The FPS Finance has published a new version of the FAQ concerning the UBO register and has also updated the user manual for non-profit organisations and foundations.
The following items are the most important changes to the FPS Finance FAQ:
1. Cascade test
To determine the beneficial owner (also known as a UBO) of a company, a cascade test is required.
If an individual person clearly does not have a sufficient percentage of voting rights or a sufficient stake in the capital of the company (ie 1st category), it is necessary to check whether this person has control over the company by other means and therefore falls under the 2nd category.
Only if none of the UBOs does not belong to one of the first two categories or if there is a doubt as to whether the person or persons identified are the UBO(s), the obliged entity can opt for the third category, being the the individual(s) who hold(s) the position of senior managing official(s) .
The obliged entity has a major responsibility with respect to the filing of the UBO's. It is therefore in his best interest to have sufficient proof that he has taken the necessary steps to obtain the necessary information.
2. Possibility to attach explanatory or convincing documents
The information provider now has the possibility of attaching explanatory or convincing documents to the UBO communication. This will allow him to document his filing.
3. (International) non-profit organisations, foundations, trusts or similar structures
In the case of non-profit organisations, foundations, trusts or similar structures, the individuals specifically named in the articles of association or those who are otherwise designated by the governing body of that structure, must be individually registered in the UBO register.
- in case of (international) non-profit organisations and foundations, this refers to the individual or individuals named in the articles of association as persons in whose main interest the (international) non-profit organisations or foundation is active. This can be the persons (non-members) for which the purpose of the foundation or (iinternational) non-profit organisation provides support, benefits, help ... .For example, in Make-a-Wish, children with a life-threatening illness will be the beneficiaries.
- in case of trusts and similar structures, this refers to the individual or individuals specifically named in the articles of association or otherwise designated by the governing body of the trust or other similar structures (e.g. letter of intent with a trust)
In the absence thereof, the general category or categories of UBOs, as described in the articles of association, must be registered.
4. Examples of UBO with indirect control
The FAQ provides 9 examples to illustrate the situations in which an UBO exercises indirect control over the company.
There are also cases mentioned where partners married under the legal regime of community, whose shares or voting rights are part of the community, or married partners under separation of property, whose shares or voting rights belong to each of them personally.
5. UBO of an intermediate entity of a company
The UBO of an intermediate entity of a company, being an (international) non-profit organisation, foundation, trust or similar structures, is considered to be UBO of the company.
6. What about splitting of ownership or undivided ownership?
In case of splitting of ownership or undivided ownership,
- the bare owner will be registered as UBO if he owns or holds more than 25% of the shares representing the capital;
- the usufructuary will be registered as UBO if it owns or holds more than 25% of the voting rights attached to the shares representing the capital.
In the event of indivision giving rise to a joint control (which relates to a participation of more than 25%), all co-owners will be registered as UBO.
Here again, the FAQ gives several examples.
7. Who are the senior managing officials (3th category)?
If, after having exhausted all possible means, no UBO possessing or controlling the obliged entity can be identified, then senior management official(s) must be registered as UBO.
The FAQ specifies that these are the persons employed by the company who exercise, in practice, the most decisive influence on the management of the company. It may be the Chief Executive Officer (CEO), the chairman of the executive committee, or in his absence the director, the manager, the delegate for day-to-day management, a member of the board of directors, etc.
Attention! The UBO register must be completed no later than 30 September 2019.
From that moment on, obliged entities must confirm annually that the information in the UBO register is adequate, accurate and up-to-date and, if necessary, update it.
And any changes must be filed within the month.
We repeat that, given the amount of the fines, it is crucial to collect accurate data on the right persons in time and to have them registered in the UBO register.
Therefore it is advisable for obliged entities to:
- develop procedures for the management of the data of the UBO-register, because every change must be submitted to the UBO register within one month;
- determine how the supporting documents (from which it appears that the information is adequate, accurate and current) will be collected and kept up to date;