UBO: Ultimate Beneficial Ownership Guide
In this guide, we will provide a brief overview of new AML regulations in the US and Europe, as well as investigate best practices for identifying and verifying UBOs (Ultimate Beneficial Ownership).
4th EU AML Directive
If you’re doing business with commercial clients a UBO check is, in many cases, mandatory, or soon will be. Beneficial ownership information is a requirement of the 4th AML Directive in Europe and different jurisdictions are passing the enabling laws to enforce reporting requirements. For example, Sweden just passed legislation that came into force on August 1, require notifying the Swedish Companies Registration Office of beneficial owners.
The Swedish example illustrates some of the specific requirements:
- Covers Swedish companies, companies operating in Sweden and individuals who administer trusts and other similar legal structures
- A beneficial owner is anyone who controls the company directly or through agreements, or has over a 25% ownership stake, or has the power to control at least half of the board
- Any change of beneficial ownership must be reported as soon as the entity becomes aware of the change (within a few days)
While each European country will have to determine their exact legislation, the laws have to conform to the 4th AML Directive, so will share much in common with the Swedish rules.
CDD Final Rule (US)
In the US, similar beneficial ownership disclosures are a part of the upcoming FinCEN Customer Due Diligence Final Rule, taking effect May 11, 2018. According to FinCEN Guidance FIN-2016-G003,
“the CDD Rule outlines explicit customer due diligence requirements and imposes a new requirement for these financial institutions to identify and verify the identity of beneficial owners of legal entity customers, subject to certain exclusions and exemptions.”
Financial institutions, in this case, refers to banks, broker-dealers, mutual funds, futures commission merchants and commodity brokers. Legal entity customer’s covers corporations, limited liability companies, limited or general partnerships, business trusts and similar entities.
Beneficial owners are defined as a person who has significant ownership (Ownership Prong) or management control (Control Prong) over the legal entity. Specifically, the Ownership Prong refers to all persons who, directly or indirectly, owns 25 percent or more of the legal entity. The Control Prong is at least one person who has “significant responsibility to control, manage, or direct the legal entity.” For example, a C-level executives, President, General Partner, or a person who performs those duties, is a potential designate for the Control Prong.
International UBO Standards
While the 4th AMLD and the CDD Final Rule are on the books, other countries have agreed to international agreements that call for beneficial ownership disclosures. As far back as 2003, the Financial Action Task Force (FATF) set standards for beneficial ownership and in 2012, 198 jurisdictions agreed to strengthened set of FATF standards.
At the G20 Brisbane Summit (November, 2014), there was a policy declaration, G20 High-Level Principles on Beneficial Ownership Transparency;
“Countries should ensure that competent authorities (including law enforcement and prosecutorial authorities, supervisory authorities, tax authorities and financial intelligence units) have timely access to adequate, accurate and current information regarding the beneficial ownership of legal persons. Countries could implement this, for example, through central registries of beneficial ownership of legal persons or other appropriate mechanisms.”
However, in October 2016 a FATF report to examine progress — Report to the G20: Beneficial Ownership— found that only two of the G20 had “substantial level of effectiveness in relation to beneficial ownership requirements.”
The FATF report, regulatory changes in Europe and the US, and major corruption scandals such as the Panama Papers are all putting pressure on other G20 countries to put an effective beneficial ownership disclosure system in place.
Recently (July 2017), Canadian Federal Finance Minister Bill Morneau stated that Canada will soon enact new rules compelling Canadian company owners to reveal themselves in government filings. In Australia, a consultation regarding new AML laws, including beneficial ownership, is currently ongoing, with promises to finalize rules this year.
While progress might not be as swift as the FATF wants, progress seems inevitable; legitimate governments do not want to be seen to be soft on corruption. Whether it’s to collect more tax revenue, prevent terrorist financing, improve transparency, or stop the flow of illegal funds, there’s a noticeable trend to require beneficial ownership due diligence.
Four Steps for UBO
What specific policies and procedures should your organization follow in regard to UBO? Of course, you need to adhere to specific compliance requirements for each country your organization operates in. However, taking a big-picture view, many standard procedures are possible as there are significant similarities in the information requirements across the globe.
There are four main steps you need to implement to create an effective UBO program:
Receive Company Vitals
Identify and verify an accurate company record such as information regarding register number, company name, address, status, and key management personnel. While the specific information that you gather depends on the jurisdiction and your fraud prevention standards, you’ll need to systematically gather the information and input it into your workflows.
Analyze Ownership Structure and Percentages
Determine the entities or natural-persons who have an ownership stake, either through direct ownership or through another party.
Identify Beneficial Owners
Calculate the total ownership stake, or management control, of any natural-person and determine if it crosses the threshold for UBO reporting.
Perform AML/KYC Checks on Individuals
For all individuals that are determined to be a UBO, perform AML/KYC checks.
While, in theory, four steps does not seem too onerous, in practical terms, without a proper system in place UBO checks will add substantial costs, delays and headaches to both compliance teams and legal entity customers.
While technically possible, manual systems that have employees perform individual searches on multiple registrars, import data, track records, and perform complex reviews, is rife with potential issues. It slows down the onboarding or monitoring process, making clients wait to do business. It’s prone to errors, as every keystroke is a possible mistake that will need re-entry. It’s expensive, as staff time is drawn upon for every step and their expertise is wasted on data-entry, not high-level compliance considerations.
Just as Trulioo as demonstrated the advantages of automating AML/KYC checks for individuals (Step Four), the other steps likewise can benefit from workflow automation. Every step should be automated as much as possible.
With the increasing demands of AML/CFT compliance, solutions that automate the entire workflow for identifying and verifying UBOs are the future.
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