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BVI Business Companies Act, 2004

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ADMINISTRATION AND GENERAL

228A. (1) The Minister shall, with the advice of the Commission, establish a committee to be known as the “Company Law Review Advisory Committee”.

(2) The Minister shall, with the advice of the Commission, appoint as members of the Committee such persons having knowledge and experience of company law as it considers appropriate.

(3) The functions of the Company Law Review Advisory Committee shall be

(a) to keep this Act, and such other enactments relevant to company law as may be specified by the Commission, under review;

(b) to make such recommendations as it considers appropriate to the Commission for changes to this Act and to any other enactments specified by the Commission under paragraph (a); and

(c) to make such recommendations as it considers appropriate to the Commission for the development and reform of company law in the Virgin Islands.

(4) The Chairman of the Committee shall be the Managing Director of the Commission or such other person as he may designate.

(5) The Regulations shall specify rules of procedure for the Committee.

229. (1) The Commission

(a) shall appoint a suitably experienced person to be Registrar of Corporate Affairs; and

(b) may appoint one or more Deputy Registrars of Corporate Affairs and one or more Assistant Registrars of Corporate Affairs; on such terms and conditions as it considers appropriate.

(2) The Registrar and any Deputy and Assistant Registrars are employees of the Commission.

(3) Subject to the control of the Commission, the Registrar is responsible for the administration of this Act.

(4) Subject to the control of the Registrar, a Deputy Registrar and an Assistant Registrar has and may exercise the powers, duties and functions of the Registrar and the fact that a Deputy or Assistant Registrar exercises those powers, duties and functions is conclusive evidence of his authority to do so.

230. (1) The Registrar shall maintain

(a) a Register of Companies incorporated or continued under this Act;

(b) a Register of Foreign Companies registered under Part XI; and

(c) a Register of Charges registered under Part VIII.

(2) The Registers maintained by the Registrar and the information contained in any document filed may be kept in such manner as the Registrar considers fit including, either wholly or partly, by means of a device or facility

(a) that records or stores information magnetically, electronically or by other means; and

(b) that permits the information recorded or stored to be inspected and reproduced in legible and usable form.

(3) The Regulations may provide for the keeping of Registers by the Registrar in electronic form, the filing of documents in both paper and electronic form, including the approval by the Registrar of systems and the inspection of Registers kept in electronic form.

(4) The Registrar

(a) shall retain every qualifying document filed; and

(b) shall not retain any document filed that is not a qualifying document.

(5) For the purposes of subsection (4), a document is a qualifying document if

(a) the Act or the Regulations, or another enactment, require or expressly permit the document to be filed; and

(b) the document complies with the requirements of, and is filed in accordance with, the Act, the Regulations or the other enactment that requires or permits the document to be filed.

231. (1) A company may elect to file for registration by the Registrar a copy of either or both of the following:

(a) its register of members;

(b) its register of directors.

(2) A company that has elected to file a copy of a register under subsection

(1) shall, until such time as it may file a notice under subsection (3), file any changes in the register by filing a copy of the register containing the changes.

(3) A company that has elected to file a copy of a register under subsection

(1) may elect to cease registration of changes in the register by filing a notice in he approved form.

(4) If a company elects to file a copy of a register under subsection (1), the company is bound by the contents of the copy register filed then until such time as it may file a notice under subsection (3).

232. Except as otherwise provided in this Act or the Regulations, a document required or permitted to be filed by a company under this Act, may only be filed

(a) by the registered agent of the company; or

(b) if an Insolvency Act liquidator is appointed in respect of the company, by that liquidator.

233. (1) Except as otherwise provided in this Act, the Regulations or any other enactment, a person may

(a) inspect the Registers maintained by the Registrar under section

230(1);

(b) inspect any document retained by the Registrar in accordance with section 230(4); and

(c) require a certified or uncertified copy or extract certificate of incorporation, merger, consolidation, arrangement, continuation, discontinuance, dissolution or good standing of a company, or a copy or an extract of any document or any part of a document of which he has custody, to be certified by the Registrar; and a certificate of incorporation, merger, consolidation, arrangement, continuation, discontinuance, dissolution or good standing or a certified copy or extract is prima facie evidence of the matters contained therein.

(2) A document or a copy or an extract of any document or any part of a document certified by the Registrar under subsection (1) is admissible in evidence in any proceedings as if it were the original document.

234. Any certificate or other document required to be issued by the Registrar under this Act shall be in the approved form.

235. (1) The Registrar shall, upon request by any person, issue a certificate of good standing in the approved form certifying that a company is of good standing if the Registrar is satisfied that

(a) the company is on the Register of Companies; and

(b) the company has paid all fees, annual fees and penalties due and payable.

(2) The certificate of good standing issued under subsection (1) shall contain a statement as to whether

(a) the company has filed articles of merger or consolidation that have not yet become effective;

(b) the company has filed articles of arrangement that have not yet become effective;

(c) the company is in voluntary liquidation; or

(d) any proceedings to strike the name of the company off the Register of Companies have been instituted.

236. (1) The fees and penalties specified in Parts I and II respectively of Schedule 1 shall be payable to the Registrar who shall pay them into the Government Trust Account established under section 19 of the Financial Services Commission Act.

(2) Parts I and II of Schedule 1 are subject to the provisions contained in Part III of that Schedule.

(3) Unless this Act or the Regulations provide otherwise, the registered agent is the only person authorised to pay a fee to the Registrar under this section, and the Registrar shall not accept a fee paid by any other person.

237. Any fee or penalty payable under this Act that remains unpaid for thirty days immediately following the date on which demand for payment is made by the Registrar is recoverable at the instance of the Commission before a Magistrate in civil proceedings notwithstanding the amount sought to be recovered.

238. A company continues to be liable for all fees and penalties payable under this Act notwithstanding that the name of the company has been struck off the Register of Companies.

239. The Registrar may refuse to take any action required of him under this Act for which a fee is prescribed until all fees have been paid.

240. (1) The Executive Council may, on the advice of the Commission, make Regulations generally for giving effect to this Act and specifically in respect of anything required or permitted to be prescribed by this Act.

(2) Without limiting subsection (1), the Regulations may provide for the circumstances in which, and the procedures by which, a company may re-register from one type of company under section 5 to another type of company under that section.

(3) The Regulations may make different provision in relation to different persons, circumstances or cases.

241. (1) The Commission may, by publication in the Gazette, approve forms to be used where specified in this Act.

(2) Where a form is required to be in “approved form”, it shall

(a) contain the information specified in, and

(b) have attached to it such documents as may be required by, the form approved by the Commission under subsection (1).

242. (1) Notwithstanding any provision of the Income Tax Ordinance

(a) a company;

(b) all dividends, interest, rents, royalties, compensations and other amounts paid by a company; and

(c) capital gains realised with respect to any shares, debt obligations or other securities of a company;

are exempt from all provisions of the Income Tax Ordinance.

(2) No estate, inheritance, succession or gift tax is payable with respect to any shares, debt obligations or other securities of a company.

(3) Subject to subsection (4), notwithstanding any provision of the Stamp Act,

(a) all instruments relating to transfers of property to or by a company;

(b) all instruments relating to transactions in respect of the shares, debt obligations or other securities of a company; and

(c) all instruments relating to other transactions relating to the business of a company;

are exempt from the payment of stamp duty.

(4) Subsection (3) does not apply to an instrument relating to

(a) the transfer to or by a company of an interest in land situate in the Virgin Islands; or

(b) transactions in respect of the shares, debt obligations or other securities of a land owning company.

(5) For the purposes of subsection (4), a company is a land owning company if it, or any of its subsidiaries, has an interest in any land in the Virgin Islands.

(6) Notwithstanding any provision of the Registration and Records Act, all deeds and other instruments relating to

(a) transfers of property to or by a company;

(b) transactions in respect of the shares, debt obligations or other securities of a company; and

(c) other transactions relating to the business of a company;

are exempt from the provisions of that Act.

243. Where an offence under this Act is committed by a body corporate, a director or officer who authorized, permitted or acquiesced in the commission of the offence also commits an offence and is liable on summary conviction to the penalty specified for the commission of the offence.