COMPANIES REGISTRY
P O Box 345, St Georges Court
Upper Church Street, Douglas
Isle of Man, IM99 2QS
Department of Economic
Development
Rheynn Lhiasaghey Tarmaynagh
Companies Registrar
J Wilkinson
Telephone:
E-mail:
Website:
+44 (0)1624 689389
[email protected]
www.companiesregistry.gov.im
PRACTICE NOTE
PN1/2013
Date: 6th August 2013
The Companies Acts 1931-2004
Companies (Beneficial Ownership) Act 2012
This Practice Note has been issued to assist with the introduction of the Companies
(Beneficial Ownership) Act 2012 on the 1st September 2013.
The Act requires every company that is not the client company of a Corporate Service Provider or
covered by an exemption in the Act or the Companies (Beneficial Ownership) (Exemptions) Order
2013 (SD 235/2013) to appoint a ‘nominated officer’.
This practice note is intended as a guide to the introduction of the legislation and the changes that will occur
as a result of its introduction. It is intended as a general guide only and must be read in conjunction with the
relevant legislation. It should not be relied upon as a substitute for legal advice.
Contents
1.
Background to the legislation
2.
What is beneficial ownership?
3.
Requirement to have a nominated officer
4.
Appointment of the Nominated Officer
5.
Further information
1.
Background to the legislation
1.1
The Isle of Man has worked hard to ensure that the international community recognises that it
conducts its affairs in an open and transparent manner. Part of this requires the Isle of Man to
submit to inspections conducted by supra-national bodies such as the International Monetary Fund
(“the IMF”) and the Organisation for Economic Cooperation and Development. If the Isle of Man is to
continue to survive and thrive in an increasingly competitive world, it is vital that it constantly reevaluates its position and seeks to make improvements where indicated.
1.2
In 2008/2009 the IMF conducted a Financial Sector Assessment Programme on the Isle of Man which
considered, amongst other things, the Island’s compliance with international standards for anti-money
laundering and countering the financing of terrorism.
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1.3
The IMF’s 2008/2009 report suggested that the Island should take steps to address a deficiency in
relation to the information relating to the beneficial ownership and control information held on certain
companies incorporated under the Companies Act 1931.
1.4
Under the Companies Act 2006, every company must retain the services of a registered agent who
must be a Corporate Service Provider, licensed by the Financial Supervision Commission. All Corporate
Service Providers have an existing obligation to identify and hold information on the beneficial owners
of companies under the Anti-Money Laundering laws of the Isle of Man.
1.5
The majority of 1931 Act companies in the Island are clients of licensed Corporate Service Providers
who will hold information on the beneficial owners of the companies. However, there is no legal
obligation on a locally owned and managed trading company not associated with a Corporate Service
Provider to hold information on the beneficial owners of the company. For these companies, it is likely
that the shareholders (owners) will also be the directors and secretary of the companies.
1.6
There is currently no way to determine how many of these locally owned companies there are.
1.7
In its final report the IMF requested that “the authorities should seek to put in place measures to
ensure that accurate, complete, and current beneficial ownership information is available for all 1931
Companies”.
1.8
The Act addresses the recommendations the IMF with a commonsense solution that minimises the
effects felt by the Isle of Man, its business community and its residents.
2.
What is beneficial ownership?
2.1
Most people looking at a shareholder list on a company file will assume that the person named as
shareholder actually owns the shares recorded against their name and that they will be the person
receiving any dividend or share of the profits.
2.2
In the Act, “beneficial owner” means the person who actually owns the shares (whether or not this is
the name recorded in the company’s share register).
2.3
The Act does not introduce any new powers for law enforcement bodies to obtain beneficial owner
information. It simply introduces a new requirement for a person to know that information. That
person is the ‘nominated officer’.
3.
Requirement to have a nominated officer
3.1
The Act requires every company that is not covered by an exemption in the Act (see note 1) or the
Companies (Beneficial Ownership) (Exemptions) Order 2013 (SD 235/2013) (see note 2) to appoint a
‘nominated officer’.
3.2
The nominated officer must be an individual who is resident on the Isle of Man. There is a statutory
obligation on the members of a company to provide the nominated officer with details of the
beneficial owner of the shares if it is not them.
4.
Appointment of the Nominated Officer
4.1
By Monday 2 September 2013 every company that is required to have appointed a nominated officer
should have done so. An existing company does not have to notify the Companies Registry of the
appointment of its nominated officer until it submits its next annual return that is due in the year
commencing 1 September 2013.
4.2
An amended annual return form to be used after the 1 st September 2013 is available on the
Companies Registry web site at:
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Annual Return of a company having share capital from 1st September 2013
http://www.gov.im/lib/docs/ded/companies/companyForms/beneficialowner/arboannualreturnofacom
panyhavingsh.pdf
Annual Return of a company not having share capital or limited by guarantee and having
a share capital from 1st September 2013
http://www.gov.im/lib/docs/ded/companies/companyForms/beneficialowner/ar7boannualreturnofaco
mpanynothavi.pdf
4.3
As a number of companies annual returns are printed from a secretarial package and it may take
some time to programme these changes the Companies Registry are also making available an insert,
just dealing with the nominated officer that can be inserted into an existing annual return.
Insert for annual return form from 1st September 2013
http://www.gov.im/lib/docs/ded/companies/companyForms/beneficialowner/boannualreturninsertforn
omina.pdf
4.4
Once a nominated officer has been appointed, any subsequent change will need to be notified within
1 month of the change on the new form NO in the same way you notify a change of director or
secretary. A copy of the form is available on our web site:
Form NO - Notice of appointment or change of nominated officer or in their particulars
http://www.gov.im/lib/docs/ded/companies/companyForms/beneficialowner/form_no.pdf
4.5
From the 1st September 2013 every new company incorporated, that is not exempt from the
requirement to have a nominated officer must include details of the nominated officer in the
application for incorporation. A new form 1 has been prepared and is available on our web site at:
Form 1 - Statement of first directors, secretary and nominated officer and intended
situation of registered office
http://www.gov.im/lib/docs/ded/companies/companyForms/beneficialowner/boform_1.pdf
5.
Further Information
5.1
Our staff will willingly answer general queries by telephone or e-mail but cannot give legal advice.
The telephone number for the Companies Registry is: 01624 689389 and the e-mail address is:
[email protected]
5.2
If you require legal advice you should consult an Advocate.
5.3
Details of Isle of Man Advocates are available from the Isle of Man Law Society at:
Isle of Man Law Society
27 Hope Street
Douglas
Isle of Man, IM1 1AR
Telephone:
+44 (0)1624 662910
Fax:
+44 (0)1624 679232
E-mail:
[email protected]
Website:
www.iomlawsociety.co.im
5.4
A copy of the Act, regulations, Statutory forms and practice notes are available free of charge from
the website:
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http://www.gov.im/ded/companies/Beneficial/
http://www.gov.im/ded/companies/Beneficial/acts.xml
http://www.gov.im/ded/companies/Beneficial/regulations.xml?menuid=25038
5.5
A list of corporate service providers is available on the web site of the Financial Supervision
Commission at www.fsc.gov.im/Licenceholders.
5.6
Documents may be submitted at any time during office hours (9.00am to 4.30pm Monday to
Thursday and 9.15am to 4.30pm on Friday) ‘over the counter’ in the Companies Registry.
Submission of documents may also be effected by post or after office hours by way of the letterbox
situated to the left of the main staff entrance in Hill Street. Presenters requiring acknowledgement of
receipt of a document should provide a stamped self-addressed envelope.
5.7
The Companies Registry will remain closed on the first Wednesday of each month until 11.00 hrs for
staff training. Documents can still be left in the letterbox.
5.8
For the purpose of determining the date of submission of a document, documents submitted after
4.30 p.m. on any working day (Day 1) but before 9.00 a.m. on the following working day (Day 2), will
be treated as having been submitted on Day 1. For the avoidance of doubt, documents submitted
before 9.00 a.m. on the day immediately following a weekend or Bank Holiday will be treated as
having been submitted on the last working day prior to the weekend or Bank Holiday.
5.9
It is the responsibility of those presenting documents to ensure that documents arrive in
the Companies Registry within the filing periods prescribed.
We are aware that post can on occasion be delayed. However presenters should be aware
of that and post documents in plenty of time. The Companies Registry cannot operate a
system which allows for such delays as to do so would simply amount to an extension to
the filing periods set down by law.
Please note: The Department does not currently accept statutory documents by fax or E-Mail.
Note 1
S.4(2) This Act does not apply to a company which is —
(a) incorporated outside the Island;
(b) listed on a stock or investment exchange recognised by the Treasury for the purposes of this
section;
(c) a collective investment scheme (within the meaning of section 1 of the Collective Investment
Schemes Act 20085) which is an authorised scheme, an international scheme or an exempt
scheme within the meaning of that Act; or
(d) of any other class or description prescribed for the purposes of this section by an order of the
Treasury.
Note 2
Exemptions from the Act The Companies (Beneficial Ownership) Act 2012 does not apply to a company —
(a)
which is a public company within the meaning given by section 341 of the Companies Act 1931;
(b)
which is a registered charity within the meaning given by section 15(1) of the Charities Registration Act
1989;
(c)
which, by virtue of a licence from the Attorney General under section 18 of the Companies Act 1931, is
exempt from the obligation to use the word “limited” as part of its name;
(d)
which —
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(i)
is formed for promoting art, science, religion, sport, commerce, charity or any profession (whether
or not licensed under section 18 of the Companies Act 1931); and
(ii)
has confirmed in its annual return most recently submitted to the Department of Economic
Development under section 109 of the Companies Act 1931 that its principal trade or business is
consistent with the purpose for which it was formed;
(e)
which is licenced by the Financial Supervision Commission under section 7 of the Financial Services Act
2008 to carry on a regulated activity (within the meaning given by section 3 of that Act);
(f)
which is in receipt of services provided by the holder of a Class 3 (services to collective investment
schemes) or Class 4 (corporate services) licence issued by the Financial Supervision Commission under
section 7 of the Financial Services Act 2008 in accordance with the licence;
(g)
which is an insurer authorised under section 8 of the Insurance Act 2008 to carry on an insurance
business;
(h)
which is registered under section 25 of the Insurance Act 2008 in the register of insurance
intermediaries kept by the Insurance and Pensions Supervisor under that Act;
(i)
which is registered under section 25 of the Insurance Act 2008 in the register of insurance managers
kept by the Insurance and Pensions Supervisor under that Act;
(j)
which is registered under section 36 of the Retirement Benefit Schemes Act 2000 in the register of
scheme administrators kept by the Insurance and Pensions Supervisor under that Act;
(k)
which is licensed by the Isle of Man Gambling Supervision Commission to conduct online gambling
under section 4 of the Online Gambling Regulation Act 2001;
(l)
which holds a bookmakers’ permit granted by the Isle of Man Gambling Supervision Commission under
Schedule 1 to the Gaming, Betting and Lotteries Act 1988;
(m)
which holds a betting office licence granted by the Isle of Man Gambling Supervision Commission under
Schedule 1 to the Gaming, Betting and Lotteries Act 1988;
(n)
which holds a certificate granted by the Isle of Man Gambling Supervision Commission under section 3
of the Gaming (Amendment) Act 1984 authorising the keeping of controlled machines (within the
meaning given by section 1 of that Act) for use on premises specified in the certificate;
(o)
which holds a casino licence granted by the Council of Ministers under section 3 of the Casino Act 1986;
or
(p)
which is a wholly-owned subsidiary of a company to which the Companies (Beneficial Ownership) Act
2012 does not apply by virtue of this Order.
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