The Register of beneficial owners has finally started: what obligations?
On Monday 9 October 2023, the new reporting obligations regarding the data of the beneficial owner came into force: there are many new elements and duties to be taken in consideration.
What is the Register of Beneficial Owners?
It is a new and special section – introduced by the Anti-Money Laundering legislation – included in the Register of Companies. This section contains data and information relating to the beneficial owner.
What to do?
The data and information concerning the beneficial owner shall be communicated to the Company Registry Office of the competent Chamber of Commerce.
Who is obliged to comply with this obligation?
- Companies, even if constituted in consortium form: S.p.A. (joint stock companies), S.r.l. (limited liability companies) – ordinary, simplified, innovative start-ups, etc. -, S.a.p.a. (società in accomandita per azioni), cooperatives and mutual aid entities and the consortia companies;
- Private legal entities (associations, foundations and other private institutions that have acquired legal personality by means of the registration in the appropriate register);
- Trusts (having a tax code, resident in Italy or non-resident, but with income generated in Italy) and legal arrangements similar to trusts (entities whose structure and functions give rise to legal effects equivalent to those of trusts).
Who’s the beneficial owner?
In few lines: he/she is the natural person to whom the direct, or indirect, ownership or control of the entity is attributable; he/she is the natural person who ultimately owns or controls the entity or is a beneficiary thereof.
How is the beneficial owner identified?
The identification is a rather complex path. As a first approximation, he/she is the natural person who has direct or indirect ownership of more than 25% of the capital.
In the event that this condition is not met, the following criteria shall be considered:
– control of the majority of the votes exercisable in the ordinary shareholders’ meeting;
– control of sufficient votes to exercise a dominant influence in the ordinary shareholders’ meeting;
– existence of contractual ties to exercise a dominant influence over the company;
– possession of powers of legal representation, administration or management of the company.
There is also a residual criterion to be applied, when the above are not applicable.
What information shall be communicated?
It is necessary to disclose the identification data and the nationality of the natural person(s) indicated as beneficial owner(s): name and surname, place and date of birth, registered residence, domicile (if different from residence), fiscal code (if assigned) and certified e-mail address. It is also necessary to indicate the requirement conferring the status of beneficial owner and the declaration of responsibility and awareness (D.P.R 445 of 2000).
For companies with legal personality: S.r.l. (limited liability companies), S.p.A. (joint stock companies) etc.:
In addition to the above, the entity of the natural person’s shareholding shall also be disclosed. Where the beneficial owner is not identified by means of the value of the shareholding, the modality of exercise of the control or, as a last element, the powers of legal representation, administration or management of the entity, exercised by the natural person indicated as the beneficial owner, shall be disclosed.
For private legal entities: associations, foundations, etc.:
In addition to the above, the entity’s identification data (name, tax code and certified e-mail address), registered office and administrative address (if different from the registered office) shall also be communicated.
For trusts and related institutions:
In addition, the name as well as the date, place and details of the deed of establishment of the trust or similar legal arrangement must be disclosed. If the trust was set up abroad, the communication must be addressed to the Rome Chamber of Commerce.
Should any changes be communicated?
Yes. Any changes in the information must be communicated within 30 days of the performance of the act on which it depends.
Once the communication has been transmitted, are there any further formalities?
Once the communication has been transmitted, obliged parties must confirm the data and information annually within 12 months of the date of the first communication or the communication of the change or the last confirmation.
Who is required to make the communication?
The communication shall be digitally signed:
- by the director(s) of companies;
- by the founder – if alive, otherwise by the individual(s) entrusted with the representation and administration – of private legal entity;
- by the trustee in the case of trusts or by individual(s) exercising equivalent rights, powers and faculties in the case of similar institutions.
How should the communication be made?
The communication is made by means of a digitally signed self-declaration and shall be sent electronically to the competent Chamber of Commerce. The form (“modello TE”’) can be downloaded from the website of each Chamber of Commerce. The entities with legal personality may file the annual confirmation at the same time of the filing the balance sheet. The notification is subject to the payment of secretarial fees and is not subject to the stamp duty.
The communication shall be submitted by 11 December 2023, for all obliged entities established before 10 October 2023.
What about new entities?
Companies with legal personality and private legal entities established after 9 October 2023 shall report the information within 30 days of their registration in the Commercial Register.
Trusts (and similar legal institutions) shall report information within 30 days of their creation.
What are the sanctions?
Administrative sanctions ranging from €103.00 to €1,032.00 shall apply in the event of failure to report the information on the beneficial owner to the Commercial Register.
And in the case of simple delay?
If the delay is shorter than 30 days, the sanction is reduced by 33%.
Shall I request the support of a consultant?
It’s absolutely possible – and in some cases strictly recommended – to rely on a professional in order to properly comply with the new obligations. Considering that the identification of the beneficial owner is not always easy and immediate, although it is not possible to delegate the signature of the communication, it’s possible to receive support in completing and sending the file.
We therefore invite you to contact the dedicated practice team without hesitation: Claudio Cocuzza, Patrizio Cataldo, Giorgia Innamorato and Alessia Guidi.
Should you have any query, please do not hesitate to contact us by sending us an email at email@example.com.