This article tries to answer the "riddle" associated with legislation and human rights. Namely - who is the beneficial owner? What rights and obligations he has, and how he can conceal or give himself away, why they are necessary, and in what laws the restriction for such a circle of persons can be stored. We will try to consider all these issues here.
Introduction
Who is the beneficial owner? This is a person in the form of an owner or a certain group of such persons who, through direct or indirect intervention, can influence the decision of a legal entity or even control it. The beneficial owner may be a person not indicated in the title document. However, it will be the direct owner of the existing assets and will be able to receive benefits due to the impact on the organization.
Beneficial owners of legal entities are entities that most often hide from the law by covering up chains of nominee companies and their board of directors. This can be used to launder money that was obtained illegally. Legal owners use this phenomenon of the tax plan.
Beneficial owner in Russia
Who is the beneficial owner, we found out, but when did it become legal? In the Russian Federation, this subject became legally enshrined in law only in 2013, and the approach to the term was borrowed from the general legal system. Prior to introducing this into the law, literature used concepts such as an affiliate or controlling person, as well as interested parties. Regarding the availability of the opportunity to influence the decision-making of legal entities, they have a general description. However, they all contain a certain number of features, which does not allow to accurately determine the meaning of the concept.
The concept of ultimate beneficiary
There is always the ultimate beneficial owner. This is a person of a physical type who has a beneficiary organization. The right to own a company may belong not only to shareholders and nominee managers, but also to other organizations. A person who actually owns the organization, who has a share in different companies, and is called the ultimate beneficiary.
Difference between Beneficiary and Beneficiary
Federal Law No. 115 makes it possible to distinguish between similar phenomena, such as the beneficial owner and beneficiary. They have several common characteristics, for example, both are able to benefit from the actions of assets. However, the owner has a total stake in the company of 25% or more, which gives him the right to control and manage, if not complete, then at least allowing to influence the decision of the organization. Such companies undertake, subject to certain conditions, to provide data that will help in the fight against crime and terrorism, the legalization of illegally acquired capital, etc. This allows measures to be taken to prevent financial fraud.
Federation law
The Federal Law of August 7, 2001 (No. 115-ФЗ), covering issues related to combating the legalization of capital obtained by criminal means and financial terrorism, decided that the beneficial owner is a person of a physical type, capable of intervention, both indirect and direct , control and own a jur. face in the form of a client. This gives rise to one distinctive feature between the concepts that we examined above. Namely: the beneficial owner of a legal entity is an entity that does not have a number of rights or obligations in the Russian Federation stipulated by its position.
Registry
The use of indirect or direct influence finds its application in the implementation of any transactions, as well as in the ability to influence their conditions, the course of financial transactions, etc. There are another number of factors by which a person can be classified as a beneficial owner.
May 2014 was the month in which the special authorities developed the possibility of introducing a registry that includes beneficial owners. This was due to the need to identify the ultimate owners in order to strengthen measures to combat financial criminals.
Identification
Identification of the beneficial owner is a necessary measure to better manage the money resources of the country. It is important to constantly update data on such entities. If it is not possible to determine the final beneficiary, then the executive authority in the organization may be appointed the owner. It follows that almost any organizational structure with bank accounts can be affected by identification. Any type of credit organization makes a lot of efforts, with the help of which they expect to find the ultimate business owners. Such goals include finding information from any source.
Data exploitation
Identification of beneficial owners by collecting any practically relevant information is necessary to increase the efficiency of legislation in the field of criminal laundering of cash and other assets. The fight against the activities of terrorist entities is also one of the important points that necessitate the transfer of data.
In 2013, the concept of a duty was introduced, providing for coercion to transfer information at the request of bank structures. Further, the bank is forced to provide information on the ultimate owner of personal clients to Rosfinmonitoring, which has a legal right to impose a fine of up to five hundred thousand rubles for refusing access to this type of data.
Beneficial owners of the bank is one of the important problems of modern tax law. Since these people, being beneficiaries, may not disclose their identity to the law with a share of shares of more than 25%, it is impossible to bring them to justice by the law, since they are hiding. Obtaining this data is extremely difficult.
Very often, a large account is opened by a person who has only the right to sign documents, but in fact he is the owner of the title type. This makes it necessary to take measures to increase control over the activities of the beneficiary.
The introduction into the legislation of the concept of the subject in question caused the creation of such a document as a questionnaire of the beneficial owner. It is used in banking to identify all owners of a particular business, including the end, probably individuals.
Practice Abroad
Practice abroad has not yet created a clear mechanism by which the existing contradictions arising from ambiguities in the interpretation of the list of legal possibilities and powers can be eliminated, which would allow determining the holder of beneficial ownership.
The definition of the concept of the owner, being divided into two types of entities, namely, the manager and founder according to the documents, leads to the loss of boundaries, allowing to determine the importance of responsibility for the company.
It is known from history that the term was first mentioned in 1966 in a protocol that was signed by representatives of the US and British authorities and was in addition to the Bilateral Treaty concluded in 1945.
Finding information about beneficial owners is one of the main tasks of the tax laws of any country.
In the United States, this type of owners does not have a clearly defined definition, but it can be considered that entity that is capable of significantly affecting the organization’s activities in any form, giving orders and managing the voting process, using shares. This type of person undertakes to disclose personal data in the event that the share of its holdings in valuable documents exceeds five percent. However, to which category of owners he relates himself, he is selected individually by the subject himself.
In China, there is the term “actual manager”, which, in the sense, corresponds to the beneficial owner. This person is capable of exerting actual and practical influence on the activities of the company, but will not be a shareholder. Control takes place through a series of investment relationships defined by agreements or contracts.
Danish law considers under the description of this term an entity that is able to dispose of the proceeds through an independent decision. Such a person is not intermediate.
According to the third directive of the EU, physical. a person who fully controls customers or individuals, while exploiting their ability to make transactions on their own, may be considered the beneficial owner. Another condition necessary to give a person the status of the ultimate owner should be at the disposal of more than 25% of the shares.
The FATF defines the person considered in the article as a natural person having the right to control the activities of an organization or company.
Legal Opportunities and Responsibilities
Beneficiaries have a number of rights that the law protects, but they are also credited with a list of obligations.
The beneficiary can protect the right to own his property by drawing up contractual agreements on trust management. Failure to comply with the contractual clauses will impose liability on both the beneficiary and the contractor of the nominal type.
The ultimate owner of the assets, in order to ensure the protection of property, should provide for the terms of the agreement to make a pledge of property of the trustee of the transaction. Activities that do not meet the expectations of the beneficiary allow him to involve other persons in the business.
When making such kind of transactions, special guarantees may be indicated with a banking foundation built on specifically established conditions. An exception may be agreements between beneficiaries and principals or beneficiaries. The guarantor can only be an individual.
The main objective of the agreement is coercion to pay material claims by the principal in favor of the beneficiary according to the written instructions of the latter. The lender must always act as the recipient of the guarantee. The beneficiary has the right to choose the type of guarantee.
The legal capabilities of creditors when concluding agreements based on a bank guarantee provide for them to be given rights to repay debts in a timely manner. The basis is the timely fulfillment of the conditions for the transfer of goods and assets.
If the beneficiary has a benefit of material nature, then he can demand the fulfillment of obligations from the guarantors, both with and without reasons, which depends on predefined conditions of the agreement. However, any claims can be made only until the expiration of the time allotted for the fulfillment of the obligations of the guarantor. The surety must notify the principal that certain actions have been taken, as well as examine the possible justifications advanced by the requirements of the beneficiary.
To summarize
By examining the issue of defining the concept of an owner with beneficial ownership, examining how it differs from similar terms, and determining the importance of data collection, we can now clearly determine who the beneficial owner is.