Most of the processes associated with starting a new business in the U.S. Virgin Islands are the same as those that would be used to start up a business in the continental United States. You must complete all the necessary startup steps in the proper order and be patient as the process progresses, but for the most part starting a business is fairly straightforward. In addition, there are plenty of resources to help you through this process, such as the Virgin Islands Small Business Development Center, which has locations on both St. Croix and St. Thomas to provide technical assistance, small business counseling and important training.

Here are some of the things you should know when looking to start a new business in the territory.

Location

You should have a location in mind for your business but hold off on purchasing the property or signing a lease until your business is officially licensed. You can get a letter of intent from a seller, or a copy of an unsigned lease, but the actual agreement should not go through until your business is licensed and registered.

Registration

You must register your business and its name with the Territory’s Office of the Lieutenant Governor. Fees for filing your articles of incorporation can be anywhere from $150 to $400, and the filing fee for registering a trade name is $25.

Licensing

You can work with a representative from the territory’s Department of Licensing and Consumer Affairs to determine the kinds of paperwork you’ll need to fill out and file for your business, as well as the inspections and approvals you’ll need to have on file for your license application to be approved. You’ll need, for example, to pass a background check and have a tax clearance letter, which requires you to also have a valid driver’s license or passport, plus a small filing fee. Your business location will also need to undergo fire inspection and may require zoning approval.

Professional licenses

Certain types of businesses need additional licenses and certifications before they can begin operation. These might include health inspection certificates or alcohol sales licenses. Other types of professional licenses are required for business in fields such as real estate, various trades, the beauty industry, architecture, accounting and more. Business license applications are available with the Department of Licensing and Consumer Affairs, and you may need to file separate license applications if you intend to conduct business on both St. Croix and St. Thomas. Some types of businesses require separate applications to start a business on St. John as well. License fees vary widely depending on the type of business, from $50 to $1,000 per year.

For more information and tips about starting a new business in the U.S. Virgin Islands, contact an experienced business attorney in the territory.

Tom Bolt is Managing Attorney of BoltNagi PC, a widely respected and well-established business and corporate law firm serving individuals and organizations throughout the U.S. Virgin Islands.

In the vast majority of personal injury cases, the determination of who was at fault in the incident comes down to determining who was negligent in the situation. The general standard used in these cases in most parts of the United States is that negligence is the failure to use a “reasonable” amount of care required for that particular situation.

To be able to prove someone was negligent, you must be able to identify that the person was both the actual and proximate (legal) cause of the injury. For that person to be found liable for negligence, the harm must have been foreseeable, though the extent of the harm is not limited in any way by what may or may not have been foreseeable.

Many legal advocates in the U.S. Virgin Islands maintain that the Virgin Islands Supreme Court should adopt this “reasonable” standard for foreseeability.

An overview of foreseeability

The scope of a person’s liability for an accident may be limited based on the foreseeability of the type and manner of harm, but not the extent of the harm done.

With regard to the “type of harm” stipulation, a person cannot be liable for a freak accident that could not have possibly been reasonably foreseeable. A person could, though, be held liable for a situation like not cleaning up broken glass or other such debris, as it could result in someone else being injured if they step on it. That is a reasonably foreseeable circumstance the person who failed to clean up the glass should have considered.

In addition, a person who injured another person cannot be held liable for a superseding cause, if it was not reasonably foreseeable. In such a case, this superseding act breaks the “causal chain” that exists between the initial act of negligence and the injury that occurred, which means the person who was negligent still does not have liability for the accident.

Finally, the foreseeability of the extent of harm does not limit the scope of a person’s potential liability for n accident. It doesn’t matter if the injury is major or minor—if the type of harm and the manner in which that harm occurred are both reasonably foreseeable, it doesn’t matter if the extent of the harm was foreseeable.

These standards of reasonable foreseeability are sensible to have in personal injury claims. They protect defendants from potentially frivolous claims, and provide clear, consistent standards to guide every type of claim involving any sort of negligence. It only makes sense that the U.S. Virgin Islands adopt these standards.

A. Jennings Stone is a senior attorney in the litigation practice group at the law firm of BoltNagi PC. BoltNagi PC is a full-service business law firm in St. Thomas, Virgin Islands.

When you’ve signed an agreement with another party, one issue you may find yourself dealing with is an “anticipatory” breach of contract, which often means taking action before an actual breach has occurred.

For a little context, a contract could be considered breached or broken if either party unconditionally refuses to perform under the contract as promised. This unconditional refusal is referred to as a “repudiation” of the contract.

Whenever a party indicates through actions or words that it will not live up to its contractual obligations, the other may file a breach of contract claim and seek remedies, typically in the form of monetary payment. This is referred to as “anticipatory breach of contract,” a situation in which the party might not have actually breached the contract yet, but there is reason to believe it will not live up to its end of the deal.

The following are a few of the most common situations in which repudiation may occur:

Express repudiation: Express repudiation is a circumstance in which one party clearly communicates an unconditional refusal to the other party. The repudiating party must outright state that it will not follow through with the deal. An ambiguous refusal—or one qualified with certain conditions—is not enough to be considered express repudiation. It must be completely clear, direct and straightforward, with no other potential meaning.

Actions make it impossible for the party to perform: Actions can sometimes be just as powerful as words when it comes to repudiation. If, for example, someone wanted to start a business and took out loans to do so, but then recklessly ran the business into the ground and incurred numerous other debts in the process, it would be impossible for that person to pay back those original loans. Although this isn’t considered express repudiation, it is clear to the lender, through the actions of the borrower, that the borrower will not live up to his/her contractual agreement because of voluntary actions.

Property that is the subject of the deal was transferred to another party: If the contract in question was in regard to the sale of a certain piece of property, repudiation would occur if one party either transfers or makes a deal to transfer that same property to a different party. For example, if you were under contract to purchase a house, but then discovered the seller sold it to someone else, your contract was repudiated and you may be able to seek legal remedies.

It is, in some circumstances, possible for a party to repudiate the contract, but then retract that repudiation. If the other party did not make a “material change” in his or her standing due to that repudiation, the agreement may return to normal.

Consult an experienced business attorney to learn more about this issue and others related to business contracts.

Adam N. Marinelli is an attorney in the Civil Litigation Practice Group at BoltNagi PC, a full-service business law firm on St. Thomas, U.S. Virgin Islands.

 

If your business is involved in a contract dispute with another party you believe did not live up to its contractual obligations, the first step to resolving the dispute is to provide a notice of breach. This notice will explain why you believe a breach exists and provides a list of actions that must be taken to resolve the issue or end the contract.

Here’s an overview of how to draft a notice of breach and the steps you can take following its delivery to resolve the situation.

  • Include the date: The notice should create a clear record as to the date on which the breaching party was informed of the breach. If your dispute goes to court, this date is important evidence.
  • Analyze the notice clause: Many business contracts contain notice clauses, which include contact information for each party to be used for communication of official notices. Failure to follow procedures laid out in this clause for delivery of official notices, such as a notice of breach, could affect your rights as the case proceeds.
  • Thoroughly describe the breach: The notice should include information about which aspect of the contract was breached. One of three things must have happened for the situation to contact a contract breach: a) the other party failed to perform according to the terms of the contract, b) the other party said it will not continue to perform its obligations in the future, or c) the other party conducted itself in a way that made it impossible for your business to live up to its end of the contract. Be thorough in describing which part of the contract was breached and how.
  • Note if it is a material breach: A material breach is an action by a party that essentially destroys the contract’s value and purpose. These are much more serious types of breaches that typically have larger penalties and stricter consequences associated with them.
  • Offer a solution: It might be too late to actually fix the problem, but your notice of breach can still include a possible “cure” to the damages that have been caused already.
  • Try to work out a deal: Either before or while you send a notice of breach, you should talk to the other party to attempt to work out a solution that will keep you out of the courtroom. You can formally end the contract, but this will require a separate agreement terminating the contract and should involve your attorneys.
  • Head to court: If you are unable to work out a deal with the other party or the other party refuses to comply with the solutions suggested in your notice of breach, litigation will likely be necessary. Your attorney can advise you with regard to how best to proceed according to the circumstances of your case.

For more information about the steps you should take if your business has been the victim of a contract breach, contact a skilled U.S. Virgin Islands business planning attorney.

Adam N. Marinelli is an attorney in the Civil Litigation Practice Group at BoltNagi PC, a full-service business law firm on St. Thomas, U.S. Virgin Islands.

On June 15, 2020, the United States Supreme Court issued a landmark decision regarding Title VII of the Civil Rights Act of 1964 (“Title VII”). Title VII is the federal anti-discrimination statute protecting employees from discrimination based on race, color, religion, sex and national origin. The decision, written by Justice Neil Gorsuch, expanded protections to employees under federal law based on the protected class of sex, ruling that “[a]n employer who fires an individual merely for being gay or transgender defies the law.”

The Supreme Court’s 6 – 3 decision examined three distinct cases and resolved the split among the federal courts of appeals as to the scope of Title VII protections for classifications based on sexual orientation and transgender status. All three cases turned on the same legal question: whether firing an employee because the employee is homosexual or transgender violated Title VII? In answering this question, the Supreme Court held that discrimination based on homosexuality or transgender status constitutes unlawful discrimination on the basis of sex.

Justice Gorsuch reasoned “[a]n employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” The Court reinforced that “[a]n individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” Accordingly, Title VII now protects all employees from workplace discrimination on the basis of homosexuality or transgender status.

Ravinder S. Nagi is Assistant Managing Attorney and Chair of the Labor & Employment Practice Group at BoltNagi PC, a full-service business law firm on St. Thomas, U.S. Virgin Islands.

For companies that qualify, the U.S. Virgin Islands offers extremely advantageous tax benefits for corporations looking to improve their bottom line.  The tax structures available to corporations in the U.S. Virgin Islands offer continuity with Federal tax laws while allowing for greater tax reductions and exemptions.

Corporations in the U.S. Virgin Islands are governed by the Uniform Limited Liability Company Act of 1998 and are primarily based on the Delaware model.  As in all U.S. jurisdictions, within the Territory, corporations are treated as separate legal entities from their directors, employees and shareholders. Corporations can sign contracts, assume liability and be sued as if they were individuals.  But unlike most stateside tax regimes, the U.S. Virgin Islands offers striking economic tax incentives to companies that qualify.

Below are the three types of corporations who benefit from the tax laws in the U.S. Virgin Islands.

Domestic Corporations Participating in the EDC Program

Domestic corporations in the Territory are corporations formed and that operate in the U.S. Virgin Islands. If a domestic corporation meets certain criteria, such as employment and local vendor requirements, they can qualify for the Virgin Islands Economic Development Commission (“EDC”), which offers a range of benefits including tax reductions and exemptions.

The EDC offers qualifying corporation’s incentives such as:

  • 90 percent reduction in corporate and personal income taxes;
  • 100 percent exemption on gross receipt tax, business property tax and excise tax payments; and
  • Reduced customs duty from the standard 6 percent to 1 percent.

The EDC’s goal is to bring quality businesses and jobs to the territory and improve the economy. Corporations in industries such as manufacturing, technology, pharmaceuticals, tourism and finance are especially attractive. The United States Congress allows the U.S. Virgin Islands to grant these incentives to help the territory become self-supporting.

For those companies in the research, technology, and environmental sustainability sectors, the University of the Virgin Islands Research and Technology Park (“UVI RT Park”) also provides companies access to similar tax and economic incentive packages that become a part of their clientele program. A qualifying corporation can explore both the EDC and the UVI RT Park programs to determine which best suits their business model.

Foreign Sales Corporations (FSC)

Foreign Sales Corporations (“FSCs”) are corporations organized under the laws of a qualifying foreign country or U.S. possession. U.S. exporters establish FSCs to reduce U.S. federal income taxes on their export sales by roughly 15 percent. The U.S. Virgin Islands is home to more FSCs than any other jurisdiction worldwide.

FSCs pay no local taxes in the U.S. Virgin Islands. They also pay no income tax except for a nominal annual franchise tax and license fee. The U.S. government guarantees these benefits for up to 30 years.

There are two types of FSCs: regular and small. A regular FSC’s export sales exceed $5 million annually; export sales from small FSCs are $5 million or less. This distinction determines the amount of the annual franchise tax: regular FSCs pay a $1,000 annual tax while small FSCs pay $400 or $900 depending on the corporation’s sales volume. Regular FSCs are also required to hold an annual meeting in U.S. Virgin Islands.

Exempt companies

An exempt company is a tax-free entity established under U.S. law by a foreign national. The U.S. Virgin Islands is the only jurisdiction where this can be done. Exempt companies are also called “offshore corporations” in other jurisdictions.

Exempt companies are often used as holding companies or captive insurance companies. They are also established for aircraft registered with the U.S. Federal Aviation Administration. Exempt companies may not conduct business in the U.S.V.I. Citizens, residents and corporations in the U.S. and U.S.V.I are not allowed to own more than 10 percent of the stock in an exempt company.

To learn more about business formation in the U.S. Virgin Islands, contact a skilled tax attorney at BoltNagi PC today.

Adam N. Marinelli is an Associate Attorney in the Corporate, Tax and Estate Planning Practice Group concentrating his practice in tax at BoltNagi PC, a full-service business law firm serving the U.S. Virgin Islands.

While the U.S. Virgin Islands is not a state, it is still subject to the majority of U.S. federal laws, given that it is an unincorporated territory. A mirror federal tax code applies in the territory, but rather than being administered by the Internal Revenue Service, it is administered by the Virgin Islands Bureau of Internal Revenue.

In 1986, Congress gave the U.S. Virgin Islands legislature the authority to create tax-free companies in the territory. The territory immediately after enacted legislation that would allow for the creation of U.S. Virgin Islands exempt companies.

So what do you need to know about tax-free entities in the U.S. Virgin Islands, and what are the benefits of those types of companies? Here’s some information.

The benefits of exempt companies

Exempt companies in the U.S. Virgin Islands do not pay any federal or territorial taxes of any kind on income earned anywhere in the world other than the U.S. or the Virgin Islands, except for the $1,000 annual franchise fee paid to the territorial government. In addition, stock in exempt companies is not subject to federal or territorial gift, estate or inheritance taxes if the decedent is a non-resident non-citizen of the United States.

U.S. Virgin Islands exempt companies are also able to elect a 20-year local exemption from all taxes except for the aforementioned franchise fee. Upon a $100 payment, the territory’s Corporate and Trade Name Division of the Office of the Lieutenant Governor will issue a contract guaranteeing the benefits to the client for a period of 20 years.

Most U.S.-sourced passive income earned by an exempt company, such as dividends, as well as most types of royalties and interest would be subject to a 30 percent withholding tax at the source, the same rate that would be imposed for payments of these types of income made to companies incorporated in other countries where the United States does not have any active tax treaties.

Exempt companies in the territory come with a certain level of privacy. The only information on the public record for these companies is the names and addresses of officers and directors — shareholder identity can remain private.

Finally, the formation of these types of companies is relatively easy and inexpensive. The incorporation fee paid to the U.S. Virgin Islands government is just $400, and the actual process of incorporation is typically able to be accomplished within just 24 to 48 hours, so long as the exempt company has at least one director. The directors and officers of an exempt company do not need to be residents of the U.S. Virgin Islands. All exempt companies must have minimum initial capital of $1,000.

These are just a few of the most important elements to know about U.S. Virgin Islands exempt companies. For more information about how BoltNagi can assist you with forming such a company, contact our team today.

Steven K. Hardy is Chair of the Corporate, Tax and Estate Planning Practice Group at BoltNagi PC, a full-service business law firm based on St. Thomas, U.S. Virgin Islands.

Virgin Islands attorney Tom Bolt, Managing Attorney of BoltNagi PC, has been appointed to the Uniform Law Commission’s Study Committee on Mitigation of Public Health Emergency Business Disruptions. The ULC study committee was formed in response to the COVID-19 pandemic crisis that closed the United States economy and the need for clear and consistent guidance in key areas of large-scale crisis management.

The study committee will consider the need for one or more uniform laws addressing the special rules and procedures to mitigate the impact of an epidemic, pandemic, or other public health emergency on the operation of businesses.  The committee will consider topics such as non-liquidating receiverships, business interruption insurance, and the application of force majeure and impossibility doctrines. In particular, the committee’s scope of review and recommendation includes:

  • the use of special non-liquidating receivership programs to enable court supervision of businesses adversely affected by an epidemic, pandemic or other public health emergency;
  • a requirement that insurers allow business interruption claims based on epidemic, pandemic, or other public health emergency-related closures, with the government underwriting the insurers (and paying a fee for having the insurers act as claim processors for the government);
  • the application of force majeure and impossibility doctrines to contractual performance during an epidemic, pandemic or other public health emergency; and
  • other measures that might mitigate the impact of public health emergencies on businesses.

The study committee’s work is guided by a determination whether these subjects are appropriate for state and territorial legislation and uniformity among the various jurisdictions; whether there is a need for an act to address specific issues; whether a uniform act would provide significant benefits to the public through improvement to existing law; and whether a uniform act would maintain the integrity of well-balanced and well-settled law in areas traditionally governed by the states and territories.

The Uniform Law Commission has a record of responding quickly to large-scale emergency events. For example, in 2006 the ULC adopted the Uniform Emergency Volunteer Health Practitioners Act. Drafted in the wake of Hurricane Katrina (2005), the Act allows state and territorial governments during a declared emergency to give reciprocity to other state’s health services licensees so that covered individuals may provide emergency health services without first being required to satisfy the disaster jurisdiction’s licensing requirements. The goal of the Act is to speed medical help to those in need by removing administrative and bureaucratic hurdles, and by managing liability and risk to covered volunteer healthcare providers. The law has been enacted in 17 states, the District of Columbia and the U.S. Virgin Islands. The COVID-19 pandemic presents new and even more challenging issues in crisis response for businesses.

Attorney Bolt serves as chair of the Virgin Islands Commission on Uniform State Laws, which has been a member of the ULC from 1988. Since 1892, the ULC has provided states and territories with non-partisan, carefully conceived uniform laws. The ULC’s work simplifies life for people who live, work, or travel in multiple jurisdictions and improves local economies by facilitating interstate commerce. Each uniform act is drafted in an open and deliberative process that draws on the expertise of locally appointed commissioners, legal advisors and observers in the 50 states, the District of Columbia, Puerto Rico and the U.S. Virgin Islands.

Tom Bolt serves as Managing Attorney and Chair of the Government Relations Practice Group at BoltNagi PC, a full-service business law firm on St. Thomas, VI.

Most adults have had to sign certain documents in the presence of a notary at some point in their lives, yet many people do not understand what the purpose of a notary is or why a document requires notarization.  The primary purpose of having a document notarized is to deter fraud. To accomplish this, the person(s) signing the document does so in the presence of the notary and proves to the notary, most often by government issued identification, that they are in fact the person(s) who are named in the documents.  The notary then officiates the document by marking the document with their seal.  A notary can also affirm that the person signing the document has sworn to the truth of the statements made within the document.  Some common examples of documents requiring notarization include deeds, mortgages, wills, trusts and affidavits.

A notary is regulated by the jurisdiction in which one resides and is required to adhere to certain formalities.  Traditionally, one of these requirements was that the person(s) signing the documents did so in the physical presence of the notary.  However, as a result of the recent COVID-19 pandemic and social distancing guidelines, this traditional requirement of signing in the physical presence of the notary has presented significant challenges. In light of this, many jurisdictions have begun waiving this requirement and have implemented procedures to allow persons to sign in the virtual presence of a notary.

On April 20, 2020, and in response to the COVID-19 State of Emergency, U.S. Virgin Islands Governor Albert Bryan, Jr. issued that certain Fifth Supplemental Executive Order and Proclamation to specifically suspend the formal requirement of personal appearance before a notary public. Currently, the provisions within the Executive Order are only effective while the Territory is under a State of Emergency. Pursuant to the Executive Order, a notary is now authorized to perform their notarial acts by utilizing live audio-video technology between the principal, notary and other necessary persons at the time of signing and notarizing. A common example of this would be the recent increased utilization of Zoom meetings. Certain conditions must still be followed, however, some of which include:

  • The person must affirmatively represent that they are physically present in the Territory of the U.S. Virgin Islands;
  • The notary must be physically located in the Territory;
  • The document must contain a notarial certificate, jurat, or acknowledgment which states that the principal appeared remotely and pursuant to the Executive Order;
  • Any person whose signature is to be notarized must display a valid photo ID to the notary during the video conference.

The recent authorization of remote notarization offers a variety of benefits, including:

  • Encourages social distancing;
  • Allows for certain commercial and legal functions to continue;
  • Provides for faster transactions;
  • Reduces operating and travel costs.

BoltNagi employs a handful of notaries and is equipped with the technology to provide remote notarization during this difficult time.  If you or your company requires notarization of documents, and would prefer to utilize remote notarization, please contact Attorney J. Nash Davis.

BoltNagi is a well-established and widely respected business and commercial law firm proudly serving clients in the U.S. Virgin Islands.

Buying or selling commercial real estate can be a complicated transaction. While electronic communications make it easier to communicate progress, they also make it harder to keep track of all the moving parts in the days leading up to closing.

Follow our tips below to ensure a smooth closing in your next real estate transaction.

Be mindful of the closing date

In a purchase and sale agreement, a closing date is usually set a certain number of days in the future (e.g. 30, 60, or 90 days). This gives parties time to perform their due diligence before closing.

When determining the actual closing date, the business day closest to the end of the stated time period is usually selected. Before agreeing to a pre-determined closing date, keep these issues in mind:

  • Avoid closing on a Friday: If your 60-day timeframe ends on a Friday, consider moving the closing day up to Thursday. While the buyer, seller, attorneys and agents will be focused on the transaction, third parties may not. Fridays are a popular day for office workers to take vacation, and those who are in the office may not be as focused on details as they would be earlier in the week. If you need a last-minute bank wire or insurance detail, you may not get what you need until the following week, thereby delaying your closing.
  • Avoid closing on a Monday: For the same reasons to avoid closing on a Friday, avoid closing on a Monday. Third parties may still be on vacation or may be playing catch-up, causing your request to land at the bottom of the pile. Closing after the weekend may mean the buyer, seller, or agent hadn’t been thinking about the deal for a few days, and there may be a mad dash to correct an oversight.
  • Set closing ahead of deadlines: When making adjustments for the considerations above, always set the closing date before deadlines. Also keep in mind deadlines like a tax exchange deadline, and set your closing date a few days before to allow time for corrections.

Make yourself available before closing

Where possible, block off your calendar in the days before closing to make yourself available for last-minute tasks. You’ll likely need to approve revisions, answer questions, gather documents and other tasks to finalize the purchase. Make sure you’re easily available via phone or email. If your availability is limited, communicate when you are free to your attorney and provide alternate methods for others to reach you.

Just as you need to make yourself available before closing, you should also be mindful to be more responsive. Closing documents go through several iterations of revisions, requiring all parties to approve changes. If you aren’t reviewing communications in a timely manner, additional delays may result. Be polite and keep the closing running smoothly by making an extra effort to be responsive.

Prepare for the worst

Even if you’re worried the deal may fall through, you need to be able to show you were ready to complete the transaction. Have all necessary paperwork completed ahead of the closing date. If you need signatures from other parties but haven’t received them, have a paper trail of your efforts to get those signatures.

A real estate attorney can walk you through the process of closing a commercial real estate transaction. Contact a skilled real estate attorney at BoltNagi PC today.

Steve Hardy is an attorney in the Real Estate & Financial Services Practice Group at BoltNagi PC, a full-service business law firm on St. Thomas, U.S. Virgin Islands.