Final beneficiaries for non-resident participants in the procurement procedure. Is the beneficial owner the founder or director of the legal entity? Beneficiary disclosure

Managing partner, lawyer

24.01.2018

The word “beneficiary” has firmly entered the vocabulary of everyone who is in one way or another connected with business, as well as with banking, tax, corporate and trust law. The concept of “beneficial owner” affects many aspects of the activities of legal entities, and for the beneficiaries themselves it predetermines a number of legal consequences.

Usually under beneficiary(beneficial owner, beneficial owner) is understood as the real owner of the company, that is, the one to whom the company belongs not legally, but actually and ultimately, and the one who provides significant influence on the decision-making of such a company. A beneficiary in this sense can be only individual , special person.

However, the concept of “beneficiary” may have different content depending on the area in which it is applied:

• First of all, the concept of “beneficial owner” is used in anti-money laundering legislation Money and terrorist financing (hereinafter referred to as AML/CFT) and banking legislation, as well as in documents international organizations in this area (FATF, OECD, EU).
• Further, the word “beneficiary” is used in corporate and trust law countries of the Anglo-Saxon legal family. The beneficiary of a company can be either its title shareholder or the person in whose favor the nominee shareholder holds the shares. The beneficiary of a trust is the person for whose benefit the trustee owns and manages the property transferred to the trust.
• We also talk about the “beneficial owner” as the person who has the actual right to the income (the actual recipient of the income), for the purposes of applying international double taxation agreements.
• Finally, the concept of “beneficiary” partially overlaps with the concept "controlling person", which is used for tax purposes of controlled foreign companies in Russia.

Beneficial owner for AML/CFT purposes in Russia

In Russia, the concept of “beneficial owner” is used mainly in the context of anti-money laundering legislation. Federal Law No. 115-FZ of August 7, 2001 “On combating the legalization (laundering) of proceeds from crime and the financing of terrorism” (hereinafter referred to as Law No. 115-FZ) gives the following definition:

Beneficial owner is an individual who ultimately directly or indirectly (through third parties) owns(has a predominant participation more than 25% in capital) by a client - a legal entity or has the ability to control client actions.

Example. The only participant A Russian LLC is a company registered in Cyprus. The 100% shareholder of the said Cypriot company is a company registered in the British Virgin Islands, the 100% shareholder of which is citizen N. In the case under consideration, citizen N is the beneficial owner of the Russian LLC.

In what cases is information about beneficiaries required?

1. Firstly, Article 6.1 of Law No. 115-FZ obliges legal entities to have information about their beneficial owners and take measures to establish information about them, as well as regularly update, document and store such information for at least 5 years. This requirement came into force on December 21, 2016.

Information that a legal entity must establish regarding the beneficiary includes:

• last name, first name, patronymic (if available);
• citizenship;
• date of birth;
• details of the identity document;
• data migration card, document confirming the right foreign citizen or stateless persons for stay (residence) in the Russian Federation;
• address of place of residence (registration) or place of stay;
• Taxpayer identification number (if available).

Entity obliged provide available documented information about their beneficial owners or measures taken to establish information about them at the request of the authorized body (Rosfinmonitoring) or tax authorities.

Failure of a legal entity to fulfill these obligations entails liability (Article 14.25.1 of the Code of Administrative Offenses of the Russian Federation) in the form administrative fine for officials from 30,000 to 40,000 rubles, for legal entities - from 100,000 to 500,000 rubles.

2. Secondly, organizations carrying out transactions with funds or other property (namely - banks, brokers, Insurance companies, investment fund management companies, realtors, pawnshops and a number of others), obliged take reasonable and accessible measures to identify the beneficial owners of their clients.

If, as a result of taking these measures, the beneficial owner has not been identified, the sole owner may be recognized as such. executive agency(eg. CEO) client.

In addition, banks (and other organizations working with funds) are required to update information about the beneficial owners of their clients at least once a year, and in case of doubts about the reliability and accuracy of previously received information - within 7 business days following the day such doubts arise.

Finally, the banks are required to submit to the authorized body (Rosfinmonitoring) upon his request, information available to the organization about the beneficial owners of clients in the manner prescribed by the Regulation of the Central Bank of the Russian Federation dated September 20, 2017 No. 600-P.

Beneficial owner for AML/CFT purposes in the European Union

In the Member States of the European Union, the “beneficial owner” is defined on the basis of Directive 2015/849 of 20 May 2015 on the prevention of the use of the financial system for the purposes of money laundering and terrorist financing (the so-called 4th Directive).

According to paragraph 6 of Article 3 of this Directive, "beneficial owner"- is any individual(s) who ultimately owns or controls the client and/or the individual(s) in whose interests the transaction is made or the activity is carried out.

When corporate legal entities A beneficial owner is an individual who ultimately owns or controls a legal entity through direct or indirect ownership through a sufficient share of the shares, voting rights or participation interests in such legal entity, including through bearer shares, or through control by other means.

“Direct ownership” means ownership by an individual of shares in the amount of 25% plus one share or an ownership interest in the company of more than 25%. “Indirect ownership” occurs when 25 percent of the shares plus one share, or an interest of more than 25%, in the client legal entity is owned by another legal entity (or several legal entities) that are under the control of the individual. EU Member States are free to set a lower percentage to determine ownership or control.

When trusts The beneficial owner may be recognized as:

1. founder of the trust;
2. trustee;
3. protector (if equipped);
4. the actual beneficiaries of the trust, or, if such persons have not yet been identified, then the class of persons in whose interests the trust is established;
5. any other individuals exercising ultimate control over the trust.

Please note that for the purposes of AML/CFT in the EU, beneficiaries of a trust can be recognized not only as the direct beneficiary (“beneficiary” in the terminology of the terms of the trust), but also other participants in the trust relationship – the trust founder, trustee, etc.

When funds(being legal entities) or legal relationships similar to trusts, beneficial owners are recognized as individuals occupying equivalent or similar positions with the above persons for trusts.

In EU countries, identification of the beneficial owner of clients of banks and other financial organizations is a mandatory precondition for establishing a relationship with him or concluding a transaction.

EU corporate and other legal entities are required to obtain and maintain complete, accurate and current information about their beneficial owners, including the characteristics of their beneficial interest. Competent authorities (eg financial intelligence agencies) have the right to access such information.

Further, EU countries will have to create centralized registers of information about the beneficial owners of companies registered in these countries and determine the conditions, procedure and scope of public access to such data.

Beneficiary in corporate and trust law

IN companies the beneficiary may be:

• title shareholder (the person whose details are indicated on the share certificate), or
• another person on whose behalf and in whose interests the shares are owned by a nominal shareholder (in countries whose law allows for nominal ownership of shares/interests in companies).

In practice, the relationship between the nominee and the beneficial owner is recorded in a trust declaration or agreement (not to be confused with a “trust” - see below), under which the nominee undertakes to refrain from any actions (e.g. alienation, disposal) with the shares entrusted to him , unconditionally assigns to the beneficial owner all rights to receive dividends and other distributions of the company's profits, and also undertakes to exercise voting rights in relation to the shares owned by him only in accordance with the instructions of the beneficial owner.

Thus, the beneficiary of the company is not only the one who ultimately owns shares/shares in it, but also the one who gives instructions, mandatory for execution by the nominee, and determines economic destiny company income.

When opening bank account a company in any bank will need to indicate (and identify) the beneficiary, and not just the nominal owner of the company. Whereas the role of a nominal owner is limited to holding shares and formally being in the company's shareholder register. Legal liability for any actions of the company (including situations leading to legal proceedings) is borne by its beneficiary.

IN trust(we are talking about a full-fledged trust as a fiduciary legal relationship, and not about a trust declaration within a company, as described above) the beneficiary is the person in whose favor and in whose interests the trustee performs his duties in managing the property transferred to the trust. The beneficiary has conditional trust interest in the property and/or income of the trust, but does not have the right to manage the trust property and control the actions of the trustee.

The design of a trust is typical for countries of the Anglo-Saxon legal family (including a number of offshore jurisdictions) and is not provided for in most countries of continental Europe, including Russia.

Beneficiary for the purposes of applying the tax treaty

Internationally tax law(namely, for the purposes of applying double taxation agreements (DTTs)), the word “beneficiary” has a different meaning. It means the person who has the actual right to the income. Moreover, such persons can be individuals, legal entities, and other structures.

The fact is that the preferential provisions of the DTT (reduced rates or tax exemptions) can be lawfully applied, provided that the recipient of the income (a resident of a state party to the DTT) is person having actual right to such income. This formulation is used in most Russian DTT texts. In equally authentic English-language texts of the same taxation agreements, it sounds like “beneficial owner” (“beneficial owner”).

According to paragraph 2 of Article 7 of the Tax Code of the Russian Federation person having actual right to income, a person (or a foreign structure without education) is recognized legal entity), which, due to direct and (or) indirect participation in the organization, control over the organization (structure) or due to other circumstances, has the right to independently use and (or) dispose of income received by this organization (structure).

Foreign person not recognized having the actual right to income, if it:

Has limited powers regarding the disposal of these incomes,
- carries out intermediary functions in relation to the specified income in the interests of another person, without performing any other functions and without taking on any risks,
- directly or indirectly paying such income (in whole or in part) to this other person who, upon direct receipt of such income from sources in Russian Federation would not have the right to apply the relevant provisions of the DTT.

This approach is intended to prevent abuse of the preferential provisions of the DTT in cases where, when paying income from Russia to a person resident in a DTT party country, the beneficial owner of the income turns out to be a third party from another, for example, offshore, jurisdiction with zero taxation. In practice, situations are also possible when the actual (final) recipient of income paid abroad is a tax resident of the Russian Federation (for such cases, the Tax Code of the Russian Federation provides special rules - Articles 7, 312 of the Tax Code of the Russian Federation).

A foreign organization receiving income from Russia without withholding tax in Russia (or using reduced rates) in accordance with the DTT must provide the tax agent in Russia with documentary evidence of its actual right to the income (clause 1 of Article 312 of the Tax Code of the Russian Federation). This requirement is effective from January 1, 2017.

“Beneficial owner” and “controlling person” of the CFC

The definitions established by Russian legislation of a “beneficial owner” for AML/CFT purposes and a “controlling person” for tax purposes of controlled foreign companies (CFCs) do not coincide, but are often used as synonyms when it comes to the tax obligations of Russian beneficiaries of offshore companies. The differences are as follows:

Firstly, such a characteristic as “controlling person” is used in the Russian Federation only in relation to foreign companies and structures for tax purposes according to CFC rules. Whereas the concept of “beneficial owner” for AML/CFT purposes is applicable to any - both Russian and foreign companies.

Secondly, the basis for recognizing a foreign company as “controlled” is tied to the country of tax residence of the controlling person (that is, if such a person is a tax resident of the Russian Federation, then this foreign company is “controlled”). For AML/CFT purposes, the tax residence factor is not relevant.

Thirdly, according to the Tax Code of the Russian Federation, a “controlling person” can be not only an individual, but also a legal entity. This, however, does not exempt individuals - tax residents of the Russian Federation, who indirectly (i.e. through Russian legal entities) control foreign companies, from declaring their participation and control over them to the tax authorities of the Russian Federation.

Fourthly, if more than half of the participants in a foreign company are tax residents Russian Federation, the percentage “bar” of a person’s participation in the capital of a company, the excess of which entails recognizing the person as “controlling,” becomes lower - and is no longer 25%, but only 10% (subclause 2 of clause 3 of Article 25.13 of the Tax Code of the Russian Federation).

In practice (adjusted for the above features), the “controlling person” and the “beneficial owner” of a foreign company are often the same person. Therefore, in media publications dedicated to the deoffshorization and taxation of CFCs, they talk about “beneficiaries”, meaning specifically “controlling persons”.

Information about the beneficial owner - a sample of filling out this document in the form required by law must be in every organization. The special purposes for presenting this information also dictate special methods for obtaining it.

Where is the concept of beneficial owner used?

This is not the first year that the legislator has been taking measures aimed at implementing the possibility of bringing to property liability not only a legal entity, but also individuals in whose interests it acts and makes transactions. In our article we will look at when, how and in what form information about the beneficial owners that a legal entity is required to provide is generated.

Along with this concept, introduced by the law “On countering the legalization...” of August 7, 2001 No. 115-FZ (hereinafter referred to as Law No. 115-FZ), “lifting the corporate veil” contributes to different systems norms:

• About affiliates. More details here: Sample of filling out the list of affiliated persons in 2018 - 2019, List of affiliated persons of a joint stock company (nuances).
• Interdependent persons. Read the article on the website at the link: Which persons are recognized as interdependent under the Tax Code of the Russian Federation? , and a little about the relationship between the concepts: Affiliated and interdependent entities - what are they? .
• Controlling and controlled entities (Article 189.23 of the Law “On Insolvency (Bankruptcy)” dated October 26, 2002 No. 127-FZ, Article 2 of the Law “On the Market” valuable papers" dated April 22, 1996 No. 39-FZ), etc.

The peculiarity of each of the concepts of this kind is its strictly targeted (teleological) content, which is determined by law. It follows from this that the affiliation or control of a person, if proven, is important for determining beneficiary status only if the information received complies with Law No. 115-FZ.

The beneficial owner, therefore, is established only by Law No. 115-FZ. It must be distinguished from the beneficiary.

What is the difference between a beneficial owner and a beneficiary?

Etymologically, the terms “beneficiary” and “beneficiary” are almost identical, since a benefit is also a benefit, and a beneficiary is the one who receives it. But in Law No. 115-FZ, these 2 terms are meaningfully different:

• A beneficial owner is an individual who is determined based on his ability to directly or indirectly control the actions of the person being verified on a documented basis. This may be ownership of more than 25% authorized capital or another way to influence decisions made.
• Beneficiary is an individual or legal entity that is the recipient of income from a transaction carried out by a person. This may be the principal under an agency agreement or another entity, in in this case the possibility of controlling influence is not considered. Its special characteristic is that it benefits from the actions of the person being inspected only for a specific transaction being carried out, and not from all of its activities (see the information message on typical questions... published on the Rosfinmonitoring website).

From the above concepts it is clear that they can overlap; the same person can simultaneously perform two roles in relation to the person being checked.

Who identifies beneficiaries and why, how information about beneficial owners is provided through the Federal Tax Service of the Russian Federation

The purposes of obtaining information about beneficiaries are determined by the purpose of the provisions of Law No. 115-FZ - countering the entry into legal circulation of funds obtained by criminal means. This follows from the concept of legalization (Article 3 of Law No. 115-FZ).

Each legal entity is required to identify its beneficial owners on the basis of Art. 6.1 of Law No. 115-FZ. In addition, this information is collected by banks and other organizations (subparagraph 2, paragraph 1, article 7 of Law No. 115-FZ). Special ones have been developed to help them. Guidelines(letter of Rosfinmonitoring dated December 4, 2018 No. 57).

IN mandatory information is subject to submission upon request to authorized bodies, which primarily include the Federal Tax Service of the Russian Federation and a specially created state body - Rosfinmonitoring, established by Decree of the President of the Russian Federation of June 13, 2012 No. 808.

Considering that all organizations have telecommunication channels (TCC) with tax authorities, it was decided that requests and responses to them should be sent via TCC through the Federal Tax Service of the Russian Federation (clauses 1-4 of the Rules for the provision by legal entities of information about their beneficial owners... , approved by Decree of the Government of the Russian Federation dated July 31, 2017 No. 913, hereinafter referred to as the Rules). The format for presenting information is approved by the Federal Tax Service of the Russian Federation. The legal entity is given 5 working days to submit them.

The form of the document that is drawn up in the organization can be downloaded from the link: Sample of filling out information about beneficial owners.

What information should the list of beneficial owners contain?

An individual is recognized as a beneficial owner if he has the ability to control the actions of the organization if the following signs are present:

• ownership directly or indirectly (through participation in legal entities) of more than 25% of the authorized capital or voting shares;
• the ability to influence the organization’s decisions on the basis of an agreement or other documents determined by the organization independently.

If it is not possible to identify the beneficiary, the head of the executive body is recognized in this capacity. The same rule applies to legal entities - participants or managing legal entity.

Composition of information about the beneficial owner (paragraph 2, subparagraph 1, paragraph 1, article 7 of Law No. 115-FZ):

• FULL NAME.;
• citizenship;
• Date of Birth;
• passport details;
• migration card data;
• registration address;
• TIN, etc.

Banks may require a number of additional information provided for in Appendix. 1 to the regulation of the Central Bank of the Russian Federation “On identification...” dated October 15, 2015 No. 499-P, for example, SNILS number.

Let us note that clause 2 of the Rules stipulates that documented information about beneficiaries or information about measures taken to obtain this information must be submitted to the Federal Tax Service of the Russian Federation and (or) Rosfinmonitoring as part of the performance of duties provided for by law. The transfer of such information is not a violation of the legislation on the protection of personal data (Clause 5, Article 6.1 of Law No. 115-FZ).

Obligations of legal entities under Law No. 115-FZ

Each organization is obliged:

• have documented information about your beneficiaries and update it regularly, at least once a year;
• store received documents and information for 5 years;
• provide information and documents at the request of authorized bodies or the Federal Tax Service of the Russian Federation.

Subjects with a predominant state participation, as well as international and some foreign organizations (clause 2 of article 6.1, paragraphs 2-5 subclause 2 of clause 1 of article 7 of law No. 115-FZ).

To fulfill these obligations, a legal entity requests from its participants and controlling persons the necessary information that is required to be provided. What should be done in the event of refusal or evasion of their submission by the addressees of requests is not disclosed in the law.

There is no special administrative responsibility for obligated persons, since the subject administrative offense, provided for in paragraph 1 of Art. 15.27 of the Code of Administrative Offenses of the Russian Federation (failure to exercise internal control), can only be the person specified in Art. 7 of Law No. 115-FZ (payment acceptance operators, etc., see the decision of the Lipetsk Regional Court dated September 21, 2017 in case No. 21-152/2017).

So, information about individuals who are beneficial owners of legal entities is submitted upon request to the authorities state power and other organizations operating in accordance with Law No. 115-FZ, and include information about citizens, which in this situation is not covered by the legislation on the protection of personal data.

In our market times, a lot of specific words have appeared that people did not know about before. Many of them are, as they say, “in the news,” for example, the beneficiary. What is this - in simple words we can say that this term is associated with monetary transactions, and this is generally true, but everywhere there are nuances.

Who is the beneficiary?

Interpretation this term can be found in various dictionaries of economic, legal, financial orientation, business directories:

1. Translated from various European languages, it has semantic meaning profit, benefit, benefit, the owner of the letter of credit receiving money under it, etc.;
2. Is a citizen receiving income from his property under trust management, as well as, for example, inheritance under a will;
3. Can be a person in whose favor payments are made or who acquires profit as a result of renting out his property, hiring, when transferring the right to use it to third parties;
4. Human, recipient of funds from an insurance policy, the credit card to which they were transferred to him for performing some work;
5. A bank client who has assigned this credit institution managing your funds by contract or agreement;

In parallel to the specified term, the name “beneficiary” can be used.

History of the financial term

It has its origins in ancient times:

1. During the heyday Ancient Rome this concept was widely used to refer to those people who were in military service and were exempt from heavy work. Usually they served as guards for an official - a tribune. During the imperial era they could claim the title of centurion;
2. During the Middle Ages beneficiary was called a certain land ownership, which, as a rule, was allocated on the terms of bearing military service to those to whom it was given. However, there were options with administrative or court service;
3. IN modern language this word was incorporated with meanings very different from the original ones. At the same time, the range of areas in which it is successfully and widely used has expanded significantly. This includes, in particular, the activities of financial, legal, and economic organizations. The term has become quite capacious and multifaceted.

Beneficiary and beneficiary: what is the difference?

Generally, these terms are synonymous, however, they have some differences in their practical application:

• The recipient of the benefit can be not only a citizen, but also an organization acting as a legal entity, and acts mainly in the insurance business;
• He is mentioned separately in the text of the relevant agreement concluded between the policyholder and the insurer, as a third party who, in certain case, It has legal right to receive payment, or in kind(for example, in the form medical services), or in monetary terms (upon receiving an inheritance). In the latter case, he is mentioned in the policy as a beneficiary, or in the will or disposition of the insured person;
• As a beneficiary, you can use not only a monetary, but also a commercial letter of credit in transactions between organizations and enterprises, companies;
• In a property trust management agreement, it can be either the founder of the management or a special person in whose interests this process is carried out.

The above terminology also has the following semantic concept as "receiver".

Beneficial owner - who is it?

The wording was introduced in 2013 and edited in 2016 based on Russian legislation from 2001 regarding the fight against proceeds of crime (Law No. 115-FZ):

• The term means the presence of a specific a person who benefits from the activities of a company or having the ability to control it. Methods of influence can be direct or indirect, through ownership of a certain number of shares. If the client is a citizen, i.e. person is an individual, then he is considered the beneficial owner. IN in some cases However, there are reasons to consider him a completely different person;
• The concept of a beneficiary is defined by law as the receipt of profit by an individual from a client as a result of an agreement concluded with him to perform a certain type of financial or commodity transaction;
• According to Article 6.1 of the above law, the company is obliged to have, update and provide government bodies information about their beneficial owners. It also has the right to request information about these persons from its founders and shareholders.

The law of the Russian Federation provides the opportunity to disclose information about the true owners of a particular legal entity, which is reflected in the company’s reporting.

What types of agreements with the beneficiary are there?

Exist different kinds profit purchase agreements:

• Bank guarantee that provides financial security transactions between the customer (beneficiary) and the contractor (principal). The essence is the mediation of a guarantor bank, which, for a certain amount of commission from the transaction, ensures that the customer fulfills the obligations of the contractor. In case of non-compliance latest conditions transaction, the bank pays the agreed amount and then seeks reimbursement from the principal;
• Agreements with trust organizations for the trust management of property, companies, money, securities, etc. on the terms agreed with the founder (beneficiary, owner), are concluded for a strictly defined period;
• Insurance policies various topics, where the role of the beneficiary can be either the policyholder or a specially registered person who, upon the occurrence of an appropriate event, will receive the indemnified amount, for example, under a will.

If you receive interest from a rich inheritance, congratulations, you are a beneficiary. What is this - in simple words it is defined as person receiving income, beneficiary, which you probably already understood from the text of the article. There are different forms of acquisition, but the essence is the same - profit.

Video: ordinary people answering complex questions

In this video, Yuri Antonov will survey people on the street about their knowledge of the financial term “beneficiary”:

A beneficial owner is the actual owner of a company, usually offshore, information about which is confidential and not subject to disclosure. Such an owner has the opportunity to directly and indirectly influence decision-making and economic activities.

 

A beneficial owner (ultimate or actual owner) is one or more individuals who have the rights and opportunities to indirectly or directly influence the activities of a legal entity without mentioning their personal data in public title documents. Although the beneficiary is the actual or ultimate owner, his identity is known only to banking institutions and registered agents. He takes part in the meeting of shareholders, in deciding issues of profit distribution, and can transfer all or part of the rights to other founders. Non-disclosure of data about real owners is the main element of the use of offshore zones, both for laundering illegal funds and for completely legal schemes for optimizing taxation, investment and property ownership.

The term first appeared in 1966 in the additional protocol to the 1945 Income Tax Treaty between the United Kingdom and the United States. Subsequently, amendments were developed to define the role of intermediaries working on behalf of the beneficiary, property management and a clearer definition of the final owner. IN currently Most national legislations use as a basis the Third Directive of the European Parliament 2005/60/EC, which defines who is the beneficial owner as follows:

“A beneficiary is an individual who has full control and on whose behalf transactions are concluded by a legal entity. He must manage at least 25% + 1 share in the case of corporate finance or more than 25% of the property in trusts and foundations.”

Outside the Eurozone, there is a single and clear definition of what rights and powers make it possible to separate the ultimate and nominal owner into this moment does not exist:

• USA. It is mandatory to disclose information about persons who have the ability to directly or indirectly influence the results of the company’s activities, or who own more than 5% of the shares;
• China. The term “actual manager”, which is similar in meaning, is used, which is not a shareholder (founder), but is able to influence decision-making through investments, agreements or other arrangements;
• Denmark. A person who has the right to independently dispose of corporate funds is classified as a beneficiary. In other words, this is anyone who has the right to sign payment documents.
• International Commission against Money Laundering FATF uses an interpretation similar to that of the EU Directive.

Legislative regulation in the Russian Federation

IN Russian system The rights of the beneficiary are assigned a rather negative role, in contrast to other countries where the use of offshore companies is not considered illegal by definition. Moreover, arbitrage practice shows that in many cases the concept can be interpreted too broadly, and the decision whether an individual is considered the actual owner or not is made on a case-by-case basis, which limits the rights of the beneficiary to manage the property or assets owned by him.

Before the concept of “beneficial owner” appeared, the legislation provided for an essentially similar concept - “a person controlling the client.” It is found in the laws of the Russian Federation “On the Securities Market” and “On Insolvency (Bankruptcy)” and determines the size of the share in the authorized capital or block of shares. A controlling person is considered to be a person who owns more than 50% of the authorized capital or votes in the governing body. In case of bankruptcy, the beneficiary bears joint liability for all property and monetary obligations.

For the first time, the concept of the final owner was spelled out in the law “On combating the legalization (laundering) of proceeds from crime and the financing of terrorism,” but since 2013, the provisions of the European Directive have been included in all regulations aimed at combating illegal financial transactions. This, as mentioned above, determined the confidentiality of offshore owners as negative factor commercial activities. The innovations apply to all legal entities registered in the Russian Federation.

Special attention should be paid to the differences between the beneficiary and another similar concept - “beneficiary”. According to Federal Law No. 115-FZ, this is recognized as “a person who benefits from the actions of a client. Benefit is calculated based on agency agreement or an agreement of authority to carry out business transactions with property or funds permitted by law.”

Thus, the legislation defines the beneficiary not only as an individual, but also as a legal entity. We remind you that the beneficial owner can only be an individual.

Collection of information

The main source of information about beneficial owners is banking institutions, which have the right to use any data sources in case of suspicion of the nominal status of the owners indicated in the registration documents. Additionally, information about owners is required to be disclosed if the company participates in government procurement and other controlled cases. If the real owners cannot be identified, the director or executive body (board of founders, meeting of shareholders) of the company is recognized as such. This rule was developed primarily to combat shell companies, but also applies to organizations in which it is really difficult to establish a list of beneficiaries:

• non-profit companies and associations;
• joint stock companies in which none of the shareholders has complete control;
• mutual investment funds (UIF);
• trusts, including offshore ones.

Confidentiality of information about owners is maintained for:

• government bodies, local government and extra-budgetary funds;
• legal entities in which the state or municipalities owns more than 50% of shares or authorized capital;
• international organizations, unless otherwise provided by law;
• issuers of securities participating in organized trading.

The government's work to develop civilized market relations leads to the need to regulate more and more new areas, those that previously could be called a “wild market.” New rules are constantly emerging to regulate market relations and new economic entities are being legitimized. These include those persons who fall under the definition of beneficiaries.

Who are the beneficial owners?

The word beneficiary comes from French word“benefice” (profit, benefit, income). A beneficiary is a person who receives income from the ownership of his property or funds under any agreement. At the same time, agreements that bring him material benefits can be of a different nature.

This person can be both an individual and a legal entity; in any case, this is the person to whom the cash payment is ultimately intended, or the recipient of benefits, income, profit, for example, from owning shares in a company that allow him to receive income from its activities.

However, the meaning of the term "beneficiary" may vary depending on the situation in which it is used. The following persons are considered beneficiaries:

• heirs indicated in wills for any property, taking ownership of it or receiving it for management;
• landlords who rent out their property (apartment, non-residential premises, car) and receive a regular payment for it, since they own the lease agreement;
• owners of bank accounts who manage and control them and receive profits;
• clients of the trust company who have handed over their property to trust management and receive income from it;
• owners of documentary;
• recipients of insurance payments under an insurance contract;
• owners of companies who receive income from their work.

Who are the final beneficiaries?

Ultimate beneficiary when owning a company, it's hers real owner, to which the profit flows ultimately “flow”. He can act directly, or maybe through ownership of other companies. Even if the company is legally owned by one person, the real rights of the owner may be completely different.

The following mechanisms can be used to establish beneficial ownership:

1. nominal agreement;
2. a declaration of trust defining the rights and obligations of the founders of the company and the owners of the entrusted property;
3. the deed of establishing a trust.

Most often, information about the ultimate beneficiary is confidential and not widely disclosed. To hide the ultimate beneficiary, offshore companies or nominee shareholders can be used.

Is the beneficiary a beneficiary?

To understand this, first of all, let’s find definitions for these concepts. This can be done by Federal Law No. 115-FZ of 08/07/2001.

Beneficiary is the person who benefits as a result of his client's actions. It is possible to receive benefits on the basis of various agreements:

• commissions;
• agency;
• trust management;
• sureties;
• conducting transactions with property or funds.

Beneficial owner is a person who ultimately directly or indirectly (through third parties) owns (has a dominant participation of more than 25% of the capital) a company or has the ability to control the actions of this legal entity.

Simply put, this individual enjoys all the rights of the owner of the company, has income from it and, in fact, is its owner, although legally the ownership is registered in the name of another person.

The beneficial owner, without disclosing his identity, has the opportunity to:

Both concepts are close to each other and have many common features. For example, both the beneficiary and the beneficiary receive income from the work of their companies and organizations.

Legislation allows you to draw a line between them - the beneficial owner must be the owner of more than 25% of the capital and thereby participate in the management of the company - indirectly or personally.

This is the main difference between a beneficiary and a beneficial owner – ownership of a significant part of the profit.

Beneficiary control

It is this opportunity for beneficial owners to participate in the management of the company and control its actions that arouses interest among various inspection bodies. They may collect information about owners under certain circumstances to exclude:

• terrorist actions;
• financial fraud;
• criminal acts;
• legalization of illegal income, etc.

Beneficiary information

The beneficiary, who is the owner of the company, has the obligation to provide information about himself in response to requests from regulatory authorities, when concluding contracts and agreements with state-owned enterprises. The collection of such information is carried out to obtain the greatest transparency of the actions of the company itself and to identify its real owners.

Banks also require information about beneficiaries. Starting from 2013, company owners are required to provide such information about themselves. If banks allow such data to be concealed, this will entail a fine of up to 500 thousand rubles, so beneficiaries have to provide this information at the request of government organizations and banks.

If the beneficiary does not provide the credit institution with such information, then, most likely, the company will be refused cooperation - the reputation and guarantee of transparency of its activities will cost more.

If it turns out that the owner is only entitled to sign documents, that is, is only a nominal beneficiary, this will cause special suspicion. In this case, it will not be difficult to find the true owner of the company - for this, the chain of account holders is studied, which will lead to the real owner.

If a company signs contracts with government or credit organizations, it must provide information about the owners down to the final beneficiaries:

1. passport details;
2. actual residential address of the beneficiary;
3. full beneficiary profile.

Without providing this information, the contract will not be concluded. Work with government organizations forces private companies to act completely transparently.

Protection of beneficiary rights

Russian legislation has given the beneficiary the right to go to court to protect their interests. Other beneficiaries or the management of his own company may violate his rights:

• by non-compliance with the terms of the contract concluded with him;
• when conducting illegal or unlicensed activities;
• when his rights to control in the company are reduced;
• by concealing by management the fact of infringement of its interests in the process of work;
• under other circumstances that prevent him from receiving income, according to the terms of the agreement.

The beneficiary can also ensure protection against the actions of nominee managers by using a trust management agreement. Such an agreement makes it possible to terminate cooperation with the nominal management of the company if its rights are infringed. A well-drafted contract can oblige negligent managers to pay damages caused by their intentional or unprofessional actions.

Today, the strange word “beneficiary” can refer to any person - the owner of real estate, invested in assets and bank deposits cash, even the owner insurance policy. In business, the state closely monitors the ultimate owners of companies, especially expensive ones. Sometimes such owners turn out to be high-ranking officials who provide all kinds of “help” to the companies they created. Therefore, such control is, first of all, protective in nature and aimed at protecting the interests of all citizens.

Strict control of companies, aimed at identifying their ultimate owners, also occurs when they cooperate with government organizations. Sometimes beneficiaries are negatively disposed towards such measures, citing their right to protect confidential information. But in conditions when the growth of large corporations and the increase in their income requires transparent business conduct, each beneficiary makes a choice independently - to develop his business further or to keep secret information about which companies he owns.

What is default? And what are its consequences for the economy and people of the country? Let's look at it separately.