Act 60

On July 1, 2019, Puerto Rico enacted legislation providing tax incentives for U.S. citizens that become residents of Puerto Rico. Of particular interest are Chapter 2 of Act 60 for Resident Individual Investors and Chapter 3 for Export Services, which shield new residents who live in Puerto Rico for at least half the year from paying most federal income taxes. The U.S. Internal Revenue Code generously exempts Puerto Rico-sourced income from federal income tax and, under Chapter 2 of Act 60, Puerto Rico residents pay minimal or possibly no taxes on interest, dividends and certain capital gains. Additionally, property taxes are significantly lower than property taxes in the mainland U.S. Thus, Puerto Rico has become a mecca for the exportation of international services worldwide.

To benefit from Chapters 2 and 3 of Act 60, a service provider and/or an individual must submit an online application through the Single Business Portal (SBP) online application platform. The government will issue a tax exemption decree that will provide a full detail of tax rates and conditions mandated by Act 60. This decree will be considered a contract between the Government of Puerto Rico and the applicant. Once granted benefits, these will be guaranteed during the term of the decree, regardless of subsequent changes to the applicable Puerto Rico tax laws. The Export Services decree will have a term of 15 years with a possible 15-year extension, and the Resident Individual Investor decree will be valid until December 31, 2035.

Chapter 3 of Act 60 for Export Services and Commerce is intended to promote the exportation of services and commerce by providing great resources and opportunities for U.S. companies to bring their business to Puerto Rico to establish a trade and service center for the World. Services must be provided in Puerto Rico for customers outside Puerto Rico. The eligible service provided must not have a nexus with Puerto Rico; it cannot be related to the conduct of the trade, business or other activity of the customer in Puerto Rico.

To become exempt, the business needs to apply for a tax concession via a tax exemption decree considered a contract with the Office of Incentives for Businesses of the Government of Puerto Rico. The decree will be secured during a term of 15 years with a possible 15-year extension, regardless of subsequent changes to the law itself. To qualify, the business cannot have any previous connections, dealings or nexus with Puerto Rico.

INCENTIVES:

• Fixed Income tax rate of 4%.
• 100% income tax exemption for distributions from earnings and profits.
• 75% property tax exemption for real property used in the Export Business (taxable portion subject to regular tax rate of up 11.83%).
• 75% property tax exemption for personal property used in the Export Services business (taxable portion subject to regular tax rate of up to 8.83%).
• 50% exemption from municipal taxes (taxable portion of gross receipts subject to regular tax rate of 0.5%, or 1.5% for financial businesses).

ELIGIBILITY:

The following are considered eligible Export Services and Commerce activities:

• Contract research and development.
• Advertising, public relations.
• Call centers, telecommunications, service centers.
• Centers for electronic data processing.
• Centralized management services (corporate headquarters), such as strategic direction, planning, distribution, logistics and budgetary services.
• Consulting services, such as economic, scientific, environmental, technological, managerial, marketing, human resources, computer and auditing.
• Computer software development.
• Creative industries.
• Educational and training services.
• Hospital and laboratory services, including medical tourism and telemedicine.
• Investment Banking and other financial services.
• Marketing centers.
• Production of blueprints, architectural and engineering services, and project management.
• Professional services such as legal, tax and accounting.
• Shared service centers: accounting, finance, tax auditing, marketing, engineering, quality control, human resources, communications, electronic data processing and others.
• Voice and data telecommunications for individuals outside of Puerto Rico.
• Distribution / licensing of computer programs (physical, cloud, or blockchain).
• Assembly, bottling and packaging operations of products for export.
• Distribution of commercial and mercantile products manufactured in or outside Puerto Rico for use or consumption outside Puerto Rico.
• Storage and distribution centers.
• Trading services.
• Any other service determined by the Secretary of the Department of Economic Development and Commerce of Puerto Rico.

Chapter 2 of Act 60 for Resident Individual Investors seeks to attract individual investors by relocating to the Island. How? With total exemption from local income taxes on certain passive income earned after they become “bona fide” residents of Puerto Rico. These new residents of Puerto Rico are entitled to 100% income tax exemption on dividends, interest and certain capital gains. Although Puerto Rico is a U.S. territory, pursuant to section 933 of the U.S. Internal Revenue Code, bona fide residents of Puerto Rico are not subject to federal income taxes on Puerto Rico source income, but they continue to be subject to federal income taxes on income that is not sourced in Puerto Rico.

INCENTIVES:

• 100% exemption from Puerto Rico income taxes on interest and dividends.
• 100% exemption from Puerto Rico income taxes on all short-term and long-term capital gains generated after the individual becomes a bona-fide resident of Puerto Rico (“Puerto Rico Gain”).  Special rules apply to capital gains on the sale of securities held before moving to Puerto Rico and sold after the move.
• Individual investors can establish revocable or irrevocable trusts treated as grantor trusts for Puerto Rico tax purposes.
• Investors may transfer or bestow freely all or some of their assets to the above-mentioned trusts.
• Foreign trusts duly created under foreign laws will be considered valid in Puerto Rico.

The 20/22 Act Society is a membership based non-profit organization that has become the epicenter for the Act 60 (formerly Acts 20 and 22) recipients, and was created to foster a sense of community and a collective voice among those moving to Puerto Rico to take advantage of these incentives. The group, which has been profiled by Bloomberg, Reuters, and Business Week, among other business outlets, was established by Robb Rill, who was one of the first recipients of these grants and moved his private equity firm to the Island in late 2012. The wealth of knowledge and trusted resources built over the years provide insight to its members regarding professional services as well guidance on the necessary steps required when relocating to Puerto Rico to benefit properly from Act 60. The Society is committed to giving back to Puerto Rico in appreciation for the benefits. Through its philanthropic arm, The Act 20 /22 Act Foundation, the 20 / 22 Act Society provides grants to several locally based charities to give back to the Puerto Rican community at large. For more information, please refer to: www.the2022actsociety.org

Chapter 4 of Act 60 for International Financial Entities (“IFE”) provides certain benefits to businesses engaged in eligible financial activities in P.R.

INCENTIVES:

• Income derived by the IFE will be subject to a fixed income tax rate of 4%.
• Interest, financing charges, dividends or partnership benefits will not be considered gross income from Puerto Rico sources; thus, not subject to taxation or withholding provisions applicable to non-residents.
• Fixed income tax rate of 6% on dividends and other distributions of profits received by Puerto Rico residents that are shareholders or partners.
• 75% property tax exemption for real and personal property of an IFE.
• 50% tax exemption from municipal taxes.

ELIGIBILITY:

• Entity can be incorporated or organized under the laws of Puerto Rico, the United States or a foreign country.
• Must employ at least four full-time employees at its Puerto Rico business office.
• It is required to apply for a permit and license with the Office of the Commissioner of Financial Institutions (“Commissioner”) and obtain a tax exemption decree from the Office of Incentives for Businesses. The Decree will be effective for 15 years, but one additional extension of 15 years may be available.
• Payment of an initial license fee of $5,000, renewable annually with payment of a $5,000 fee.
• The entity must comply with all requirements established in the Federal Anti-Money Laundering Laws and Regulations, and with OFAC sanctions programs.
• The amount of its authorized of capital stock cannot be less than $5 million, or $500,000 if limited to certain financial activities, or a higher amount, as required by the Commissioner, of which at least $250,000 must be paid before the license is issued.
• To obtain the license, in addition to the minimum capital requirement, must own at least $300,000 in restricted assets (generally, a CD with a local bank or other IFE) free of liens or financial guarantees.

Once the license is obtained, the IFE may engage in a list of permitted transactions, as established in its license.

Chapter 4 of Act 60 for Private Equity Funds seeks to improve access to capital for entrepreneurs and businesses at different activity and development stages. Chapter 4 provides a structure for investors to deploy capital with limited personal liability and without double taxation, while enjoying certain tax benefits such as exemptions, deductions and fixed income tax rates. Funds can qualify as either “Private Equity Funds” or “Puerto Rico Private Equity Funds.” Fund investment requirements vary depending on the type of fund and amount of the deduction allowed to investors for amounts invested in the funds.

Qualifying investors in the funds are, in general, partners in a partnership or members in a limited liability company electing partnership treatment for Puerto Rico income tax purposes. Investors must be “Accredited Investors” as defined under Act 60.

ELIGIBILITY:

• The fund must be a partnership or limited liability company organized under laws of the United States, a foreign jurisdiction or the Commonwealth of Puerto Rico, engaged in the business of buying and selling securities that are not offered at public securities exchange markets in the U.S. or any foreign country.
• The fund must have an office located in Puerto Rico.
• 80% of its paid-in capital must be invested in securities issued by entities that at the time of the acquisition are not offered at public securities markets.
• Invest up to 20% in allowable short-term investments.
• Within 4 years of organization.
  • A “Private Equity Fund” must maintain a minimum of 15% of paid-in capital invested in securities that (i) are not offered at public securities exchange markets, and (ii) which have been issued by entities engaged in an active trade or business, or entities that derive at least 80% of their gross income from Puerto Rico sources or income effectively connected with a Puerto Rico trade or business (securities that comply with (i) and (ii) are referred to as “PR Securities”).
  • A “Puerto Rico Private Equity Fund” must maintain a minimum of 60% of the paid-in capital invested in PR Securities.
• Fund investors must qualify as “Accredited Investors” as defined in Act 60.
• Must use an investment advisor with an office in Puerto Rico engaged in a trade or business in Puerto Rico and duly registered with the Puerto Rico governmental authorities or exempt from registration, as applicable.
• Must operate as a diversified investment fund.
• Must have a minimum committed capital of $10 million on or before 24 months from the date of the first issuance of its partnership or membership interests.
• Must appoint at least one of its investors or limited partners to an advisory board.
• If the fund is organized outside of Puerto Rico, its General Manager or Investment Advisor must be engaged in trade or business in Puerto Rico and must generate at least 80% of its gross income from Puerto Rico sources or must be treated as income effectively connected with a Puerto Rico trade or business.

INCENTIVES:

• Private Equity Funds are not subject to municipal taxes, and all property owned by the fund is 75% exempt from property taxes.
• Resident investors (which include PR resident individuals, US citizens which are not PR residents, foreign entities if all of its shareholders are residents of Puerto Rico, and a PR entity) are entitled to deduct from taxable income up to a maximum of 30% (60% if the investment is in a Puerto Rico Private Equity Fund) of their initial investment within a maximum period of 10 years (15 years if investment in a Puerto Rico Private Equity Fund) provided the deduction does not exceed 15% (30% if investment is in a Puerto Rico Private Equity Fund) of their net income prior to such deduction.
• An accredited investor’s share of income derived by a Private Equity Fund from interest and dividends is subject to an income tax rate of 10%, while capital gains are exempt.
• Capital gains from the sale of ownership interests by an Accredited Investor in a Private Equity Fund are generally taxed at a fixed rate of 5%.
• General Managers and Investment Advisors are also subject to certain tax benefits on income attributable to their ownership interest in a private equity fund.

Chapter 5 of Act 60 provides incentives to the tourism industry to facilitate and promote world-class tourism initiatives. Benefits generally will remain valid for 15 years starting with the date an application was duly filed with the Department of Economic Development and Commerce (“DDEC”) with the possibility of requesting a 15-year extension under the Act.

ELIGIBILITY:

The following are considered tourism activities eligible to benefit from Act 60:

• Guesthouses, hotels, hostels, condo-hotels, timeshares, vacation clubs, country inns, bed and breakfasts.
  Theme parks.
• Golf courses (if operated by or associated with a hotel or within a resort).
• Casinos (if located within a hotel).
• Tourism Marina, Nautical Tourism, or facilities in port areas for tourism purposes.
• Agrohospices and Agrotourism.
• Medical Tourism.
• Development and administration of sustainable tourism and ecotourism businesses and of natural resources as a source of active, passive, or recreational entertainment, such as caverns, forests, canyons, natural reserves and lakes.
• Activities of eSports and Fantasy Leagues.
• The lease of real property and certain personal property to an exempt business.
• Other facilities or activities that due to their use as a source of active, passive, or recreational entertainment stimulates internal or external tourism.
• Any other tourism sector if the Secretary of the DDEC determines that the operation is necessary and convenient for the development of tourism in Puerto Rico.

INCENTIVES:

• Tourism Tax credits of either 30% or 40% of the Tourism Eligible Investment, which generally includes the amount of cash contributed to the exempt business in exchange for its ownership interest and loans guaranteed by the exempt business, its parent, or affiliates.
• Municipal construction excise tax exemption of up to 75%.
• Excise and sales and use tax exemption of up to 100%.
• Municipal license and other municipal tax exemptions of up to 50%.
• 4% fixed income tax rate.
• 100% exemption on the dividends or distributions of tourism development income.
• Real and personal property tax exemption of up to 75%.
• 100% exemption on petroleum derived products and any other hydrocarbon mixture (including propane and natural gas) used as fuel by the exempt business to generate electricity or thermal energy for the tourism activity.
• 4% income tax rate on any gain from the sale of substantially all the assets or ownership interests of the exempt business.
• 12% special withholding income tax rate on royalties, rents or rights paid to foreign entities for the use of intangible property.
• 100% exemption from income tax and municipal taxes on interest, charges and other revenue paid by the exempt business on account of bonds, notes or other obligations if the proceeds are used for the development, construction, rehabilitation, or improvement of an exempt business.
• 90% exemption from the payment of internal revenue and notarial stamps, vouchers and other fees paid for execution and filing of public instruments.

Act 399-2004 provides the legal basis for the creation of an International Insurance Center (“IIC”) in Puerto Rico, which provides a competitive environment for international insurers and reinsurers to insure risks outside of Puerto Rico, and reinsure risks inside and outside of Puerto Rico, under a secure but flexible regulatory system. International insurers and reinsurers authorized under Act 399 enjoy attractive tax benefits under Act 60 for an initial period of 15 years, with possible renewals.

BENEFITS:

• Alternative risk management strategies as captive or associated captive insurers.
• Insurers or reinsurers’ vehicle to enter Latin America or U.S. markets.
• Special purpose vehicles.
• Vehicle for integrated insurance plans.
• Corporate reorganization using international insurer holding companies.
• Segregated assets plans.
• Securitization programs.

INCENTIVES:

• 100% exemption from premium taxes.
• 100% exemption from income taxes on dividends and other profit distributions made by the International Insurer and International Insurer Holding Company.
• 75% property tax exemption for real and personal property.
• 50% municipal tax exemption.
• 100% exemption form income withholding taxes on payments of dividends and other profit distributions.
• Isolation of proceeds and benefits paid by international insurers are not subject to income taxes.
• Tax exemption of up to $1.2 million on net income applicable at individual cell level for Protected Cell Company arrangements and at company level.
• Preferred 4% tax rate on net income.

Chapter 6 of Act 60 provides incentives, tax exemptions and credits to eligible businesses in the manufacturing sector. Act 60 promotes the continued development of local industries and attracts foreign investment from all around the Globe, particularly those engaged in technology advancement. Additionally, Act 60 promotes investment in research, development and initiatives from the academic and private sectors by granting credits and exemptions.

INCENTIVES:

• Fixed income tax of 4%.
• Income tax rate for innovative activities of 1% to 4%.
• 4% income tax rate on any gain from the sale of substantially all the assets or ownership interests of the manufacturing business.
• 12% special withholding income tax rate on royalties or rights paid to foreign entities for the use of intangible property.
• 100% tax exemption for distributions of earning and profits.
• 75% property tax exemption for real and personal property used in the exempt manufacturing business.
• 50% tax exemption for municipal taxes (taxable portion of gross receipts subject to regular tax rate of 0.5%).
• Tax credit of up to 25% for purchasing local and recycled local products.
• Tax credit of up to 50% of eligible investment in research and development.
• Rebates for investing in structures, machinery and equipment.
• Cash incentives for job creation.

Act 29, known as the “Public-Private Partnership Act”, was enacted on June 8, 2009 to provide a legal framework to promote the use of such partnerships (“PPPs”) for the development of infrastructure projects and the rendering of some services more efficiently and in a less costly manner by delegating the risks inherent to such development or service to the party capable of managing such risks. Partnership agreements cannot exceed 50 years, but such term can be extended for successive terms that collectively cannot exceed 25 additional years, subject to the evaluation and approval of the Government Entity, the Governor or the Public-Private Partnership Authority.

ELIGIBILITY:

• Must meet the requirements provided in the request for proposal designed for the Partnership.
• Proponent must be a person authorized to do business in Puerto Rico.
• Proponent must have available corporate or equity capital or securities or other financial resources necessary for the proper operation of the Partnership.
• Proponent must have a good reputation and the managerial, organizational, and technical capability, as well as the experience, to develop and administer the Partnership.
• Certification that neither the Proponent nor any of its members, directors, bondholders or any person that is the alter ego or the passive economic agent thereof, have been convicted for acts of corruption.

INCENTIVES:

• Small scale projects (with estimated $55 million budget) enjoy an expedited process of evaluation.
• 100% exemption from real and personal property taxes on property used exclusively in the facility and owned by the Partnering Government Entity.
• The contractors and the municipal governments may establish payment agreements or exemptions from municipal license fees, excise taxes or municipal taxes.
• Fixed income tax rate of 10% on net income derived from the operations under the partnership contract.
• Shareholder of a special contracting partnership will be subject to a fixed income tax rate of 20% on net income derived from operations under the partnership contract.
• For Sales and Use Tax purposes, contractors may qualify as Government agents, and therefore enjoy exemption if they comply with certain requirements imposed under the Puerto Rico Internal Revenue Code and Administrative Determinations issued by the PR Treasury Department.