UBO — who counts?
The ultimate beneficial owner is the real person behind the company. As a general rule it is whoever holds, directly or indirectly, at least 25% of the shares or voting rights, or who holds the power to appoint and remove directors.
If nobody meets that definition, the person exercising actual control over the company is the UBO; if that too cannot be established, the person responsible for senior management is.
Registers the company must keep
- A register of ultimate beneficial owners
- A register of nominee directors and managers — including whether they act on a third party's instructions
- A register of shareholders — shareholdings, voting rights and the dates those rights were acquired
These registers both make the declaration accurate and form part of compliance with commercial companies legislation. Banks look for the same information in their own know-your-customer processes when opening an account.
ESR — relevant activities
The main areas treated as "relevant activities" under the Economic Substance Regulations:
- Banking
- Insurance
- Shipping
- Holding company
- Intellectual property
- Lease-finance
- Investment fund management
- Distribution and service centre
- Headquarters
Calling the activity something else does not change the outcome; if the function is the same, it is a relevant activity.
Economic substance tests
- Core income generating activity test
- Directed and managed test
- Adequacy test — staff, expenditure and physical assets
The scope changed — let's assess your position
The application of the Economic Substance Regulations was narrowed after the corporate tax regime came into force. For many companies there is now no filing obligation for current periods; missed filings for earlier periods can still carry penalties.
That is why we don't sell ESR as an automatic annual service. We assess first, file if there's an obligation, and tell you if there isn't.