Virgin Islands Law Blog

Virgin Islands Law Blog

U.S. Virgin Islands law & politics

Conducting a SWOT Analysis, Feasibility Study for Your New Business

Posted in Business

Even before you begin writing a business plan for your new venture, there are two things you should do: conduct a feasibility study and undergo a Strengths, Weaknesses, Opportunities and Threats (SWOT) analysis. These processes will help you determine if your business will be viable and if it is worth the time, effort and money it will take to launch and build it.

What is a feasibility study?

A feasibility study has several parts, starting with a description of your business. This is the easy part—you simply need to provide as much detail as you can about what your business will do, such as the products and services you will offer. You should also provide detailed descriptions of how the business will be organized and who will run it.

The second part is a market description. Who is your target audience for your business? How big is this market, and is there growth potential in this market moving forward? Will you be able to improve your product or service or add new products or services to increase your target market size? What competition will you have? These are all examples of questions you need to be able to answer as part of your feasibility study.

Third, you will need to outline the technical details of your products or services, including the equipment or technology required for delivering them. Other things to consider are the kinds of materials you will need, transportation necessary for product delivery, the availability of resources and utilities and the size of the facilities you might need.

Finally, you must consider the financial factors at play in developing your business. How much money will it take to get the business started, and then to keep it going? For example, you might have to either purchase or lease expensive equipment, furniture or office space. How will you get the capital you need at various stages of your company’s growth?

SWOT analysis

A SWOT analysis likely involves many of the same elements as a feasibility study. The goal is the same—to determine the viability of your potential business.

Strengths

When looking at your strengths, you should primarily consider what makes your business special. This could include any unique characteristics of your company that set you apart from the competition, access to the materials you need, the distinctiveness of a product or service, the experience of your staff and/or access to solid investments and financing.

Weaknesses

What aspects of your business could potentially hold you back? Immediate concerns could be a lack of financing or experienced staff, but other issues could be high costs of production or products that are not exactly innovative or unique.

Opportunities

Factors outside your business could put you in a better position to succeed. Examples could include a lack of competition in your general area or target market, a growing demand for your product or service or new advances in technology that will make it easier to sell or improve your offering.

Threats

Threats are the inverse of opportunities. To that end, examples could include stiff competition, a bad business location, regulations that make it more costly or difficult to do business or changes in your target consumers that could inhibit your ability to succeed.

For the guidance you need when starting a business in the U.S. Virgin Islands, work with an experienced business and corporate planning attorney.

 

Tom Bolt is Managing Attorney at BoltNagi, a respected and well-established corporate law firm, proudly serving entrepreneurs and business owners throughout the U.S. Virgin Islands.

4 Valid Reasons Why You May Choose to Challenge a Will

Posted in Tax & Estate Planning

While the clear majority of wills pass through the probate process without much problem, there are some circumstances in which a person (usually an unhappy beneficiary) decides to challenge a will’s validity. There are many reasons why people may decide to challenge a will—and not just because they are bitter about not inheriting what they had expected.

The following are four of the most common reasons why this may happen:

1. You have reason to believe a loved one was under duress at the time he or she made the will

As people get older, they may become susceptible to emotional and mental manipulation. The most common type of “duress” is when others put so much pressure on the testator that he or she feels obligated to put them in the will or give them certain property. If, for example, a mother lives with her daughter and that daughter continually pressures the mother to write her other siblings out of the will, it could constitute duress and undue influence.

However, it is not enough for there to simply be nagging, threats or even verbal abuse. There is a heavy burden of proof on the accuser in these situations. The accuser must be able to show the alleged influencer exerted such extreme pressure that it essentially caused the testator to lose his or her free will. Typically, the accuser must prove some degree of mental incompetence on the part of the testator.

2. You believe your parent has become mentally incapable of creating a will

The most common example of mental incompetence is the onset of late stages of Alzheimer’s disease or dementia. If a physician diagnosed the testator as being in these stages of an illness, that person may have lacked what is called the “testamentary capacity” needed to create a valid will. The “being of sound mind and body” provision often included in the language of last wills and testaments acts as a sort of disclaimer that the testator is, indeed, capable of creating a valid will in his or her current state of health.

3. You believe the testator was a victim of fraud

In some cases, testator might not even realize they were signing or creating a will—they were just told by someone they trusted to sign a document. In other cases, they are aware they are signing a will, but not of its contents, and were likely misled as to what those contents were.

As with accusations of duress, there’s a heavy burden of proof on the accuser in fraud accusations. And again, the accuser must be able to prove some degree of mental incapacity existed.

 4. The formalities of creating a will were not followed per the law

The will must be signed by the testator and two witnesses who are not beneficiaries of the will. Additionally, the will must be written. Only in rare cases is an oral will considered valid.

For more information and guidance on how to create a will that reflects your wishes, or to challenge a will you believe is invalid, speak with a skilled U.S. Virgin Islands estate planning attorney today.

 

Steven K. Hardy is Chair of the Corporate, Tax and Estate Planning Practice Group at BoltNagi, a trusted and established estate and tax planning law firm, serving individuals and families throughout the U.S. Virgin Islands.

Mapp Administration Focuses on Improving Cruise Ship Experience to Boost Tourism Industry

Posted in Labor & Employment

As tourism competition increases throughout the Caribbean, officials in the U.S. Virgin Islands are focused on improving the cruise ship experience for passengers visiting the territory to help keep tourists coming back for more.

 

The Ports of the Virgin Islands Charlotte Amalie Task Force recently met to discuss plans to improve this experience, according to a press release from the Department of Tourism. According to Governor Kenneth Mapp, there is a need to re-engineer and re-imagine the product offered by the U.S. Virgin Islands and elevate the overall guest experience. Mapp also said the territory needs to “develop not only what people want today, but also anticipate their future needs.”

 

The following is a brief overview of some of the topics of discussion at the task force meeting, covering many different aspects of improving tourism experiences:

 

  • The Commissioner of the Department of Property and Procurement, Lloyd Bough, Jr., reported an extension of the deadline for submitting proposals to establish a harbor transportation service in Charlotte Amalie Harbor due to strong interest in the contract for the project, along with a significant number of questions submitted to the department.
  • Department of Public Works Commissioner Gustav James provided an update on the $40 million Veterans Drive project, which is expected to have a contract awarded in September.
  • The Department of Tourism Commissioner, Beverly Nicholson-Doty, provided an update about recent meetings with MSC Cruises and Carnival Corporation on general cruise and tourism-related topics.
  • The task force proposed establishing a new berthing committee to make better use of all five berths on St. Thomas. It also proposed improved communication methods with U.S. Customs and Border Protection and various congressional officials to get additional officers at seaports and airports in the territory for a smoother, more streamlined passenger experience.
  • Members of the task force discussed potentially dredging the Charlotte Amalie Harbor and the importance of doing so. Dredging the harbor would allow for the accommodation of larger-class vessels. However, $12 million would need to be raised to make the project happen.
  • The task force discussed a new “Ports of the Virgin Islands” advertising campaign, promoting the advantage of duty-free products purchased in the territory.
  • The task force confirmed plans to have a town hall meeting with the Florida-Caribbean Cruise Association, the USVI community and various cruise line executives.

Similar task forces are being explored elsewhere in the territory, with one scheduled to launch in the island of St. Croix in the fall. These task forces are made up of representatives from various U.S. Virgin Islands businesses and agencies, such as retailers, ground transportation operators, restaurants, spirits distributors, the West Indian Company, the Department of Tourism, the Virgin Islands Port Authority, the Department of Public Works and the Office of the Governor.

To learn more about the various efforts underway in the territory to boost the tourism industry and the effect they could have on employment, work with an experienced business and corporate law attorney in the U.S. Virgin Islands.

Ravinder S. Nagi is a shareholder and the Assistant Managing Attorney for BoltNagi. He is the chair of BoltNagi’s Litigation Department and the Labor and Employment Practice Group. He has represented numerous private and public companies in complex labor and employment cases of all types.

When Are Employees Required to Pay the Federal Minimum Wage?

Posted in Labor & Employment

Under federal law, employers must pay all employees a minimum hourly wage. The federal minimum wage is currently $7.25 per hour, but individual states and territories can implement their own minimum wages that are higher than the federal threshold. In the U.S. Virgin Islands, the minimum wage is $9.50 per hour as of June 1, 2017 although it is anticipated that it will increase it to $10.50 by the end of 2018.

Some jurisdictions have also passed living wage laws, which have higher minimums than even the state levels. Employers must pay the highest minimum wage affecting them, whether it’s federal, territorial or local.

While the minimum wage is an hourly rate, this does not mean employers must pay employees hourly wages. So long as the total amount paid divided by the number of hours worked at least equals the minimum wage, employers can also pay via salary, commission or wages plus tips.

Which employers are required to pay the federal minimum wage?

The Fair Labor Standards Act (FLSA) is the law that outlines minimum wage requirements on a federal level. While it covers most employers, there are a few that are exempt.

 

Typically, any business that has $500,000 or more in annual sales or has employees that do business between states and territories must abide by FLSA rules. This “interstate commerce” could include making phone calls or sending mail to another state or receiving it from another state, and not just actually physically visiting another state or territory.

Are any workers not covered by federal minimum wage laws?

Just because a business is covered by federal minimum wage laws does not mean all its workers are covered. The following are a few examples of workers who are not entitled to the federal minimum wage:

  • Independent contractors (only employees are guaranteed a minimum wage)
  • Outside sales staff, such as salespeople who work a specific route
  • Switchboard operators for phone companies with fewer than 750 stations
  • Workers on small farms
  • Employees of local newspapers with a circulation of less than 4,000
  • Newspaper deliverers
  • Employees of recreational or seasonal amusement businesses
  • Students, apprentices and trainees as defined by federal labor laws

 

Even if a business or employee is exempt from federal minimum wage rules, they might still be covered by territorial law. Thus, it’s important to be familiar with all of the wage and labor laws that could affect your business.

What about workers who receive tips?

If you have tipped employees, you are allowed to pay them less than the minimum wage that applies to your business, as long as the amount they receive including the tips adds up to at least the minimum wage. The law requires you to explain this policy to all employees.

For more information on your responsibilities as an employer when it comes to wages, consult a skilled U.S. Virgin Islands labor and employment attorney.

Ravinder S. Nagi is a shareholder and the Assistant Managing Attorney for BoltNagi. He is the chair of BoltNagi’s Litigation Department and the Labor and Employment Practice Group. He has represented numerous private and public companies in complex labor and employment cases of all types.

US Labor Department Rescinds ‘Joint Employment’ Rules

Posted in Labor & Employment

The U.S. Department of Labor recently announced that it would rescind the standard implemented by the Obama Administration that determined when companies are considered “joint employers” of contract and franchise workers.

The decision marks the first major shift in labor policy during the Trump Administration. In its statement, the agency said it withdrew a 2016 interpretation of the Fair Labor Standards Act (FLSA) that expanded the set of circumstances in which a business may be liable for wage law violations by contractors, franchisees and staffing agencies.

In previous years, companies were classified as joint employers if they hired and fired workers and set wages. Under the Obama administration, Labor Department officials said a worker’s level of “economic dependence” on the company should also play a role in joint employer classification.

This broader definition sparked debate in the business community. Many employers said the guideline would threaten franchise businesses and would cause more lawsuits against companies, even if they were not responsible for establishing work conditions.

The rollbacks continue

The removal of the joint employment rules came on the same day the Department of Labor withdrew guidance from 2015 that said under the FLSA, many workers are improperly considered independent contractors when they are actual employees. This would make those workers eligible for overtime, minimum wage and various other legal protections afforded to employees.

These interpretations and guidelines set forth by federal agencies are not legally binding, but they do influence enforcement. It was widely expected that the new administration would shift some labor policies when President Trump took office, with most of the changes resulting in less regulation and enforcement.

Business groups and employer advocates have mostly praised the agency’s changes thus far, arguing that previous guidance on worker classification had too strong of an effect on all types of industries in the United States. They have opined that employers had to work extremely hard to be compliant with the FLSA and that most of the interpretations issued by the agency under the Obama administration were simply “enforcement traps,” hoping to lead to enforcement actions solely for the purpose of enforcement rather than creating a better business and employment environment.

Workers’ rights groups and unions, however, were troubled by the decision by the Labor Department. They believe the guidance made it easier for employers and workers alike to understand their rights and obligations.

Meanwhile, the National Labor Relations Board’s expansion of the definition of joint employment still exists, although it is under review by a federal appeals court. The NRLB standard has had more of an impact, as it is a legally binding definition.

For more information on the definition of joint employment and how it could affect your company, consult a knowledgeable employment law attorney in the U.S. Virgin Islands.

Ravinder S. Nagi is a shareholder of BoltNagi and Assistant Managing Attorney.  He is also Chair of the Labor and Employment Practice Group at BoltNagi, a widely respected and established labor law firm serving clients throughout the U.S. Virgin Islands.

Checklist for Your Estate Plan after a Major Life Event

Posted in Tax & Estate Planning

Anytime you go through a major life event or milestone, it is important you review your estate plan to ensure it is up to date and properly reflects your current life circumstances and goals. Whether it’s a marriage, a divorce, the birth of a new child, a new job or a big move, anything that you would classify as a significant adjustment to your life should prompt you to take another look at your estate planning documents.

The following is a quick checklist of reviews and changes you may need to make to your estate plan after a major life event:

  • Alter your will: Some events will cause you to want to make changes to your will. Examples include the death of a beneficiary, the birth of a new child, a marriage or divorce, the purchase of new (and valuable) property or the launch, purchase or sale of a business. Your will gives you the ability to leave property to chosen beneficiaries in the manner of your choosing.
  • Policy and account beneficiaries: Any insurance policies or accounts you have that require you to list a beneficiary-such as a life insurance policy or retirement account-should be up for review if you either get divorced from your chosen beneficiary or if a beneficiary passes away.
  • Guardianships: Whenever you have or adopt a child, it is important you review your will and add guardianship stipulations. This ensures your child will be protected and cared for according to your wishes in the event of your passing.
  • Business succession: Many business owners include succession plans in their estate planning arrangements. If circumstances have changed among your partners or if your chosen heir to your business is either no longer interested or available, it is time to revisit your documents and make some changes.
  • Estate executor: Your executor should be someone you trust completely to be organized and get the job done according to your wishes. If your executor passes away or if changing life circumstances make you feel someone else would be better suited to the role, then you should make those changes as soon as possible.

For more information on reviewing and making changes to your estate plan after a major life event, meet with a skilled estate planning lawyer in the U.S. Virgin Islands.

 

Steven K. Hardy concentrates his practice in estate planning at BoltNagi, a widely respected and established estate and trust planning law firm, serving clients throughout the U.S. Virgin Islands.

Checklist for Selling a Business in the US Virgin Islands

Posted in Corporate & Financial Services

After you and the buyer of your business have completed negotiating your purchase, it’s time to prepare for closing. By following some simple steps, you will be well prepared to sign on the many dotted lines involved in these transactions.

The following is a checklist for selling your business in the U.S. Virgin Islands:

Before closing day

  • Schedule the closing (ideally, your closing appointment should be early enough in the day to allow parties to get to banks and government offices afterward)
  • Finalize the purchase price; it should reflect all your negotiations and agreements
  • Prepare corporate documents, tax forms and equipment sale lists; get organized with all the documents you will need to have on hand at closing
  • Prepare to transfer all contracts and agreements
  • Prepare your loan documents (these documents could include promissory notes, security agreements, financing statements and various guarantees)
  • Prepare to transfer your business lease
  • Inventory and prepare to transfer all work that is currently in progress
  • Prepare the bill of sale
  • Prepare the closing sheet (this lists the purchase prices and all the costs that will be paid by or credited to the buyer and seller)
  • Prepare the purchase and sale agreement
  • Prepare succession agreements

On closing day

  • Review and sign the purchase and sale agreement
  • Review and sign all the loan documents on hand
  • Review and sign all documents for lease transfers, vehicle ownership transfers, franchising, succession and any other documents involved in transferring your business and its assets to the new owner (s)
  • Review and sign the bill of sale
  • Review and sign all non-compete, employment and consulting agreements
  • Review and agree to the closing sheet
  • Review and sign all forms that transfer patents, copyrights, trademarks and intellectual property
  • Review and sign any IRS forms, asset acquisition statements and other such documents
  • Receive the payment for the purchase price-either in full or for a significant down payment, depending on the terms you have already negotiated with the buyer for payment

To learn more about what you can expect out of the sale of a business and closing day, contact a trusted corporate planning attorney in the U.S. Virgin Islands.

 

Tom Bolt is Managing Attorney of BoltNagi, a widely respected and established business and corporate law firm that serves clients throughout the U.S. Virgin Islands.

Covering All Your Legal Bases When Selling a Business

Posted in Corporate & Financial Services

Selling a business is a major undertaking both in terms of the logistical elements and because of all the legal issues you must consider. The following are just a few of the legal challenges that could arise during the sale of a business:

  • Issues with unpaid tax, especially property tax;
  • Dealing with outstanding debts;
  • Issues with business succession;
  • Handing confidential information, such as trade secrets, copyrights and employee information; and
  • Continuing a relationship with previous business contacts, vendors and partners.

It is important to note that just because a business gets sold does not mean that it will close its doors. A retiring business owner may choose to sell a company to a business partner, friend or relative under the condition that it continues to operate in the months and years to come.

No matter the circumstances of the sale, however, you must fulfill certain filing requirements. All the parties involved in the sale must file with local authorities to inform them of the change in ownership, and additional papers may be required for the sale to be approved.

In some cases, you may have to go through additional steps for the sale of the business to be official. The local government could send an inspector to examine the business property before the final sale occurs, and if they uncover any violations, it could be the responsibility of the new owner to address them. An example of such a violation would be the use of toxic materials in the building. If the seller is aware of this issue, it is his or her responsibility to inform the buyer before the sale is finalized.

How an attorney can help

Without the assistance of an experienced corporate law attorney, the sale of a business becomes nearly impossible to navigate in a smooth and legally compliant manner. Every sales contract is different, which means you need a knowledgeable professional on your side to guide you through the process and teach you about how the law affects your situation and goals.

A business law attorney can help you throughout all phases of a business sale, drawing up the contracts and ensuring all elements of the transfer comply with the law. Buyers of a company may also greatly benefit from working with attorneys, as their knowledge and experience will prevent buyers from signing their name on a deal that is one-sided or otherwise unfair.

It is important to comply with all federal and U.S. Virgin Islands territorial rules regarding the sale of a business. If you have any questions about the steps you need to go through to sell your company, work with a skilled commercial transaction lawyer.

 

Nash Davis is a member of the Corporate, Tax & Estate Planning and Real Estate and Financial Services Practice Groups at BoltNagi, PC, a respected and established business and corporate law firm serving clients throughout the U.S. Virgin Islands.

‘Means Test’ Determines If You Are Eligible to File for Chapter 7 Bankruptcy

Posted in Corporate & Financial Services

How do courts determine who is and is not eligible to receive a bankruptcy discharge under Chapter 7? The answer is the “means test,” a simple way of determining whether one’s income level is low enough to qualify for a discharge. People who do not pass the means test may still be eligible to file for Chapter 13 bankruptcy and arrange a repayment plan, but will not be eligible to eliminate their debts under Chapter 7.

You do not necessarily have to be completely penniless to qualify for Chapter 7 bankruptcy. Even if you earn a significant monthly income, you could still qualify if your expanses and debts vastly outweigh that income.

How the Chapter 7 means test works

The means test exists to limit the ability to receive a Chapter 7 bankruptcy discharge to only those who need it the most. Through the means test, you deduct certain monthly expenses from your current monthly income, which is determined by the average income you earned over the previous six months. The resulting figure is your “disposable income.” The lower your disposable income, the better chance you’ll have at securing a Chapter 7 bankruptcy discharge.

The only people who file for bankruptcy who need to take the means test are those who have mostly consumer debts versus business debts. When taking the means test, you will first determine if your income is higher or lower than the median figure in your area.

If you earn less than the median income, then the test is over—you may file for Chapter 7 bankruptcy. If you earn more than the median, however, you may not be eligible to file for Chapter 7 if you would have enough disposable income to repay some of your debts. If your level of disposable income reaches a certain amount, you will fail the means test and may need to file for Chapter 13 bankruptcy instead.

The target median income level for your specific case depends on the size of your household and where you live.

Passing and not passing the means test

Even if you pass the means test, you still may need to determine if filing for bankruptcy is the right decision for you. Passing the test simply means that you are legally able to receive a discharge of your debts. You should first consider all the alternatives available to help you determine what the best path forward is for you.

If you do not pass the Chapter 7 means test and still wish to file for bankruptcy, Chapter 13 is an option. Under Chapter 13, you can pay off at least some of your debts via a court-sanctioned repayment plan, which typically lasts between three and five years.

To learn more about bankruptcy and its alternatives, consult a trusted U.S. Virgin Islands financial services attorney.

 

Tom Bolt is Managing Attorney at BoltNagi, a respected and established financial services law firm serving individuals, businesses and organizations throughout the U.S. Virgin Islands.

Checklist for Starting a New Business in the US Virgin Islands

Posted in Tax & Estate Planning

Owning your own business can be extremely rewarding, but getting it started is often a daunting prospect. Our team of experienced business attorneys has assembled a simple checklist of the steps you need to take to get your new company up and running.

Below are the key steps to start your new business in the U.S. Virgin Islands:

  • Create your business plan: Your business plan will be the general overview of how you plan to build your new company. It contains information such as a description of your company, a market analysis, marketing and sales information, how your business will be organized, necessary funding, financial projections and how your business will stand out in the market.
  • Choose a location: If your business needs a physical location, such as an office or retail space, select a customer-friendly spot and make sure it complies with zoning requirements.
  • Seek financing: Take out loans, apply for grants and seek investors and venture capital to get the money you need to begin your operations. Note that almost anyone who gives you money is going to want to see a detailed business plan, again highlighting the importance of that first step.
  • Determine your business structure: Will you establish your business as a partnership, sole proprietorship, LLC, corporation or S corporation? The structure you choose will have a considerable impact on numerous areas of your operations.
  • Register the name of your business: You will need to register your business name with the Corporate and Trade Name Division of the Office of the Lieutenant Governor.
  • Register for taxes: Obtain a tax identification number, along with various insurance policies, such as workers’ compensation, disability and unemployment.
  • Obtain business licenses: Get all the licenses you will need to operate your company. There are both territorial and federal regulations you will need to consider to determine which permits and licenses are needed.
  • Begin hiring employees: If you will be bringing on employees immediately, make sure you understand all the legal steps you must follow to hire them.
  • Seek assistance: Get in touch with our local Small Business Administration office to find out how the agency can assist you. You should also constantly take advantage of free training and counseling services, both during the business formation process and after your business has officially launched. There are numerous programs available to help startups and small businesses find their footing and eventual success in their markets.

These are just a few of the most important steps to take as you start your new company. For more information on what tasks you need to accomplish while starting your new business, contact a skilled U.S. Virgin Islands business law attorney.

 

Steven K. Harday is Chair of the Corporate, Tax and Estate Planning Practice Group at BoltNagi, a widely respected and well-established business law firm serving clients throughout the U.S. Virgin Islands.