On the 20th of December 2017 ‘The Trusts and Trustees Act (Register of Beneficial Owners) Regulations, 2017’ (the “Regulations”) were published. These Regulations are aimed at implementing the requirement of having the information on beneficial owners contained and accessible in a single register, pursuant to article 31 of Directive (EU) 2015/849, commonly known as the ‘4th Anti-Money Laundering Directive’. These Regulations, by virtue of Legal Notice 373 of 2017, came into force on the 1st of January 2018. However, the provisions in the Regulations relating to the access to the register of beneficial owners will come into force on the 1st of April 2018.
The Regulations require trustees to submit to the Malta Financial Services Authority (the “MFSA”) a declaration of beneficial ownership in respect of every express trust which generates tax consequences under their administration. Such information shall be entered into a register and kept by the MFSA. The information on the beneficial owners which shall be provided to the MFSA shall consist of;
-
the name;
-
the date of birth;
-
the nationality;
-
country of residence;
-
an official identification document number indicating type of document and the country of issue;
-
the role of the beneficial owner; and
-
the nature and extent of the benefit.
Where the trust is set up solely for a charitable purpose and does not have any beneficiaries, the trustee shall only be required to provide information on the name, date of birth, nationality and the official identification document number.
Any trustee already authorised before the coming into force of these Regulations shall submit to the MFSA the required information on the beneficial ownership within six (6) months of the coming into force of the Regulations. Article 3(4) of the Regulations stipulate that a trustee shall not enter the name of any beneficial owner unless it has carried out customer due diligence obligations in terms of the requirements under the Prevention of Money Laundering and Funding of Terrorism Regulations (“PMLFT Regulations”). Where a change occurs in the beneficial ownership of an express trust which generates tax consequences, the trustee shall inform the MFSA of such change within fourteen (14) days, providing the effective date of such change and information on the new beneficial owner. If such change relates to a change in trustee, it shall be the duty of the new trustee to notify the MFSA of such change. In any other case, a trustee shall submit annually, by not later than the 31st of January of each year, a declaration confirming that there have been no changes to the beneficial ownership.
The information on the beneficial owners shall be accessible to;
-
national competent authorities with designated responsibilities for investigating and combating money laundering and terrorist financing;
-
the Financial Intelligence Analysis Unit;
-
national tax authorities; and
-
subject persons in terms of the PMLFT Regulations, for the purpose of carrying out customer due diligence in accordance with the said regulations.
However, subject persons may be required to submit to the MFSA, any document which the MFSA may deem necessary as a form of evidence of the function of the subject person which allows it to request access to such information. The information and the register of beneficial owners held by the MFSA shall be interconnected with the central registers of member states of the EU, and any information which is required to be delivered to the MFSA may be made in electronic form and by electronic means.
The Regulations also stipulate that subject persons shall not rely exclusively on the register of beneficial owners to fulfil their customer due diligence, and neither shall any compliance with these Regulations imply that such trustees are not equally obliged to provide any information requested of them by subject persons. Moreover, the Regulations stipulate that the MFSA shall impose an administrative penalty, which may not exceed one hundred and fifty thousand euros (€150,000), for any failure to comply with the Regulations.
