Can a legal entity be a beneficiary? Who is the beneficiary. Disclosure of information about ultimate beneficiaries

The beneficiary is the recipient of the profit, this term can have several semantic meanings depending on the field of activity.

If we are talking about an insurance business, then the beneficiary is the recipient of the indemnity specified in the insurance policy. If the person named in the contract does not live to see its expiration date, another person may become the beneficiary. With regard to property insurance, any owner becomes the owner if the property is insured in his favor by another person.

In inheritance law, the beneficiary is the testamentary heir.

The beneficiary is also a person who receives income from his property, for example, by receiving rent when renting out a property.

The concept of a beneficiary is also applicable to the owners of shares who have transferred them to trust management in order to obtain maximum profit. The beneficiaries-holders of shares have the right to transfer ownership, decide on the company's activities, the right to vote at the shareholders' meeting, as well as to participate in the election of the company's management.

If we are talking about a trust, then the beneficiary is the person who receives financial benefit from the management of the property of the trust.

The term beneficiary is widely used in offshore business. In this case, this is the real owner of the business, which is also called the “ultimate beneficiary”. It, as a rule, differs from the nominal owner, which is indicated in the constituent documents. That is, de facto the beneficiary is the owner of the business with all management rights and receives income from the company's activities, but de jure ownership is assigned to other persons. The presence of nominal leadership is justified by maintaining confidentiality in relation to the final beneficiary.

Beneficiaries in banking

In banking, the concept of a beneficiary is used in operations with bank letters of credit, collections, guarantees and certificates.

When issuing a bank letter of credit, the beneficiary is the person in whose name it is opened, the owner of the documentary letter of credit.

As part of the collection banking operation, the beneficiary is the recipient of the money after banking operations that confirm the receipt of the property by the buyer as part of the transaction.

With regard to a bank certificate, the beneficiary is the recipient of funds on it upon expiration of its validity. Since the certificates are not named, this is not necessarily the person who opened the bank certificate.

The beneficiary under the bank guarantee is the lender, who must receive the funds under the agreement.

In December 2016, Federal Law No. 115-FZ of 07.08.2001 “On Countering the Legalization (Laundering) of Proceeds from Crime and the Financing of Terrorism” (hereinafter referred to as Law No. 115-FZ) was amended 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 innovations came into force, many companies still have not set up 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, the organization may face a fine of up to half a million rubles. In the article, we will describe the basic algorithms of work and give tips that can help avoid negative consequences.

Who is a beneficial owner?

In para. 13 art. 3 of Law No. 115-FZ gives a clear definition of the beneficiary. When it comes to combating money laundering, the beneficial owner is understood as an individual who ultimately directly or indirectly (through third parties) owns (has a predominant participation in) more than 25% in the capital of the organization or has the ability to control the actions of the client by others. ways.

Note

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

As you can see, the legislator has left a very wide field of activity for law enforcers. "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 the "physicist" owns 25% of the shares (stakes in the authorized capital), he is recognized as the beneficiary.

Example 1

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

With indirect control, things are somewhat more complicated. There are many more options here.

Example 2

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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

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More complex variations of indirect ownership are also possible, such as parents or guardians through a minor or incapacitated ward.

Example 4

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

The Sidorov brothers jointly control a 40% stake in the charter capital of Romashka LLC. Also jointly they can be recognized as beneficiaries.

In general, the procedure for determining beneficial owners through direct or indirect ownership of "shares in the business" is intuitive. Much more questions are usually caused 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 information report “Typical Issues of Application of Certain Norms of the Federal Law No. 115-FZ of 07.08.2001 “On Combating the Legalization (Laundering) of Proceeds from Crime and the Financing of Terrorism”” (no number and date) .

According to Rosfinmonitoring, beneficial owners include, firstly, persons holding senior positions, such as the general director, members of the board of directors and the board (directorate). These persons enter into and approve transactions, that is, "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

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By the way, the legislator also went down this path. If an organization for some reason cannot identify a beneficiary, its general director may be recognized as such (subparagraph 2, paragraph 1, 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, a beneficiary may be recognized as the head of an organization that employs persons who, on paper, are the owners of the company. Many entrepreneurs believe that if you register a business for a driver or a security guard, this will help you stay in the shadows. In fact, this approach is far from a panacea.

Thirdly, the beneficial owner may be a person who is able to influence decision-making by virtue of family or friendly relations with formal managers 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 "actual recipient of income" (clause 2, article 7 of the Tax Code of the Russian Federation). Ultimately, it is through the classic question “who gets the bottom line?” and the beneficiary is identified.

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 in itself is strange. After all, by definition, a beneficiary is a 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, theoretically should not benefit from their activities. However, the law makes no distinction in this case. Information must be collected by all legal entities, with some minor exceptions.

It is not necessary to establish beneficial owners (paragraphs 2-5, subparagraphs 2, paragraph 1, 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, subjects 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 that disclose information about securities. These organizations are excluded from the list, as they disclose this data at the request of other regulations (primarily Federal Law No. 39-FZ of April 22, 1996 “On the Securities Market”);
• foreign organizations whose securities have been listed 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 has been removed as duplicating the more detailed requirements of other laws.

Who to report?

Information about beneficiaries can be requested:

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

The rules for submitting information are approved by 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 requests in electronic form. In practice, requests are usually sent electronically through information exchange channels with the tax authorities.

The company must provide information about the 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 tangible 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 carrier of information and presented by courier or sent by registered mail.

The answer will not be accepted if:

• the electronic message 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);
• the cover letter does not have the signature of an authorized person;
• the optical or digital media is damaged, making it impossible to read its contents (when responding to 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." According to it, companies are required to:

• have information about their beneficiaries;
• regularly (at least once a year) update this information;
• store information about 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 must have is given in par. 2 sub. 1 p. 1 art. 7 of Law No. 115-FZ. At a minimum, the following information about 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 (residence) in Russia;
• address of the place of residence (registration) or place of stay.

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

Search for a beneficiary

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

In fact, the only way to obtain data is to send written requests 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 work, it is necessary to identify those persons who can potentially be the beneficiary. Rosfinmonitoring proposes to use any legitimate sources of information for this (clause 2.1 of the information letter of Rosfinmonitoring dated March 18, 2009 No. 2 “On the procedure for applying Federal Law No. 115-FZ dated August 7, 2001”). For business entities, the main sources are the Unified State Register of Legal Entities (for LLCs) 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 law) entered in the list of beneficiaries. A request must be sent to their address to confirm this status, since they may own shares (shares) in the interests of someone else. We also recommend sending requests to individuals who own less than 25% of shares (shares), because they may be related, which means that their shares (shares) can be summarized.

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 “compose” from several parts.

Example 6

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The second stage is the processing of the received answers. Based on its results, the company should understand whether there is a need to send further requests. Perhaps the organization will receive information that other companies 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 an individual.

Of course, the legislator assumes that the higher organizations in the chain inform the lower ones about all the links that are above them. However, this assumption is not always true. Therefore, having received a message in response without a direct indication of the beneficiary, it is worth sending requests to organizations further down the ownership chain. And such requests must be sent until all “physicists” are identified (or until the answers stop coming).

Example 7

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

The 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, it is necessary to send requests to 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 desire to remain in the background.

And now let's ask ourselves the question - what general director (employee) will go against the will of the person who actually controls the company? That is, against the will of the one who pays his salary?

It turns out that in this situation the 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 beneficiary person in 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 very list of data on the beneficiary that the company must have (subparagraph 1, paragraph 1, article 7 of Law No. 115-FZ).

Example 8

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

Not found. Will they punish?

For those who do not have information about their beneficial owners, the law is harsh. Fines are quite significant 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 a timely manner is a dubious “pleasure”.

Document Fragment

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Article 14.25.1. Code of Administrative Offenses of the Russian Federation

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

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

Avoiding liability is easy. It is only necessary to provide a response 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 tried to collect the necessary information. Indeed, the law establishes the obligation to collect and store such information, but it does not establish responsibility for the refusal of other persons to provide them. Moreover, even a theoretical obligation (clause 5, article 6.1 of the Federal Law of Law No. 115-FZ) applies only to the organization’s own members and persons directly controlling it, but does not at all concern 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 of them). The simplest situation is when all participants in an LLC are legal entities, but the chain does not end there, because the founders of the founders are also legal entities. Even if the companies of the "first line" (your participants) answered you, then the "second line" can ignore the request. Especially if companies registered abroad appear in the chain. Are you facing a fine? Rosfinmonitoring thinks not.

Document Fragment

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Rosfinmonitoring information message “On the procedure for legal entities to disclose information about their beneficial owners in accordance with Article 6.1 of the Federal Law of August 7, 2001 No. 115-FZ “On counteracting the legalization (laundering) of proceeds from crime and the financing of terrorism””

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

Thus, if the organization was unable to collect data on its beneficiaries through no fault of its own, you can not be afraid of a fine. However, you will need to confirm that the company has done everything in its power. As Rosfinmonitoring pointed out, in fact, the only way to do this is to attach postal receipts and descriptions of attachments confirming that requests were sent to possible 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 by-laws that determine the procedure for interaction between regulatory authorities and legal entities came into force only on August 18, 2017 (the date the Rules came into force). Therefore, it is likely that businesses will face massive requests 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.

The development of market relations in our country has led to the emergence of new economic entities. One of these can be considered those categories of persons that fall under the definition of beneficiaries.

Who are the beneficiaries

Under the beneficiaries, it is customary to consider legal entities and individuals who have income from certain transactions. These entities are beneficiaries from transactions with their property in trust. Beneficiaries may also be holders of insurance policies.

Who can be called beneficial owners

Beneficial owners in accordance with Federal Law-115 are persons who actually own business entities, assets and other valuables.

An excerpt from the main concepts used in the Federal Law of 08/07/2001 No. 115-FZ:

« beneficiary — a person for whose benefit the client acts, including on the basis of an agency agreement, agency agreements, commission and trust management agreements, when conducting operations with cash and other property;

beneficial owner - for the purposes of this Federal Law, an individual who ultimately directly or indirectly (through third parties) owns (has a predominant participation of more than 25 percent in the capital) a client - a legal entity or has the ability to control the client's actions. The beneficial owner of an individual client is considered to be this person, unless there is reason to believe that the beneficial owner is another individual;«

Beneficial owners are not always listed in the constituent documents, but they can fully exercise control over the conduct of the business in order to make a profit. Legislatively, the beneficial owner must own a certain share in the capital of a legal entity (from 25%).

The presence of insurance relations, bank accounts or activity in the securities market involves the collection of information about such persons, which must be provided to interested organizations.

Who is the ultimate beneficiary

The ultimate beneficiary is the individual who owns the beneficiary organization. Not only shareholders or nominee managers, but also other organizations can own shares of a company. In turn, the real owners of organizations that have shares in other companies are called the ultimate beneficiaries. They are also beneficial owners.

What is the difference between beneficial owner and beneficiary

Law No. 115-FZ gives concepts beneficial owner and beneficiary. There are many similarities between these terms. Both can benefit from the actions of the client - the organization, or from other assets. However, the beneficial owner, unlike the usual beneficiary-beneficiary, has a share in the capital of the operating company of more than 25%, thereby gaining access to control and management.

Regulatory authorities are only interested in information about beneficial owners. Their companies are required under certain conditions to provide information to detect and prevent criminal acts related to terrorism and money laundering. Based on the information collected, actions should be taken to prevent financial fraud.

Why do we need information about beneficiaries?

As mentioned above, information about beneficiaries is collected in order to prevent the laundering of money and other assets by criminal means. Another important point in the provision of data is the fight against terrorism.

Since 2013, companies have become obliged to report information at the request of banking structures. Banks, in turn, are forced to transfer data on the beneficial owners of their clients to Rosfinmonitoring, which, in case of non-receipt of information, has the right to impose a significant fine of up to 500,000 rubles on a credit institution.

The same actions are imposed on other organizations related to financial transactions - leasing and insurance companies, pawnshops, participants in the securities market.

It is not uncommon for large accounts to be opened for persons who have only the right to sign, being the title owners. In this case, increased control over the beneficiary person is established.

It is not so difficult to identify the beneficiary. In this case, the concept of “beneficial ownership” is applied, that is, the identification of the real owner of large assets.

Information about the chain of ownership, including beneficiaries

Information about the true owners of the business can be requested not only by financial institutions, but also by other organizations that are somehow connected with the state.

Often this is necessary when concluding public procurement contracts. In this case, a document called "Information on the chain of ownership, including beneficiaries" is drawn up. The personal details of the beneficiaries are entered here - passport data, TIN, address of residence.

Rights and obligations of the beneficiary and guarantor under a bank guarantee

The beneficiary has not only certain rights protected by law, but also must fulfill certain obligations.

The property of the beneficiary may be protected by a contractual trust agreement. In case of violation of the clauses of the contract, both the beneficiary and the nominal executor are liable.

The ultimate owner of assets to protect his property must provide in the agreement for the possibility of pledging the property of the trustee to cover potential losses. In case of unsatisfactory performance of the nominal executor, the beneficiary has the right to involve another person.

The conclusion of a transaction or the conclusion of an agreement between the beneficiary and the debtor (beneficiary and principal) may be accompanied by the conclusion of a bank guarantee on certain conditions. In this case, only a natural person can act as a guarantor.

The essence of this agreement is that the guarantor undertakes to pay material claims against the principal of the beneficiary upon a written application of the latter. The recipient of the guarantee is always the lender. The guarantor acts on the initiative of the principal, however, the choice of a bank guarantee may remain with the beneficiary.

The rights of the creditor when concluding an agreement with a bank guarantee provide for his right to timely repayment of the debt, the fulfillment of other conditions of the agreement. Responsibilities include the timely transfer of goods, assets and the fulfillment of all obligations.

If the beneficiary does not receive material benefits, he has the right to demand from the guarantor the fulfillment of obligations indisputably or with justification of the requirements in writing, depending on the terms of the contract. However, claims can only be made until the end of the warranty period. The guarantor, in turn, notifies the principal of the actions taken and examines the validity of the claims of the beneficiary.

Read - is it necessary to open or you can do without it.

If you are bidding for the purpose of concluding municipal and state contracts, then about ensuring the execution of such a contract under 44-FZ.

The easiest way to check the counterparty by TIN is on the website of the federal tax service.

Many owners of property, cash and other assets can act as beneficiaries in the modern world. Their activities are aimed at making a profit through the transfer of management to trustees, the conclusion of insurance contracts or banking operations.

State control over the movement of assets of large owners is aimed at identifying cases of illegal money laundering and preventing the financing of terrorism.

Actions are quite justified, especially when concluding contracts with state participation, when the regulatory authorities are interested in information about the recipient of budget funds.

However, many believe that the collection of information about the chain of business owners, including the ultimate beneficiaries, is contrary to the law on the protection of personal data. In this case, business representatives should make a choice between being interested in the further development of companies or providing information about the real owner.

The market economy in our country is developing, new terms and concepts are emerging that we have not encountered before. Therefore, in order to be "on the crest of a wave", it is necessary to constantly replenish your "economic dictionary". This is necessary not only for professionals, but also for ordinary citizens. After all, we are all related to finance.

The definition of the concept of a beneficiary is somewhat different depending on which area it belongs to - banking, general financial, legal, etc.

However, the term can also be defined in general terms. In simple terms, a beneficiary is a person in whose favor certain actions are carried out that bring profit (for example, a bank account is opened, funds are transferred, a letter of credit is opened, trust management of property is carried out, etc.).

The legislative framework

The legislation of our country will help to deal with the concept of a beneficiary more specifically. The main normative act in this area is the so-called. "anti-laundering law" 115-FZ. It defines the term "beneficial owner" (paragraph 13, article 3 of Law 115-FZ):

beneficial owner- for the purposes of this Federal Law, an individual who ultimately directly or indirectly (through third parties) owns (has a predominant participation of more than 25 percent in the capital) a client - a legal entity or has the ability to control the client's actions. The beneficial owner of an individual client is considered to be this person, unless there is reason to believe that the beneficial owner is another individual;

The same federal law prescribes the obligation of banks and other financial institutions involved in transactions with funds to identify beneficial owners. The law also specifies the features of identifying these persons.

The last amendment to the law was approved on June 23, 2016 and recorded in 215-FZ. It clarifies the features of disclosure of information by legal entities. According to this regulatory act, they must record data on beneficial owners in their databases.

There is a requirement to regularly update this information at least once a year. They are required to provide this information upon request:

• authorized bodies,
• tax authorities;
• federal executive body.

A legal entity that does not provide this information will be fined.

The improvement of the legislative framework was caused by the need to increase the transparency of the activities of organizations, reduce the risks of their involvement in dubious activities, including those related to money laundering and financing of terrorist activities.

The legal framework governing relations with beneficiaries was supplemented by Bank of Russia Regulation No. 499-P dated October 15, 2015. It prescribes the features of identifying beneficiaries and beneficial owners by credit institutions in order to ensure the goals of combating the laundering of “criminal” proceeds. The Regulation specifies:

• criteria for identifying beneficiaries by credit institutions;
• documents provided by its clients for these purposes;
• features of maintaining the client's dossier;
• other questions.

At the same time, the Central Bank of the Russian Federation regularly explains to credit institutions the specifics of the operation of these laws and analyzes exceptional cases. These moments are covered both in the letters of the Central Bank of the Russian Federation, and in conferences, round tables, etc.

Who is the beneficiary?

Federal laws 115-FZ and 215-FZ define the term "beneficial owner" as follows: this is an individual who directly or indirectly owns a legal entity, or has the ability to exercise direct control over its actions. At the same time, “ownership of a legal entity” means the predominant participation in it of an individual in an amount exceeding 25% in the capital.

Federal Law No. 134-FZ of June 28, 2013 obliges banks to identify beneficial owners, not only legal entities, but also individuals. Thus, in the process of carrying out their functions, credit institutions face a number of problems. One of them is the identification of beneficiaries of clients.

The concept of a beneficiary and the features of its identification will differ somewhat depending on whether it acts for the benefit of a legal entity or a natural person.

Who is the ultimate beneficiary of a legal entity?

The chain of beneficiaries ends with a particular person or group of persons who receive a certain profit. This person is the final beneficiary. In simple terms, this concept can be explained as follows: the ultimate beneficiary of a legal entity is an individual who receives profit from the activities of the organization or property management.

Beneficiary vs Beneficiary: What's the difference?

If everything is clear with the ultimate beneficiary, then the concepts of “beneficiary” and “beneficial owner” are often replaced. Indeed, both of these entities receive income from the actions of the client. So, some sources generally consider them equivalent.

However, Russian legislation gives different definitions to these terms. This can be seen in 115-FZ. Thus, a beneficial owner means an entity that owns a client - a legal entity, or has the ability to exercise control over its actions. To do this, he must own more than 25% of the company's shares.

And the beneficiary, according to the same law, is defined as the entity for the benefit of which the client operates.

Thus, the concept of "beneficial owner" seems to be more specific and narrow, which clearly states that the beneficiary must own more than 25% of the shares in the capital of the organization in order to be considered its beneficiary. He must also have access to its management and control. The beneficiary cannot do this, since he does not have his own share in the company.

Based on this, when the regulatory authorities identify illegal actions, they are interested, first of all, in the beneficial owners of organizations. This is explained by the fact that it is the latter who make decisions about illegal actions.

Features of establishing the beneficiary

It is necessary to separate approaches in determining the beneficiary for individuals and legal entities.

For a legal entity

The beneficiary of a legal entity is either one or several actual owners of the organization, who have the right to exert direct or indirect influence on the company. This impact can be both direct and indirect.

The difficulty of identifying the beneficiaries is aggravated by the fact that information about them may not be indicated in the company's documents. Or their official participation in its activities may be underestimated. Their identity is established by bank employees and can be known only to them and commercial agents.

Some companies try not to disclose information about their beneficiaries, for example, in the following cases:

• when using offshore companies;
• when optimizing taxation and tax evasion;
• when legalizing funds that were obtained by criminal means.

The voice of the beneficiary of a legal entity is dominant in resolving a number of key issues of the organization's activities, such as distribution of profits, participation in investment projects. For these purposes, the beneficiary has the right to participate in the meeting of shareholders of the company.

In order to ensure the participation of the beneficiary in the management of the company and to hide information about his personality as much as possible, various schemes for registering ownership and title documents are used.

As an example, let's cite the following situation - obtaining by the beneficiary access to the accounts of the organization by proxy, which is issued by a "dummy" director. The beneficiary owns the property through bearer shares. This may also be done through persons who act as nominee shareholders.

Example

Let us give an example of determining the ultimate beneficiary of a legal entity.

So, information about the ultimate beneficiary of the Rusal concern and Basic Element Management Company, Oleg Deripaska, was recently made public. He was forced to disclose information about the ownership structure of these companies, under pressure from international investors. To do this, Deripaska was forced to admit that he is the sole owner of these companies.

In this example, the “ultimate beneficiary” refers to the sole owner of the company, i.e. Oleg Deripaska. He may own the assets of companies directly, or indirectly, i.e. through some third party.

For an individual

Establishing information about the beneficiaries of individuals is difficult for many reasons. This is, among other things, due to the fact that customers do not disclose this information intentionally or unintentionally.

At the same time, the identification of beneficiaries of legal entities is easier due to the presence in the arsenal of credit institutions of such information portals as SPARK or Kommersant Kartoteka, where you can find this information.

For information: the need to establish the beneficiary of an individual is provided for by the standards of international organizations. This is not only a "whim" of the Russian authorized body.

Let's highlight the possible beneficiaries of an individual:

• legal representative of the subject;
• trustee.

This is, if you do not consider options that have criminal overtones. Here, as an example, one can cite the participation of the unemployed, students, or simply low-income people in cash-out schemes that have become more frequent in our country.

From a formal point of view, the persons who hired them will be the beneficiaries of these individual clients. In this case, these beneficiaries may not be identified by the bank.

Who requests this information

First of all, inspection bodies need to obtain reliable information about beneficial owners. This information is so important for several reasons. They are needed to organize countermeasures:

• "laundering" of criminal proceeds;
• financing of terrorist activities;
• tax fraud;
• illegal withdrawals of funds abroad, etc.

In addition to supervisory authorities, creditors also need this information when they make an informed decision on the possibility of providing funds.

Information on beneficial owners must be identified by credit institutions in which customers open accounts. In the questionnaires, they are required to indicate whether they are acting in their own interests or for the benefit of third parties. Credit institutions themselves transmit this information to Rosfinmonitoring.

In order to counter money laundering, credit institutions must establish the following information about the beneficiary of their client: full name, nationality, date of birth, residential address, TIN, passport or migration card details.

A sample of filling in this information is given in 115-FZ.

Rights and responsibilities of beneficiaries

The beneficiary has the following rights:

• disposal of own share;
• control over compliance with their duties by the management of the organization;
• participating in meetings held by the company's management and making decisions in accordance with its own share in it;
• receiving income from the results of the functioning of the organization.

The beneficiary can protect his property by entering into a trust management agreement. However, in case of violation of its terms, the beneficiary himself will be liable.

Some nuances

Not all organizations have ultimate owners. So, non-profit organizations do not have them. This is due to the fact that the purpose of their activities is not to make a profit.

However, it is not always possible to obtain information about beneficiaries from a commercial organization. Therefore, although lending institutions have many methods to identify ultimate beneficiaries, their identity may remain secret in some cases.

This is due to the presence of well-developed schemes for concealing the ultimate beneficiary. Especially such cases are typical for trust operations.

Despite the importance of determining the beneficiaries, the Russian legal framework is not yet fully formed and has many shortcomings. HERE >>>

Hello, dear readers of the financial magazine "site"! In this article we want to tell you who the final beneficiary(beneficiary), who are the beneficial owners, how beneficiaries differ from beneficiaries, and so on.

After all, the development of economic relations implies the emergence of new subjects of this sphere of economic activity of society, for which special terms are used.

During the formation of a market economy, such entities became categories of persons who profit from various types of entrepreneurial activities or derive income through the use of investment instruments. This term is used to define such persons.

From the material you will learn:

• Beneficiary - who is it;
• Differences between beneficiaries and beneficiaries;
• Who is the beneficial owner (owner) and how to submit information about the beneficial owner - to whom and why they are needed;
• How to stop violation of the rights of beneficiaries - rights and obligations
• and so on.

So, let's look at each item in detail.

From the article you will learn everything about the concept of "beneficiary" (beneficiary): who is and what it is, to whom and what information about beneficial owners needs to be submitted and much more

This term comes from the French word for benefit, profit.

Therefore, the simplest definition of the term " beneficiary" (also beneficiary) is the person making the profit.

In a less simplified sense, beneficiary (beneficiary) - this is the person who actually owns the assets, business facilities and other values ​​​​of the organization.

In economic activity, not everything is determined by the amount of income received in a given period. The prospects and directions of activities for making a profit are also important, and here the source of managing financial flows is already important, because from their distribution and use depends on the viability of any commercial enterprise, the amount of income received.

Therefore, in a broader sense, beneficiaries (beneficiaries) are not only individuals and legal entities having income from certain financial transactions, but also persons having the ability to control the activities of the organization and administration of its property.

That is, the beneficiaries are the persons who actually own a particular company.

2. Who are the beneficial owners - definition 📝

The statutory definition of a beneficial owner is contained in Federal Law of the Russian Federation No. 115 of 08/07/2001.

According to this definition:

Beneficial owner — this is natural person who directly or indirectly has predominant participation in a legal entity more than 25%) and the possibility control actions legal entity.

The same normative act contains the definition of a beneficiary as a person to whose benefit actions take place in relation to money and property, including on the basis of relevant agreements ( agency, surety, trust management, commission).

Who is called the beneficial owner and who can become one

Depending on the sphere of economic relations and situations arising in the process of disposing of property, the meaning of the term "beneficiary" may vary somewhat.

Based on the type of activity and attitude to property, the beneficiaries may be:

• heirs indicated in the will as persons accepting certain property into ownership or management, as well as persons who are beneficiaries in the event of the death of the recipient of any payments;
• landlords who lease their property for a regular fee;
• bank account holders;
• clients of trust organizations who have provided their property or finances in trust management to receive income;
• owners of documentary letters of credit;
• persons who are recipients of payments under insurance contracts;
• the actual owners of the companies.

To ensure their own security or in order to exclude claims from various government agencies, in the modern financial world they often resort to hiding information about the true owner of certain assets.

Especially often it concerns the property and management of economic activities of legal entities.

3. Beneficial owner of a legal entity - rights and features 📋

Beneficial owner of a legal entity is one or more of the actual owners of the organization who have right or opportunity direct or indirect impact on the company's activities.

At the same time, the personal data of such persons may not be specified in registration and statutory documents of the organization or their formal participation in the firm may be significantly underestimated.

The identity of such owners is usually known only bank teller and commercial agents .

The beneficiary of a legal entity can take part in the meeting of shareholders and other owners of the company, in which his voice is dominant in resolving issues related to the distribution of profits, the participation of the organization in investment projects.

Non-disclosure of information about actual owners used frequently:

• when conducting activities using offshore zones;
• when optimizing the taxation of organizations;
• when legalizing financial resources received in violation of the requirements of the law.

Various ownership schemes and legal documents.

The main schemes for registering the property of beneficiaries (beneficiaries). When building complex schemes for registration of property and settlements, it is important to correctly and clearly understand and use the tax laws of the jurisdictions used

For example, the beneficiary gets access to the company's accounts on the basis of a power of attorney issued in his name by a nominee director. Ownership is carried out through the ownership of bearer shares or by attracting persons acting as nominee shareholders.

Or the beneficiary enters into an agreement with the trust fund to manage the shares of the company, access to the accounts of the organization and the ability to manage them, the beneficiary receives through a trustee.

4. Who is the ultimate beneficiary - definition 📖

Definition of the term - ultimate beneficiary

The chain of beneficiaries always ends with a specific person who receives a certain profit. Such a face is ultimate beneficiary.

In this way, ultimate beneficiary — is an individual profiting from the activities of the company or the management of property.

5. The difference between the beneficial owner and the beneficiary is the main difference 📊

In a number of sources, the concept beneficiary and beneficiary are identical, at the same time, in Russian legislation, these two terms have some differences.

In this regard, the regulatory authorities in the framework of the fight against illegal actions interested in the beneficial owners of companies, as persons who determine the policy of the organization and make decisions about possible illegal fraud.

6. Who needs information about beneficial owners and why 📌

Information about beneficial owners is important for government agencies in order to counter:

• legalization of proceeds from crime;
• financing of terrorist and other criminal organizations;
• illegal withdrawal of funds abroad.

For organizations lending to businesses, information about the ultimate beneficiaries is important when making a decision on granting loans. Based on the personality of the beneficiary, the reputation of the company and the risks of its lending are assessed.

Communication of information about ultimate beneficiaries at the request of banking structures, is mandatory for organizations wishing to obtain a loan or open a bank account.

To submit information about the beneficial owner, we suggest downloading sample documents:

(doc. 60.5 kb)

(doc. 139 kb)

Sample document filling (section 1)

Information about the beneficial owner - a sample of filling out the Sberbank form, section 1

At the same time, credit institutions in Russia must provide information on beneficiaries to Rosfinmonitoring.

Failure to comply with this requirement may result in the imposition of significant penalties on organizations related to financial transactions:

• participants in the securities market;
• Insurance companies;
• pawnshops;
• leasing companies (and why we need it, we already wrote in the last article);
• credit organizations.

Who and why needs information about the owners of the company, including beneficiaries

Information about the actual owners can be requested from the company and by state and municipal structures , as well as related commercial organizations .

In addition to counteracting illegal actions and financial fraud, such information may be requested when concluding various public procurement contracts.

When providing information about the owners, a document is drawn up containing information about the owners of the company, up to individuals who are the founders of organizations that are members of the company.

This reference is called Information about the chain of ownership, including beneficiaries”, it contains information about the name of the company, its management, data of the founders ( details of companies, passport data, addresses of residence of individuals).

An example of filling out a document:

An example of filling out the document "Information on the chain of owners". The document can be downloaded from the link below.

Download an example of filling and a sample:

Instructions for filling out (doc. - 41.6 kb)

Table (example), where and what data you need to specify:

7. General rights and obligations of the beneficiary (beneficiary) 📑

The beneficiary has a number of rights protected by law. Naturally, legislative protection is guaranteed only for documentation relationship between the beneficiary and his agents – nominal owners of the company and account in.

The beneficiary has the right:

• manage your share in the company. The beneficiary may, for example, partially or wholly sell his share;
• control the performance of duties by the company's management, appoint and dismiss the general director on legal grounds;
• participate in joint-stock and constituent meetings, in accordance with the share belonging to participate in decision-making;
• receive income from the company's activities in accordance with the amount of dividends.

The functions and rights of the beneficiary vary depending on the scope of economic relations in which the person acts as the beneficiary.

For example, if a company participates as a beneficiary in the provision of bank guarantees, it is obliged to fulfill the relevant terms of the agreement in a timely manner.

At the same time, the beneficiary company has the right to fulfill obligations to repay the debt assumed by the guarantor organization.

8. Participation of the beneficiary (beneficiary) in insurance and inheritance

Beneficiary (beneficiary) in insurance - these are persons who receive insurance payments upon the occurrence of an insured event (under previously concluded insurance contracts).

At the same time, the beneficiary not necessary is the person or owner of the property insured in accordance with these contracts.

For example, when obtaining a mortgage loan, property that becomes the property of the borrower is insured, and the beneficiary in case of damage or destruction of property that is the subject of pledge, there will be a creditor . At least until the borrower fulfills the terms of the loan agreement.

The beneficiary of insurance payments can be determined by the insured person himself. For example, in life insurance, the beneficiary of the insurance may be the spouse of the insured person.

In inheritance matters beneficiary can change depending on the will of the testator or as a result of the death of the persons indicated in the will. Thus, property may be bequeathed to a relative to whom the testator entrusts custody of minor children.

Or the brother of the deceased is indicated in the will, but in the event of his death before receiving the inheritance, in fact the property will be received by the brother's heirs (heirs by right of representation).

Thus, when distributing the inheritance, the beneficiaries will be the persons specified in the will and the persons entitled to the inheritance by law.

9. Participation of the beneficiary in the bank guarantee 📃

In banking, the service of providing a bank guarantee is currently widespread.

When a deal is made between two parties , the institution providing such a guarantee is responsible for the performance of obligations under the transaction of one of the parties or for the performance of the contract as a whole.

The deal, thus, becomes tripartite, it is attended by:

• guarantor (organization providing a guarantee);
• beneficiary (a party to whom, for example, a monetary reward must be paid for the fulfillment of the terms of a transaction or certain services are provided);
• principal (the party applying for a bank guarantee).

Participation of the principal and beneficiary in a bank guarantee - scheme and principle of operation

Who are the principal and beneficiary in a bank guarantee - differences and features

Principal and Beneficiary These are absolutely opposite aspects of legal relations. In this case, the beneficiary will be the creditor, but the principal will be the debtor, where a third party (guarantor) assumes for non-fulfillment of obligations.

Performance guarantees may also be provided to ensure:

• making payments in specific situations;
• return of advance payments;
• execution of works under various contracts and tenders, including state ones. A bank guarantee is provided by the contractor to confirm their own financial solvency;
• movement of goods through customs;
• return of funds provided under loan agreements.

Despite the name, in practice such guarantees can also be provided insurance companies and commercial organizations at the request of the principal. This circumstance belongs to the number of legal conflicts in the Russian Federation.

On the one hand, the issuance of guarantees legally refers to banking operations, and on the other hand, limiting the circle of persons acting as a guarantor of the fulfillment of contractual obligations is contrary to international practice and unreasonably narrows the scope of this financial instrument.

For the performance of services classified by the Russian legislator as banking operations, the insurance company may be fined or its license revoked, with seemingly natural opportunities for insurance companies to insure a commercial transaction by providing guarantees.

The beneficiaries of the existence of such a conflict may be banking institutions that actively lobby for their own interests and currently have de facto monopoly on the right to act in contracts as a guarantor. The cost of a bank guarantee varies from 2 to 10% on the amount of the guarantee.

The beneficiary of bank guarantees is the party to whom compensation is paid by the guarantor. in the event that the principal fails to fulfill his obligations under the concluded transaction e.

10. Controlling persons and offshore companies 🗺

An offshore is a country or territory of a state with simplified conditions for doing business. We wrote in detail about when it is better to use them in the last issue.

In such economic zones, there are great opportunities to hide data about the real owners of the business due to the special regime of registration and reporting of non-resident organizations.

The laws of many countries regularly introduce various restrictions for residents to carry out transactions with organizations registered in offshore zones. However a complete ban is almost never applied.

The concept of "controlling person" was used before the appearance of the term "beneficiary" in the domestic legislation. For the owner of a share in an enterprise to fall under this definition, it was necessary to own directly or indirectly more than 50% of the company's shares or votes in the governing body. It was the size of participation in the organization that determined the availability of the opportunity to manage the enterprise.

This approach complicated the work of law enforcement agencies, because in order to evade responsibility, it was enough to divide the property in the company between three owners(i.e. owner 49 % shares of the organization evaded responsibility).

The adoption by domestic lawmakers of the term " beneficiary ”, allowed to somewhat reduce the discrepancy between terminology and the realities of economic activity, focusing, first of all, on the ability to control the organization.

Currently under controlling persons means the owners at least 10% enterprise shares, giving them the right to vote, as well as persons holding positions in the organization that allow them to influence the decision-making processes in the company.

Protection of the rights of the beneficiary from the actions of third parties - main recommendations

The rights of the beneficiary can be violated both by other business owners and by the management of his own enterprise.

The main ways of violating the rights of the actual owner are:

1. Failure to comply with the contract concluded between the owners or with the hired management of the company;
2. Implementation by the organization of illegal activities, including without an appropriate license;
3. Reducing the ability of the beneficiary to control the activities of the organization;
4. Concealment by the management of the company of information about the actual state of affairs in the organization;
5. An obstruction in obtaining income from the activities of the company or property management.

In order to avoid negative consequences of violation of the rights of the beneficiary, it is recommended conclusion of written agreements , including trust management agreements.

Such agreements may ensure the non-disclosure of information about the beneficiary and the actual owner of the property or company, as well as provide an opportunity to recover damages from illegal or unprofessional actions.

12. Are there organizations without beneficiaries 🔔

Organizations without beneficiaries may be various non-profit associations, since their purpose is not making a profit.

As for commercial organizations, then, of course, if there is a profit, then there are people who receive income. However, often it is not possible to establish the ultimate beneficiary.

Therefore, despite the rather broad powers and capabilities of banking institutions and government agencies to establish the actual beneficiaries, the existing schemes for hiding the true business owners allow the identity of the ultimate beneficiary to be kept secret , especially in cases of trust management of business or property.

13. Conclusion + related video 🎥

In the context of the relative novelty of the concept of a beneficiary in the domestic economy, the practice of using this term, the definition of the rights, duties and responsibilities of beneficiaries in the implementation of the activities of controlled commercial organizations and the management of various property, not yet fully developed.

This is hindered by the involvement of various politicians and civil servants in the shadow management of various financial structures and assets.

At the same time, it is precisely ensuring the transparency of information about the actual owners of property, shares and shares in enterprises, especially those that have the ability to manage organizations, that will allow increase the efficiency of taxation and protect bona fide market participants from involvement in a variety of shadow and illegal financial fraud.

In conclusion, we suggest watching a video about clarifications on the law on the beneficiary: