Background for investors

Several US programs are available for investors in the USVI.  The Tax Cuts and Jobs Act, passed in December 2017, established the Opportunity Zone Program which provides immediate and long-term tax advantages to US investors in Opportunity Zones. The Opportunity Zone Program was created to encourage private investment in economically distressed neighborhoods by offering investors access to new capital gains tax incentives in exchange for placing qualified investments in Opportunity Zone communities. Investors can defer capital gains taxes on earnings from many types of investments up to 2027, can reduce taxes on the capital gain invested into an Opportunity Fund by 10%, and can gain permanent exclusion from capital gains taxation on Opportunity Fund investments held for at least ten years. 

To expand its marine tourism sector, the USVI has enacted certain tax exemptions beyond those also available under the four USVI incentive programs previously discussed. For example, the USVI has exempted all boats, boat engines, and boat parts from USVI excise taxes and customs duties. Also, passengers on charter yachts and other boats are not subject to the USVI’s hotel room tax, which is imposed at a rate of 12.5% of the gross room rate or rental paid by every hotel guest in the USVI.  Finally, the USVI’s 5% gross receipts tax is only imposed on receipts from USVI sources, so the payments for any boat that is chartered in the USVI but that also spends time in the British Virgin Islands or Puerto Rican waters or at sea are allocated between time spent in the USVI waters and time spent elsewhere, with only the USVI source payments being taxable.

The USVI provides many options when choosing to form a legal entity within the jurisdiction. These include corporations, limited liability companies, and partnerships, including general partnerships, limited partnerships, limited liability limited partnerships, limited liability partnerships, and trusts. The USVI has adopted the Uniform Limited Liability Company Act, and formation and governance of an LLC is similar to that imposed in the 50 states and the District of Columbia. Apart from general partnerships, which are formed simply by agreement of the partners, and trusts, all entities are formed through filings with the USVI Office of the Lieutenant Governor, Division of Corporations & Trademarks. 

Federal law, including the Securities Act of 1933 and the Securities Exchange Act of 1934, apply in the USVI. Additionally, the USVI has adopted the Uniform Securities Act for territorial-level securities regulations. 

As mentioned, careful consideration should be taken when structuring business operations in the USVI, including the choice of entity, along with tax elections available under the Code. All USVI entities receive employer identification numbers from the IRS.  

Business licenses are issued by the Department of Licensing and Consumer Affairs (“DLCA”) and are required to engage in business in the USVI. The DLCA provides a general business license that can be used to register with the Department of Labor and to set up a bank account, but a business must request a license that specifies its specific business activities as soon as feasible since licenses are effective upon the issuance date, rather than the application date. 

Business licenses are required for all businesses, including the business of short-term rentals.

Many of the USVI economic incentives and related programs provide personal tax benefits for bona fide USVI residents on their allocations or dividends. To be a bona fide USVI resident, a person must meet one of five alternative physical presence tests each year, have a closer connection to the USVI than any other location, and have a USVI tax home. 

The most-used “physical presence” test involves being in the USVI for all or part of 183 days in a given year; however, individuals who travel frequently can satisfy the physical presence test by spending no more than 90 days in the USA each year or by not having a significant connection to the USA at any time during the year (such as having a home or children located in the USA). The establishment of a “closer connection” involves such factors as having a home, filing returns as a USVI resident, obtaining a USVI driver’s license, registering to vote and voting in the USVI, and having a USVI bank account, although no single factor is determinative. A “tax home” is an individual’s principal place of business. In most cases, the individual must be a bona fide resident of the USVI for the entire year to get benefits on their income from the benefited business.

The Internal Revenue Code of 1986, as amended (“Code”), applies in the USVI under a “mirror” system whereby the “USVI” is effectively substituted for “United States” wherever the latter appears.  Consequently, the income tax provisions of the Code, the Treasury Regulations promulgated thereunder, and revenue rulings and revenue procedures issued by the Internal Revenue Service (“IRS”) are generally applicable in the USVI, with certain limitations. 

As a US territory, the USVI occupies a unique status; although part of the USA, it has been granted authority by the US Congress to enact special tax laws to encourage investment in business operations. 

The USVI therefore offers many opportunities for investors and especially entrepreneurs who seek a politically stable, low-tax jurisdiction, legitimate protection of their assets from taxes, and an enticing location with excellent telecommunications. 

The infrastructure to support hotels and tourism businesses (among others) in the USVI has largely been in place for 60 years through the Economic Development Authority (“EDA”) and its various investment programs and their predecessors.  The Economic Development Commission (“EDC”) Program, administered by the EDA, offers exemptions and reductions to entities qualified as EDC beneficiaries, as well as reductions to direct and indirect owners of entities qualified as EDC beneficiaries if the owners are bona fide residents of the USVI.  The EDA is governed by a seven-person board that includes both public and private sector representation.

Benefits under the EDC Program include a credit equal to 90% of the otherwise applicable income tax, which applies both to the income from the benefited business and to the bona fide USVI resident owners on their allocations or dividends. 

A USVI corporation pays an effective tax rate of approximately 23.1% on its eligible income, and with the 90% tax credit the effective rate is 2.31%. (Salaries and other forms of compensation, such as guaranteed payments, are fully taxable.)  Beneficiaries are also exempt from the territory’s 5% tax on the USVI source gross receipts of a business, and from USVI property tax for the property occupied by the beneficiary for its approved business activities.

No withholding tax is imposed on payments to US corporations or US-resident individuals. Beneficiary companies with foreign owners are exempt from withholding tax on interest payments and are subject to a reduced withholding tax rate of 4.4% on dividend payments overseas. Similarly, no income tax is withheld on interest paid to non-resident alien individuals, and the tax rate on dividends paid to non-resident individuals is 4%.

Beneficiaries receive an exemption from USVI excise tax on building materials and machinery used in the construction of their facilities and on raw materials brought into the USVI to produce goods. In addition, a beneficiary’s customs duties are reduced from 6% to 1% on raw materials and component parts imported from outside the USA. No local customs duties are imposed on US-made products. Finally, in order for income to be eligible for EDC Program benefits, the income must also satisfy applicable federal source and effectively connected income regulations as set out in Sections 934 and 937(b) of the Code and the Treasury Regulations promulgated thereunder. 

To qualify under the EDC Program, an applicant in a qualifying business must generally make a minimum capital investment of $100,000.00 (exclusive of inventory) and must meet certain minimum employment requirements.  

Typically, a business must employ at least ten full-time employees, but financial firms are only required to employ five full-time employees and the EDA has the authority to lower the five-employee minimum or to permit a business to have several years to meet the five-employee minimum upon a showing of good cause.  At least 80% of the beneficiary’s employees must be USVI residents unless a waiver is granted.

Beneficiaries must purchase goods and services locally when available, make certain contributions to scholarships and public education, and provide a plan for civic participation. Beneficiaries must also provide employee benefits and enact a management training program.

The application process requires submission of a detailed application including the beneficiary’s ownership, financial information, and a background check for beneficial owners with a 5% or greater interest.  Submission of the application is followed by the application’s presentation at a public hearing before the EDC commissioners and review of the application by the EDC commissioners.  Upon approval by the EDC, benefits are available for initial periods of 20 years for investments on the islands of St. Thomas and St. John, and for 30 years on St. Croix.  In addition, beneficiaries that invest more than $10 million are eligible to receive an additional ten years of benefits; and beneficiaries that invest between $1 million and $10 million are eligible for an additional five-year term of benefits.  Prior to expiration of a benefits term, a beneficiary may seek an extension of 100% of benefits for an additional term of ten years. 

Recent new hotel applicants under the EDC Program have committed to constructing low-density developments that are designed to promote environmental sustainability, low-impact construction, and the ability for guests to physically distance. 

Other hotel beneficiaries, such as King Christian Hotel in Christiansted, have restored historic structures in the USVI with a view to showcasing local culture and traditions using innovative building techniques designed to enhance urban redevelopment. 

Hotels that have been operating in the USVI for decades are undergoing major upgrades and, in many cases, adding new brands to the USVI’s hotel offerings.  EDC beneficiaries in the recreational tourism industry have likewise evolved to accommodate the growing segment of environmentally conscious tourists who are focused on experience-based travel.

The Hotel Development Act (“HDA") Program, also administered by the EDA, was initially passed in 2011 to provide a means for financing hotel development projects in the USVI. 

In 2019, the HDA Program underwent a complete overhaul to promote the tourism industry of the USVI and to provide for the planning, financing, reconstruction, renovation, and maintenance of new and existing hotels in the territory.  

Specifically, the program was amended to provide for the development, construction, reconstruction and renovation of commercial facilities and other hotel facilities.  Now, the hotel room occupancy tax can be 100% utilized by developers of new hotels, or up to 50% for existing hotels where at least 70% of the units were previously damaged – by hurricanes, for example – for the development, construction, reconstruction, and renovation of the facility. 

Additionally, the amendment provides for the imposition of an economic recovery fee (“ERF”) to finance, fund or cover the costs incurred for renovation, reconstruction, construction, improvement and development of hotel properties and related facilities or infrastructure. The amount of the ERF is the difference between the percentage rate of hotel room occupancy tax applicable at the time of the application (currently set at 12.5%) and a percentage rate over such tax, not to exceed 7.5%, which is determined by the applicant. 

The ERF can be collected and deposited into an ERF trust account for a period of 30 years and is only available to applicants applying before 31 December 2028. Any funds remaining after completion of the approved project can be used by the developer for other expenditures for improving or enhancing the ERF project.

Businesses seeking to invest in historic preservation have additional opportunities available through the Enterprise Zone Commission (“EZC”) Program, which is administered by the EDA and which offers tax incentives to businesses investing in designated historic and commercial districts.

Under the EZC Program, applicants must be a licensed business that is owned by a USVI resident and that is ecologically compatible with the location.  Qualifying businesses get a 90% income tax exemption and complete exemptions from the gross receipts and property taxes. Businesses must also meet certain requirements that are based on the location. For example, benefits are available for museums, art galleries and cultural businesses in Christiansted, St. Croix, and experiential tourism and arts and restaurants in Garden Street-Upstreet in Charlotte Amalie, St. Thomas. Businesses that promote the USVI’s history and culture in Frederiksted, St. Croix, also qualify for benefits.

To qualify under the EZC Program, an applicant must (among other things) make a minimum capital investment of $10,000 and employ a minimum of two full-time USVI resident employees. The application process requires submission of a detailed application including a description of the history and current condition of the property within the Enterprise Zone and details of the construction or rehabilitation efforts to be undertaken. Applications are considered by the EZC commissioners and upon approval, benefits are available for a five-year period.

The Research and Technology Park (“RTPark”) Program seeks to support the USVI’s expanding technology and knowledge-based sectors to promote the growth, development, and diversification of the USVI economy. In addition, the RTPark works to broaden the capabilities of the University of the Virgin Islands (“UVI”) by providing UVI with financial support and training opportunities for UVI students, and by creating a supportive research environment that combines the resources of UVI with those of the public sector and private industry.  The RTPark Program does not have a specific “tourism” focus but it is ideal for businesses engaged in health fields, marine science, and sustainability, especially where technological resources are critical elements. 

There are logical tie-ins between certain knowledge-based businesses and tourism in areas such as coral research and restoration.  Furthermore, the RTPark is in the process of developing a Tech Village in St. Croix near UVI’s campus there, which will be a $50 million project with 60 units for residential housing, 18 acres for farming, a solar microgrid, and 300-person conference room, 12,000 square feet of commercial space, and a teaching hotel with 120 rooms.

Oversight of the RTPark Program is vested in the seven-member RTPark Board of Directors (the “Board”) which by statute includes the chairman of the UVI Board of Trustees and the president of UVI.

In most cases, an applicant, through a legal representative, negotiates the terms of the applicant’s tenancy with the RTPark’s executive director.  Negotiations include the amount of the one-time entry fee paid by the applicant which is typically at least $50,000 and up to $100,000, depending on the size of the applicant; the applicant’s obligation to pay annual management fees to the RTPark, typically between 2% and 3.5% of the applicant’s gross income; the structuring of a charitable donation to UVI that can include scholarships, internships, faculty support, funds for specific programs, and in-kind contributions of time; and the percentage of equity interest to be awarded to the RTPark (which can be non-voting and have different distribution rights to what the other owners have). 

Once negotiations have been finalized, a term sheet is entered into between the applicant (referred to under the RTPark Program as a “Protected Cell”) and the RTPark and this provides the basis for the formal application that covers the applicant and its owners. The final terms are ultimately memorialized in the Protected Cell’s Park Tenant Agreement, which serves as the operative document defining the relationship between the Protected Cell and the RTPark. Each RTPark application requires a $2,500 application fee and a $4,000 background-check fee that covers two individuals.

Benefits under the RTPark Program are initially available for 15 years and can be renewed for an initial renewal period of ten years, followed by subsequent renewal periods of five years subject to Board approval.  As with the benefits under the EDC Program, the RTPark offers a 90% tax credit for the business and also for dividends or allocations paid to direct and indirect owners of beneficiaries if the owners are bona fide residents of the USVI. Such income must be from USVI sources or effectively connected with conducting a USVI trade or business. For a corporate Protected Cell, the reduction results in an effective tax rate of approximately 2.31% on eligible income.

No withholding tax is imposed on payments to US corporations or US individual residents. Furthermore, RTPark beneficiaries with foreign corporate owners are exempt from withholding tax on interest payments and enjoy a reduced withholding rate of 4.4% on dividend and royalty payments overseas (while the withholding rate on non-resident individuals is 4%).  Other benefits under the RTPark Program mirror those available under the EDC Program.

An earnest money deposit, or good faith deposit, is a sum of money you put down to demonstrate your seriousness about buying a home. In most cases, earnest money acts as a deposit on the property you're looking to buy.  Earnest money is put down before closing on a house to show you’re serious about purchasing. It’s also known as a "good faith deposit." 

When a buyer and seller enter into a purchase agreement, the seller takes the home off the market while the transaction moves through the entire process to closing. If the deal falls through, the seller has to relist the home and start all over again, which could result in a big financial hit.  Earnest money protects the seller if the buyer backs out.

It's typically around 6%-10% of the sale price and is held in an escrow account until the deal is complete.  If all goes smoothly, the earnest money is applied to the buyer’s down payment or closing costs.  If the deal falls through due to a failed home inspection or any other contingencies listed in the contract (we’ll look at those contingencies in a bit), the buyer gets their earnest money back. 

The practice of depositing earnest money can decrease the likelihood of a buyer placing offers for multiple homes, then walking away after the seller takes the home off the market.

Earnest money has contingencies that protect both the seller and buyer in certain situations. When you make an offer on a home and the seller accepts, the sale is only finalized when contingencies, or certain criteria, are met. They’re typically listed in the purchase agreement and cover the inspection, appraisal and mortgage approval, among other items.

The home inspection is a common reason potential buyers back away from a deal. If your prospective home is inspected by a professional and some elements of the home come back in need of repair, a home inspection contingency can allow you to back out of the transaction. If you don’t want to back out of the deal, you could also work with the seller to have the repairs made or have them lower the price so you can do the repairs yourself.

The appraisal contingency, which protects the buyer if the property is overvalued, is equally important. The lender hires a third-party appraiser to determine the fair market value of the home and to compare it to similar properties for sale. With this contingency, if the home is appraised at less than the sale price, you can choose not to move forward with the deal and you’ll get your earnest money back. Alternatively, you can use the appraisal to negotiate a new price.

If you weren’t pre-approved for a mortgage when you put your earnest money deposit down – or even if you were – and then you don’t get approved, a mortgage contingency (also known as a "financing contingency") can protect you. You have the right to walk away and get your earnest money back as long as this contingency was listed in the agreement.

Apply for mortgage approval to see your options and get a better idea of how much home you can afford.

Some contracts also include a contingency for selling your existing home. If you can’t sell the home you currently own before you close on another home, this contingency lets you back out of the deal with your earnest money in hand.

Home inspections provide an opportunity for a buyer to identify any major issues with a home before closing. A home inspection can be used as a contingency in your contract with the seller. This contingency provides that if a home inspection reveals defects to your dissatisfaction, you can back out of your purchase offer, free of penalty, within a specific timeframe.

• A home inspection contingency allows buyers to learn about major and minor issues with a home before purchasing it.
• Many lenders won't offer financing on a home without an inspection.
• Home inspections can uncover potentially life-threatening problems like mold or faulty wiring that could cause a significant fire.
• Most potential buyers have a seven-day window after a home inspection to walk away from the purchase.
• A thorough inspection is a critical step in purchasing a home.
• Home inspectors look at the exterior and interior parts of the home, including but not limited to electrical, plumbing, roofing, HVAC, and foundations.

A title examination is a study of the records related to the ownership history of the property and sometimes of other matters related to ownership interests in the property.  An abstract of title is a collection of public records relating to the ownership of a parcel of real estate.  During the examination, a title examiner reviews the applicable title information to determine who owns the lands, whether there are any defects in or claims against the ownership and whether any action is needed to make sure the purchaser obtains good record title to the property at closing.

A title insurance policy insures the status of title in the name of the owner of the policy.  Title insurance policies are issued by title insurance companies.  The title company contracts with the insured person named in the policy to protect against financial loss related to the title, as well as the cost of defending the title in court.  The title company searches and examines documents related to the ownership of and items affecting the property prior to issuing a policy.  It provides a source of indemnification to the named insured if he or she is damaged by a negligent or bad title search or examination and also from hidden defects that would not be discovered in a title search.  For instance, a title defect resulting from a forgery would not be revealed in a search or examination of the public records but would be covered by the title insurance policy.

Prior to issuance of the title insurance policy at closing, a title commitment will be prepared.  You may or may not be afforded the opportunity to see this document prior to closing, but you should make every effort to review it prior to closing.  You should make sure to have your attorney review it as well.  While there are many important parts to a title commitment, at a minimum you should be familiar with the following: (i) Schedule A identifies the type of policy being issued, the names of the proposed insureds and the current owners, and the legal description of the property; and (ii) Schedule B contains a list of items that must be satisfied in order for the title company to issue the policy of insurance and also contains a list of title matters (called "exceptions") that will be excluded from coverage, such as statutory real estate taxes and easements for utilities servicing the property unless deleted from the title commitment at the time of closing.  If there are objectionable items in the commitment, you need to try to have them removed by the title insurance company before closing.

If you are purchasing a property with cash, then you are not required to purchase title insurance; HOWEVER, we STRONGLY recommend it.

If you are financing, you are required to purchase a policy for the lender to cover the lender's collateral.  You have the option to also purchase an owner's policy, which is STRONGLY recommended.

The price corresponds to the purchase price of the property.  The average policy ranges from $600-$2,500, which is a one-time premium paid at closing that covers your for the duration of your ownership of the property.

We will be working closely with your mortgage broker during this process.

Buying a home can be a long, tedious process and the cost is more than the price tag on the house.  For many potential homeowners, it takes several months to find the house they want to make a home.  For first-time homebuyers or even those who have purchased a home before, it’s important to know what your financial situation needs to look like and how much money you will need to complete the process.  A lot of potential home buyers put their focus on saving for the down payment, and while this is a key financial component when buying a home, it is not the only thing a potential buyer needs to budget for. Closing costs are a key component to closing the deal, for example. 

The lender will provide a Closing Disclosure at least three business days before closing on the mortgage loan. A Closing Disclosure is a five-page form that provides final details about the mortgage loan including the loan terms, projected monthly payments, and how much is paid in fees and other costs to get a mortgage (closing costs). Use this 3-day window to compare the final loan terms and costs to the estimated costs in the Loan Estimate the lender provided at loan application and ask the lender any questions before closing.

No! The vast majority of closings are done remotely.  If your deal is being financed by Flagstar, the process is as follows: two days before closing, you should receive your final Closing Disclosure, giving you the exact amount required from you to be provided at closing.  Those funds need to be in your attorney's escrow account prior to closing.

An hour or so before the closing, you will sit with your attorney and review and sign the packet of loan documents.  Your attorney will bring your loan documents and funds to the closing on your behalf.  

You will not attend the closing.  It is merely a 5-10 minute exchange of documents and funds among the real estate professionals handling the transaction.

For cash deals, you will receive a settlement statement a few days prior to closing.  Your attorney will provide it to you in enough time for you to wire the required funds to their escrow account.  Settlement statements are signed in advance of closing.  You are not required to be at the closing.  The vast majority of closings here happen remotely. 

We will have your keys, clickers, codes, and anything else that you need to access your property.  We will coordinate delivery to you or your property manager on the day of closing (or whenever is most convenient for you).

You cannot transfer the WAPA (Water and Power Authority) account into your name until AFTER the deed is recorded.  Deeds are typically recorded the same day of closing, but we will not be able to provide a copy of the recorded deed to you until the following business day.

You will need to take the copy of the recorded deed, along with your driver's licenses, to WAPA and stand in line until they are able to help you.  It is $141 to turn on service as of the date of this post (April 28, 2022).

If you do not want to wait at WAPA and you wish to send someone else in your place, you will need to execute a power of attorney in the name of the person who will wait at WAPA in your place.  That person will have to bring the original signed and notarized power of attorney with them to WAPA. 

Your attorney can prepare the WAPA affidavit for you.

If you do not have a friend or someone who can do this for you and you would like someone to help you with this task, we can assist you for an additional fee. 

After the closing, you will need to coordinate with all other service providers directly to start service.  We can provide names and contact information for local providers.