The Finance Act Series- Part 3 Business Vehicles – Corporate/Commercial Law

1. Introduction

The Finance (Miscellaneous Provisions) Act 2021 was gazetted on
05 August 2021 and it brings into force a number of amendments to
the legislations in Mauritius. This segment of the joint Axis and
BLC Robert Finance Act series sets out the key amendments made to
the Business Registration Act, Companies Act, Foundations Act,
Freeport Act, Immigration Act, Limited Liability, Partnerships Act,
Limited Partnerships Act and Protected Cell Companies Act.

2. Business Registration Act

The Business Registration Act has been clarified to provide that
a copy (as opposed to a
certified copy) of the Business
Registration Card (“BRC“), displayed at
the principal place of business and at every other place where a
business is being carried out, is now sufficient and that a fee is
applicable whenever a request is made to the Registrar of
Businesses, for a change in the particulars on a BRC.

3. Companies Act

The changes to the Companies Act have further emphasized the
commitment to combat money laundering and terrorism financing. The
definition section has been amended to include the following
terms:

Moreover, every company service provider is now required to
comply with such directions as the Registrar may give and as soon
as practicable, but not later than 5 working days from the date on
which it becomes aware of a transaction which it has reason to
believe may be a suspicious transaction, make a suspicious
transaction report to the FIU and comply with such guidelines as
the FIU may issue. A company service provider may, upon
authorization by the company for which it acts, provide to the
competent authorities basic information as set out in section 190
of the Act.

The Registrar may undertake educational programmes to raise and
deepen awareness among companies limited by guarantee and the donor
community on the potential vulnerabilities of the sector to
terrorism financing abuse and risks, and the measures they can take
to protect themselves. The Registrar may share, with Mauritian and
foreign law enforcement agencies and institutions involved in the
prevention of money laundering and combating of terrorism financing
and proliferation, information on companies limited by guarantee
pursuant to the Act.

Last year, the Registrar was empowered to be able to remove a
company from the register of companies if the company failed to
identify the beneficial owner, record and submit information
thereon to the Registrar. This year’s amendment permits the
Registrar to make public notice in this regard.

Besides the shareholder, officer, management company or
registered agent, as the case may, henceforth, a representative or
secretary of a company will be able to apply for a certificate of
current standing in the name of the company from the Registrar.

There has also been amendment which now requires public entities
to include all relevant information as set out in section 221 in
their annual report.

4. Foundations Act

The changes to the Foundations Act are axed towards raising
awareness surrounding the potential use of charitable foundations
in the furtherance of money laundering and the financing of
terrorism. As such, the Registrar of Foundations can now undertake
outreach and awareness programs, as well as share information with
other Mauritian or foreign law enforcement agencies in the
prevention of money laundering and terrorism financing.

An officer of a foundation or a person ordinarily resident in
Mauritius can now also be authorised by the foundation to provide
basic information to competent authorities (investigatory
authorities and public bodies responsible for combatting money
laundering or terrorist financing and proliferation) upon their
request.

In the same vein, records of charitable foundations should now
be kept for a period of at least 7 years. These records must
contain information about the use of funds received by a charitable
foundation, which should be used in line with the objects of the
foundation.

Finally, another noteworthy change brought about under the
Finance Act to the Foundations Act concerns the consequences of a
foundation, council member, secretary of the foundation not
complying with their obligations of keeping appropriate records.
This does not automatically lead to the removal of the foundation
from the register anymore, but now leads to a notice of 30 days,
from the Registrar, for the foundation to comply with its
obligations.

5. Freeport Act

The Freeport Act has been amended to include the following:

1. Authorize a third party freeport developer to rent space within
   a freeport zone to an enterprise outside the freeport zone for the
   manufacturing and storage of goods, subject to clearance of the
   goods from Customs under the Customs Act;




2. Provide for an extension in the warehousing period of up-to
   maximum 36 months;




3. Where authorization is given to a private freeport developer,
   during the COVID-19 period and such further period as may be
   prescribed after the COVID-19 period lapses, to provide warehousing
   facilities for the storage of goods, which shall be cleared from
   Customs under the Customs Act, in a freeport zone to any person,
   the fees shall be paid by the person to whom the warehousing
   facilities are provided;




4. Where authorization is given to a third party freeport
   developer to rent space within a freeport zone to an enterprise
   outside the freeport zone for the manufacturing and storage of
   goods, subject to clearance of the goods from the Director-General
   under the Customs Act, the fees shall be paid by the
   enterprise;




5. Amend the Second Schedule setting out the freeport activities
   to include the display of the showroom to potential buyers; and in
   the Third Schedule to authorise a third party freeport developer to
   rent space within a freeport zone to an enterprise outside the
   freeport zone for the manufacturing and storage of goods.

6. Immigration Act

A noteworthy amendment to the Act is the introduction of a
Family Occupation Permit. A non-citizen may, through the Economic
Development Board, apply to the immigration officer for a family
occupation permit authorizing:

• the applicant, his spouse, dependent child, parent, other
  dependent or such other person working exclusively for the family
  unit, as may be approved by the immigration officer to become
  resident for a period of 10 years, upon satisfying the
  criteria;




• the applicant or his spouse, to carry out any occupation in
  Mauritius or take up employment in Mauritius; and




• such persons working for the family unit, as may be approved by
  the immigration officer, to take up employment with the applicant
  for the purpose of attending to the needs of the family.

The definition of ‘Dependent Child’ has been amended to
a child, stepchild or lawfully adopted child of a person and who
is:

• wholly dependent on the person;




• unmarried; and




• not engaged in any gainful activity.

The list of persons who hold the status of resident under the
Act has been extended to include (i) a person who purchases or
otherwise acquires an apartment used, or available for use, as
residence, in a building of at least 2 floors above ground provided
the purchase price is not less than USD 375,000 or its equivalent
in any other hard convertible foreign currency and (ii) the Holder
of a Family Occupation Permit, his dependents and persons working
for the family unit.

The Act has also been amended to include the
following:

1. Enable holders of a 10-Year Permanent Residence Permit prior to
   1 September 2020 to have the automatic validity extension to cover
   a 20-year period;




2. Enable holders of a Permanent Residence Permit under the
   category of Investor, Professional or self-employed to switch
   category of their Permanent Residence Permit to Retired
   Non-Citizen, on application, provided that the holder has a monthly
   disposable income of USD 1,500 or its equivalent in any other hard
   convertible foreign currency;




3. The section on loss of status of residence has been amended to
   clarify that it applies equally to persons having acquired
   residence under Integrated Resort Scheme, Real Estate Scheme,
   Invest Hotel Scheme, Property Development Scheme or Smart City
   Scheme;




4. An Occupation Permit application will be determined within 5
   days of receipt of a complete application as opposed to 2
   days;




5. Extend the validity of the Occupation Permit for Professional
   for the period specified in his contract of employment or for a
   period of 10 years, whichever is lesser; and in the case of a young
   professional, for the period of his contract of employment or for a
   period of 3 years, whichever is lesser;




6. The Passport and Immigration Office is allowed to share
   information of non-citizen with the Financial Intelligence Unit and
   no public sector agency, other than the Financial Intelligence
   Unit, shall disclose any information to a third party.

7. Limited Liability Partnerships Act (“LLPA”) and
Limited Partnerships Act (“LPA”)

The additions to both the LLPA and the LPA have brought about
the introduction of a procedure whereby both a limited liability
partnership and a limited partnership can now authorise an officer
to provide basic information, including beneficial ownership
information to investigatory authorities or public bodies
responsible for combatting money laundering or terrorism
financing.

The information which the officer would be authorised to provide
includes the name, legal form and status, registered address of the
partnerships, alongside information on the partners of the
partnerships.

8. Protected Cell Companies Act (“PCA”)

The amendment brought to the PCC Act has extended the use of
protected cell companies for business activities relating to real
estate development which consists of acquiring, developing,
holding, managing and disposing of real estate assets or portfolios
of real estate assets in different cells.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.