An uncertain future for publicly accessible registers of beneficial ownership

In December 2023, the governments of the Crown Dependencies of Jersey, Guernsey and Isle of Man, and the British Overseas Territories (OTs) of the Virgin Islands (BVI) and Cayman Islands, rowed back on their previous commitments to establish publicly accessible registers of beneficial ownership (PARBOs) of companies. They have undertaken to allow access to beneficial ownership information by public authorities for the purposes of controlling money laundering and terrorist financing, and by others with a ‘legitimate interest’ in the information. However, they no longer plan to allow unrestricted access by members of the general public.

The territories sought to justify this change of position by reference to the 2022 judgment of the Court of Justice of the European Union (CJEU) in WM & Sovim SA v Luxembourg Business Registers (Joined Cases C-37/20 and C-601/20). The CJEU held that the part of the Fifth Anti-Money Laundering Directive requiring Member States to ensure full public access to beneficial ownership information was invalid, because it infringed the right to respect for private life and protection of personal data of beneficial owners. While the judgment is not binding on the UK, Crown Dependencies, or OTs, all remain closely aligned with the EU on questions of data protection and take a similar approach to the EU regarding the right to respect for private life. They must therefore take the CJEU judgment seriously and reflect on its wider impact, not least as a corrective against the notion of an emerging global standard in favour of unrestricted access to beneficial ownership information.

The skilfully worded press releases of the BVI and Cayman Islands do not quite convey the constitutional significance of the recent changes of policy in these territories. The UK Parliament has enacted legislation requiring the OTs to establish PARBOs. A cross-party amendment to the Sanctions and Anti-Money Laundering Act 2018 (SAMLA), which was initially opposed by the UK government, required the Secretary of State to prepare a draft Order in Council by 31 December 2020, requiring any OT that had not introduced a PARBO to do so. The Crown Dependencies were encouraged to establish PARBOs of their own, but were not compelled to do so; the UK government considers that Westminster has no legal right to impose its will on the Crown Dependencies (although not all UK parliamentarians share this view). A draft Order in Council was duly prepared in relation to the OTs, setting 31 December 2023 as the date for implementation of PARBOs in the territories.

The legislation provoked fierce criticism in the OTs, especially those with significant finance centres where legislative competence in financial and economic matters has been devolved to the territories’ governments for decades. Unilateral intrusion by Westminster in this sphere was seen by some (e.g. the Premier of Bermuda) as a case of constitutional overreach which, in the absence of a global standard on publicly accessible registers, would place an unjustifiable burden on the OTs. Some even saw it as ‘imperial legislation’ by a UK Parliament in which the peoples of the OTs are not directly represented.

The UK legislation had no practical impact on Gibraltar. As the only OT within the EU legal order when the Fifth Anti-Money-Laundering Directive came into force, Gibraltar was obliged under EU law to establish a PARBO. It did so via the introduction of the Register of Ultimate Beneficial Owners, Nominators and Appointors Regulations 2017 (the UBO Regulations). Chief Minister Fabian Picardo nevertheless protested against the SAMLA amendment as a matter of constitutional principle. On the day of the Westminster vote, he warned one of the co-sponsors of the amendment that it ‘would amount to an unacceptable act of modern colonialism’, and ‘would call into question the very nature of the relationship of consent and mutual respect which exists today between Gibraltar and the United Kingdom’.

It will be interesting to see whether other OTs follow the example of BVI and Cayman, and whether the UK government uses its SAMLA powers to force compliance. It is possible that, with a UK general election around the corner, the task of resolving the constitutional tension will fall to a new UK administration, whose approach to this issue may well set the tone for its relationships with some of the OTs.

Although the spotlight is now on BVI and Cayman, Gibraltar could soon face a dilemma. The legal framework underpinning Gibraltar’s finance centre is still based to a large extent on (retained) EU law and compliance with EU standards of transparency. If an EU consensus emerges around a ‘legitimate interest’ test for access to beneficial ownership information, Gibraltar may find itself caught between the irresistible force of the EU’s regulatory gravity, and the immovable object of the UK’s PARBO requirement (unless the UK decides – quietly, no doubt – to align with the EU’s new approach).

Another variable to consider is the hypothetical possibility of a constitutional challenge to the UBO Regulations in a Gibraltar court. The WM & Sovim decision would not be treated as binding in Gibraltar, but the CJEU’s reasoning might prove persuasive if a beneficial owner were to argue that full public access to the register conflicts with his or her right to privacy under sections 1(c) and 7 of the 2006 Gibraltar Constitution.

 

The Income Tax (Amendment) Act 2024 (“the Amending Act”) was passed last week and establishes amendments to the Income Tax Act 2010 (“the Old Act”), in particular, the extension of paragraph 15, Schedule 3 to insurance companies and Distributed Ledger Technology (DLT) firms. The Amending Act applies with effect for the accounting periods commencing on or after 1 February 2024.

The main changes brought about are as follows:

1. The extension of paragraph 15, Schedule 3 to insurers and DLT firms;
2. Interest income and similar amounts of relevant entities shall be taxable; and
3. Introduction of anti-avoidance provisions to capture disposals to connected persons.

Under paragraph 15, Schedule 3 of the Old Act, only interest income of money lenders and deposit taking institutions was treated as trading income and therefore subject to taxation in Gibraltar. This scope is now extended to insurers and DLT firms. The amendment was designed to clarify the tax treatment of Gibraltar insurance and DLT firms and provides that any profits accrued as interest or similar amounts would be chargeable to corporation tax in Gibraltar.

Relevant Entities

The scope of paragraph 15, Schedule 3 now applies to the interest income and similar amounts of any entity which:

– carries on the activity of money lending to members of the general public;
– is in receipt of interest on funds derived from the regulated activity of accepting deposits as set out in paragraph 3 of Schedule 2 of the Financial Services Act;
– has permission under Part 7 of the Financial Services Act 2019 to carry on the regulated activity of effecting or carrying out contracts of insurance; or
– has permission under Part 7 of the Financial Services Act 2019 to carry on the regulated activity of using distributed ledger technology (DLT) for the storage or transmission of value.

Trading Income of Relevant Entities

The profits of the relevant entities derived from interest bearing-like products, also referred to as “similar amounts”, shall now be included as trading income and taxable in Gibraltar. For the purposes of clarification, similar amounts mean the profits or gain or a Relevant Entity from –

– any instrument paying a recurring amount of income calculated by reference to a transaction for the lending of money whether such instrument directly evidences a transaction pursuant to which money is loaned or advanced or is a derivative instrument referencing such a transaction and whether or not such amount is paid to the initial parties to such an instrument or to a person to whom the benefit of such instrument is assigned or otherwise transferred;
– lending advancing or otherwise generating income from virtual assets by means of an arrangement under which, in return for value (calculated in relation to a percentage of the value or number of those virtual assets or otherwise benchmarked to their characteristics) – (1) another person or entity is permitted to use the virtual assets; or (2) the virtual assets are used to validate transactions on a proof of stake blockchain or any similar consensus mechanism;
– discounts; or
– any other arrangement (whether legally enforceable or not) in relation to which it is reasonable to assume that the main purpose, or one of the main purposes, of those arrangements is the avoidance of the charge to tax on interest under this paragraph.

Anti-avoidance provisions

The Amending Act has also introduced anti-avoidance provisions to capture disposals to connected persons of the relevant entities, to ensure that in-scope taxpayers do not circumvent their tax obligations. However, such anti-avoidance provisions shall not apply to entities who provide evidence to the satisfaction of the Commissioner that the avoidance of tax was not the main purpose of the disposal.

For any further queries, or if you wish to discuss these changes further, please contact us at stuart.dalmedo@isolas.gi

As a result of ISOLAS’s continued excellence in Dispute Resolution, the Firm is now recognised in four Tier 1 rankings: Dispute Resolution, Banking & Finance, FinTech and TMT.

The firm maintains its strong presence in Tier 2 with seven other practice areas: Commercial, Corporate and M&A, Gambling Law, Investment Funds, Private Client, Real Estate and Construction, Shipping, and Tax.

ISOLAS’s success extends beyond firm-wide recognition. Senior Partner, Peter Isola and Partner, Christian Hernandez retain their prestigious “Hall of Fame” status.

Partners Steven Caetano, Samantha Grimes, Adrian Pilcher, Jonathan Garcia, Emma Lejeune, and Consultant Joey Garcia are named “Leading Lawyers”.

Notably, Partner The Hon Neil F Costa receives his first “Leading Lawyers” ranking for expertise in Dispute Resolution.

Mark Isola KC is also recognised within Dispute Resolution as a “Recommended Lawyer”.

Partners Christian Caetano, James Montado, and Stuart Dalmedo are joined by newcomer Sarah Bray as “Next Generation Partners”.

The firm also welcomes the recognition of Katrina Isola as a “Rising Star”, joining Danielle Victor and Michael Adamberry.

Marcus Killick OBE, ISOLAS’s CEO, acknowledges the firms, and individual, achievements saying: “These rankings solidify ISOLAS’s position as a top tier Gibraltar law firm. We thank our clients and peers for their continued trust and support.”

The full rankings can be seen here

ISOLAS Partner Mark Isola KC and Senior Associate Nick Isola, experts in employment law, provide a comprehensive analysis of statutory redundancy compensation in Gibraltar highlighting both the similarities and key differences to England and Wales.

In the lead-up to the last General Election on 12th October 2023, the Gibraltar Chronicle published an article on the election wish list of Unite the Union (“Unite”), which Unite said was to benefit members, workers and employers alike in delivering a better-paid, supported, motivated and trained workforce and which would ultimately aid the economic growth of Gibraltar.

Whilst there may be wide support, and even cross-party political support, for certain initiatives (in parts or in full) in the wish list such as amending the laws on maternity and paternity leave which many in the community will consider to be outdated or inadequate, other proposals may be viewed with real concern by employers, particularly businesses in the private sector, that are still recovering from the dual effects of the Covid-19 pandemic, and the continuing uncertainties of the post-Brexit era in the absence of any treaty with the European Union.

One proposal on Unite’s wish list is to increase the statutory redundancy payment (“SRP”) ceiling from 52 weeks’ pay to 78 weeks’ pay, which employers would naturally view as materially increasing their costs and negative to economic growth in Gibraltar.

It is important to highlight the protections and advantages that Gibraltar’s employees already enjoy on redundancy which provide them with greater statutory redundancy packages than their counterparts in England & Wales, and the cost of such redundancies, always an important factor when outside businesses consider the competitiveness, and attraction, of setting up in Gibraltar rather than competitor jurisdictions. There are material differences between Gibraltar and England & Wales when considering entitlements to SRP and which are already far more favourable to employees in Gibraltar than their counterparts in England & Wales for the following reasons:

Eligibility for SRP 

1. The qualifying period to be entitled to claim SRP for eligible employees in Gibraltar is only 1 year’s continuous employment whereas in England & Wales it is 2 years’ continuous employment.

Calculation of SRP

Length of service and age

2. The amount received in SRP depends on length of service and, in Gibraltar, an employee is entitled to 2 weeks’ pay for each of the first 5 years of completed years of service; 3 weeks’ pay for each of the next 5 years of completed years of service; 4 weeks’ pay for each additional completed year of service thereafter; and, where an employee is aged 41 years and over, 2 weeks’ additional pay for each completed year of service after the age of 40. In England & Wales, an employee receives 0.5 week’s pay for each completed year of service under the age of 22, 1 week’s pay for each completed year of service aged 22 or over, and under 41, and 1.5 week’s pay for each completed year of service aged 41 or older.

A week’s pay

3. The maximum weekly amount of pay in England & Wales for the purposes of calculating SRP is capped by statute, at £643 per week even if the employee enjoys a greater weekly wage. No such maximum statutory weekly cap applies in Gibraltar.

Capping

4. The maximum length of service considered in England & Wales is 20 years, and as a result of such capping an employee in England & Wales can only be paid up to a maximum SRP of £19,290 based on the capped weekly wage. In Gibraltar, there is a statutory cap of 52 weeks’ pay, but as previously stated, no cap on the weekly pay that applies, so an employee earning, by way of example, £90,000 annually, would receive the full £90,000 if they were so entitled to the maximum capped SRP, far in excess of the £19,290 cap applicable in England & Wales.

5. The whole of the SRP is normally exempted from income tax in Gibraltar unlike in England & Wales where it is subject to a cap of £30,000 tax exemption. The Income Tax (Allowances, Deductions and Exemptions) Rules 1992 (“Rules”) of Gibraltar expressly provides that certain classes of income are exempt from tax with, in particular, Rule 3(9) applying to an amount paid on redundancy where the Commissioner of Income Tax considers the amount payable to be “appropriate, having regard to, but not limited to, the employee’s length of service with the employer who made them redundant and their rate of pay”. This is in addition to the separate exemption that exists under Rule 3(8) of the Rules for unfair dismissal where, for example, the employer makes an ex-gratia award as part of the redundancy process. As a consequence,
and continuing with the example in paragraph 4 above, that employee would receive the £90,000 tax free upon being made redundant in Gibraltar whereas the same employee in England & Wales would only receive tax free the first £30,000 on termination of their contract of employment, and the balance would be subject to deductions for income tax.

6. In England & Wales an employee would not be entitled to SRP if (a) the employer offers to keep the employee on; and (b) the employer offers suitable alternative employment which the employee refuses without good reason to accept. No such similar caveats exist in Gibraltar to preclude payment of SRP where an employer can provide and offer the employee suitable alternative employment to avoid the redundancy in the first place.

Similarities between Gibraltar and England & Wales

There are additional protections that are common to both jurisdictions in a redundancy situation including:-

1. In a contested redundancy, a claim for unfair dismissal, and a protective award where the provisions relating to collective redundancies are not complied with and which require an employer that is proposing to dismiss as redundant a minimum of five (minimum of 20 employees in England & Wales) or more employees within a period of 90 days or less to comply with various consultation provisions, including providing information and beginning consultations at , in Gibraltar, the earliest opportunity or at least 60 days (at least 30 days for 20 to 99 redundancies, and at least 45 days for 100 or more redundancies in England & Wales) before the first of those dismissals take effect with the giving of the minimum notice of termination.

2. The employee is also entitled to his notice period in addition to any SRP with statute in Gibraltar prescribing minimum periods of notice between one to three months’ depending on the length of service of the employee, and leaving aside any greater notice that may be agreed under the contract of employment.

Conclusion 

There is of course an important economic balance that needs to be struck between businesses and the protection of employees in Gibraltar. Gibraltar already has significant employee protections in the area of redundancy, with the unemployment figure at the end of the second quarter of 2023 recording a new record low of only 26 Gibraltarians being registered as unemployed according to the GSLP Liberal Manifesto 2023 before their recently re-election as His Majesty’s Government of Gibraltar. It is therefore difficult to understand how the increase proposed by Unite will actually aid the economic growth in Gibraltar and not impose a disproportionate and additional burden on the private sector in Gibraltar, when eligibility and entitlements to statutory redundancy compensation, including their tax treatment, are already materially better and more favourable in Gibraltar than in England & Wales. However, and to avoid effecting redundancies in the first place by providing greater flexibility to employers when faced with the difficult decision of cutting costs in the workplace, a more balanced change to employment law would be to introduce a statutory provision similar to that in England and Wales to allow employers to offer suitable alternative employment to employees to avoid the necessity of effecting job losses in the first place, with the hardship and difficulties that entails for all concerned.

 

ISOLAS LLP Partners Adrian Pilcher, Stuart Dalmedo, and Associate Louise-Anne Turnock, have contributed to the latest edition of Chambers Corporate Tax Global Practice Guide.

This guide by Chambers & Partners, a respected legal publisher, offers a comprehensive overview of tax laws across 45 jurisdictions, providing the latest legal information on various tax topics, including:

• The different types of business structures allowed in each jurisdiction
• Special tax incentives offered by different countries
• How companies can group their subsidiaries for tax purposes
• Individual and corporate tax rates
• Withholding taxes applied to dividends or interest payments
• Tax treaties between countries to avoid double taxation
• Transfer pricing rules to ensure fair pricing between related companies
• Anti-avoidance measures to prevent tax loopholes
• How countries address base erosion and profit shifting (BEPS) practices

Authored by ISOLAS legal tax team, the Gibraltar chapter delves into the legalities of taxation within the territory. It provides a comprehensive overview of tax regulations relevant to both local and foreign entities.

Stuart Dalmedo, Partner at ISOLAS LLP, said: “ISOLAS is proud to continue sharing its in-depth tax expertise through the latest Chambers Global Practice Guide. This information will undoubtedly be a valuable resource for those considering establishing a presence or conducting business in Gibraltar”.

The full Gibraltar chapter in the 2024 Chambers Corporate Tax Global Practice Guide can be read here

Yesterday the European Commission (the “Commission”) adopted a Delegated Regulation amending Delegated Regulation 2016/1675 (the “Regulation”) as regards deleting Gibraltar (as well as other counties) from the list of high-risk countries identified under the Regulation (the “List”).

Since the latest amendments to the Regulation, on 23rd February 2024, the Financial Action task Force (“FATF”) removed Gibraltar (as well as other countries) from the FATF list of countries under increased monitoring (Grey List) following the implementation of the respective actions plans that Gibraltar had agreed with the FATF.

Following the measures implemented to address the action plan agreed with the FATF, the Commission’s assessment has concluded that Gibraltar no longer has strategic deficiencies in its respective anti-money laundering (AML) and Combating the Finance of Terrorism (CFT) frameworks and does not pose a significant threat to the financial system of the EU. The Commission therefore considered it appropriate to delete Gibraltar from the List.

The adopted Delegated Regulation enters into force on the twentieth day following its publication in the Official Journal of the EU.

The implications of this development extend beyond regulatory compliance. Gibraltar’s removal from the List reaffirms its status as a reputable and trustworthy financial hub, thereby bolstering investor confidence and attracting businesses seeking a secure and compliant jurisdiction for their operations.

One of the key factors contributing to Gibraltar’s successful removal from the List is its proactive approach to dealing with international stakeholders and adopt measures that align with evolving global AML/CFT standards. By meeting the stringent requirements set forth by the FATF and Commission, Gibraltar reinforces its pivotal role in facilitating legitimate economic activities whilst safeguarding against illicit financial flows.

It is essential to underscore the importance of Gibraltar’s removal from the List in the broader context of international finance. As the global finance landscape continues to evolve, jurisdictions must adapt and strengthen their regulatory frameworks to mitigate effective risks. Gibraltar’s efforts serve as a beacon of progress and exemplify the positive outcomes achievable through cooperation between regulatory authorities and the private sector.

Looking ahead, Gibraltar must remain vigilant and proactive in maintaining its regulatory compliance standards, continuing collaboration with international partners, ongoing monitoring of emerging threats, and investments in technological solutions will be essential to sustaining its reputation as a trusted financial centre.

ISOLAS Partner Stuart Dalmedo reacted to the news by saying “The removal of Gibraltar from the List is a testament to the jurisdiction’s unwavering dedication to regulatory compliance and its proactive stance on combating financial crime. This development is a significant step forward for Gibraltar, signalling to investors and businesses worldwide that Gibraltar remains a trustworthy and compliant jurisdiction for conducting business”. 

Kyle Bautista has been enrolled as a Solicitor and David Garcia has been admitted as a Barrister of the Supreme Court of Gibraltar following their respective legal training.

Kyle graduated from the University of Reading with First-Class Honours in History and Politics in 2020. He furthered his education at Cardiff University with a Graduate Diploma in Law. Kyle subsequently completed a combined Legal Practice Course and Masters in Professional Legal Practice at the University of Law.

David graduated from the University of York with a First-Class Honours law degree in 2021. He then successfully completed the Bar Vocational Studies programme at City, University of London, and was called to the Bar of England and Wales by the Honourable Society of the Middle Temple in 2022.

David and Kyle undertook the Gibraltar Professional Skills and Conduct course at the University of Gibraltar along with the Professional Certificate of Competence in Gibraltar Law. They completed their training at ISOLAS LLP solidifying their local expertise.

David and Kyle work alongside Partner the Honourable Neil F Costa focusing on diverse contentious matters, particularly in public law, including human rights and administrative law, employment law, civil disputes, including contractual and personal injury claims, and criminal litigation.

CEO Marcus Killick expressed his enthusiasm for the new additions: “We are truly delighted to welcome Kyle and David to our growing team. Their skills and commitment are already proving invaluable to the ISOLAS team, and we have full confidence they will continue to thrive and contribute significantly in the years to come.”

Gibraltar has today been added to the Financial Action Task Force (FATF) white list following Gibraltar having satisfied its action plan.

This significant achievement recognises Gibraltar’s complete commitment to implementing the highest standards of anti-money laundering (AML) and combating the financing of terrorism (CFT).

The FATF white list is made up of jurisdictions deemed to have robust AML/CFT regimes in place, effectively mitigating risks associated with financial crime. Gibraltar’s inclusion signifies the international community’s confidence in its efforts to foster a safe and transparent financial environment.

Chief Minister the Hon Fabian Picardo KC MP and Minister for Justice, Trade and Industry the Hon Nigel Feetham KC MP welcomed the news recognising the work carried out by all the Government agencies and authorities, and the private sector for their wholehearted support.

The Government has also noted the contribution of Senior Partner Albert Isola CBE, the former Minister For Financial Services to the whitelisting process.

Being added to the FATF white list confirms Gibraltar’s commitment to upholding the highest standards and contributing to a secure and reliable financial ecosystem for all. The Hon Nigel Feetham added “We have not only focused on our delisting, but on the work that we have already started to plan for the next evaluation, in three 3 years, to ensure we remain fully in line with the FATF standards.”

ISOLAS Senior Partner The Hon Albert Isola CBE reacted to the news by saying “My congratulations to Fabian Picardo MP KC and Nigel Feetham MP KC on their magnificent contribution to this news. This has required serious commitment and is wonderful news for Gibraltar and our various commercial sectors.”

We are delighted to announce that Kyle Bautista, Solicitor, and David Garcia, Barrister-at-Law, who completed their training course with ISOLAS, were enrolled and admitted to the Supreme Court of Gibraltar.

Kyle and David will now further their careers in their specialist areas of practice within the Firm.

Partner The Hon Neil F Costa said, “We are really pleased to have Kyle and David join our team. They are both exemplary lawyers who are exceptionally bright and who are already proving to be indispensable assets to the firm. We look forward to seeing them progress as part of the ISOLAS team.”

ISOLAS Lawyers Shine in Chambers & Partners Global Rankings, Demonstrating Dedication and Growth.

ISOLAS LLP’s remarkable performance shines through in their Band 1 rankings across multiple practice areas. Their continued success within Chambers Global’s areas of General Business Law (GBL), Dispute Resolution and Shipping, signifies the firm’s deep expertise and versatility, capable of catering to diverse legal needs. The rankings are testaments to their unparalleled service in these specific fields.

Beyond firm-wide recognition, individual accolades further cement ISOLAS LLP’s reputation for excellence.

Senior Partner Peter Isola’s exceptional record as a Band 1 lawyer for over 18 years speaks volumes of his leadership and impact within the legal community.

Similarly, Chambers continued recognition of Mark Isola KC, Band 2, James Montado, Band 2, Steven Caetano, Band 2 and Jonathan Garcia, Band 3 underscores the depth of talent and unwavering dedication present within the firm.

Two standout performances come from The Hon Neil Costa and Samantha Grimes. The Hon Neil Costa, who as a new entry secures a Band 3 position in Dispute Resolution whilst Samantha Grimes returns to Dispute Resolution from her banding in General Business Law. This highlights the firm’s top legal talent, ensuring they have the resources to serve clients effectively.

Further bolstering the team’s strength are Christian Caetano and Sarah Bray, who have both made the jump from the “Up & Coming” to Band 3 in GBL. This significant ascent speaks volumes about their expertise, solidifying their positions as sought-after legal professionals.

Adding to the momentum is Christian Hernandez, who now ranks Band 2 within GBL and Spotlight in Shipping. This accomplishment reflects his consistent growth and solidifies his reputation as a respected legal figure within his practice area.

“The recognition from Chambers and Partners affirms our unwavering commitment to delivering outstanding results for our clients,” said ISOLAS CEO Marcus Killick. “We are confident that this momentum will continue, and we look forward to celebrating further successes in the future. Congratulations to all!”