Reasons for classifying an individual as beneficial owner. What do the terms “beneficiary” and “ultimate beneficiary” mean? These are complex concepts in simple and accessible language. Who is the beneficial owner

The term “beneficiary” has come to be actively used in business use in connection with development. And since then, as in 2012, they started talking about the "deoffshorization" of Russian assets, a number of legislative acts have been adopted aimed at identifying the real owners of domestic companies and clarifying their status. Meanwhile, the term has other meanings, which are also widely used in economics. Let's talk about who can call himself the beneficiary, what this term means, where it is applied and how it is regulated by law.

Beneficiary - it is the person who owns the property and receives income from its use. In the public space, this term is more often used in relation to business when it comes to the real owner of the company, even if formally another person is the owner. In the legislation, the concept of the beneficiary is reflected in the Law No. 115-ФЗ dated 07.08.2001. This document states that the beneficial owner is a person who has a share in the ownership of more than 25% and controls the action of a legal entity through the conclusion of an agreement with him.

The word “beneficiary” came to us from the Middle Ages - then a feudal lord was called a beneficiary, who for the land parcel received from the principal (and, accordingly, for the income from this allotment) served the benefactor. For the first time in the modern sense, the term “beneficiary” as “beneficiary” was used in the additional protocol to the Income Tax Treaty (agreement between the United States and Great Britain) in 1966. In subsequent years, the regulatory framework expanded: descriptions of the functions of intermediaries working on behalf of the beneficiary appeared, the property management process was formalized, and a clearer definition of the ultimate owner was introduced. Now in most countries, including Russia, the legislation on beneficiaries is based on the Third Directive of the European Parliament 2005/60 / EC. In the specified document, the beneficiary is defined exactly as done in the paragraph above.

Beneficiary and Ultimate Beneficiary: What's the Difference?

A distinction should be made between the concept of a beneficiary and an ultimate beneficiary. If in the first case we can talk about both an individual and a legal entity that directly benefits from the use of property, then the ultimate beneficiary is always an individual who actually owns the property, regardless of how long the chain from him to the company in which is formed income.

Such a chain, by the way, can consist of dozens of links-legal entities, each of which is the formal founder of the next. The ultimate beneficiary is the person who actually receives income from the activities of the firm or the use of property.

How does the beneficiary differ from the beneficiary

Sometimes a beneficiary is understood as a beneficiary. The list of such persons includes:

• persons who receive income from property transferred for the use of other persons. For example, you rented out an apartment under a contract. Formally, other people live and use the apartment, and you receive the income, and in fact, the housing is yours. The same applies to movable property - for example, a car rented out under an appropriate contract;
• persons receiving income from securities transferred to trust. Brokers run yours, but you are the beneficiary because the income goes to you;
• persons receiving insurance payments under an insurance contract. For example, parents insure a child under an endowment insurance contract. They pay contributions for a certain number of years, and upon reaching the age specified in the policy, the child, as a beneficiary, receives the accumulated amount;
• direct recipients of a bank certificate or financial benefit from property transferred to trust management.

The positions of the beneficiary and the beneficiary have both common characteristics and differences.

Similarity

• Both the beneficiary and the beneficiary receive income from their property provided under the contract to other persons.

Differences

• The beneficiary has over 25% share in the property from which he receives income. Accordingly, he has the right to control the process of operational management of his property (for example, by appointing a director to the firm). The beneficiary does not have such a right, since he is either completely alienated from the property from which he receives income, or has a share that does not give the right to manage assets (less than 25%).
• The beneficiary can be both an individual and a legal entity. The ultimate beneficiary is only the physical.

Historically, in Russia, the owners of companies did not seek to advertise their involvement in them. The first time - because of not always legal ways of acquiring property, as well as because of the threat to their own safety, then - because of the unwillingness to come under the scrutiny of tax and other state bodies. The unwillingness to bear public responsibility in the event of a company or violations of the law also plays a role.

Therefore, almost all large and most medium-sized companies do not have individuals, but organizations as formal owners. Often they are lined up in such a way that it would be difficult to trace the final owner. Everyone remembers how, after the 2011 terrorist attack at the Domodedovo airport, even the Prosecutor General's Office for a long time was unable to find out who is now the owner of this very large facility. As a result, it turned out that since 1993 the formal owner has changed 10 times, with the same businessman Dmitry Kamenshchik remaining the beneficiary.

Another textbook example is Roman Abramovich. The ownership structure of his companies has not been officially confirmed by anyone and exists only in the guesses of stringer journalists. It is believed that he owns Millhouse Capital UK Ltd, which, in turn, owns the Evraz 8 securities, but not directly, but through the Cyprus-based Lanebrook. Other assets of Abramovich are managed in the same difficult ways - OJSC Holding Moscow-Invest, LLC Dial Alliance, etc. And the Prodo company belongs to Abramovich through the Cypriot offshore company Nevern Overseas.

Nevertheless, the legislation makes it possible to find out who is the beneficiary of a particular company.

Publicity of the beneficiary

For companies whose shares are listed on the world's largest stock exchanges, as well as for other public joint-stock companies, the publication of their real owners is a duty. The registers of shareholders of such companies are posted in the public domain on the official websites.

Nevertheless, even in such conditions, the creation of an intricate ownership structure can take the beneficiary out of public attention. This is done primarily through the creation of offshore companies: in many offshore zones, local laws allow the owners of firms to dispose of the dividends received without advertising their activities.

Information about the beneficiaries, which is difficult for the general public, may still be obtained by some organizations by virtue of the law.

Who has the right to know about the beneficiaries of the legal entity

First of all, information is disclosed to banks when opening a legal entity account (clause 14 of article 7 of Law No. 115-FZ). If a credit institution has suspicions that the owners specified in the company's documents are nominal, the bank can use any sources of information to obtain information about the beneficiaries.

The item "data on the beneficiaries of the company" is also in the documentation filled out by the public procurement participant, as well as in the questionnaires that are filled in by the counterparties of large companies with state participation.

In 2017, the Russian government approved the Rules for the provision of information by legal entities about their beneficial owners. They indicate that information about the beneficiaries must be provided within 5 days at the request of the Federal Tax Service through telecommunications channels. The form for providing information is approved by the tax authorities. Also, data on the beneficial owners of a legal entity must be sent upon request to the Federal Service for Financial Monitoring (Rosfinmonitoring).

The owners of companies bypass these requirements in this way: if there is a trust agreement, the general director of the company is indicated as the beneficiary. To check whether the CEO is really a beneficiary, a bank or a state institution can only by indirect methods (up to media reports).

If it is impossible to establish the exact beneficiary, the law provides for the recognition as such of the director or the executive body of the company (the board of directors, for example, or the meeting of shareholders). All individuals with over 25% of the company's shares are also automatically entered into the list of beneficiaries.

Banks bound by anti-money laundering legislation use special techniques to identify beneficiaries. From Law 115-FZ it follows that the beneficiary is an individual who, directly or through third parties, owns more than 25% of the company's capital. Moreover, if direct participation in capital is obvious, then it is not so easy to identify indirect participation.

Banks usually apply clause 3 of Art. 105.2 of the Tax Code of the Russian Federation, in which the share of indirect participation in the capital of the organization's firm is determined as follows:

1 A chain of beneficiary organizations with direct participation in the capital of each subsequent link is identified.

2 Shares of direct participation of such beneficiaries in the capital of each subsequent company are established.

3 The product of the shares of direct participation in each subsequent organization is determined. This will be the share of indirect participation.

The individual has a 40% stake in LLC Roga and Kopyta, which, in turn, formally owns 60% of shares in CJSC Kopyta i Roga. The product of the participation shares in the capital will be: 0.4 * 0.6 = 0.24 or 24%.

Details on how to recognize the ultimate beneficiary can be found in the clarifications of the Ministry of Finance of the Russian Federation dated August 16, 2013 No. 03-01-18 / 33535; dated June 21, 2013 No. 03-01-18 / 23476; dated March 12, 2012 No. 03-01-18 / 1-27, as well as in the letter of the Federal Tax Service of Russia for Moscow dated June 7, 2012 No. 16-15 / [email protected]

Note that in addition to formal signs of an individual's indirect participation in the capital of a company, there must be other facts indicating that the citizen is not just a shareholder, but a beneficial owner controlling the company (clause 3.3 of the Bank of Russia Regulation No. 375 of March 2, 2012 -NS):

• An individual must own or control, through others, over 25% of the total number of voting shares / interests.
• An individual can influence decisions made by the executive body of a legal entity (for example, the board of directors or CEO). We are talking about any decisions, including the issuance of loans, financial transactions, reorganization of the company, and so on.

Also, banks have the right to determine themselves and other factors by which they identify the beneficiaries of their customers. Sometimes this becomes the cause of misunderstandings: a credit institution blocks an account on the basis of suspicions of money laundering, and it is not possible to find out exactly what the company is suspected of due to the confidentiality of the bank's internal protocols.

Beneficiary questionnaire

The form according to which information on beneficial owners is submitted to the Federal Tax Service of the Russian Federation is quite simple. It contains the personal and contact information of the ultimate beneficiaries. Sharing this information is not considered a violation of personal data protection laws.

Information on beneficial owners

Limited Liability Company "Kutuzov", OGRN 1234567890123, INN 123456789, address St. Petersburg, st. Promyshlennaya, 13, office 104

compiled as of 01.01.2018

1.	FULL NAME.	Petrov Stepan Sidorovich
	Citizenship	RF
	Date of Birth	01.01.1973
		Passport series ** ** number ** **, issued on 01.01.2002 by the Department of Internal Affairs of the city of Saratov, division code 642-000
		–
		St. Petersburg, Zelena st., 123, apt. 12.
		987654321
		Tel. +7 *** 1234567, e-mail: [email protected]
2.	FULL NAME.	Brown John
	Citizenship	Great Britain
	Date of Birth	15.02.1981
	Identity document (series, number, date of issue, issued by, subdivision code)	Passport 012334567 11/12/2011 United Kingdom Passport Agency
	Migration card details (if available)	–
	Registration address at the place of residence or place of stay	St. Petersburg, st. Solnechnaya, 1, apt. 212.
	INN	–
	Contact details (email address, phone number)	Email: [email protected]

General manager

LLC "Kutuzov" S. S. Petrov

Banks may require more details. In particular, the questionnaire of the beneficial owner required by Sberbank includes questions about the grounds for classifying an individual as a beneficiary (size of a block of shares, a form of control over the company, etc.), as well as a whole block of questions about the status of an individual. Whether he is a public official (including a foreign one) or a relative of such a person, does he not work for the Bank of Russia, etc.). In some other banks, the beneficiary is obliged to indicate the sources of origin of funds placed with the credit institution, to inform the purpose of his financial and economic activities.

It will be useful for the owners of firms to know that the bank has the right to demand only the information specified in Appendix 1 to the regulation "On the identification of customers, client representatives, beneficiaries and beneficial owners by credit institutions in order to combat legalization (laundering) of proceeds from crime and the financing of terrorism" (dated 15.10.2015 No. 499-P). Another thing is that if the required “excessive” information is not provided to the bank, it may well refuse to open an account, issue a loan, and so on.

Beneficiary's rights and obligations

Despite the fact that the beneficiary does not always advertise his participation in the company's activities or involvement in it, under the current legislation he has a number of rights:

• The beneficiary-owner of the shares or shares in the LLC can delegate the ownership right to any other person under the relevant agreement.
• The beneficiary has the right to vote with his shares at the meeting of the joint stock company.
• The beneficiary has the right to participate in the selection process of the board of directors depending on the number of its shares.
• The beneficiary can participate in resolving issues of changing the type of activity of the company, as well as changing the authorized capital.

The main responsibility of the beneficiary and the organization from which he receives income is the disclosure of information. The following are entitled not to inform about the beneficiaries:

• state and municipal authorities, as well as off-budget funds (their owners are absent or well-known and do not require disclosure);
• legal entity with 50% or more state or municipal participation;
• international organizations (excluding public companies);
• issuers of securities participating in organized trading.

We have already noted above that the concept of the beneficiary is used not only in business, but also in other types of economic relations. Most often it coincides with the concept of "beneficiary". But if, say, in the field of real estate everything is clear: the beneficiary is the owner, the ownership of which is properly registered, then in other areas there are some nuances.

Beneficiary in insurance

In insurance, the beneficiary is determined directly at the conclusion of the contract and is indicated in the policy. Such can be both the insured himself and any other person of his choice - even physical, even legal. Thus, in insurance the concept of "beneficiary" is identical to the concept of "beneficiary". This person has the right to both demand the performance of the contract by the insurer and refuse to accept compensation for damage.

In this case, the beneficiary is obliged to exactly fulfill the terms of the contract, otherwise it will not be executed, and the beneficiary will lose his rights. Obligations under the agreement are standard: timely payment of contributions, informing about changes in the essential terms of the agreement (first of all, the ways of using the property, as well as its condition). Upon the occurrence of an insured event, the absence of the fault of the beneficiary must be proven.

Beneficiary in banking

Let's consider the situation from two points of view. Firstly, the bank itself has the beneficiaries, and secondly, the clients of this bank.

The beneficiary of the bank is its owner. Clients, even if they keep billions in their accounts and receive hundreds of millions in the form of interest, are not beneficiaries, they are just users of the services of a credit institution on the basis of agreements.

In this case, the bank can be both a beneficiary (founder of other legal entities, an investor), and a trustee of the beneficiary. The latter case is more common if the bank has a beneficiary or is specially created for business. Such credit institutions rarely have a high reputation and are usually the first to file for bankruptcy in the event of a malfunction in their core business.

Note: if the bank gave your company a loan, this does not mean that it became its beneficiary. The credit institution receives income from the payment for the use of the loan, and not from the activities of your company. The bank does not own your company's securities. The bank is not entitled to interfere with operational management.

A separate point is the provision of a deal. The contractor of works, services or a supplier of goods applies to the bank with a request to act as a guarantor for the execution of the transaction for a certain fee. If something goes wrong, the customer will receive a refund from the bank. As you can see, the customer in this case is the beneficiary, although it would be more correct to call him simply the beneficiary.

The modern concept of controlling persons was introduced into the legislation in connection with the activities of foreign companies, the real owners of which were Russian businessmen. First of all, we are talking about offshore companies.

So, the controlling person of a foreign organization is:

• an individual or legal entity that owns more than 25% of the shares or interests in a controlled company;
• a person (natural or legal) who owns 10% of shares or shares in a company, provided that more than 50% of such shares or shares (in total) are owned by residents of the Russian Federation;
• a person who does not fall under the first two points, but controls a foreign company in his own interests or in the interests of a spouse or minor children.

If formally a citizen does not have participation in the capital of a legal entity, the following documents may be signs of control over a foreign company (when, of course, they can be found):

• a declaration of trust in which the nominee shareholders undertake to act in the interests of the beneficiary;
• general power of attorney issued for the right to manage a foreign company as a tax resident of the Russian Federation;
• information about the company's bank account received from the tax authorities of the country of presence in the framework of the international exchange of tax information;
• other data on the relationship of a potential beneficiary with a foreign company (the form is not limited by anything, information can come from anywhere and in any form).

Why is the search for beneficiaries so thorough? First, as already mentioned, these are the requirements of the law on combating money laundering and terrorist financing. And secondly, if it turns out that the beneficiary is a tax resident of the Russian Federation, he is obliged to declare income and pay taxes from them.

Are there organizations without beneficiaries

The only non-governmental organizations that do not receive income from their activities and, accordingly, do not bring benefits to the founders, are non-profit organizations (NPOs). They do not engage in entrepreneurship by virtue of the law. Their goals are to organize events and create unions, associations and other charitable, scientific and social organizations.

At the same time, any NPO in one form or another processes the flow of funds (voluntary contributions, donations, income from the use of property, etc.). But a non-profit organization cannot be considered a beneficiary: its income is always equal to its expenses, and no financial benefit is generated. And if this rule is not observed, then there are violations in the work of the NPO.

Conclusion

As you can see, the concept of “beneficiary” has two main meanings. The first is the real owner of the business, the second is the beneficiary from the use of property by other persons. If, in relation to the latter interpretation, no difficulties arise with the implementation of the rights and obligations of the beneficiary, then in the case of a business, everything is more complicated.

Despite the rather accurate description in the legislation of the essence and status of the beneficial owner, in the real economy there are many opportunities to avoid advertising one's involvement in a particular asset. This is mainly used by beneficiaries of large companies, who have the opportunity to form a complex ownership structure with the participation of a large number of intermediate links. Owners of small and medium-sized businesses (real, not artificially "crushed" large), on the contrary, have to lay out all the ins and outs of their business at any new contact with the bank.

But in any case, the obligations of the beneficiaries in Russia cannot be called onerous. They consist mainly in the timely payment of taxes and informing individual counterparties about changes in the ownership structure.

Video for Dessert: Epic Cross Country Kiting

In our market time, a lot of specific words have appeared that people did not know about before. Many of them are, as they say, "heard", for example, the beneficiary. What it is - 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?

The interpretation of this term can be found in various dictionaries of economic, legal, financial orientation, business reference books:

1. Translated from different European languages, it has the semantic meaning of profit, good deed, benefit, the owner of the letter of credit receiving money on it, etc .;
2. Is an a citizen who receives income from his property in his trust, as well as, for example, inheritance by will;
3. It can be a person in favor of whom payments are made or who gains profit as a result of renting out their property, hiring, when transferring the right to use it to third parties;
4. Human, insurance recipient, the credit card on which they were transferred to him for the performance of any work;
5. Bank customer who instructed this credit institution managing your funds by agreement or agreement;

Parallel to this term, the name “beneficiary” can be used.

History of the financial term

It takes its origins in ancient times:

1. During the heyday of Ancient Rome, this concept was widely used to refer to those people who were in military service and were released from hard work. Usually they served in the protection of the official - the tribune. In the era of the empire, they could lay claim to the title of centurion;
2. In the middle ages beneficiary a certain land ownership was called, which, as a rule, was allocated on the terms of military service to those to whom it was given. However, there were options with administrative or court service;
3. This word has merged into the modern language with meanings that are 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, economic organizations. The term has become quite capacious and multifaceted.

Beneficiary and Beneficiary: What's the Difference?

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

• The beneficiary 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 corresponding agreement concluded between the policyholder and the insurer, as a third party who, in a certain case, has a legal right to receive payment, or in kind (for example, in the form of a medical service), or in cash (if receiving an inheritance). In the latter case, he is mentioned in the policy as the recipient, or in the will or order of the insured person;
• As a beneficiary, you can use not only cash, but also a commodity letter of credit in transactions between organizations and enterprises, companies;
• In the contract of trust management of property, it can be either the founder of the management himself, or a special person in whose interests this process is carried out.

The above terminology also has such a notion as “recipient”.

Who is the beneficial owner?

The wording was introduced in 2013 and revised in 2016 on the basis of Russian legislation of 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 who has the ability to control it. The methods of influence can be direct or indirect, through the ownership of a certain number of shares. If the client is a citizen, i.e. a natural person, then he is considered the beneficial owner. 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 a profit by an individual from a client as a result of an agreement concluded with him for the performance of a certain type of financial or commodity transactions;
• According to article 6.1 of the above law, the company is obliged to have, update and provide information about its beneficial owners to the state authorities. It also has the right to request information about these persons from its founders and shareholders.

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

What are the types of agreements with the beneficiary?

There are different types of agreements for the purchase of profits:

• A bank guarantee that ensures the financial security of the transaction between the customer (beneficiary) and the executor (principal). The essence lies in the mediation of the guarantor bank, which for a certain amount of commission from the transaction ensures the customer the fulfillment of obligations on the part of the contractor. If the latter does not comply with the terms of the transaction, the bank pays the agreed amount and then claims its 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 of various subjects, where the role of the beneficiary can be both the policyholder and a specially registered person who, upon the occurrence of an appropriate event, will receive the reimbursed amount, for example, by will.

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

Video: ordinary people to difficult questions

In this video, Yuri Antonov will interview people on the street for knowledge of the financial term "beneficiary":

Beneficiary- this is the recipient of cash payments (income) in accordance with the drawn up agreement or debt document. Such a recipient can be not only an individual, but also a legal entity that owns all or the main part of the company's shares, and receives all the income from the company's activities.

Sometimes the concept of beneficiary can be transported to the beneficiary. At the same time, its value will not change at all.

Description of the beneficiary in simple words

The beneficiary is the person who owns the documents for the property (company, business, real estate) and from this all receives the main profit.

Beneficiary - information from Wikipedia

Other meanings of the term "beneficiary"

However, the concept of beneficiary can be considered from other non-identical points of view.

• So can be called persons who receive income from their property, which is in the use of third parties or in trust. We are talking about the lease of movable and immovable property or the fact of transferring securities for use by brokers.
• There is another interpretation of the concept of a beneficiary. In this case, they will be represented by the person acting as insurance benefits who has been appointed by the policyholder. In this case, the beneficiary is indicated in the insurance policy. In the event that the beneficiary, due to certain circumstances, cannot receive the agreed debt, all rights to own the funds to be paid will be transferred to the person who is the beneficiary's heir.
• Also, this term is called the direct recipients of a bank certificate, cash in collection or recipients of financial benefits from a trust. The beneficiary can also be called the persons who were indicated by the issuing bank as potential owners of the documentary credit.
• If we talk about the field of business, then here the actual owner of the company, who makes a profit, can act as a beneficiary. This is an individual who can exercise all the rights of the owner and position himself as the owner of the company. This process can be carried out directly or through participation in other organizations. At the same time, from a legal point of view, the ownership right completely belongs to another person. Most often, the same person also acts as the manager of the company's bank account. The beneficiary can only be disclosed to the financial institution and agent of the company that has been registered.

The beneficiary, who is positioned as the owner of the securities, has the full right to transfer ownership rights. In addition, he has an indirect right to vote at a meeting of a joint-stock company, as well as the right to directly participate in the process of selecting a new management and resolve issues related to the procedure for changing the authorized capital or changing the profile of the joint-stock company.

To hide the identity of the ultimate beneficiary, a nominee service is often used, which is allowed in many offshore companies. The choice of the level of protection of a suitable company and related documentary requirements can be carried out depending on the personal wishes of the client.

Providing information about the beneficiary is a mandatory procedure. An exception may be companies that are quoted publicly. The same list includes charitable and public organizations, state-type institutions that cannot have owners or if they are known in advance.

Only a natural person can act as a beneficiary. A trust agreement can be drawn up for a legal entity, however, it is first necessary to provide all information about the individual who is the actual owner of this organization.

In December 2016, Federal Law No. 115-FZ of 07.08.2001 "On Counteracting Legalization (Laundering) of Criminally Obtained Incomes and Financing of Terrorism" (hereinafter - Law No. 115-FZ) was supplemented with Article 6.1. "Obligations of a legal entity to disclose information about its beneficial owners." Despite the fact that a year has passed since the introduction of innovations into force, many companies still have not established work to fulfill these responsibilities. Meanwhile, ignoring the requirements of the "anti-money laundering" law can lead to serious consequences. Penalties for violations are draconian. For lack of information about the beneficiaries of the organization, a fine of up to half a million rubles may be threatened. In the article, we will describe the basic algorithms of work and give tips that can help avoid negative consequences.

Who is the beneficial owner?

In par. 13 Art. 3 of Law No. 115-FZ provides a clear definition of the beneficiary. When it comes to combating the laundering of proceeds of crime, the beneficial owner is an individual who ultimately directly or indirectly (through third parties) owns (has a predominant share) more than 25% of the capital of the organization or has the ability to control the actions of the client by others ways.

For your information

Collapse Show

Individuals from the point of view of Law No. 115-FZ "own" themselves, unless proven otherwise. Of course, the phrase: “this person is considered to be the beneficial owner of ... an individual” evokes a smile, but this is how the law is formulated in an original way.

As you can see, the legislator left a very wide field of activity for law enforcement officers. Physics can be recognized as a beneficiary both by one clear criterion (ownership of more than 25% in the authorized capital) and by the abstract “ability to control the client's actions”.

Capital control

Beneficial ownership can be direct or indirect.

With direct ownership, everything is relatively clear: if a "physicist" owns 25% of the shares (shares in the authorized capital), he is recognized as the beneficiary.

Example 1

Collapse Show

Shares in Romashka LLC are owned by two individuals, 50% each. Both of them will be recognized as beneficial owners.

The situation with indirect control is somewhat more complicated. There can be many more options here.

Example 2

Collapse Show

Among the participants of Romashka LLC there is one individual (50% share) and two legal entities, each of which has 25%. However, 100% of the shares in both legal entities are owned by one individual. Accordingly, both "physicists" are still beneficial owners.

Example 3

Collapse Show

More complex variations of indirect ownership are also possible, for example, parents or guardians through a minor or incapacitated guardian.

Example 4

Collapse Show

A group of relatives can be recognized as beneficiaries, although the share of each of them may be less than the reference value. The logic in this case is quite simple - relatives have an influence on each other, which means they can jointly exercise their rights.

The Sidorov brothers jointly control 40% of shares in the authorized capital of Romashka LLC. They can also be jointly recognized as beneficiaries.

In general, the procedure for determining beneficial owners through direct or indirect ownership of "shares in a business" is intuitive. Much more questions are usually raised by "the ability to control the actions of the client."

Other ways to control

Law No. 115-FZ does not provide criteria by which it would be possible to establish the possibility of control. Rosfinmonitoring tried to shed light on this issue in the newsletter “Typical Issues of Application of Certain Provisions of Federal Law No. 115-FZ of 07.08.2001“ On Counteracting Legalization (Laundering) of Criminally Obtained Incomes and Financing of Terrorism ”” (without number and date) ...

According to Rosfinmonitoring, the beneficial owners include, first of all, persons holding managerial positions, for example, the CEO, members of the board of directors and the management board (directorate). These persons conclude and approve transactions, that is, they "have the opportunity to influence the decisions made by the client." This category also includes individuals who manage the management company of the organization.

Example 5

Collapse Show

By the way, the legislator also took this path. If the organization, for some reason, cannot identify the beneficiary, its general director can be recognized as such (subparagraph 2, clause 1 of article 7 of Law No. 115-FZ).

Secondly, the beneficiary can be recognized as a person who can use his powers to put pressure on the formal owners of the company. For example, the beneficiary can be recognized as the head of the organization in which the persons who, on paper, are the owners of the company work. Many entrepreneurs believe that registering a business with a driver or a security guard will help them stay in the background. In fact, this approach is far from a panacea.

Thirdly, the beneficial owner can be a person who is able to influence decision-making due to family or friendly relations with formal leaders or owners of shares in the authorized capital of the organization.

In general, from a practical point of view, the concept of “beneficiary” is very close to the tax term “actual recipient of income” (clause 2 of article 7 of the Tax Code of the Russian Federation). Ultimately, it is through the classic question "who gets the final income?" and the beneficiary is determined.

Who is obliged to identify the beneficiaries?

The requirement to establish beneficial owners applies to almost all companies, regardless of the field of activity and legal form. Moreover, the law in this case does not distinguish between commercial and non-commercial organizations. Which is strange in itself. Indeed, by definition, the beneficiary is the beneficiary. That is, the one to whom the business brings income. Therefore, in relation to non-profit organizations, such an approach seems strange. Thus, the founders of charitable organizations, by virtue of the goals of their creation, should theoretically not benefit from their activities. However, the law makes no distinction in this case. Information should be collected by all legal entities, with a few minor exceptions.

There is no need to establish beneficial owners (paragraphs 2-5 subparagraph 2 of paragraph 1 of article 7 of Law No. 115-FZ):

• institutions under the jurisdiction of state and municipal authorities;
• state corporations or organizations in which the Russian Federation, constituent entities of the Russian Federation or municipalities have more than 50% of shares (stakes) in the capital. In this case, the beneficiary is already obvious;
• issuers of securities admitted to organized trading, which disclose information about securities. These organizations are excluded from the list, since they disclose these data at the request of other regulations (first of all, Federal Law No. 39-FZ of 22.04.1996 "On the Securities Market");
• foreign organizations whose securities have passed the listing procedure on a foreign exchange included in the list approved by the Bank of Russia. As in the previous paragraph, the requirement to identify beneficial owners is excluded as duplicating the more detailed requirements of other laws.

Who should I report to?

Information on beneficiaries may be requested by:

• Federal Tax Service (FTS of Russia);
• Federal Service for Financial Monitoring (Rosfinmonitoring).

The rules for presenting information were approved by the Decree of the Government of the Russian Federation of July 31, 2017 No. 913 (hereinafter referred to as the Rules).

The request can be submitted to the organization on paper or electronically. At the same time, Rosfinmonitoring uses the resources of the tax service to send inquiries in electronic form. In practice, requests are usually sent electronically through channels of information exchange with tax authorities.

The company must provide information on beneficial owners within five working days from the date of receipt of the request. Information is provided as of the date specified in the request. The response must be sent through the same channels through which the request was received. Upon receipt of an electronic request, the answer can be not only through the channels of interaction with the tax authorities, but also on a material medium (flash drive or disk). In the latter case, you will need a cover letter signed by the CEO. Such a letter must be attached to the information carrier and presented by courier or sent by registered mail.

The answer will not be accepted if:

• the e-mail does not correspond to the established structure and format;
• there is no enhanced qualified electronic signature of an authorized person (or there is a signature of an unauthorized person);
• there is no authorized person's signature on the cover letter;
• the optical or digital media is damaged, making it impossible to read its contents (when answering a request on paper).

If the message is not accepted, then after receiving the relevant notification from the tax authority, the company will have exactly three working days to make corrections and resend the message.

What to report?

New Art. 6.1 of Law No. 115-FZ is called "Obligations of a legal entity to disclose information about its beneficial owners." In accordance with it, companies are obliged to:

• have information about their beneficiaries;
• regularly (at least once a year) update this information;
• keep information about the beneficiaries for at least five years from the date of its receipt;
• disclose information about beneficiaries in reporting (when required by law).

The list of information about the beneficiaries that the company should have is given in par. 2 sub. 1 p. 1 of Art. 7 of Law No. 115-FZ. At a minimum, the following details of the beneficiary must be established:

• Full name, date of birth, citizenship, TIN;
• details of the identity document;
• migration card data;
• data of a document confirming the right of a foreigner or stateless person to stay (reside) in Russia;
• the address of the place of residence (registration) or place of stay.

The legislation does not regulate the procedure for storing and the procedure for sending requests to beneficiaries. Therefore, it can be approved by the internal documents of the company. It is also necessary to determine those responsible for this work.

Finding a beneficiary

So, the organization is obliged to take all measures to establish its beneficiary, and after establishment - to store information about him and regularly update the data. Let's consider how to do this using the example of business entities.

In fact, the only way to get the data is to send written inquiries to persons who may be beneficial owners. Of course, the facts of sending and receiving a request by the addressee must be documented. Therefore, it is better to send a request by registered mail with a list of attachments or by courier service.

The beneficiary controls the capital

At the first stage of the work, it is necessary to identify those persons who could potentially be the beneficiary. Rosfinmonitoring proposes to use any legal sources of information for this (clause 2.1 of Rosfinmonitoring's information letter dated March 18, 2009 No. 2 "On the procedure for applying the Federal Law No. 115-FZ of August 7, 2001"). For business entities, the main sources are the Unified State Register of Legal Entities (for LLC) and the register of shareholders (for JSCs).

The company must identify:

• individuals who directly own more than 25% of shares (shares);
• all (!) legal entities that are its participants (shareholders).

The first category of persons is automatically (by virtue of the law) entered into the list of beneficiaries. It is necessary to send a request to their address to confirm this status, since they can own shares (shares) in the interests of someone else. We also recommend sending inquiries to individuals who own less than 25% of shares (shares), because they may be related, which means that their shares (shares) can be summed up.

It is necessary to send a request to the address of the second category of persons to clarify who owns their authorized capital (Example 6). This is necessary to establish indirect ownership of a 25% stake (shares). Moreover, requests, in our opinion, must be sent regardless of the share of ownership of these legal entities. After all, it is possible that the ownership package will "fold" from several parts.

Example 6

Collapse Show

The second stage is processing the received responses. Based on its results, the company should understand whether there is a need for further inquiries. Perhaps the organization will receive information that other firms own shares in the authorized capital of its participant - a legal entity. And according to the law, to identify the beneficiary, you need to reach the end of the chain - to the individual.

Of course, the legislator assumes that the higher-level organizations in the chain inform the lower-level ones about all the links that are above them. But this assumption does not always correspond to reality. Therefore, after receiving a message in response without a direct indication of the beneficiary, it is worth sending inquiries to organizations further down the chain of ownership. And such requests must be sent until all the "physicists" are revealed (or until the answers stop coming).

Example 7

Collapse Show

It should be noted that the obligation to provide the information necessary to establish beneficial owners rests only with the first-tier companies. That is, on legal entities - participants of this company, as well as on persons who otherwise control it (clause 5 of article 6.1 of Law No. 115-FZ). This means that the participant of the participant can ignore the request with a clear conscience, if he is not the person controlling the company.

Beneficiary uses other means of control

If the beneficiary controls the company not through the ownership of its shares (shares), then there are not very many mechanisms for establishing it. In the same way as in the case of capital controls, inquiries should be directed to the possible beneficial owners. But it is much more difficult to outline the circle of “candidates” for beneficiaries. First, there are no uniform criteria for identifying such persons. Secondly, the very fact that they need to be identified indicates their tendency to remain in the shadows.

Now let's ask ourselves the question - which CEO (employee) will go against the will of the person who actually controls the company? That is, against the will of the one who pays him a salary?

It turns out that in this situation a company can identify its beneficiaries only in one case - if the beneficiary himself declares himself and explains the mechanism of his control. In fact, such situations happen quite often. Usually, “coming out of the shadows” occurs after communicating with the bank, for example, when applying for a loan. Accordingly, the decision to enter the beneficial owner into the register of the organization itself is made in the same way.

Found. What's next?

Information must not only be identified, but also stored. The easiest way to do this is in the register of identified beneficiaries (Example 8). The form of such a register is dictated by the list of data on the beneficiary, which the company must have (subparagraph 1 of paragraph 1 of article 7 of Law No. 115-FZ).

Example 8

Collapse Show

At the same time, the documents on the basis of which the beneficial ownership was established also need to be formed into an archival file. They must be stored for five years (subparagraph 2, paragraph 3, article 6.1 of Law No. 115-FZ).

Not found. Will they be punished?

For those who do not have information about their beneficial owners, the law is harsh. The fines are quite heavy even for large companies. To pay half a million simply for the fact that the register of beneficial owners of the company was not completed in time is a dubious “pleasure”.

Fragment of the document

Collapse Show

Article 14.25.1. Administrative Code of the Russian Federation

Failure by a legal entity to fulfill its obligations to establish, update, store and provide information about its beneficial owners or about the measures taken to establish in relation to its beneficial owners information determined by the legislation of the Russian Federation, at the request of the authorized body or tax authorities -

shall entail the imposition of an administrative fine on officials in the amount of thirty thousand to forty thousand rubles; for legal entities - from one hundred thousand to five hundred thousand rubles.

It's easy to avoid responsibility. It is only necessary to provide an answer to the request of Rosfinmonitoring or the Federal Tax Service of Russia in time. But what if the company was unable to obtain information about its own beneficiaries? How to be in this case?

The main thing is to show the regulatory authorities that the company has tried to collect the necessary information. Indeed, the law establishes the obligation to collect and store such information, but does not establish responsibility for the refusal of others to provide it. Moreover, even a theoretical obligation (clause 5 of article 6.1 of the Federal Law of Law No. 115-FZ) applies only to the organization's own participants and persons who directly control it, but does not at all apply to the founders of your founders.

Therefore, no matter how hard the organization tries, it is likely that it will not be able to identify its beneficiaries (or will not identify all). The simplest situation is when all the participants of an LLC are legal entities, but the chain does not end there, since the founders of the founders are also legal entities. Even if the "first line" companies (your participants) answered you, then the "second line" may ignore the request. Especially if companies registered abroad appear in the chain. Are you facing a fine? Rosfinmonitoring believes no.

Fragment of the document

Collapse Show

Rosfinmonitoring announcement "On the procedure for disclosing information about their beneficial owners by legal entities in accordance with Article 6.1 of Federal Law No. 115-FZ of 07.08.2001" On Counteracting Legalization (Laundering) of Criminally Obtained Incomes and Financing of Terrorism "

If a legal entity cannot establish its beneficial owner and has taken all available measures to establish the relevant information regarding it, then such a legal entity, upon receipt of a request from the authorized state authorities, must provide information on the measures taken to establish the information about their beneficial owners. The documents confirming the adoption of measures may be the above requests to the founders (other controlling persons) and the answers to them.

Thus, if the organization was unable to collect data on its beneficiaries through no fault of its own, there is no need to fear a fine. However, it will need to be confirmed that the company has done its best. As indicated by Rosfinmonitoring, in fact, the only way to do this is to attach postal receipts and lists of attachments confirming that requests were sent to potential beneficiaries.

Conclusion

The practice of holding accountable for the lack of data on the beneficiary cannot yet be called widespread. And this is not surprising, because the bylaws that determine the procedure for interaction of regulatory bodies with legal entities entered into force only on August 18, 2017 (the date of entry into force of the Rules). Therefore, the business is likely to face massive inquiries as early as next year. And it is necessary to prepare for this in advance, because after receiving the request promptly (within five working days), the organization simply will not have time to collect information about the beneficiaries.

Who is the beneficiary? You may have heard this word in the news on television or in the movies. However, this term itself is not popular enough, even taking into account the peculiarities of the development of the economy, business and entrepreneurship, as well as the era of the Internet.

We will try to answer the question, who is the beneficiary, as fully developed as possible. In this case, it is worth highlighting some details, since the word has several meanings, and therefore there are some difficulties with their definitions, for example, in the areas of business and law.

Term

The word itself beneficiary has French roots (from benefice - income, profit) and translates as beneficiary... It is possible that it also came from the English benefit, which translates as wealth... In any case, the context is related to the monetary sphere and values.

Definition

In the broadest sense, a beneficiary is a person who owns some valuable property and benefits from it, for example, by transferring his property for use. At the same time, the nature of values ​​can be completely different: real estate, transport, securities, production facilities and other assets. The simplest example is the landlord of an apartment: very often people who rent out real estate are called rentiers. Also, sublease can be attributed here, that is, the removal of real estate with the aim of renting it out at a higher price.

However, the term beneficiary there are other areas of application, as it is used in many areas related to law and economics. In particular, insurance, brokerage and business. This will be discussed in more detail.

Why you might not have heard about this term

Despite such logical things as the spread of the Internet, the appearance of many different portals and sites dedicated to jurisprudence, economics and business, the word itself beneficiary used quite rarely.

The most commonly used words are, for example, the founder of the business, the landlord, the owner, the owner, but the term described is almost never used and is highly specialized. The reason lies in the fact that this foreign word is unusual, and also has many synonyms and expressions similar in context, examples of which you can see above.

The wider spread of the word to which this article is devoted occurred with the appearance of the edition of the federal law, which entered into force on December 21, 2016, which obliges legal entities to disclose information about the beneficiaries. This innovation will be discussed further, after highlighting some of the facts.

Who can be the beneficiary

Both legal entities and individuals can be beneficiaries. An example is the owners of production facilities, vehicles and premises that are rented and used by enterprises.

However, this terminology is used in various fields: even though the meaning is similar, the meanings may differ slightly depending on the context, which can lead to confusion and difficulties. The following are the most common examples from various fields where the described term appears widely.

Insurance companies

In the insurance industry, a beneficiary is a person who can claim a payment. It is important to note that this is not necessarily the owner of the insured property. For example, the recipient of the funds may be a bank.

If we are talking about life insurance, then the beneficiary can be not only the insured person, but also, for example, a spouse or heir.

Lending

In the credit sector, the above mechanism is called a bank guarantee. It implies a tripartite agreement in which the bank will be the beneficiary and will receive payment from the insurer (guarantor) upon the occurrence of the appropriate case for the client. This practice helps to reduce various risks associated with non-repayment of debt due to accidents and other negative factors that may affect the borrower.

In general, there are many nuances and peculiarities in this area, for example, in accordance with the Civil Code, the guarantor may refuse to satisfy the beneficiary's claim for payment in cases provided for by law. For example, these may be clear violations of the terms of the warranty, problems with some documents, etc.

Federal Law "On Counteracting Legalization (Laundering) of Criminally Obtained Incomes and Financing of Terrorism" dated 07.08.2001 N 115-FZ

This normative legal act and its latest revisions contain a clause, the meaning of which is that legal entities are obliged to provide state authorities with information about beneficial owners. Even based on the name of this regulatory document, it can be concluded that the purpose of the changes is to counter various crimes and offenses.

An indicative list of data includes:

• passport data;
• address;
• TIN (if any);
• information on citizenship, a document confirming the legality of stay in the country (for foreigners).

Information about the beneficiaries can be requested not only by government agencies, but also by banks and credit institutions. For this, there are special forms and forms, in addition, some data can be clarified by requesting additional documents and information.

The duties of legal entities include the collection and storage of information about beneficial owners, as well as documentary evidence of the information received. In addition, legal entities must update the received information about the beneficiaries every 12 months. Information storage is carried out for 5 years after receipt.

The collection of data is carried out by means of inquiries in relation to the members of the firm, who are obliged to provide the information they have. Authorized state bodies and credit organizations have the rights to receive such information. The document that contains such information is called "Certificate of Beneficiaries" and contains information about the owners.

Corresponding letterheads and forms that indicate owners can be found in various sources. In addition, they are often present on the official websites of banks and lending institutions.

Beneficial owner

This term has a more precise meaning, since it appears in the above federal law and is more clearly specified. We are talking about such persons who have real power in making various decisions in firms due to the ownership of shares (more than 25%) in the authorized capital. Key actions can be carried out both directly and through third parties.

As an example, one can cite the founders of organizations, holders of large blocks of shares (in the case of joint-stock companies), as well as participants with a large share in the capital of enterprises.

In addition, the federal law has the interpretation of the term beneficiary... The latter refers to the entity that receives income from the activities of the firm.

Thus, the beneficiaries of a legal entity are entities that have more than 25% of the company's assets and the ability to make decisions, and beneficiaries are persons who profit from the activities of the firm, for example, on the basis of various contracts, commissions, etc.

Ultimate beneficiary

This term refers only to an individual. This is the true owner of any company. If you do not delve into complex structures and legal terms, but give a brief description, you can use the simplest example. For example, there is a limited liability company that makes a profit due to the fact that it is the founder of another organization. In turn, the owner of the first company will be the ultimate beneficiary, since he can benefit from the activities of several enterprises.

Thus, this definition describes precisely the individual who has the most influence and the largest share among the participants in the organization.

Rights

If we consider the beneficiaries as founders, participants and shareholders, then the possibilities will be fairly standard. These include such opportunities as disposing of their assets, controlling the work of the organization's management, participating in meetings, making decisions in accordance with their shares, making a profit, dividends. It is very important to document activities and conclude contracts related to property or securities management.

Outcomes

Thus, we have answered the question of who the beneficiary is. In a general sense, this is a person who has any sources of income, which can be presented in completely different forms: securities, real estate, various production facilities, etc.

As a summary, we can conclude that recent changes in federal law oblige legal entities to disclose their beneficiaries. The latter, in turn, are obliged to provide the necessary information. In addition, data can be collected by various banking institutions and credit organizations.

This legislation can contribute not only to the prevention of offenses, but also to the protection of the beneficiaries themselves, since it involves fixing transactions and operations on a contractual basis, which can become a pillar in the protection of the rights of owners and founders.

In addition, the above federal law contains the most accurate legal definition of who the beneficiary is.

It is important to note that the article is for informational and informational purposes only: the above information is subject to change in accordance with current legislation and future amendments.

If the reader needs more data, then it is better to fully study the federal law specified in the article on his own or seek help from qualified lawyers.