"Beneficial owner" is a concept used to collect and store certain information about companies that interact with organizations listed in Art. 5 of Law No. 115-FZ. This list includes institutions that carry out a variety of operations related to property and cash. Further in the article we will dwell in more detail on the concept itself and clarify its meaning. We will also get acquainted with a number of legislative provisions that govern it.
The legislative framework
In accordance with the established standards, the innovation will apply to almost all organizations that operate in the securities market, are serviced by insurance companies and have a bank account. Under the federal law on the implementation of actions against the legalization (laundering) of proceeds from crime and the financing of terrorism, the beneficial owner is an entity that does not have a clear status.
All collected information will be aimed at creating opposition to various financial transactions that are prohibited by law. However, government officials have repeatedly voiced information that is contrary to the law. An example of this is the Budget Message from the President of the Russian Federation "On Budget Policy in 2010 -2012" from 05.25.2009 to the Federal Assembly. This text contains certain recommendations on consolidating the mechanism of actions against the use of agreements to reduce taxes and prevent double taxation in the process of conducting transactions with foreign enterprises in the event that the non-resident of the country with which the agreement is concluded is the ultimate beneficiary.
Tax policy of the future
State plans for the coming years include certain changes. Some of them are indicated in the tax code of the Russian Federation. The essence of these changes is to create a counteraction to violations when using international tax agreements for purposes unacceptable by law. Based on legislative acts, organizations should also be encouraged to transfer to the jurisdiction of the Russian Federation from offshore zones of the world. Tax benefits and preferences, which are specified in international treaties with the Russian Federation, will not apply if the ultimate beneficial owner is a resident of the country.
Beneficial Owner Identification
The issue of disclosing the beneficial owner has already been raised several times in modern Russian business, however, due to the lack of a clear definition, it has not been considered. An example of this is the commission of the prime minister. According to this document, many companies, mainly state-owned, sent their counterparties the requirement to provide information about all the owners and ultimate beneficiaries. However, due to the lack of a clear wording of this concept and legal regulation of the disclosure procedure, it was practically impossible to provide the necessary information. However, already in July 2013, the beneficial owner of the client began to be identified by banking organizations.
List of required personal data
In accordance with the law, information on beneficial owners will have to be disclosed to legal entities that have a bank account and are clients of enterprises engaged in cash transactions. The total volume, nature and process of reporting must comply with the procedure approved by the Government of the Russian Federation. However, due to the fact that the main provisions have not yet been published, all information will be transmitted in accordance with Law No. 115- and the Regulation approved in 2004 by the Bank of Russia on August 19, 2004. It contains information on the identification by credit companies of beneficiaries and customers in order to carry out actions against the legalization (laundering) of funds obtained by criminal means and the financing of terrorism.
Based on the law, to implement the process of identification of an individual, it is necessary to determine the following:
- surname, name, patronymic;
- date of birth;
- The actual address of the place of residence or temporary stay;
- personal tax number (if available)
- citizenship;
- for foreigners - details from a document indicating the right to stay in the Russian Federation (migration card);
- details of an identity document.
Interpretation of the concept of "beneficiary"
In Law No. 115-FZ, the beneficial owner is not the only new definition. The term "beneficiary" is used with it. The Regulation indicates the procedure for identifying the latter. It is an entity for the benefit of which certain actions are taken during financial transactions. Why is the legally beneficial owner the founder? Find out this. Identification is subject to participants who carry out their activities on the basis of a contract of agency, agency agreement and trust management. The beneficiary may be a legal or physical entity. This is what is written in the law. But the beneficial owner is only an individual. What does it mean? In other words, the beneficial owner of a legal entity is the founder of the enterprise.
Establishment procedure
Guided by law, banking institutions must require information to disclose the beneficiary and beneficial owner. This, in turn, can cause certain difficulties. They are related to the fact that the identification of the beneficial owner is more clearly described in the law. But the procedure for installing it is somewhat confused, because for this it must be recognized as a person who is specified in the law as the beneficial owner. The legislation does not provide for such requirements. In this regard, the bank is not entitled to request data from the client that is not indicated in the identification list of the beneficial owner.
Collection of information
Collecting information about the beneficial owner, banking institutions have the right to use any documents provided by the client. What is included in their list? Usually this is a questionnaire of the beneficial owner, the various nature of the application and letter to the bank. What does the law say about this? The regulation states that if the owner is not found during the identification of the owners, the user's executive body is recognized.
This innovation is aimed at identifying one-day firms. Most likely, it will be applied to enterprises in which it is impossible to establish a beneficial owner. These organizations include the following:
1) non-profit companies that do not have an owner, but there are beneficiaries;
2) mutual investment funds;
3) joint-stock companies with several owners, each of which does not correspond to the characteristics of the beneficial owner.
4) companies with members that own assets using trust structures.
Separate (special) categories of enterprises
The categories of participants in a relationship that do not need to disclose beneficial ownership information include the following:
1) state institutions;
2) local authorities;
3) extra-budgetary funds owned by the state;
4) organizations or corporations in whose capital more than 50% of the shares are owned by the Russian Federation, its subjects and various municipal entities;
5) a foreign state, an international organization or an administrative-territorial unit of a foreign state that independently owns legal capacity;
6) issuers of securities.
Approved Exceptions
As a rule, for the processing of personal information of each person, enterprise or business entity, his written consent is required. However, Art. 6 of Law No. 152-FZ on Personal Information provides for circumstances in which consent to the processing of data is not necessary. These include:
1) circumstances stipulated by international treaties or laws that allow achieving the established goals;
2) certain powers or functional responsibilities that are granted by the legislation of the Russian Federation to the operators of functions.