Finances

Beneficiary (beneficiary) - who is it: the concept and functions of the beneficial owner + documents

February 21, 2020

Hello, dear readers of the financial magazine "Richpro.ru"! In this article we want to tell, who is the ultimate beneficiary (beneficiary), who are the beneficial owners, what is the difference between beneficiaries and beneficiaries and so on.

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

During the formation of the market economy, categories of persons became such subjects, who receive income from various types of business activities or remove income through the use of investment instruments. This term is used to define such persons.

You will learn from the material:

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

so, consider each point in detail.

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

1. Who is a beneficiary - a complete description of the term

This term comes from the French word, which means benefit, profit.

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

In a less simplified sense, the beneficiary (beneficiary) is a person, which actually owns the assets, economic objects and other values ​​of the organization.

In economic activity, not everything is determined by size, received in the current period, income. Prospects and areas of activity for extracting profit are also important, and here the source of financial flow management is already important, because from their distribution and use, the viability of any commercial enterprise also depends on it, the amount of income received.

So, in a broad sense, beneficiaries (beneficiaries) are considered not only individuals and legal entities, have income from certain financial transactions, but individuals also have the ability to control the activities of the organization and dispose of its property.

That is, beneficiaries are individuals, who actually own a certain company.

2. Who are beneficial owners - definition

The legal definition of the beneficial owner is contained in Federal Law of the Russian Federation No 115 from 07.08.2001 year.

According to this definition:

Beneficial owner — it individual, which directly or indirectly has a majority share in the legal entity (more 25 %) and the ability to control the actions of a legal entity.

The same regulatory act contains the definition of the beneficiary as a person, for the benefit of which actions are taken in relation to money and property, including on the basis of relevant contracts (agency, surety, trust management, commission).

Who is called a beneficial owner and who can become one

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

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

  • heirs, listed in the will as individuals, that take certain property into ownership or management, as well as persons, who are the beneficiaries in the event of the death of the recipient of any payments;
  • lessors, who rent out their property for a regular fee;
  • bank account holders;
  • clients of trust organizations, who placed their property or finances in a trust for income;
  • holders of documentary letters of credit;
  • persons, who are recipients of payments under insurance contracts;
  • the actual owners of the companies.

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

Especially often this applies to 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 actual owners of the organization, who have the right or opportunity to directly or indirectly influence the company's activities.

At the same time, personal data of such persons may not be specified in the organization's registration and statutory documents or their official participation in the company may be significantly reduced.

The identity of such owners, usually, known only bank employees and commercial agents.

The beneficiary of a legal entity can participate in meetings of shareholders and other owners of the company, reorganization of a legal entity, his voice is dominant in deciding issues, relating to the distribution of profits, participation of the organization in investment projects.

Non-disclosure of information about beneficial owners is often used:

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

To ensure the participation of the actual owner in the activities of the organization without disclosing information about his identity, various ownership registration schemes and legal documents are used.

The main schemes of registration of ownership of beneficiaries (beneficiaries). When building complex property registration schemes and calculations, it is important to correctly and clearly understand and use the tax legislation of the used jurisdictions Only with a competent construction and structure of the organization, they will indeed be anonymous, tax-free or low-tax, protected from unscrupulous actions of third parties (the third) persons

Example, the beneficiary gets access to the company's accounts on the basis of a power of attorney, issued in his name by the nominal director. Ownership is carried out through the ownership of bearer shares or through the involvement of individuals, performing the functions of nominal shareholders.

Or the beneficiary enters into an agreement with the trust fund to manage the company's shares, access to the organization's accounts 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, receive a certain profit. Such a person is the ultimate beneficiary.

So, ultimate beneficiary — is a natural person, receives income from company activities or property management.

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

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

The concept of beneficiary is narrower. To be considered as such, beneficiary must have more 25 % shares in the capital of the organization and have access to the management of the company and its control.

In this regard, control bodies are interested in the beneficial owners of companies in the framework of the fight against illegal actions, how individuals determine the organization's policy and make decisions about possible illegal manipulations.

6. Who needs information about beneficial owners and why

Information about beneficial owners is important for state structures for countermeasures:

  • legalization of funds, obtained by crime;
  • financing of terrorist and other criminal organizations;
  • illegal withdrawal of funds abroad.

For organizations, provide business lending, information about the final beneficiaries is important when making a decision to grant loans. Based on the personality of the beneficiary, the company's reputation and credit risks are assessed.

Notification of information about the final beneficiary at the request of banking structures, is mandatory for organizations, who want to get a loan, or open a bank account.

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

Information about the beneficial owner (dos. 60.5 kb)

Information about the beneficial owners for the purposes of the FZ 115 — Savings Bank form (doc. 139 kb)

A sample of filling out the document (section 1)

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

Simultaneously with this, credit organizations in Russia must provide information about beneficiaries to Rosfinmonitoring.

Failure to comply with this requirement may result in significant fines being imposed on the organization, related to financial transactions:

  • securities market participants;
  • insurance companies;
  • pawnshops;
  • leasing companies (We have already written about what leasing is and why it is needed in a previous article);
  • credit institutions.

Who needs information about the company's owners and why?, including beneficiaries

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

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

When providing information about the owners, a document is drawn up, which contains information about the owners of the company, up to individuals, who are founders of organizations, which are among the company's participants.

Such a certificate is called "Information about the chain of ownership, including beneficiaries» it contains information about the name of the company, its leadership, data of the founders (Company details, passport data, residence addresses of individuals).

An example of filling out a document:

Example of filling out the document "Information about the chain of owners". You can download the document using the link below.

Download example of filling and sample:

Information about the chain of ownership, including beneficiaries + instructions for filling (doc. — 41,6 kb)

Table (example), where and what data must be specified:

№ TIN OGRN The name is short OKVED Name Series and number of the manager's document
1. Seven billion seven hundred thirty three million two hundred sixty seven thousand eight hundred ninety 1043367890123 TOV "Tyulpan" 43.xx.xx Andriy Viktorovych Ivanov 5133 148317
2. … … … … … …

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

The beneficiary has a number of rights, that are protected by law. Naturally, legal protection is guaranteed only with documentation the relationship between the beneficiary and his agents - nominal owners of the company and accounts.

The beneficiary has the right:

  • dispose of their share in the enterprise. The beneficiary can, example, partially or completely sell your share;
  • monitor the performance of duties by the company's management, to appoint and dismiss the general director on legal grounds;
  • participate in shareholder and constituent meetings, according to the appropriate share 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 change depending on the sphere of economic relations, in which the person is the beneficiary.

Example, in the case of the company's participation 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 its debt repayment obligations, undertaken by the guarantor organization.

8. Beneficiary participation (beneficiary) in insurance and inheritance

Beneficiary (beneficiary) in insurance, it is individuals, who receive insurance payments in the event of an insured event (with previously concluded insurance contracts).

At the same time, the beneficiary not necessarily is a person or property owner, insured according to these contracts.

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

The beneficiary of insurance payments can be determined by the insured person himself. Example, in the case of life insurance, the spouse of the insured person can be the beneficiary under the insurance.

In inheritance cases, the beneficiary may change depending on the will of the testator or due to the death of persons, specified in the will. So, property can 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, and in case of his death before receiving the inheritance, in fact, the brother's heirs will receive the property (heirs by right of representation).

So, during the distribution of inheritance, the beneficiaries will be individuals, specified in the will and persons, who are entitled to inheritance by law.

9. Participation of the beneficiary in the bank guarantee

Currently, the service of providing a bank guarantee is widespread in banking.

When concluding an agreement between two parties, institution, which provides such a guarantee, vouches for the fulfillment of obligations under the agreement of one of the parties or for the fulfillment of the contract as a whole.

Agreement, so, becomes tripartite, takes part in it:

  • guarantor (organization, which provides a guarantee);
  • recipient (side, which, example, a monetary consideration must be paid for fulfilling the terms of the agreement or providing certain services);
  • principal (side, applying for a bank guarantee).

Participation of the principal beneficiary of the bank guarantee — scheme and principle of action

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

Principal and Beneficiary - these are completely opposite sides of the legal relationship. In this case, the beneficiary will be the creditor, and the axis of the principal was a borzhnik, where a third party is liable for default (guarantor).

Contract performance guarantees may also be provided for security purposes:

  • making payment in specific situations;
  • refund of advance payments;
  • execution of works under various contracts and tenders, including state ones. A bank guarantee is provided by the executor to confirm his own financial capacity;
  • movement of goods through customs;
  • refund, provided as part of credit agreements.

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

On the one hand, by law, the issuance of guarantees refers to banking operations, and on the other hand, limitation of the circle of persons, which act as a guarantor of contractual obligations, which contradicts international practice and unreasonably narrows the scope of use of this financial instrument.

For the performance of services, attributed by the Russian legislator to banking operations, the insurance company may be fined or have its license revoked, at, it would seem, natural possibilities of insurance companies to insure commercial agreements by providing guarantees.

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

The direct beneficiary of bank guarantees is the party, to which compensation is paid by the guarantor in case the principal fails to fulfill his obligations under the concluded agreement.

10. Controlling persons and offshores

Offshore is a country or territory of the state with simplified conditions for conducting business activities. Details about offshore - what it is, when it is better to use them, we wrote in the last issue.

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

The legislation of many countries regularly introduces various restrictions for residents on transactions with organizations, registered in offshore zones. However a complete ban is practically not applied anywhere.

The concept of "controlling person" was used before the appearance of the term "beneficiary" in domestic legislation. In order for the owner of a share in the enterprise to fall under this definition, it was necessary to own it directly or indirectly more than 50% company shares or votes in the management body. It was the size of the participation in the organization that determined the possibility of managing the enterprise.

This approach complicated the work of law enforcement agencies, after all, it was enough to divide the company's property between three owners to avoid responsibility (that is, the owner 49 % the shares of the organization went from responsibility).

Adoption by domestic lawmakers of the term "the beneficiary», made it possible to somewhat reduce the discrepancy between the terminology and the realities of economic activity, emphasizing attention, first of all, on the ability to control the organization.

Currently, controlling persons are understood as owners no less 10% company shares, that give them the right to vote, as well as persons, holding positions in the organization, that allow to influence decision-making processes in the company.

Protection of the rights of the beneficiary against the actions of third parties — basic recommendations

11. Violation of the rights of the beneficiary - recommendations for the protection of rights

Beneficiary rights can be violated by other business owners, as well as his management of the enterprise.

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

  1. Non-compliance with the contract, concluded between the owners or with the hired management of the company;
  2. Implementation of illegal activities by the organization, including without an appropriate license;
  3. Reduction of the beneficiary's ability to control the organization's activities;
  4. Concealment by the company's management of information about the actual state of affairs in the organization;
  5. Obstruction in receiving income from the company's activities or property management.

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

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

12. There are organizations without beneficiaries

Organizations, which have no beneficiaries, there can be various non-commercial associations, because their purpose there is no profit.

As for commercial organizations, then, of course, if there is profit, then individuals exist and receive income. However, it is often not possible to establish the ultimate beneficiary.

So, despite the rather broad powers and capabilities of banking institutions and state structures to establish the actual beneficiaries, існуючі схеми приховування справжніх власників бізнесу дозволяють зберігати особистість кінцевого бенефіціара в таємниці, особливо у випадках довірчого управління бізнесом або майном.

13. Conclusion + video on the topic

В умовах відносної новизни поняття бенефіціар у вітчизняній економіці, практика застосування цього терміна, визначення прав, обов’язків і відповідальності бенефіціарів при здійсненні діяльності підконтрольних комерційних організацій і управління різним майном, не склалася ще в повній мірі.

Цьому перешкоджає і залученість різних політиків та державних службовців у тіньове управління різними фінансовими структурами і активами.

At the same time, саме забезпечення прозорості інформації про фактичних власників майна, часток і акцій у підприємствах, особливо мають можливість управління організаціями, дозволить підвищити ефективність оподаткування and захистити сумлінних учасників ринку від залучення в різноманітні тіньові і незаконні фінансові махінації.

На закінчення пропонуємо переглянути відеоролик про роз’ясненнях за законом про выгодополучателе: