Ireland - Trust Beneficial Ownership Information

Ireland has recently implemented the provisions of AMLD4 and AMLD5 as they relate to trust beneficial ownership information. Trustees should now draw up their internal beneficial ownership registers, with a view to reporting this information in 2020.

Background

Among the changes to the EU anti-money laundering regime which were brought in by the AMLD4 were new requirements around beneficial ownership information. These requirements applied to both corporate and other legal entities (Article 30) and express trusts (Article 31). The obligations in Articles 30 and 31 can broadly be divided into:

  1. an obligation to maintain accurate and current information on beneficial ownership in an internal register (the recordkeeping obligation). The recordkeeping obligation also requires that the beneficial ownership information is accessible in a timely manner by competent authorities and FIUs; and
  2. an obligation to report such information to a register maintained by the national competent authority (the reporting obligation).

Articles 30 and 31 may be summarised as follows: 

  Article 30 Article 31
Applies to: Corporate and other legal entities. Express trusts (and other legal arrangements with structures and functions similar to trusts).
Recordkeeping obligation: Yes - applies to the entity. Yes - applies to the trustee.
Reporting obligation: Yes.

AMLD4 - only where the trust generates tax consequences.

AMLD5 - all relevant trusts.

Accessible to:

Competent authorities and FIUs: Yes, without restriction. Yes, without restriction.
Obliged entities: Yes, when carrying out customer due diligence. Yes, when carrying out customer due diligence.
Any other person or organisation:

Yes, where there is a legitimate interest. (AMLD4).

Yes, any member of the general public (AMLD5).

Yes, where there is a legitimate interest (AMLD5).

And

Upon written request, for trusts which control non-EU companies (AMLD5).

Irish Transposition: European Union (Anti-Money Laundering: Beneficial Ownership of Corporate Entities) Regulations 2016 (the 2016 Regulations). European Union (Anti-Money Laundering: Beneficial Ownership of Trusts) Regulations 2019 (the 2019 Regulations).
Applies From 15 November 2016 29 January 2019

AMLD4 and AMLD5

AMLD4 provided that all relevant trusts were subject to the recordkeeping obligation, while only trusts which “generate tax consequences” were subject to the reporting obligation. AMLD5, which must be transposed by the Member States by 10 January 2020 removes this distinction, with the result that in-scope trusts will be subject to the reporting obligation.

Aside from the recordkeeping and reporting obligations, AMLD4 also requires trustees, when entering into transactions, to inform their counterparties that they are acting as a trustee and to provide those counterparties who request it with the beneficial ownership information.

Ireland

As indicated above, the provisions of Article 30 were transposed into Irish law by the 2016 Regulations, but there was no equivalent transposition of Article 31. With effect from 29 January 2019, the 2019 Regulations have imposed the recordkeeping obligation of Article 31 on Irish trustees.

The 2019 Regulations define a trust as an express trust whose trustees are resident in Ireland or which is otherwise administered in Ireland. “Express trust” is not defined in the 2019 Regulations, but our view is that it should be taken to refer to trusts which satisfy the “three certainties” of intention, subject matter and object.

The 2019 Regulations require trustees to obtain and hold adequate, accurate and current information in respect of their trusts’ beneficial owners and to keep and maintain a register (the beneficial ownership register) into which the information should be entered.

The beneficial ownership register must set out the following details: 

 Name
 Date of birth
 Nationality
 Residential Addresses        

Of the following beneficial owners: 

The settlor(s)
The trustee(s)
The protector(s), if any
The beneficiaries or where the individuals benefiting from the legal arrangement or entity have yet to be determined, the class of persons in whose main interest the legal arrangement or entity is set up or operates
Any other natural person exercising ultimate control over the trust by means of direct or indirect ownership or by other means

The beneficial ownership register must also record when a person’s details were entered in the register and the date on which a person ceased to be a beneficial owner. Although as noted above the reporting obligation is yet to be introduced for Irish trusts, the Revenue or any Irish competent authority must be provided with timely access to the beneficial ownership register. The competent authorities are also allowed to share the beneficial ownership information with their EU counterparts.

The 2019 Regulations also require trustees, when entering into transactions with designated persons, to

  • inform such designated persons that they are acting as a trustee, and
  • upon request, provide the designated person with the beneficial ownership information (and to subsequently notify the designated person of any changes in the information).

Future Outlook

As noted above, the AMLD5, which makes all relevant trusts subject to the reporting obligation, must be transposed by the Member States by 10 January 2020. The deadline for the Member States to set up their central registers of beneficial ownership for trusts is 10 March 2020. There has as yet been no information on who will maintain the register or how trustees will submit their beneficial ownership information to it. However, our experience in other jurisdictions is that it will be by way of a web portal.

For further information on the preparation of a beneficial ownership register, please contact Fionán Breathnach or Derek Lawlor.

This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.