The beneficial owner is ... Identification of the beneficial owner

"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 various operations related to property and money. Further in the article we will dwell on the concept itself, explain its meaning. We will also get acquainted with a number of provisions of the law, by which it is regulated.

The legislative framework

In accordance with the established norms, the innovation will concern practically all organizations that carry out activities in the securities market, are serviced by insurance companies and have an account with the bank. Under the federal law on the conduct of actions against the legalization (laundering) of criminal proceeds and the financing of terrorism, the beneficial owner is a person who does not have a clear status.

All collected information will be aimed at creating resistance to various financial transactions that are prohibited by law. However, the authorities have repeatedly voiced information that contradicts the law. An example of this is the Budget Message from the President of the Russian Federation "On Budget Policy in 2010 -2012-m" dated 25.05.2009 to the Federal Assembly. This text contains certain recommendations for fixing the mechanism of action against the use of contracts to reduce taxes and prevent double taxation in the process of carrying out transactions with foreign enterprises in the event that the non-resident of the country with which the contract is concluded is the ultimate beneficiary.

Future Tax Policy

Certain changes are included in the state plans for the coming years. Some of them are indicated in the tax code of the Russian Federation. The essence of these changes is the creation of counteraction to violations when using international tax agreements for purposes that are not permitted by law. On the basis of 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 specified in international treaties with the Russian Federation will not apply if the ultimate beneficial owner is a resident of the country.

Identification of the beneficial owner

The issue of disclosure of the beneficial owner has already been raised several times in the modern Russian business, however, due to the lack of a clear definition, it has not been reviewed. An example of this is the instruction of the Prime Minister. According to this document, many companies, mostly state-owned, sent their counterparties the requirement to provide information about all owners and ultimate beneficiaries. However, due to the lack of a clear formulation of this concept and the legal regulation of disclosure procedures, it was practically impossible to provide the necessary information. However, as early as July 2013, the beneficiary owner of the client became identified by banking organizations.

List of required personal data

According to the law, information on beneficiary owners will be required for legal entities that have an account with the bank and are clients of enterprises that carry out transactions with cash. The total volume, nature and process of submission of information must comply with the procedure approved by the Government of the Russian Federation. However, due to the fact that to date the main provisions have not yet been published, all information will be transmitted in accordance with Law No. 115-FZ and the Regulation approved in 2004, on August 19, by the Bank of Russia. It contains information on the identification by credit companies of beneficiaries and customers for the purpose of producing actions against the legalization (laundering) of proceeds from crime and the financing of terrorism. Based on the law, in order to realize the process of identification of an individual, it is necessary to determine the following:

• Surname, first name, patronymic;
• Date of birth;
• The actual address of the place of residence or temporary stay;
• Personal tax number (if any)
• citizenship;
• For foreigners - details from the document indicating the right to stay on the territory of the Russian Federation (migration card);
• Details of the identity document.

Interpretation of the concept of "beneficiary"

In Law No. 115-FZ, the beneficial owner is not the only new definition. Together with it the term "beneficiary" was used. The Regulations specify the procedure for identifying the latter. They are the subject for whose benefit certain actions are taken in the conduct of financial transactions. Why is the legislatively beneficial owner the founder? Let's find out. Identification is subject to the participants who carry out their activities on the basis of the contract of agency, agency contract and trust management. The beneficiary may be a legal entity or a physical entity. This is exactly what is written in the law. But the beneficiary owner is only an individual. What does it mean? In other words, the beneficiary owner of a legal entity is the founder of the enterprise.

Establishment procedure

According to the law, banking institutions should require information to disclose the beneficiary and the beneficiary 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 here the procedure for its installation is somewhat confusing, because for this it must be recognized by the person who is indicated in the law as a beneficial owner. Legislation does not provide for such requirements. In this regard, the bank has no right to request from the client data that is not listed 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 beneficiary owner, the different nature of the application and the letter to the bank. What does the law say about this? The statutory provision states that if the owner is not identified when identifying the owners, the user's executive authority is recognized as the owner.

This innovation is aimed at identifying firms-fly-by-night. Most likely, it will be applied to enterprises in which it is impossible to establish a beneficial owner. Such 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 having several owners, each of which does not correspond to the characteristics of the beneficiary.

4) societies in which there are participants who own assets using trust structures.

Separate (special) categories of enterprises

The categories of participants in a relationship that are not required to disclose information on beneficial owners are as follows:

1) state institutions;

2) local authorities;

3) extrabudgetary funds owned by the state;

4) organizations or corporations in the capital of which more than 50% of shares are owned by the Russian Federation, its subjects and various municipalities;

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

Typically, for the processing of personal information of each person, enterprise or business entity requires his written consent. However, Art. 6 of Law No. 152-FZ on Personal Information provides for circumstances in which consent to the processing of data is not needed. These include:

1) circumstances stipulated by international treaties or laws that allow achieving the established goals;

2) certain powers or functional duties that are provided by the legislation of the Russian Federation to operators of functions.