Beneficiary of funds. The beneficial owner of a legal entity is…. See what a "beneficiary" is in other dictionaries

A beneficial owner is an individual who can control a business not only de jure, but also de facto. Beneficial owners are entrepreneurs whose status is determined on the basis of the provisions of Law No. 115-FZ - let us consider them in more detail.

Beneficiary: definition of the term

The beneficial owner - this is enshrined in the legislation of the Russian Federation - is an individual who, directly or through third parties, owns more than 25% of the capital legal entity or has the ability to exercise control over the actions of this legal entity (Article 3 of the Law "On Combating Money Laundering" dated 07.08.2001 No. 115-FZ). The law also provides for the status of the beneficial owner of an individual (by default, being the same individual, if there is no reason to consider it differently).

Example

The authorized capital of Salyut LLC is 70% owned by Lux LLC, 20% by V. Petrov and 10% by A. Stepanov. At the same time, Stepanov owns 100% authorized capital LLC "Lux". Thus, Stepanov is the beneficial owner of Salut LLC, despite the fact that de jure his share in this organization is 2 times less than Petrov's share.

Thus, the status of the beneficial owner is a legal category, and its characteristics are spelled out at the level of industry-wide legal regulations... However, what position can the beneficiary occupy in the business management structure? Let us consider how the key positions in the firm of the founder and the CEO are related to the status of the beneficial owner - this is important from the point of view of a more detailed understanding of the role of beneficiaries at various levels of legal relations.

Beneficiary - Founder or CEO?

It does not fundamentally matter what position a person occupies in the business - founder, director or co-owner. The main thing for establishing the status of the beneficial owner is the compliance of the person's role in business with the criteria defined in Art. 3 of Law No. 115-FZ. He can be the actual owner (without a legally secured share in the business - we will consider the features of this status later in the article) and at the same time as the general director or de facto make key decisions in the management of the organization, while another person will be the director.

Of course, in general, the beneficial owner is the founder of the firm (or one of them). But it is possible that he will be the person who subsequently bought the necessary share of the authorized capital. It is common for the beneficial owner of a legal entity to be the founder of the firm that owns the majority of the legal entity in question.

Example

Citizen Lvov A. Ye. Owns 55% of shares in PJSC "Victoria", which, in turn, owns 70% of shares in PJSC "Almaz". In fact, Lvov does not directly own shares in Almaz, but is an indirect participant in this company. The share of his indirect participation will be 0.55 × 0.70 = 0.385, or 38.5%. Consequently, Lviv has a predominant stake (over 25%) in the capital of PJSC Almaz and meets the criteria of the beneficial owner of this company.

So, the concept of the beneficiary is enshrined in law. But can we say that the status of the beneficial owner is the same concept as that which is implied by another common term - “beneficial owner”?

Are the beneficiary and the actual owner (legal entity or individual) the same?

The concept of "actual owner" at the level of the legislation of the Russian Federation, in turn, is not fixed. In some sources of law, it is given in the same context as the term “beneficial owner” (for example, in the letter of the Ministry of Finance of the Russian Federation dated 09.04.2014 No. 03-00-RZ / 16236). Is it possible in this connection to identify them?

In principle, this is legitimate, and the reason for this is the definition of the beneficial owner given in Law No. 115-FZ. In this normative act it is said that the beneficiary can correspond to a person who has the ability to influence the decisions made by the legal entity (even though he may not own any shares in the authorized capital of the company).

It is quite acceptable to call the “actual owner” of a person who, for one reason or another, is the beneficial owner of an individual. Moreover, in this case, it is legitimate to speak of some "pure form" of actual ownership, since the law does not provide for the allocation of the authorized capital of an individual. For example, the beneficiary (actual) owner of an individual can be called the recipient of funds indicated by the individual in his will.

Thus, the status of the beneficial owner is a legal category that can be identified with the concept of "actual owner", and it is best to apply this identification in the context of control over the actions of a legal entity or over an individual. In the context of ownership of the authorized capital of a legal entity, it is better to use only the term “beneficial owner”.

Which firms should keep track of beneficiaries?

Obligations for accounting of beneficiaries are imposed on legal entities that are not:

• state or municipal structures;
• international organizations;
• by issuers of shares in the framework of organized trading (when disclosing information on securities in accordance with the established procedure);
• foreign issuers of shares in the framework of trading on a foreign exchange (if the exchange is included in the list determined by the Bank of the Russian Federation);
• foreign subjects of legal relations that do not have the status of a legal entity and do not provide for the presence of beneficiaries and the position of the general director.

Organizations are obliged to know their beneficiaries, to take measures, if necessary, to obtain information about them listed in sub. 1 p. 1 of Art. 7 of Law No. 115-FZ, update this information annually, store the received data for at least 5 years.

In addition, information about the beneficiaries of the company may be disclosed in its statements - in the manner prescribed by law (clause 7 of article 6.1 of the law No. 115-FZ).

Which firms should disclose their beneficiaries?

Legal entities, as well as individual entrepreneurs, are obliged to provide information about the beneficiaries upon request (clause 6 of article 6.1 of the law No. 115-FZ, clause 10 of the regulation approved by the decree of the Government of the Russian Federation of 19.03.2014 No. 209):

• to Rosfinmonitoring;
• in the Federal Tax Service.

In addition, when contacting an organization or individual entrepreneur that manages funds, legal entities and individual entrepreneurs provide information about their beneficial owners - this is also their legal obligation, provided for in paragraph 14 of Art. 7 of Law No. 115-FZ. The scope of this information is defined in par. 2 sub. 1 p. 1 of Art. 7 of Law No. 115-FZ.

Failure by the company to provide the indicated state bodies with information about the beneficial owners is the reason for the application of the sanctions provided for by Art. 14.25.1 Administrative Code of the Russian Federation. Namely - a fine for officials in the amount of 30,000-40,000 rubles, for legal entities - 100,000-500,000 rubles.

Outcomes

A beneficial owner is a founder or director, one of the owners or the actual owner of the company (even if de jure he does not own any shares in the authorized capital of the organization), who has the ability to at least control the activities of the relevant economic entity. At the same time, the organizational and legal status of this subject does not matter - it can be either a legal entity or an individual entrepreneur.

For the legal determination of the status of the beneficial owner, it is necessary that the individual owns at least 25% of the authorized capital of the organization. Firms and individual entrepreneurs are obliged to inform Rosfinmonitoring, the Federal Tax Service, organizations that manage funds about their beneficiaries upon request.

Learn more about the peculiarities of the work of organs financial control(which, in particular, have the authority to request information about their beneficiaries from legal entities and individual entrepreneurs), you can in the articles:

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BENEFICIARY (lat. beneficium - good deed)

1) a person who is the acquirer of income, benefits, advantages and other similar qualities under an agreement or a debt document; 2) the name of the party in the letter of credit - the person in whose favor the payment is to be made, whose drafts should be accepted (negotiated); 3) the name of the party to the collection operation; 4) the name of the beneficiary under the bank guarantee, 5) the name of the holder of the bank certificate; 6) the name of the holder of a simple bill of exchange;

7) the name of the third person acquiring income under the agreement (Eovercotel property management.

Encyclopedia of the Lawyer. 2005 .

See what "BENEFICIARY" is in other dictionaries:

- (beneficiary) 1. The person in whose favor the trust is carried out. 2. The person who is the heir under the will. 3. The person who receives money by letter of credit. 4. The person who receives payment after ... ... Financial vocabulary

- (from lat. beneficium a good deed) beneficiary, i.e. a person using the benefits under a contract or other legal basis, incl. a person in whose interests the trust is exercised, the recipient of money under a letter of credit, or ... ... Legal Dictionary

- (from French benefice profit, benefit) the person to whom the cash payment is intended, the recipient of money, benefits, profits, income. Possible spelling of the term beneficiary of the arias. Raizberg BA, Lozovsky L.Sh., Starodubtseva EB .. Modern economic ... ... Economic Dictionary

- (Beneficiary) (from French benefice profit, benefit) the person to whom the payment is intended, the recipient of the money. A person who receives income from his property transferred into trust management to another person, legal or natural (if ... ... Wikipedia

BENEFICIARY, BENEFICIARY [eng. beneficiary owner of a beneficiary or fief] a person who receives income from a trust (letter of credit (LETTER OF CREDIT), insurance policy (POLIS), etc.), or a person in whose favor this property is established ... Dictionary of foreign words of the Russian language

Noun., Number of synonyms: 2 beneficiary (1) recipient (17) ASIS synonym dictionary. V.N. Trishin. 2013 ... Synonym dictionary

- (beneficiary) 1. The person in whose favor the trust is carried out. 2. The person who is the heir under the will. Business. Dictionary... M .: INFRA M, Ves Mir Publishing House. Graham Betts, Barry Braindley, S. Williams and others ... ... Business glossary

beneficiary- beneficiary The person in whose favor the payment is made is issued a letter of credit; the recipient of the insurance policy. Topics accounting Synonyms beneficiary ... Technical translator's guide

Beneficiary- see Bank guarantee; Irrevocable Letter of Credit ... Encyclopedia of Law

BENEFICIARY- BENEFICIARY (II) (from lat. Beneficium beneficium) beneficiary, i.e. person using any benefits on the basis of a contract or otherwise legal basis, incl. the person in whose interests the trust property is exercised, ... ... Legal encyclopedia

Beneficiary- (Beneficiary) Contents Contents Definition The beneficiary (also the beneficiary, from the French benefice - profit, benefit) is a natural person or to whom the payment is intended, the recipient of the money. For example: A person receiving ... ... Investor encyclopedia

Books

• Ultimate Beneficiary, Roman Kuzyuk. This is a story about a three-year development of a successful company to the level of a large corporation under the influence of an unknown beneficiary. The new owner is forcing the rest of the shareholders and managers of the company ...

Economic development has led to the life of new subjects of the economic process. The beneficiary is one of them. The article tells about who he can be and what exactly he is.

Who is the beneficiary

In most cases, when this word is mentioned, it is assumed that this is the one who benefits from certain circumstances. However, this represents a very imprecise and too general understanding of this legal term.

In 2001, a law was passed that provided a legal definition of what the beneficiary is. This normative act (No. 155-FZ) introduces this meaning of the word. Here are its signs:

• The ultimate beneficiary can only be an individual, not a legal entity.
• It is about the ownership of a legal entity. In this case, it is considered that the beneficiary owns more than a quarter of it. In this case, not only direct ownership is taken into account, but also that which is carried out through other organizations.
• It is possible that the beneficiary does not own the firm, but he controls it in some other way. If there are compelling reasons, the beneficiary may be someone other than just the founder or general manager.

The law says that the concept of the ultimate beneficiary is introduced for this law. However, in practice, it has become the main definition for this kind of people. Most often, to prove that a given individual is a beneficial owner, the fact that he owns more than 25% of a given firm is used.

The beneficiary can only be a natural person

Rights and obligations

It should be noted that the beneficiary is not always one of the owners of the legal entity. In practice, a situation is possible when he has a corresponding share of ownership in another firm, and she is already one of the owners of the legal entity in question.

If the beneficial owner is one who has several firms, then he can use such a form of management as a holding. In this case, he runs one firm, which is the owner of a whole network of other firms. Thus, a sufficiently large economic structure can be centrally managed.

It is important to note that in certain areas of the economy, legal entities have a duty to disclose their ultimate beneficiaries. These types of businesses include:

1. Activities in the field of insurance.
2. Banking and other financial activities.
3. Working with various securities.

Sometimes it is important to define who the beneficiary is. Disclosure of this information plays an important role in the investigation of money laundering cases, as well as in the investigation of the sources of funding for persons engaged in terrorist activities.

Along with the opportunity to receive a significant share of the profit, the beneficiary also has other rights and obligations.

Differences between the beneficiary and the beneficiary

At first glance, it can be assumed that there is a lot in common between the concepts of beneficiary and beneficiary. However, Law No. 115-FZ distinguishes between such persons. In fact, there is a certain similarity between them. In both cases, we are talking about obtaining benefits from the actions of certain legal entities.

The aforementioned law defines what a beneficiary is. It is characterized by the following features:

1. This is a person (it can be not only natural, but also legal) who benefits from the actions of others.
2. In most cases, we are talking about work under contracts: orders, commissions, agency, trust management. We can also talk about the acquisition of benefits in connection with transactions with funds or property.

The essential difference between them is that the ultimate beneficiary not only receives benefits, but also owns a significant part of the company - the client (at least a quarter). Another difference is expressed in the level of income received. The beneficiary receives the majority of it, and the beneficiary is usually limited to the benefits of specific transactions.

However, the first of them, together with the right of ownership, has a much larger scope of responsibility. These reasons for classifying an individual as beneficial owner make it possible to determine who exactly receives the main benefit from the activities of a given legal entity.

In a bank guarantee, the beneficiary is the one who issued the loan to the principal. The surety undertakes to pay off the latter's debts if necessary.

The beneficiary benefits from the activities of the ward person or enterprise

Ultimate beneficiary

It should be noted that both an individual and a legal entity can be a beneficiary. This concept is broad enough. This is what the beneficiary is in simple words... This term refers to situations where a person or company, being the owner of all or part of a legal entity, benefits from the activities it performs.

The ultimate beneficiary is a natural person only. This is the one who receives the main benefit from the activities of the legal entity.

This person (in most cases it is the founder or director) has the ability to:

1. When creating a company, make your contribution to the formation of the authorized capital of the company.
2. Owning shares, he can transfer them to other persons. The result of such actions may be that a new person will become the beneficiary.
3. V joint stock companies strategic management the company carries out general meeting those who own the shares of the company. The ultimate beneficiary has the right to vote at this event, speak out, expressing his position, to pursue his line in the management of the company.
4. Among other beneficiaries (if in this case they exist), to elect the management of the company.
5. Take part in deciding in which field of activity this firm should operate.

This list is not complete. The ultimate beneficiary also has other rights.

Identification of the beneficiary

Since 2013, the legislation determines that the beneficiary's bank has the right to demand from customers information about who is the ultimate beneficiary in them. Further, this information is forwarded to Rosfinmonitoring. If banks, for any reason, do not require information about the beneficial owner, then this organization has the right to impose a fine on them, the amount of which can reach half a million rubles.

Such obligations are not only for banking organizations, but also for other participants in the financial market. These include:

• leasing companies;
• firms from the insurance business;
• pawnshops;
• those who carry out transactions in the securities market.

Data on the ultimate beneficiaries have the right to request not only credit and financial institutions. This is sometimes required when concluding agreements on public procurement... In the process of their registration, it is required to draw up a separate document, which provides information about the beneficiaries.

For legal entity

When the beneficiaries of a legal entity are considered, it can be difficult to define them. Some of them seek to keep their involvement in the life of the enterprise a secret. In some cases, it is difficult to determine even in cases where it is possible to get acquainted with constituent documents firms.

It may be that the firm is trying to hide information about its beneficiaries. Here are some likely reasons for this:

1. This is important for those seeking to legalize illegal income.
2. In some cases, the person who finances the activities of the company determines the presence of his anonymity as a condition of the fact that he financially participates in the activities of the company and helps him in difficult situations.
3. Sometimes the ultimate beneficiary does not own the legal entity directly, but through one or more intermediaries. If at every level there are requirements to keep it secret, then finding the true owner and determining the true amount of his income is incredibly difficult.
4. Sometimes this is done in order to hide the true size of their income.
5. In some cases, the concealment of the information in question is necessary for the implementation of tax evasion schemes.

One of the most effective ways to keep secrets in this situation is to use offshore companies.
The legislation of some countries makes it impossible for a certificate of founders registered with them to be provided. If the legal entity that was created in this way is the founder of a Russian company, then it will be quite difficult to find its ultimate beneficiary.

If it becomes necessary for state bodies to find the ultimate beneficiary of a particular company, then for this it is, first of all, important:

1. Determine the circle of people or one person who have the maximum influence on making the most important decisions in the activities of the company.
2. Find which accounts receive the bulk of the profit of a legal entity.

In the first case, examples of such decisions are the distribution of income received by the enterprise, the definition the most important directions in which this company will develop.

The beneficiary can be appointed for both an individual and a legal entity

For individuals

The beneficiary of an individual will be the person who benefits from his actions. This task is more difficult than finding out similar information about the company. The fact is that a legal entity leaves a lot of documents in the process of its activity. While it is sometimes difficult to obtain and use them, in most cases it is quite possible to solve it. The life of an individual is usually more hidden.

The following example can be given. For example, an unemployed person, a pensioner or a homeless person give their documents for a fee in order to register a company, shares or any property. Then he writes a general power of attorney to whoever hired them to do the job. Further, it will be difficult to trace who actually manages the activity and makes the profit.

Beneficiary has several definitions. It is important to study them both for experienced businessmen and for those who are at the origins of foreign trade.

The beneficiary is the holder of documents that bring him material benefits. In this case, it is worth understanding the rights and obligations of this person, as well as the actions performed by him.

There are a lot of ways for the beneficiary to generate income, and each of them has its own characteristics, disadvantages and, of course, advantages.

What is a Beneficiary?

The term “beneficiary” has several explanations and comes from the French word benefice, which means profit, benefit.

First of all, it is worth noting that the beneficiary is an individual or legal entity who, under an agreement or a debt document, acquires benefits and income.

That is, when carrying out foreign trade activities, the beneficiary can be the company indicated as the seller under the letter of credit.

The ultimate beneficiary is an individual who is considered the owner of the firm and has all proprietary rights. But, in this case, outsiders have ownership.

The operation of hiding the final purchaser of benefits is carried out in the process of opening offshore companies. A nominee service is being created to ensure confidentiality. Basically, the data of the real owner (who is the beneficiary) is indicated in the process of registering a bank account for the company. In addition, his name is known to the agent of the organization. In this case, the ultimate beneficiary will be considered the owner of the bank account, which he has the right to dispose of.

“Ultimate Beneficiary” is the most important concept.

Unlike nominee shareholders, the beneficial owner is the real owner of the organization or assets. WITH legal side the owners are other individuals who were mentioned earlier.

This also applies when the founder-beneficiary is the owner of the shares. The beneficiary who owns the shares has the following possibilities and rights:

• Taking part in the process of forming the authorized capital;
• Transfer of shares to another beneficiary;
• Attendance at a shareholders meeting and voting rights;
• Taking part in the selection of nominee leaders of the organization;
• Participation in defining the profile of the organization.

The beneficiary, in the case of using the insurance policy, is the recipient of the amount specified in the contract.

In the life insurance process, you can specify any individual as the primary or conditional beneficiary in the event that there is a clause about this in the document.

It is important to mention that the beneficiary is also the person who is the heir to the will or the recipient of the rent when the property is rented out.
Also, the representative of the trust is considered the beneficiary if the management of the property is aimed at obtaining their benefits.

Beneficiary rights

The beneficiary has certain rights, but they can be minimized in the process of obtaining financial remuneration in accordance with the bank guarantee. This threat is detailed in article 174 of the Civil Code of the Russian Federation (384).

The interests of the beneficiary are considered violated if the relevant documents of the company provide for the limitation of the powers of the legal entity representing the interests of the beneficiary specified in the power of attorney, and the other party to the agreement, knowing about the existing restrictions, does not adhere to these rules in the process of making this transaction. In this case, the situation will be reviewed by the court. The beneficiary, in whose interests the legal entity acted, may file a lawsuit. If in the course of the court proceedings it is proved that this legal entity was notified of the restrictions on the transaction or should have known about them, the transaction will be considered invalid.

Also, the law provides for filing a claim in court government agency, the founder of the company or a legal entity that control the activities of the beneficiary of the company, in case of violation of the terms of the contract. In article 173 of the Civil Code of the Russian Federation, these violations are defined as the implementation of activities that contradict the goals of the company specified in the relevant constituent documents.

In addition, it is punishable to perform certain actions for which the legal entity is not licensed. As in the previous case, the court recognizes the activity as illegal if there is evidence that the accused was notified of the conditions for its implementation and knowingly violated them.

In order for the transaction to be successful, it is necessary to study the legal capacity of the beneficiaries, including the final ones. Moreover, this problem has become less complicated after the adoption of the relevant laws.

A legal entity must competently check the guarantor's documents in order to correctly resolve the issue of its fulfillment of the main obligation. In this case, the documents must confirm the following conditions:

• The legality of the company's activities;
• The legality of the activities and implementation of the powers of the bodies working on his behalf;
• Proof of relevant legal capacity.

The charter can be used as a source for acquaintance with the data of the guarantor. Moreover, the beneficiary must pay attention to whether the latest version of the document has been provided to him. In addition, he must familiarize himself with the documents of the legal entity, testifying to its state registration... Their authenticity is evidenced by the special designations that are on the back of the document and reflect all the changes made in it earlier.

Bank guarantee: rights and obligations of the beneficiary and the guarantor

Both parties to the agreement should familiarize themselves with each other's fundamental rights:

1. Beneficiary, according to the bank, the guarantee has the right to collect claims against the guarantor. It is not allowed to transfer it to other persons, unless it is previously indicated in the document.
2. Beneficiary must submit claims for payment financial resources determined by the bank guarantee, exclusively in writing.
   In addition, other important documentation must be presented to the other side of the transaction as an attachment. It is in it that the owner indicates the essence of the violation when fulfilling the main obligation provided for by the bank guarantee.
   Requirements can be presented to the guarantor until the time specified in the agreement expires.
3. Beneficiary, in addition to the submitted documentation, must give the second party its copies and immediately inform the recipient about it.
4. Guarantee obliged to as soon as possible consider the claims made by the recipient of the income, and carefully study the documents. In doing so, he is engaged in determining the compliance of this operation with the terms of the guarantee.
5. Guarantee has the right to refuse to satisfy the claim to the beneficiary in the event that the attached documentation was, was submitted after the end of a predetermined period or does not fully comply with the terms of the contract. In this case, one party must promptly notify the other of the decision.

In the event that the guarantor becomes aware of the fulfillment of the main obligations before a decision was made in relation to the beneficiary's request, he must inform the parties to the transaction about this. After re-sending this claim, the guarantor is obliged to satisfy it.

The list of rights and obligations of the guarantor and beneficiary is small, but when carrying out such activities, it should be considered on a larger scale and all documentation should be carefully checked.

A novice foreign trade participant needs to clearly navigate in various financial terms, for example,. Read about it in our feature article.
If you have chosen the bill form of settlement, then find out what allonge is. Here you will also find information on the meaning and application of the endorsement and its types.

Identification requirements

For confidentiality purposes, it is recommended that offshore companies be registered with a nominee shareholder, which was mentioned earlier.

Information about the beneficiary will be indicated in the trust deed, and another person will act as the owner of the company in official documents and the public register of companies.

Bearer shares, as well as the presence of nominees, cannot guarantee absolute confidentiality to the beneficiary.

Disclosure of information about the ultimate beneficiaries may take place in the declaration of trust provided financial institution, where, if necessary, a company account is opened.

The owner of offshore companies is the nominee shareholder.

In addition, by law, the identity of the recipient of the services must be known to their representative. At the same time, you should not use a front person as the beneficiary of a legal entity to ensure confidentiality. In this case, the real owner of the assets may lose the right to dispose of them in the event of any disagreement with the parties to the contract.

It is also important to carefully select the bank and company, because a certificate of the beneficiary can be obtained by going through certain procedures provided by the institution.

Our specialist will advise you free of charge.

Managing partner, attorney

24.01.2018