The Non-Citizens Land Holding Regulation (Amendment) Act, no. 32 of 2020

ANTIGUA AND BARBUDA NON-CITIZENS LAND HOLDING REGULATION (AMENDMENT) ACT, 2020 No. 32 of 2020 [Published in the Official Gazette Vol. XL No.80 dated 5th November, 2020] Printed at the Government Printing Office, Antigua and Barbuda, by Noel F. Abraham, Government Printer — By Authority, 2020. 300—11.20 [Price $4.00] Non-Citizens Land Holding Regulation (Amendment) Act, 2020 2 No. 32 of 2020 No. 32 of 2020 3 Non-Citizens Land Holding Regulation (Amendment) Act, 2020 ANTIGUA AND BARBUDA NON-CITIZENS LAND HOLDING REGULATION (AMENDMENT) ACT, 2020 ARRANGEMENT OF SECTION SECTION 1. Short Title ................................................................................................................................ 4 2. Interpretation ............................................................................................................................ 4 3. Amendment of section 2-Interpretation ................................................................................... 4 4. Insertion of section 4A-Annual general licence to hold mortgage ........................................... 5 5. Amendment of section 6-Restriction on Companies under control of Non-Citizens ............... 6 6. Amendment of section 8- Licences for non-citizens to hold directorships, shares debenturers, or to be a member of a company having no share capital, or a beneficiary of a trust .. 6 7. Amedment of section 18-Stamp Duty ...................................................................................... 8 8. Amendment of section 23-Power of the Cabinet ..................................................................... 8 Non-Citizens Land Holding Regulation (Amendment) Act, 2020 4 No. 32 of 2020 [ L.S.] I Assent, Rodney Williams, Governor-General. 30th October, 2020. ANTIGUA AND BARBUDA NON-CITIZENS LAND HOLDING REGULATION (AMENDMENT) ACT, 2020 No. 32 of 2020 AN ACT to amend the Non-Citizens Land Holding Regulation Act Cap 293 to revise the licensing regime of non-citizens and to provide for members of companies having no share capital, and all beneficiaries of any non-citizen legal entity holding land in Antigua and Barbuda to be subject to the requirements of a licence as a condition for holding such land or interest in land. ENACTED by the Parliament of Antigua and Barbuda as follows: 1. Short Title This Act may be cited as the Non-Citizens Land Holding Regulation (Amendment) Act, 2020. 2. Interpretation In this Act– “principal Act” means the Non-Citizens Land Holding Regulation Act Cap 293. 3. Amendment of section 2-Interpretation The principal Act is amended in section 2 as follows: (a) by the repeal of the definition of “non-citizen” and the substitution therefor of the following: No. 32 of 2020 5 Non-Citizens Land Holding Regulation (Amendment) Act, 2020 “non-citizen” means a person who is not a citizen and includes a company incorporated in Antigua and Barbuda which is under the control of non-citizens in accordance with the provisions of section 6 of this Act, and also every corporation incorporated outside Antigua and Barbuda: Provided that the Governor General may, on the advice of the Cabinet, and by Order published in the Gazette, declare that a person who belongs to such one or more of the Commonwealth Caribbean territories, other than Antigua and Barbuda, as shall be specified in the Order, shall not be a non-citizen for the purposes of this Act,” (b) by the repeal of the definition of “unlicensed” and the substitution therefor of the following– “unlicensed non-citizen” means a non-citizen who does not hold a licence granted under this Act.” 4. Insertion of section 4A-Annual general licence to hold mortgage The principal Act is amended by the insertion immediately after section 4 of the following: “4A- Annual general licence to hold mortgage (1) The Cabinet may, if it considers it necessary, advise the Governor General to grant to a non-citizen an annual general license to hold as mortgagee, in accordance with the law relating to mortgage land that is held as security for funds that the non-citizen may, from time to time, invest on loan in Antigua and Barbuda. (2) Where a non-citizen to whom an annual general licence has been granted under section 4A (1) acquires land as a result of the exercise of his power of sale or foreclosure— (a) section 4(1) shall not apply to the land so acquired. (b) the land shall be sold or otherwise disposed of absolutely, within a period of two years, or within such extended time as the Cabinet may consider reasonable, after it is so acquired, so that the non-citizen no longer has directly or indirectly, any interest or control in respect thereof except by way of security. (3) An annual general licence granted under subsection (1) has effect only when the licence is registered in the Record Office of Antigua and Barbuda. (4) The following conditions shall apply to an annual general licence granted under subsection (1)— Non-Citizens Land Holding Regulation (Amendment) Act, 2020 6 No. 32 of 2020 (a) the funds loaned by such non-citizen upon the security of mortgages upon lands in Antigua and Barbuda shall be loaned to residents of Antigua and Barbuda; (b) such non-citizen shall, if required to do so by the Minister at the end of every year, submit to the Minister a statement containing the particulars specified below, and certified as correct and signed by the non-citizen or, when the non citizen is a company, by a director and the secretary— (i) the number of mortgage loans taken by residents of Antigua and Barbuda; (ii) the names of the mortgagors; (iii) the amount loaned; (iv) the rates of interest charged; and (v) the number of mortgaged properties which have become vested in such non citizen as owner by virtue of the exercise of his powers as mortgagee, the respective dates on which such properties became so vested, the sum due thereon and the description of the properties so vested. (5) Where a non-citizen to whom an annual general licence has been granted under this section fails to comply with the conditions specified in subsection (4), or fraudulently submits information required by the Minister, the Cabinet may advise the Governor General, to revoke his annual general licence under the provisions of subsection (1), but such revocation shall not affect anything lawfully done under that licence.” 5. Amendment of section 6-Restriction on Companies under control of Non-Citizens The principal Act is amended by renumbering section 6 as subsection (1) and by adding after the renumbered subsection (1), the following new subsection: “(2) The provisions of this Act, the Non-citizens Undeveloped Land Tax Act, Cap 294 and any condition contained in a licence granted under this Act shall continue to apply to a licensed, non-citizen despite a later acquisition of citizenship by the licensed non-citizen, until all the obligations under this Act the Non-Citizen Undeveloped Land Tax Act and the conditions contained in a licence have been complied with and a certificate of compliance to that effect is issued by the Minister. 6. Amendment of section 8- Licences for non-citizens to hold directorships, shares debenturers, or to be a member of a company having no share capital, or a beneficiary of a trust Section 8 of the principal Act is amended by the repeal of subsection (1) and the substitution therefor of the following– No. 32 of 2020 7 Non-Citizens Land Holding Regulation (Amendment) Act, 2020 “(1) The Governor-General may, on the advice of the Cabinet, and subject to such conditions as the Cabinet considers necessary, grant a licence to a non-citizen for all or any of the following maters, namely— (a) to be a director of a company; (b) to vote at meetings of a company or other legal entity; (c) to hold shares or debentures by way of transfer on purchase, gift or otherwise of a company; (d) to be a member of a company having no share capital; (e) to be a trustee of a trust, or entity, corporate or unincorporate holding land in Antigua and Barbuda; (f) to be a beneficiary of a trust or entity, corporate or unincorporate, holding land in Antigua and Barbuda; and (g) any other matter that the Cabinet may consider appropriate: (2) No licence shall be granted to a non-citizen company, trust or entity under this section, unless the company, trust or entity in respect of which the application relates is a company, trust or entity licensed to hold land in Antigua and Barbuda under this Act. (3) A licence granted under this section shall be operative only as to the land described, the company, the trust the entity or the estate specified therein, and the licence shall be of no force or effect until registered in the Record Office of Antigua and Barbuda. (4) On breach of a condition in a licence granted under this section, the licensee shall pay to the Commissioner of Inland Revenue the annual tax imposed by section 7 of the Undeveloped Land Tax Act, Cap. 294, notwithstanding the acquisition of citizenship by the licensee, and the provisions of the Non-Citizens land Holding Regulation Act, Cap.293 and any conditions and obligations contained in the licence shall continue to apply to the licensee and the parcel of land specified in the licence until the land is developed and a certificate of compliance is issued by the Minister. (5) Where the licensee fails to pay the tax imposed under section 7 of the Undeveloped Land Tax Act within sixty days of the declaration of the land as undeveloped, or such further time as the Cabinet may determine, the licensee shall forthwith cease to be a director of the company or entity, and all the shares or debentures or any interest in the company held by the directors, shareholders, beneficiaries or members of the company shall be forfeited to the Crown.” Non-Citizens Land Holding Regulation (Amendment) Act, 2020 8 No. 32 of 2020 7. Amedment of section 18-Stamp Duty Section 18 of the principal Act is amended as follows— (a) by the repeal of subsection (1) and the substitution therefor of the following— “(1) A non-citizen licence granted under this Act is subject to payment of stamp duty at the rates set out in the Schedule”. (b) by the repeal of subsection (3) and the substitution therefor of the following— “(3) Where the stamp duty is determined in accordance with land held as freehold, the amount or value of the consideration and the area of land shall be stated on the licence, and the licence shall not be rigestered in the Record Office of Antigua and Barbuda until the Registrar is satisfied that the correct stamp duty has been paid.” (c) by the insertion after subsection (4) thereof of the following— “(5) Any application for a licence under this Act is subject to an application fee of one hundred ($100.00) dollars payable to the Commissioner of Inland Revenue. (6) A Spouse of a citizen of Antigua and Barbuda shall upon application to the Minister, be exempted from the payment of stamp duty payable under this Act.” 8. Amendment of section 23-Power of the Cabinet Section 23 of the principal Act is repealed and substituted by the following: “ (1) The Governor General may, upon the advice of the Cabinet, and upon application in the prescribed form — (a) defer the payment of the stamp duty payable under section 18 to a date, not exceeding three years, commencing on the date specified in the license for completion of the proposed development described in the licence. (b) exempt any non-citizen or class of non-citizens from any provisions of this Act, subject to such conditions as may be specified in the Order. (2) Where a licensee fails to pay the stamp duty on the date on which the period of deferment referred to in subsection (1) (a) expires, he shall pay to the Commissioner of Inland Revenue the principal amount owed plus interest of two (2%) percent compounded as penalty for non compliance.” No. 32 of 2020 9 Non-Citizens Land Holding Regulation (Amendment) Act, 2020 SCHEDULE OF STAMP DUTIES FOR LICENCES GRANTED UNDER THIS ACT LAND HELD AS FREEHOLD Where the licence is granted to hold land as freehold, the stamp duty shall be at the rate of seven (7%) percent of the m market value of the land. LAND HELD UNDER A LEASE (i) where the licence is granted to hold a lease for a term exceeding ninety nine (99) years, the stamp duty shall be at the rate of seven (7%) percent of the market value of the land; (ii) where the licence is granted to hold a lease for any term of years from ten years up to to fifty years the stamp duty shall be at the rate of five (5%) percent of the market value of the land; (iii) where the licence is granted to hold a lease for a term of years up to ninety nine (99) years, the stamp duty shall be six (6%) per cent of the value of the land; (iv) where the licence is granted to hold land under a lease and the term is less than ten years or a tenancy from year to year, the stamp duty shall be at the rate of three (3%) percent of the value of the land. LAND HELD ON MORTGAGE Where the licence is granted to enable the licensee to hold a mortgage on land or debenture or a charge or any form of security on land, the stamp duty shall be two thousand dollars. LICENCES FOR DIRECTORSHIPS, SHAREHOLDERS ETC (i) where the licence is granted to be a director of a company, the stamp duty shall be six thousand dollars; (ii) where the license is granted to enable the licensee to hold shares by way of transfer on purchase, gift or otherwise of a company, the stamp duty shall be seven (7%) percent of the market value of the shares held by the licensee; (iii) where the licence is granted to enable the licensee to hold shares transferred by purchase, the stamp duty shall be at the rate of seven (7%) percent of the value of the shares held by the licensee or the market value of the shareholders interest in the land, whichever is greater Non-Citizens Land Holding Regulation (Amendment) Act, 2020 10 No. 32 of 2020 (iv) where the licence is granted to a non-citizen to vote at meetings of a company or other legal entity, the stamp duty shall be two thousand dollar. LAND HELD IN TRUST Where the licence is granted to enable the licensee to hold land as trustee for a non-citizen, the stamp duty shall be seven (7%) percent of the value of the land held in trust. BENEFICIARY OF A TRUST Where the licence is granted to a beneficiary of a trust, who is a non-citizen, the stamp duty shall be five percent (5%) of the market value of the beneficiary’s interest in the land held in intrust. MORTGAGE Where the licence is granted to enable the licensee to hold mortgage or debenture or a charge or any form of security on land, the stamp duty shall be two thousand dollars. A LICENCE TO BE A MEMBER OF A COMPANY HAVING NO SHARE CAPITAL (i) where the license is granted to enable the licensee to be a member of a company having no share capital, the stamp duty shall be two thousand dollars; and (ii) for any other licenses, the stamp duty shall be two thousand dollars. GIFT Where land is transfer to a non-citizen as a gift the stamp duty shall be five percent (5%) of the market value of the land. Passed the House of Representatives on the 15th day of October, 2020. Passed the Senate on the 26th day of October, 2020. Gerald Watts, Q.C., Speaker. Alincia Williams Grant, President. A. Peters Clerk to the House of Representatives.(Ag.) A. Peters. Clerk to the Senate.(Ag.) No. 32 of 2020 11 Non-Citizens Land Holding Regulation (Amendment) Act, 2020