Specified Business Legislation Amendment Act 2012
FA E R
N
AT F
TQUO U
BERMUDA
SPECIFIED BUSINESS LEGISLATION AMENDMENT ACT 2012
2012 : 27
TABLE OF CONTENTS
Citation
Amendment of Companies Act 1981
Amendment of Limited Partnership Act 1883
Amendment of Overseas Partnerships Act 1995
Amendment of Trustee Act 1975
Amendment of Trusts (Regulation of Trust Business) Exemption Order 2002
Amendment of U.S.A. - Bermuda Tax Convention Act 1986
Amendment of International Cooperation (Tax Information Exchange Agreements)
Act 2005
WHEREAS it is expedient, pursuant to Bermuda’s obligation to implement the
Organization for Economic Cooperation and Development (OECD) Internationally Agreed
Tax Standard, for Bermuda to continue to demonstrate progress in the implementation of
the Internationally Agreed Tax Standard;
AND WHEREAS the Specified Business Legislation Amendment Act 2011 was
passed by this Honourable House for the purpose of addressing some of the
recommendations that were made in the Peer Review Assessment regarding inconsistencies
identified in Bermuda’s legislation;
AND WHEREAS some of the remaining recommendations that were made in the
Peer Review Assessment are being addressed by amendments to the following specified
legislation that pertains to several forms of businesses being conducted in Bermuda, that
is to say—
Companies Act 1981;
Limited Partnership Act 1883;
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2
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SPECIFIED BUSINESS LEGISLATION AMENDMENT ACT 2012
Overseas Partnerships Act 1995;
Trustee Act 1975;
Trusts (Regulation of Trust Business) Exemption Order 2002;
U.S.A. - Bermuda Tax Convention Act 1986; and
International Cooperation (Tax Information Exchange Agreements) Act
2005;
Be it enacted by The Queen’s Most Excellent Majesty, by and with the advice and
consent of the Senate and the House of Assembly of Bermuda, and by the authority of the
same, as follows:
Citation
This Act may be cited as the Specified Business Legislation Amendment Act 2012.
Amendment of Companies Act 1981
The Companies Act 1981 is amended by repealing section 145 and substituting the
following—
“Records to be kept by permit company
Every permit company shall keep proper records of account with
respect to the trade or business it is engaging in or carrying on or has engaged in
or carried on in Bermuda, including records of account with respect to—
all sums of money received and expended by the company and the
matters in respect of which the receipt and expenditure takes
place;
all sales and purchases of goods by the company;
the assets and liabilities of the company.
The records of account shall be kept at the principal place in Bermuda
from which the company engages in or carries on any trade or business in Bermuda
provided that if the records of account are kept at some place outside Bermuda,
there shall be kept at an office of the permit company in Bermuda such records as
will enable the directors or a principal representative referred to in section 136A(1)
to ascertain with reasonable accuracy the financial position of the permit company
at the end of each three month period.
Every permit company shall keep, for a period of five years from the
date on which they were prepared, records of account referred to in subsection (1)
and, if applicable, subsection (2).
A permit company and any officer of the company who knowingly
contravenes, permits or authorizes the contravention of the requirements of
subsection (3) shall be liable on summary conviction to a fine of seven thousand
five hundred dollars.”
145 (1)
(a)
(b)
(c)
(2)
(3)
(4)
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SPECIFIED BUSINESS LEGISLATION AMENDMENT ACT 2012
Amendment of Limited Partnership Act 1883
The Limited Partnership Act 1883 is amended in section 7 by inserting, after
subsection (7), the following subsection—
A general partner of the limited partnership who knowingly
contravenes, permits or authorizes the contravention of the requirements of
subsection (1) shall be liable on summary conviction to a fine of seventy five dollars
per day for every day that the limited partnership fails to comply as required.”
“(8)
Amendment of Overseas Partnerships Act 1995
The Overseas Partnerships Act 1995 is amended—
by repealing section 15(1) and substituting the following—
Every overseas partnership shall keep at its registered office in
Bermuda proper records of account with respect to the trade or business it is
engaging in or carrying on or has engaged in or carried on in Bermuda, including
records of account with respect to its—
assets;
liabilities and capital;
cash receipts and disbursements;
purchases and sales; and
income costs and expenses:
Provided that if the records of account are kept at some place outside
Bermuda there shall be kept at the registered office of the overseas partnership in
Bermuda such records as will enable all the partners to ascertain with reasonable
accuracy the financial position of the partnership at the end of each three month
period.”
“(1)
(a)
(b)
(c)
(d)
(e)
by inserting, after section 22(6), the following subsection—
Any general partner of the overseas partnership who knowingly
contravenes, permits or authorizes the contravention of the requirements of this
section shall be liable on summary conviction to a fine of seventy five dollars per
day for every day that the overseas partnership fails to comply as required.”
“(7)
Amendment of Trustee Act 1975
The Trustee Act 1975 is amended by inserting after section 13 the following
sections-
“Accounts and records
A trustee, who is subject to section 9 of the Trusts (Regulation of Trust
Business) Act 2001 and irrespective of whether he is exempted under the provisions
13A (1)
3 (1)
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(a)
(b)
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SPECIFIED BUSINESS LEGISLATION AMENDMENT ACT 2012
of an Order made pursuant to section 10 of the Trusts (Regulation of Trust
Business) Act 2001, shall keep or cause to be kept accurate accounts and records
(including underlying documentation) of the trustee’s trusteeship appropriate to
the trust and trust property with respect to—
assets;
liabilities;
additions to trust and distributions, purchases and sales; and
income and expenses.
All accounts and records required to be kept under subsection (1) shall
be retained for a minimum period of five years from the date on which they are
prepared.
A trustee who knowingly and wilfully contravenes subsection (1) or (2)
shall be subject to a penalty of seven thousand five hundred dollars.
Information to be retained by exempted company and exempted trustee
Any company exempted under an order made pursuant to section
10(2) of the Trusts (Regulation of Trust Business) Act 2001, shall retain
identification information in respect of the trustees, settlors and beneficiaries for
the trusts for which it acts as trustee or trust administrator.
Any other trustee—
exempted under an order made pursuant to section 10(2) of the
Trusts (Regulation of Trust Business) Act 2001, shall ensure there
is retained in Bermuda identification information on trusts for
which such trustee acts as trustee, including identification
information on trustees, settlors and beneficiaries; or
referred to in paragraph 7 of the Trusts (Regulation of Trust
Business) Exemption Order 2002, shall retain or be in control of
identification information on trusts for which such trustee acts as
trustee including identification information on trustees, settlors
and beneficiaries.
Any company, or other trustee, exempted under an order made
pursuant to section 10(2) of the Trusts (Regulation of Trust Business) Act 2001,
which knowingly and wilfully contravenes—
the provisions of subsection (1), in the case of such company that
is exempted; or
the provisions of subsection (2), in the case of such trustee that is
exempted,
shall be guilty of an offence and liable on summary conviction to a fine of $75 per
day for every day that such company or trustee fails to comply as required.”
(a)
(b)
(c)
(d)
(2)
(3)
13B (1)
(2)
(a)
(b)
(3)
(a)
(b)
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SPECIFIED BUSINESS LEGISLATION AMENDMENT ACT 2012
Amendment of Trusts (Regulation of Trust Business) Exemption Order 2002
The Trusts (Regulation of Trust Business) Exemption Order 2002 is amended by
revoking paragraph 8.
Amendment of U.S.A. - Bermuda Tax Convention Act 1986
The U.S.A. - Bermuda Tax Convention Act 1986 is amended in section 2 by
inserting, in the correct alphabetical order, the following definition—
“ “control” in relation to the use of the term with respect to “information in
his possession, custody or control”, means control of information
whether the information is located in Bermuda or outside of
Bermuda;”
Amendment of International Cooperation (Tax Information Exchange Agreements)
Act 2005
The International Cooperation (Tax Information Exchange Agreements) Act 2005 is
amended—
in section 2 by inserting, in the correct alphabetical order, the following
definition—
“ “control” in relation to the use of the term with respect to “information in
the possession or control of a person” or “in the person’s possession or
control”, means control of information, whether the information is
located in Bermuda or outside of Bermuda;”
by renumbering section 5 as section 5(1) and inserting after subsection (1)
the following—
Where a request for assistance by a requesting party so stipulates, the
Minister shall obtain the information sought by the request in the form of
depositions of witnesses, being depositions so made as the laws of Bermuda permit.
Where a request for assistance by a requesting party so stipulates, the
Minister may require that original documents or copies of original documents be
certified or authenticated, in accordance with the laws of Bermuda.”
“(2)
(3)
[Assent Date: 13 July 2012]
[Operative Date: 13 July 2012]
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(a)
(b)
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