In a significant number of secure agricultural tenancies entered into before 27 November 2003, the tenant’s interest continues to be held by Scottish limited partnerships (SLPs).
On 26 June 2017, new regulations came into force requiring SLPs to provide information to Companies House about their "persons with significant control". This information will be publicly accessible. There are criminal penalties for failure to comply.
General partners are responsible for their SLP's compliance with the new rules. They should therefore familiarise themselves with the requirements, as prompt action will be required to ensure compliance. In most limited partnership agricultural leases, the general partner (usually the “farmer”) will fall within the criteria and will require to take action to comply.
Most UK companies and all UK limited liability partnerships must comply with a "persons with significant control" regime. Those entities are required to keep a register of any persons with significant control (PSCs) in relation to the company or LLP. They must also file their PSC information with Companies House.
The purpose of the regime is to improve transparency and identify those individuals who ultimately own and control UK companies and LLPs.
On 26 June 2017, The Scottish Partnerships (Register of People with Significant Control) Regulations 2017 SI 2017/694 came into force. These extend parts of the PSC regime to Scottish limited partnerships (SLPs).
While SLPs will not have to maintain a PSC register as companies do, they will have to provide information to Companies House about their PSCs.
What does this mean for agricultural tenants that are SLPs?
- investigate whether they have any PSCs (see below for the criteria);
- in certain situations, serve statutory notices on actual or suspected PSCs;
- notify Companies House of PSC information in the prescribed form;
- monitor changes to PSC information already provided to Companies House and notify Companies House within 14 days of any changes; and
- file a confirmation statement at least once a year confirming that certain information about the SLP held by Companies House (including the PSC information) is up to date.
What are the conditions for being a PSC in relation to an SLP?
A person will be a PSC if they meet one or more of the following conditions:
- holding, directly or indirectly, the right to more than 25% of any surplus assets in the SLP on a winding up;
- holding, directly or indirectly, more than 25% of the voting rights in the SLP;
- holding the right, directly or indirectly, to appoint or remove the majority of persons who are entitled to take part in the management of the SLP;
- having the right to exercise, or actually exercising, significant influence or control over the SLP;
- having the right to exercise, or actually exercising, significant influence or control over the activities of a trust or firm (that is not a legal person) where the trustees or members of that firm meet any of the above conditions in relation to the SLP.
Government guidance on the fourth and fifth conditions states that someone is likely to be a PSC of a partnership if they have the right to receive more than 25% of its profits.
There are complex rules for applying the above conditions, for example, if rights or interests are held or exercised indirectly or jointly with others. General partners will need to consider the statutory and non-statutory guidance relating to the regime.
If a condition is met by an entity which is not an individual (or an entity required by law to publish PSC information such as a UK company), further rules apply to determine whether that entity can be notified as a PSC or whether the SLP must conduct further analysis going up the ownership chain.
What does the general partner need to be doing now?
SLPs need to take steps now to investigate whether they have any PSCs and, where required, serve statutory notices to obtain the necessary information.
For SLPs registered before 24 July 2017, the SLP must provide initial PSC information in the prescribed form to Companies House by midnight on 6 August 2017. This may just be a statement to the effect that investigations are underway.
If a PSC has been identified and (if it is an individual) their particulars confirmed, the SLP must provide the particulars to Companies House within 14 days.
If, following investigation, the SLP concludes that it has no registrable PSCs, a statement to that effect must be filed with Companies House.
Non-compliance with the requirements carries potential criminal penalties for both the SLP itself and the general partner.
The regime is complex and action is required now.