What Charities Need to Know About the Register of Beneficial Ownership
What is Beneficial Ownership?
The EU Anti Money Laundering (AML) Beneficial Ownership of corporate entities Regulations 2016 came into force in November 2016 and obliged all relevant entities to obtain and hold information on their beneficial owners and to enter that information onto an internal beneficial ownership register which it must keep and maintain.
This obligation to keep and maintain an internal beneficial ownership register is a live and current legal obligation.
There are also AML Regulations, (called the European Union (Anti-Money Laundering: Beneficial Ownership of Corporate Entities) Regulations 2019) which establish a Central Register. In addition to keeping the internal beneficial ownership register, charities which are companies will now need to file their beneficial ownership information in the Central Register.
Part 3 of the new regulations came into force on 22 June 2019 and commenced the process of establishing the Central Register which went live on 29 July 2019 (www.rbo.gov.ie). The Central Register is being administered in Ireland by the Companies Registration Office under a separate registrar called the Registrar of Beneficial Ownership (RBO).
Why is this relevant to charities?
The regulations apply to companies, and any charities that are registered as companies with the Companies Registration Office must comply with the regulations. Most charities which are companies, are companies limited by guarantee (CLGs) but there may be other company formats used by charities – in any event, the regulations apply to all companies (with very limited exceptions).
What is a beneficial owner?
A beneficial owner is any natural person who owns or controls (directly or indirectly) 25% or more of the shares or voting rights in a company, or controls the company by other means.
As CLG’s don’t have shares, typically the members must be considered for voting rights and control.
If the directors of a company cannot identify a beneficial owner, the new regulations require companies to enter the details of their “Senior Managing Officials” on the Central Register.
In the case of most charities who do not have shares and who have more than 4 members, the Regulations generally require such companies to maintain the details of their Senior Managing Officials who are deemed to be the persons who exercise control.
Although this may vary depending on the circumstances of each charity, in most cases, the Senior Managing Officials will comprise the Board of Directors and the CEO, whose details then need to be maintained on an internal register and filed on the public register.
What details need to be maintained and filed?
The following details need to be maintained and filed:
- Name – Date of Birth – Address – Nationality – Country of Residence - Statement of the nature & extent of interest held and control exercised – Date of entry and cessation of beneficial owner.
- Also for the purposes of filing on the Central Register, the PPS number of each individual is required. *
- *The PPS number is only used for verification by the RBO, it will not be held by the RBO or accessible by any third party
What will the information be used for and what information will be available to the public?
The information will be made available to a range of statutory authorities, such as the Gardaí, should such authorities need to find out who is the beneficial owner of a company.
Following the recent judgement by the European Court of Justice, the public search facility on the RBO register for beneficial ownership information was suspended. Mason Hayes & Curran published a blog on this topic exploring potential implications of this judgement. The RBO is exploring a solution to provide access to Designated Persons only. For more, go to: https://rbo.gov.ie/.
Where and when does filing take place?
The register (www.rbo.gov.ie) opened on 29 July 2019. Thereafter companies must keep the register up-to-date if the details of beneficial owners change.
Is there a suggested standard wording for charities to describe the nature and extent of ownership or control?
Following an event held in June 2019 by The Wheel and Mason Hayes and Curran it was agreed that, for charities, a standard suggested wording would be developed to answer the question – ‘describe the nature and extent of ownership held or control exercised’. The following wording is now suggested but any charity who feels its circumstances may require different wording should take their own legal advice.
As the company is a registered charity, it does not have beneficial owners in a conventional sense. Its assets are held by the company for the charitable purpose and the company is operated for the benefit of its beneficiaries. For the purposes of complying with the European Union (Anti-Money Laundering: Beneficial Ownership of Corporate Entities) Regulations 2019 (the New Regulations) the company has provided the details of the persons listed in this submission as its beneficial owners (within the meaning of the New Regulations).
For the question, “Is the person’s interest/control direct, indirect,both or neither?”
Each charity will have to consider this for itself but in many cases where filing the details of the Senior Managing Officials, it would seem that ‘”indirect” is the most accurate description.
Central Register of Beneficial Ownership of Trusts
The most recent update to the European Anti-Money Laundering (AML) regulations, as transposed into law in Ireland, now require Trusts to maintain an internal register of their Beneficial Ownership, and to file details with the central register, operated by Revenue.
We have worked closely with Revenue on the interpretation of what this means for charities and they have published Frequently Asked Questions as guidance which includes a section on charities.
This is a complex area and you may need your own legal advice or you may need to reach out to Revenue directly on trustregister@revenue.ie if you have any queries.
Queries
If you have any queries please contact our Governance & Compliance Manager, Jon McBride – jon@wheel.ie.
The Wheel was delighted to partner with Mason Hayes and Curran on an event on the topic of Beneficial Ownership. You will find a video from the event here and the slides from the event here.
Mason Hayes & Curran also hosted an informative webinar on the matter for Trusts specifically in October 2021. A recording is available on their website.
Visit Mason Hayes and Curran’s website for specific advice for charities from them.