10 Sep Tax news, september 2017 – List of ultimate beneficial owners
List of ultimate beneficial owners – Filing with the RCS as of 1st August 2017
Principle – Entry into force
With effect from 1st August 2017, any companies and unlisted legal entities registered within the trade and commercial register (“RCS”) are required to communicate to the clerk office of the commercial court to which they depend, a document listing the information on their ultimate beneficial owners.
Such filing has to occur:
- (i) when they are incorporated or within a period of 15 days after such incorporation; then
- (ii) within 30 days following any fact or act making it necessary to correct the information mentioned on the document.
Companies registered before 1st August 2017 have until 1st April 2018 to file this document with the clerk office of the commercial court where the registered office is located.
The document must be dated and signed by the legal representative of the company or the legal entity making the filing.
This document is not disclosed. Only certain categories of person are entitled with a right of communication (the legal representative of the entity, 18 entities or authorities listed by Article L561-2 of the French monetary and financial code (by reference to Article R561-27 of the French monetary and financial code), entities subject to the regulation fighting against money laundering and financing of terrorism, any person who can prove a legitimate interest upon a decision of the judge committed to the monitoring of the commercial register).
Who is concerned?
Legal entities, registered at the RCS as following:
- companies and economic interest groups whose registered office is in France;
- branches of foreign companies;
- any other legal entities whose registration is provided for by law (ex: association).
Are not concerned, companies whose securities are admitted to trading on a regulated market in France, in a State party to the agreement on the European economic area or a third State enforcing equivalent obligations recognized by the European Commission.
What is a beneficial owner?
The physical person who:
- either hold, directly or indirectly, more than 25% of the capital or of the voting rights of the company; or
- exercise, by any means, a power control over the management bodies, the administration or the general meeting of the shareholders of the company.
If the criteria above cannot allow to determine a beneficial owner, it is the legal representative of the company which should be mentioned.
What information are to be communicated?
➢ Regarding the company or legal entity:
Its name, legal form, address of its registered office and RCS number.
➢ Regarding the beneficial owners:
i. The name(s), given name(s), date and place of birth, nationality, personal address of the individual;
ii. Terms of control exercised over the company or legal entity:
- holding, directly or indirectly, more than 25% of the capital or voting rights of the company;
- exercise, by any means, a control power over the management bodies, the administration of the company or the general meeting of the shareholders;
iii. The date to which the individuals have become beneficial owner of the company.
What are the sanctions in case of no-filing or inaccurate information?
The president of the commercial court may order, under constraint if necessary, the company to proceed with the filing.
The fact not to file the list of beneficial owners to the RCS or filing a document with inaccurate or incomplete information is punishable by 6 months of imprisonment and a fine of € 7,500. Physical persons also incur a penalty of prohibition to manage.
• Order No 2016 – 1635 dated 1st December 2016
• Law No. 2016-1691 dated 9 December 2016 (article 139), known as « Loi Sapin II »
• Decree No. 2017-1094 dated 12 June 2017
• Articles L561-46 and R561-55 and following of the French monetary and financial code