduced in respect of dividends (except for portfolio income), interest and royalty income to 5%. This is attractive to foreign business. The lower rates would permit a multinational company investing in a third state through Barbados to pay some Barbados tax and still have a meaningful tax saving.

The USA/Barbados Treaty allows the use of Barbados as a holding company jurisdiction to make and manage investments in other countries.

Particular advantages:

• Low withholding tax on the repatriation of dividends.
• the international investor can utilize IBCs to hold and manage investments in subsidiaries with certainty as to the tax and fees due and the ability to qualify for IBC status.

Under the Treaty, an IBC may perform a number of services such as repackaging

operations in the host country, management, brokerage, construction and dredging services without incurring a permanent establishment.

The Treaty enables a Barbados IBC to assist an investor who wants to be exporting or consolidate existing imports to the USA. By establishing a Barbados IBC and having an active trade or business in Barbados relative to its USA activities, the Barbados company can conduct activities related to marketing and selling goods into the USA without the imposition of tax.

The Barbados/US Treaty exempts offshore banks from the application of the limitation on benefits provisions. This specific concession treats banking business as active business and would therefore be an exception to the anti-treaty shopping provisions of the treaty.

Offshore banks benefit from low withholding taxes for interest in the treaty of 5%.

Significant tax planning opportunities are available to the shipowner participating in international traffic or any trading or related activities from Barbados.

International traffic is defined as any transportation by ship except transportation solely within either Barbados or the USA. The treaty exempts from tax in the USA the profits of an enterprise carried out by a resident of Barbados from the operation of ships in such traffic, regardless of whether the profits are attributable to a permanent establishment in the USA or the ship is registered in Barbados.

• operating profits
• profits from the rental of ships arising from the operation of the ships in international traffic by the lessee incidental rental profits i.e. profits incident to the operating profits, rents from bareboat charters.
• Profits from maintenance, use or rental of container used in the transport of merchandise in international traffic
• profits from the participation in a pool, a joint business or an international operating agency.

The lower withholding rates, favourable limitation of benefits provisions, as well as the PE and business profits provisions in the 1992 Protocol to the treaty allow shipowners, especially multinational companies to choose Barbados with confidence. Such a shipowner may utilise attractive provisions to conduct trading and other activities from Barbados.

Barbados has concluded treaties with the UK, Canada, Norway and Finland with and Cuba and Venezuela which offer excellent opportunities for trading and investment in selected countries using a Barbados entity ( IBC, SRL captive insurance company or offshore bank.

By Virtue of the existence of a comprehensive tax treaty with Canada, Barbados is a listed country and a foreign affiliate of a Canadian parent company set up in Barbados and conducting active business will not be further taxed in Canada on dividend s remitted to its parent once the company was subject to tax in Barbados ( at a rate of between 2.5 to 1%) This provision is extremely attractive to Canadian companies which have a business purpose.

Establishing a Barbados IBC

The International Business Companies Act provides for tax benefits to resident international business companies which do not trade locally in Barbados. An IBC is resident in Barbados if it is incorporated in Barbados or if its business is managed and controlled in Barbados.

IBCs must:

1. Not carry on a trade in the buying or selling of goods or services in or originating in Barbados, are for non- Caricom residents.

Many IBCs currently operate from Barbados and engage in activities as diverse as financing, trading, the provision of management services to non-residents. Several incentives are offered to International Business Companies. These may be summarized as:

1. Tax Incentives

• low rate of tax on profits, the maximum being 2.5%.
• credit can be taken for taxes paid in a foreign country provided the tax paid in Barbados is not less than 1% on the profits in any income year.
• company incorporated outside of Barbados is taxed on profits earned from Barbados operations only.
• profits of an IBC whose shares are wholly owned by an Offshore Trust under the management of a licensed offshore bank is exempt from tax.
• exemption from local taxes on dividends, interest, fees, royalties, management fees, or other income paid or deemed paid to another IBC or to non-residents.
• exemption form taxes and duties on plant, machinery, raw materials, goods and other articles imported into Barbados in connection with the IBC’s business.
• dividends paid to a Canadian company out of income earned from an active business in Barbados are considered as ‘exempt surplus’ and are not subject to tax in Canada.
• double taxation treaties exist with the USA, Canada, UK, Switzerland, Sweden, Norway and Finland. Cuba, Venezuela and China
• Barbados is certified as a "North American Area" and therefore business convention expenses incurred in Barbados by U.S. corporations and organizations are automatically deductible in the USA against U.S. taxes.

2. Cost Incentives

• no minimum capital requirements.
• no local directors required.
• initial and annual maintenance costs are competitive.
• simple winding-up provisions.
• no tax or duty on share capital.

3. Other Incentives

• ease of incorporation.

• simplified corporate mobility (both in and out).
• exemption from exchange control.
• books, records and financial statements can be maintained in foreign currencies.
• provision for pre-incorporation contracts and telephone directors’ meetings.
• income tax and exchange control concessions for resident expatriate employees.
• exemption from public filing of financial statement.
• freedom to acquire real estate.
• no investment restrictions.
• single shareholder companies permitted.
• a company has the capacity of a natural person.
• corporate directorship and secretary allowed with certain restrictions.
• a company may buy back its own shares or reduce stated capital subject to
• solvency test.
• prohibition of disclosure of information regarding the company’s business.
• guarantee of benefits for 15 years.
• corporations can migrate into or out of Barbados.
• individual who is a shareholder is not deemed resident in Barbados solely by an employer/employee relationship with the IBC.
• manufacture of products for export outside of CARICOM permitted.
• benefits accruing to a manufacturing enterprise are for an indefinite period.

Is a hybrid entity -a cross between a limited liability company & a partnership.

SRLs have the following characteristics: non-continuity of life. The Act provides for the automatic dissolution of the SRL on the occurrence of certain event: the expiration of the fixed period (maximum of 50 years) specified in the Articles; upon death, retirement or insolvency of a member or by court order.

Restriction under its by-laws of the free transferability of quota (shares)

Exempt SRL’s are designed to be used mainly of international transactions and are prohibited form holding land in Barbados other than leasehold property required for the purposed of its business, and from transacting business with residents of CARICOM. It is a good vehicle to use when structuring investments in certain civil law jurisdictions in Europe and Latin America.

The International Trusts Act of 1995 added a new dimension to Barbados as a domicile for trusts.

A ‘’trust "is a legal relationship created when assets have been placed under the control of a trustee for the benefit of a beneficiary of for a specified purpose. Its characteristics embody the following principles e.g. : (i) separation of the trust fund from the trustee’s estate; (ii) title to the assets being vested in the trustee; (iii) fiduciary duties and powers of the trustee; and (iv) trustee accountability for the management and administration of assets of the trust

An "international trust" is defined in the Act as a trust in respect of which:

The settlor is resident outside Barbados at the time of Creation of the trust; at least one of the trustees is resident in Barbados;

no beneficiary, other than certain exempted persons and bodies, is a resident of Barbados at the time of creation of the trust; and

Residence is defined in the Act and in the case of an individual, occurs where that is a resident of Barbados or is ordinarily resident in Barbados or is citizen of Barbados with a residence in Barbados; and

in the case of company or other body if it is incorporated, registered, formed or

organized in Barbados, and the majority of its shares is beneficially held by persons resident in Barbados.

An international trust must be created by an instrument in writing. If a trust is created after December 9, 1995 the instrument must contain an express declaration to the effect that the provisions of the ITA apply thereto. If created before, the Trustees must make the requisite declaration by deed before March 6, 1996.

The principal features of an international trust may be summarized as follows:

• The characteristics of a trust are clearly defined
• Trust may make provision for the appointment of a Protector
• Trust for non-charitable purposes is permitted.
• Duty of confidentiality imposed on Trustees
• There is a statutory presumption of irrevocability unless the trust instrument provides to the contrary
• Trust deemed not to be domiciled in Barbados for income tax purposes
• Distributions of trust income to non-resident beneficiaries not subject to tax in Barbados
• The "rule against perpetuities" does not apply, and a trust terminates after 100 years.
• Purpose trusts and Charitable trust have an indefinite duration
• Allocations and distributions of capital to beneficiaries exempt from tax in Barbados
• Forced heirship laws are not recognized or enforced in Barbados courts
• Exchange Control and Succession laws inapplicable
• Income of the trust may be accumulated for up to 100 years
• Flexible provisions for designating the proper law of the trust
• Dispositions of property cannot be challenged after 3 years
• No requirement of registration of international trusts

Barbados legislation seeks to discourage fraudulent dispositions aimed at defeating legitimate claims of creditors, but gives recognition to legitimate dispositions which are protective in nature. Dispositions with an intent to defeat an obligation or liability that existed on or before the date of the transfer and of which the transfer and of which the transferor had notice will be set aside at the instance of the creditor. So too will dispositions made at an undervalue. The onus of proving fraudulent intent or undervalue is on the creditor, who must bring his action no later than three years after the relevant disposition.

In the event the Court orders the setting aside of any disposition, Trustees who have not acted in bad faith will be allowed a first charge on the assets the subject of the disposition as security for their entire costs properly incurred in defending the action.

In addition, the disposition will be set aside subject to the payment of such trustee’s proper fees, costs, pre-exiting rights, claims and interests. Likewise, prior distributions to beneficiaries who have not acted in bad faith will not be affected by the set aside order.

The Act limits the Court’s power to set aside a relevant disposition, so that it will be set aside only to the extent necessary to satisfy the obligation to the creditor at whose instance the action was brought.

A settlor’s capacity to create a testamentary trust in respect of movable property is governed by the laws of his domicile, while his ability to create an inter vivos

trust in respect of movable property, the settlor’s capacity to create a trust depends on the law of the jurisdiction in which the property is located. In all other cases, subject to the terms of the trust deed, questions relating to a trust which is governed by the laws of Barbados or any disposition upon such trust are to be determined according to Barbados law without regard to the laws of any other jurisdiction. Foreign law will, however, be recognized in determining the question whether the property the subject of the trust was owned by the settlor before or at the time of the settlement.

A trust that is validly created under Barbados law will not be varied or set aside by Barbadian courts pursuant to the laws of another jurisdiction in respect of:

the personal and proprietary effects of marriage;

succession rights, testate and intestate, especially the legal right of surviving spouses and the shares of relatives

the protection of creditors in matters of bankruptcy, unless there are corresponding laws in Barbados.

For Barbados income tax purposes, the international trust is treated as not being domiciled in Barbados. As such, only the following income will be treated as taxable, namely.

Income derived from Barbados income derived form sources outside Barbados to the extent that a benefit is received in Barbados from that income in the form of a remittance of money, an importation of property, the granting of credit by bank overdraft or otherwise, or in any other form whatsoever.

There is no Barbados tax liability for capital gains.

Distribution or allocations to non-resident beneficiaries of trust income are exempt from tax in Barbados. So too are allocations and distributions out of capital of the trust to "eligible" beneficiaries. The Act confers upon the Trustees the power and discretion to transfer, appropriate or apply trust funds or income thereof for the benefit of any beneficiary; and to classify a distribution as capital. Accumulated income of the trust which has been allocated but not distributed to beneficiaries is treated as part of the capital of the trust.

A beneficiary that is an Exempt Insurance Company or and International Business Company may be exempt from income tax in Barbados in respect of amounts allocated or distributed to it out of trust income. Although they are treated as residents of Barbados by and for the purposes of the respective statues under which they are licensed, they are not residents of Barbados within the definition contained in the ITA since, in both cases, the majority of their respective share capital is beneficially owned by persons who are not resident in Barbados Beneficiaries

A beneficiary who is a resident of Barbados is subject to tax in Barbados on trust income in respect of any year during which he is resident in Barbados. However, no tax is payable in respect of income which has accumulated for years during which the beneficiary was not a resident of Barbados. In respect of beneficiaries who face liability to tax in respect of trust income both in Barbados and another jurisdiction, the existence of Barbados’ impressive network of double taxation treaties provides ample and effective relief. In addition, resident beneficiaries which are Offshore Banks may be entitled to a reduced rate of tax in respect of trust income.

The Barbados Exempt Insurance Act provides for the carrying on of exempt insurance business which is defined as the business of a body corporate whose risks and premiums originate outside Barbados and on whose liquidation monies are payable to or for the benefit of persons resident outside the Caribbean Community.

The Acts spell out the requirements for registration, the statutory filing requirements, solvency requirements etc.

Under current Canadian tax law a Canadian company which receives a dividend form a foreign affiliate which is a resident and carries on business in a listed country is exempt from Canadian tax on that dividend, if it paid our of exempt surplus of the affiliate.

Under the amendment to those rules a company must be resident in a designated treaty country in order for its earnings from active business be included in exempt surplus of the Canadian corporate shareholder.

The Central issue was whether the Canadian owned exempt company is resident in Barbados on the grounds that it is liable to tax in Barbados.

The issue whether where a zero rate was a liability to be taxed. The issue has now been resolved since the Government amended the Act and the Income Tax Act and provides for insurance companies to opt to be an exempt company under the EIA with a rate of tax at zero or be a qualifying insurance company under the Insurance Act which a gross tax rate of 40% but with credits that would make the effective rate about 2.8%. This has been accepted by Revenue Canada.

Detailed structures and advice will given in private meetings since each client’s business circumstance and desired objective would vary.