Guidance to Completing the Companies Registry s BOC17 Form

Transcription

1 Guidance to Completing the Companies Registry s BOC17 Form Issued: January 2018

2 Contents Contents 1 Introduction How is the JFSC to be notified? Scope When does this form need to be completed? Information required to complete the BOC17 form Exemptions Completing the Beneficial Owner and Controller section... 6 Guidance to Completing the BOC17 Form Page 2 of 17

3 1 Introduction The BOC17 is the new form which combines the C17A and C17B form into one. This is the form that you need to complete when there is a change to information on the register of Beneficial Owners and Controllers. In accordance with consents issued by the Jersey Financial Services Commission (JFSC) under articles 2, 5, 10 or 11 of the Control of Borrowing (Jersey) Order 1958 (COBO), prior consent will be required to any changes to information on the register of Beneficial Owners and Controller. However, where a company or registrable partnership uses the services of a Trust Company Service Provider (TCSP) (at a minimum by way of provision of registered office services), prior consent from the JFSC to a change is not required. Instead, the company or registrable partnership has 21 days from the date of knowledge to report any changes to the JFSC. 2 How is the JFSC to be notified? The BOC17 may be submitted via the Registry Portal or the Registry API. Throughout this document the API Tip aims to highlight differences between the Companies Registry Portal and the Registry API. Users of the API should be familiar with the BOC17Z schema which is available at: Users should also be familiar with the integration guidelines document which is available on the Zoho form. While the API tips serve assist users, they are not sufficient alone and users of the API must refer to both the integration guidelines and the schema documentation. For the avoidance of any doubt and to provide further clarity, the Registry API is a system which can only be used for notifications and not prior consents. This means that only companies or registerable partnerships that use the services of a TCSP for the purpose of administration or provision of a registered office, are entitled to use the Registry API. 3 Scope The information on the BOC17 form is collected under the COBO. Information provided in this form will be stored by the Companies Registry at the JFSC and will not be publicly available. This form must be completed by Jersey registered companies and partnerships, meaning: a) All Jersey companies, registered with the Companies Registry at the JFSC under the Companies (Jersey) Law 1991; and b) All Jersey registerable partnerships. This means any one of the following partnerships registered in Jersey; a limited partnership (LP) formed under the Limited Partnerships (Jersey) Law 1994, a separate limited partnership (SLP) formed under the Separate Limited Partnerships (Jersey) Law 2011, an incorporated limited partnership (ILP) formed under the Incorporated Limited Partnerships (Jersey) Law 2011 or a limited liability partnership (LLP) formed under the Limited Liability Partnerships (Jersey) Law It is also possible to volunteer Beneficial Ownership and Control information in respect of: a) Jersey foundations, these being foundations registered pursuant to the Foundations (Jersey) Law b) Collective Investment funds within the meaning of the Collective Investment Funds (Jersey) Law Page 3 of 17 Issued: January 2018

4 4 When does this form need to be completed? You need to complete this form when there is a change to information on the register of Beneficial Owners and Controllers. In essence, there are two types of obligations: a) Keeping information already on the register up to date i.e. where there is a change to the information previously submitted in terms of Beneficial Owners and Controllers; be it name, address, occupation etc. and/or b) Information required as a result of a change on transfer (25% or more on a risk based approach). In practice this means, removing a Beneficial Owner and adding a new one when there is a transfer of, for example, shares or a creation of any new partnership interests. When completing the BOC17, you will need to select an action. This being: Add, Amend or Remove. The action for Amend reflects the obligation set out in section 4.2(a) above, whilst the action to Add and/or Remove reflects the obligations set out in 4.2 (b) above API Tip: Users of the Registry API should note the additional action: Unchanged this should be used where the parts of the BOC17Z from that are lower in the structure are being updated. For example, a trust may remain Unchanged while the Trustee Entity is being updated with the Amend action. For the purpose of clarity, this guidance deals mainly with 4.2(b) above. Where 4.2(a) is invoked there is no need to input all the information again although some information may be required to be repeated when using the API. When using the portal, simply inform us of the change to the existing information but ensure that you link it back to the company or partnership which will be affected. We will update our guidance to make this point clear. The BOC17 form is designed to ensure that your company or registrable partnership is able to meet its regulatory obligations as set out in the consent issued by the JFSC in accordance with any one of the following provisions of the Control of Borrowing (Jersey) Order 1958, as amended; Articles 2, 5, 10 or Information required to complete the BOC17 form When completing information for an individual, you require the following: Full Name (English version if applicable, any former names and any other names used i.e. alias) Residential Address Date of Birth Place of Birth and Country of Birth Nationality Occupation Gender When completing information for an Entity (see exemptions below), you require the following: Full Name Registered office Address Registration number Country of Registration 6 Exemptions Guidance to Completing the BOC17 Form Page 4 of 17

5 When completing the form please be aware that at least one individual controller must always be identified unless: There is a JFSC regulated; General Partner of a registerable partnership, a trustee of a trust, or, a qualified member of a foundation but only on the basis that in each case a C17S (or equivalent form) has been filed with the Companies Registry; and/or Reliance is placed on Article 18(6A) of the Money Laundering (Jersey) Order 2008 i.e. the company is a public listed company on an IOSCO compliant or regulated market; or The Beneficial Owner and Controller is a state owned entity. The policy setting out the exemptions and in particular the exemptions relating to and can be found here: June-2017.pdf. TCSPs should note that this exemptions policy extends to and is applied to all incorporations. Page 5 of 17 Issued: January 2018

6 7 Completing the Beneficial Owner and Controller section BOC17 Form Reference Notes API Tip Page 1 Beneficial Owner and Controller Information Select from the drop down which form of entity the application concerns; a Jersey company, a Limited Partnership (LPs), an Incorporated Limited Partnership (ILPs), a Separate Limited Partnership (SLPs) or a Limited Liability Partnership (LLPs), providing the name and number of the entity concerned. The General questions require you to identify whether or not there are any other entities within the ownership structure of the entity applying. You will need to answer yes or no to each of the questions set out on the first page. Where the entity is owned or controlled by a trust, a limited partnership or a foundation that is registered in Jersey, then specific information will be required. It is therefore important that you refer to relevant guidance in respect of each such vehicle: For trusts/trustees that own and control a Jersey entity see guidance issued at: For foundations owning and controlling a Jersey entity see guidance issued at: For LPs, ILPs and SLPs owning and controlling a Jersey entity see guidance at: Taking into account the above, answer Yes or No to the general questions listed and this will take you to the appropriate sections that you will need to complete before submitting the form. The questions are replicated below: 1. Within the ultimate Beneficial Ownership structure are there any entities that have been identified as being Jersey Regulated General Partners? Identify any general partners of a partnership (LP, ILP and SLP). You can stop at the entity if such GP is regulated by the JFSC. Guidance to Completing the BOC17 Form Page 6 of 17

7 2. Within the ultimate Beneficial Ownership structure are there any individuals that have been identified as being Beneficial Owners and/or Controllers of the Company or Partnership? If you have no intermediary vehicle owning or controlling the company or partnership then select yes and complete the individual s details in the next section. 3. Within the ultimate Beneficial Ownership structure are there any Trusts that have been identified as being Beneficial Owners with a vested interest and/or deemed Controllers of the Company or Partnership? If a trust owns or controls the Jersey company or partnership you must select yes and provide details of the trust in accordance with the Supplemental FAQs for Trust Company Service Providers (TCSPs). These being all Beneficial Owners with a vested interest in the trust as well as all deemed controllers; settlors, trustees, protectors (if any) and any powerholders. Where a trustee (or an instigator) is regulated by the JFSC, only the details of the entity are required. 4. Within the ultimate Beneficial Ownership structure are there any Foundations that have been identified as being Beneficial Owners and/or Controllers of the Company or Partnership? If a foundation owns or controls the Jersey company or partnership you must select yes and provide details of the foundation. 5. Within the ultimate Beneficial Ownership structure are there any Listed Public Companies that have been identified as being Beneficial Owners and/or Controllers of the Company or Partnership which fall within Article 18(6A) of the Money Launder (Jersey) Order 2008 (MLO)? Only select yes if the Beneficial Owner and/or Controller is listed on an IOSCO compliant market or regulated market (in accordance with Article 18(6A) of the MLO). 6. Within the ultimate Beneficial Ownership structure are there any entities where the Beneficial Ownership and/or Control is with many individuals, each holding less than 25% that have been identified as Beneficial Owners and/or Controllers in the Company or Partnership? Complete this section if a Beneficial Ownership or Control is with a government entity. Page 7 of 17 Issued: January 2018

8 Only select yes if a state owned entity or a fund or partnership or company with many members none of which have hold 25% or more. You should also select yes to this question in circumstances where the listed public company is not a company listed on an IOSCO compliant market or a regulated market (within the meaning of Article 18(6A) of the MLO). Page 2 Details of Entity ONLY COMPLETE THIS PAGE WHERE AN LP, ILP or SLP OWNS AND CONTROLS A JERSEY REGISTERED COMPANY OR PARTNERSHIP. MOVE TO THE NEXT QUESTION IF THIS DOES NOT RELATE TO YOU This section will only appear if you have selected yes to the first question Within the ultimate Beneficial Ownership structure are there any entities that have been identified as being Jersey Regulated General Partners? Information relating to partnerships When completing this section you must apply the three tier test to the: General Partner (GP) (unless JFSC regulated see below); and Limited Partners. JFSC regulated exemption The Government of Jersey has permitted an exemption for JFSC regulated GPs. This exemption only applies to a GP that is a corporate, regulated by the JFSC, which has itself already submitted a C17S (or equivalent form). In such circumstances it is permitted to simply file the corporate name of the GP as Owner and Controller but you still need to apply the three tier test to the limited partners. Regulated by the JFSC means (i) a person registered with the JFSC to carry on trust company business or (ii) a person registered with the JFSC to carry on trust company business or fund services business under the Financial Services (Jersey) Law 1998 in the case of an unregulated fund (as defined by the Collective Investment Funds (Unregulated Funds) (Jersey) Order 2008) or a certified fund under the Collective Investment Funds (Jersey) Law For the avoidance of any doubt, a PIRS GP is not regulated by the JFSC and therefore does not fall within the meaning of Regulated by the JFSC. If you are submitting via the Registry API you can use the General Partner Entity Details and General Partner Individual Details sections. The general partner entity details includes an optional list of Controller Details which should be used when a General Partner Entity is not Jersey Regulated. Guidance to Completing the BOC17 Form Page 8 of 17

9 When completing this section Choose an action add, remove or amend. You will then need to inform us the date of knowledge of change (if registered office is provided by a TSCP) or if seeking prior approval, insert today's date (prior approval is required for all non-tcsp administered entities i.e. local residents). Next, provide the name of the General Partner, the country of registration and registration number, indicating in particular whether or not the General Partner is regulated by the JFSC. You will also need to provide full address details including a post code and parish (if Jersey address is used). For information relating to limited partners, please provide this information by completing the information required in Details of Individuals on page 3. Page 3 Details of Individuals When completing this section, select which action is required; add, remove or amend. Then complete the date of knowledge of change (if registered office is provided by a TSCP) or if seeking prior approval, insert today's date (prior approval is required for all non-tcsp administered entities i.e. local residents). You will then need to identify whether the information being inputted is in connection with a Beneficial Owner or Controller or both. In most cases the Beneficial Owner identified will also be a controller. If this is the case select Both. Details of Individuals who are Beneficial Owner(s)/Controller(s): If you can immediately identify a physical person who owns or controls the entity i.e. there is no company or other entity owning or controlling the Jersey registered company or partnership, please provide information on this individual. Ensure that all mandatory fields are completed. To aid applicants, the Companies Registry will provide a concession: a) Where an applicant does not hold a complete date of birth (some countries do not record this); for example they only hold a year of birth enter 01 January [year of birth]. Or, where the applicant holds no information relating to date of birth enter 01 January Page 9 of 17 Issued: January 2018

10 Page 4 Trust b) With regard to dual nationality (or more) simply identify the nationality of choice. c) Occupation specify the Beneficial Owner or Controller s occupation. If a director, also state the name of the company. If a director of more than one company, simply identify the company of choice. We need this information for vetting purposes. When completing information relating to Gender; the drop down menu will provide you with a choice of male, female or X. X is to be used in circumstances when gender is indeterminate or intersex or unspecified. Remember: the test for Jersey registered companies and partnerships not administered by a TCSP (mainly local residents) is different to Jersey registered companies and partnerships administered by a TCSP. The trigger threshold for reporting for non TCSP (mainly local residents) is 25% or more. Where TCSP s administer a Jersey registered company or partnership, the trigger threshold for reporting is 25% or more on a risk based approach. Only complete this section of the BOC17 if a trust owns or controls a Jersey registered company or partnership. This section will only appear if you have select yes to a trust owning or controlling a Jersey registered Company or Partnership. When completing this section, select which action is required; add, remove or amend. You must refer to the FAQs on the Company Registry website in particular Supplemental FAQs for TCSPs relating to Trust Associated Complexities when completing this part of the form: pdf The Companies Registry will consider the following as controllers of a trust; a settlor (only if alive), protector; and power holder. When identifying such controllers, ensure that the controller only box is selected. We will not identify on our records information as to who is in fact the settlor, protector or power holder. In respect of the originator or instigator, the Companies Registry will accept information relating to an entity where the entity is regulated by the JFSC and such entity has already filed a C17Z. There is no need to drill further applying the three tier test in such circumstances. Accordingly, Guidance to Completing the BOC17 Form Page 10 of 17

11 Submit information relating to a beneficiary with a vested interest separately by completing information requested under the heading name of vested beneficiary of a trust whereby they are an individual. Remember: Whenever children are identified, identify the guardian and NOT the child. The Registry must be notified of a change to a beneficiary when the child becomes an adult i.e. 18 years old. Charitable trusts Where a charitable trust owns and controls a Jersey registered company or partnership, you must complete information relating to the trust in this section. As explained in our Supplemental FAQs for TCSPs relating to Trust Associated Complexities (see TCSPs-Trust-Associated-Complexities-March-2017.pdf), charitable trusts should be treated in the same way as any other trusts owning and controlling a Jersey registered company or partnership. This means that once you have identified the trust, you must then complete information relating to the following in the Details of Individuals page: a settlor (only if alive) select controller only, protector or power holder select controller only beneficiary with a vested interest select beneficiary only (unless also a controller then select both) complete the charitable entity/instigator details. Where it is not regulated by the JFSC, the Charitable Entity Instigator Details has a list of controller details below where information relating to the security-holder(s) may be recorded Originators or Instigators In circumstances where section of the AML/CFT Handbook applies (legal arrangement that is a charitable trust (capital markets)), you must also identify: the originator or instigator of the capital market transaction; and each security-holder that is able to exercise effective control over the underlying security-issuing vehicle. For the avoidance of any doubt, in respect of the originator or instigator, the Companies Registry will accept information relating to an entity where the entity is regulated by the JFSC and such entity has already filed a C17S. There is no need to drill further applying the three tier test in such circumstances. Accordingly, complete the section Details of Entity for information relating to the originator or instigator of the capital market transaction. Page 11 of 17 Issued: January 2018

12 Information relating to each security-holder that is able to exercise effective control over the underlying security-issuing vehicle should be completed in the Details of individuals page. Page 5 Foundation Details Only complete this section of the BOC17 if a foundation owns or controls a Jersey registered company or partnership This section will only appear if you have selected yes to a foundation owning or controlling a Jersey registered Company or Partnership. Before completing this section, ensure you have read and understood the requirements set out in our guidance relating to foundation associated complexities: Foundation-Associated-Complexities-June-2017.pdf Once you have you reviewed the guidance you will be in a position to complete this section of the form. First, when completing this section, select which action is required; add, remove or amend. Complete the date of knowledge of change (if registered office is provided by a TSCP) or if seeking prior approval, insert today's date (prior approval is required for all non-tcsp administered entities i.e. local residents). In this part of the form, you will then need to identify and provide the following information: the name of Foundation; the details of all council members (if a JFSC regulated qualified member you are able to stop at the entity. If any other entity is identified you need to apply the three tier test to such entity); the details of all founders and guardian(s); and any beneficiary entitled to a benefit under the foundation in accordance with the charter or the regulations of the foundation (ensure you have selected no to the question whether a qualified member is applying and then select beneficiary only (or both if also a controller). With respect to beneficiaries entitled to a benefit under the foundation in accordance with the charter or the regulations of the foundation this includes any other beneficiary and person in whose favour the council may exercise discretion under the foundation in accordance with its charter or regulations and that have been identified as presenting higher risk as well as details of any other person exercising ultimate effective control over the foundation. Guidance to Completing the BOC17 Form Page 12 of 17

13 Page 6 Listed Public Entity Page 7 Entity where Beneficial Ownership and/or Control is with many individuals, each holding less than 25% Remember: Whenever children are identified (i.e. as a beneficiary), identify the guardian and not the child. The Registry must be notified of a change to a beneficiary when the child becomes an adult i.e. 18 years old. This section will only appear if you have selected yes to a listed public entity owning or controlling a Jersey registered Company or Partnership. When completing this section, select which action is required; add, remove or amend. You are only permitted to use this section where reliance is placed on Article 18(6A) of the MLO and the Beneficial Owner is a body corporate the securities of which are listed on an IOSCO compliant market or on a Regulated Market. When completing this part of the form, the Companies Registry at the JFSC will require the name, company number, registered office address and jurisdiction of incorporation, a website address where the latest set of accounts may be found and the exchange where the company is listed. You may also opt to identify a controller for this entity by inputting information in Details of Individuals but this is not necessary. This section will only appear if you have select yes to Within the ultimate Beneficial Ownership structure are there any entities where the Beneficial Ownership and/or Control is with many individuals, each holding less than 25% that have been identified as Beneficial Owners and/or Controllers in the Company or Partnership? Also complete this section if a Beneficial Ownership or Control is with a government entity. When completing this section, select which action is required; add, remove or amend You may only complete this section if the entity is: a) a limited partnership; b) a fund; or c) a company, that is not a public traded company on an IOSCO compliant market or on a Regulated Market. If an IOSCO compliant market or on a Regulated Market, complete page 6. If you wish to identify a controller for a Listed Public Entity you must record this in the IndividualDetails section of the BOC17Z schema. Controller details below ListedPublicCom panydetails are not recorded. The Entity With Many Members Details section of the BOC17Z schema contains a list of Controller Details where individuals identified during the three tier test should be recorded. Page 13 of 17 Issued: January 2018

14 You can also complete this section in circumstances where a government owned entity is identified as a Beneficial Owner and/or Controller. In such circumstances, ensure to identify a minimum of one contact person. As a matter of policy the three tier test need not be applied to Government entities. Accordingly, when identifying a controller in respect of such Government entities, the Registry of the JFSC will only expect information to be submitted for contact purposes only. In the case of Government entities, it is therefore recognised that the controller identified is not necessarily a controller and that this will be stipulated when sharing information. A statement in this regard has been made in the Policy relating to COBO consents issued between 1 January June 2017 and this includes a definition of Government Entity. Refer to: All Government Entities identified should include an Individual under the Details of Induvial section (by selecting controller), however inserting after the surname (contact only). Completing this section In this section you must complete the details of individuals who have less than 25% or more interest in the body corporate where they are deemed to be high risk. In the event that there is no one identified, the next step is to apply tiers 2 or 3 of the three tier test. Once identified, please revert back to page 3 and input the data concerning the person identified in Details of Individuals. Page 8 Higher Risk Factors If you are a Trust Company Service Provider submitting this application (as a director or as a registered office provider), you must state so by answering yes to the first question. If you are not a Trust Company Service Provider AND you are not administered by a Trust Company Business state no to the first question. The next questions will vary depending on whether or not a trust company service provider administers or provides registered office services to the entity concerned. Trust Company Service Provider All Trust Company Businesses making submissions on behalf of their clients are asked to confirm that reasonable measures have been applied (having regard to all the circumstances of the case, including the degree of risk assessed) to obtain evidence that none of the Beneficial Owner(s), Controller(s), or other Higher risk factors questions are asked at root and individual level for API submissions. Individuals identified as PEPs are then required provide details of the PEP and Guidance to Completing the BOC17 Form Page 14 of 17

15 persons named in this application or related correspondence has in any part of the world been declared bankrupt or en desastre, been a director of, or otherwise concerned in the management of, a body corporate which has been subject to an insolvent liquidation, been the subject of a judicial enquiry or is serving a period of disqualification from holding the office of Director. The JFSC will be satisfied, that reasonable measures have been undertaken if, as a minimum, open source customer due diligence has been performed against each person named in this application. In assessing the risk, searches should be made through profiles provided on electronic subscription databases and on the internet. External data sources may also assist in establishing customer specific risk. For example, electronic subscription databases list individuals entrusted with prominent public functions. When conducting searches, it is expected that where names are to be translated care is taken as to spellings of names (noting that with some languages translations may differ by virtue of the use of an i or y ) and that alias names must also be searched. In circumstances where the Companies Registry identifies that an applicant has been subject to an insolvent liquidation, been the subject of judicial enquiry or is serving a period of disqualification from holding the office of a director, and this was not identified within the application, the Registrar reserves the right to review further and, if necessary, make a referral to supervision and/or enforcement divisions of the JFSC. Where a serious offence has been committed by a Beneficial Owner and/or Controller named within the application, the Registry reserves the right to a) withhold approval of change relating to Article 2 of the Control of Borrowing Order consent; or b) apply specific conditions to any Control of Borrowing Order consent granted. In addition, The Companies Registry may also deem it necessary to obtain an undertaking from the TCB to apply specific and pre-agreed risk monitoring. When completing the form you will need to answers questions concerning politically exposed persons (PEPs). If you identify a PEP, you will need to complete the free text box to state why the person has been identified as a PEP. The Companies Registry will need to know whether Enhanced Due Diligence has been conducted. The Companies Registry will also need you to confirm that all checks relating to corruption and bribery, sanctions and proliferation have been conducted and no negative hit has been found in respect of all persons named in the application. Finally, we require confirmation that all AML/CFT handbook requirements have been complied with. If there is a negative hit or there is information missing on an applicant, you must provide this information in the free text. indicate if enhanced due diligence has been completed. Disqualified directors should be identified at the root of the BOC17Z submission by using the IsDisqualifiedDir ector indicator. Remaining Higher risk factors are also answered at the root level. Page 15 of 17 Issued: January 2018

16 Non Trust Company Business applicants If you are a non-trust company business applicant i.e. your company or partnership is not administered by a trust company service provider (whether by way of company secretarial services or a registered office only service) you will need to provide the Companies Registry with a number of declarations. Firstly, we need to know whether or not you or anyone named in the application has been declared: bankrupt or en desastre ; been a director of, or otherwise concerned in the management of, a body corporate which has been subject to an insolvent liquidation; been the subject of a judicial enquiry; or is serving a period of disqualification from holding the office of director. When completing the form you will also need to answers questions concerning politically exposed persons (PEPs). If you or any person named on the application is a PEP, other than a PEP in Jersey, you will need to complete the free text box to state why you or the person that has been identified is a PEP. The Companies Registry will need you to also confirm that all checks relating to corruption and bribery and sanctions have been considered and complied with. If there is a negative hit or there is information missing on an application, the Companies Registry will simply reject the application. Guidance to Completing the BOC17 Form Page 16 of 17

17 Page 9 Particulars of Signatory The Statement must be signed by an authorised signatory, a company director or company secretary or corporate director or corporate company secretary. Submissions may be made by agent as an authorised signatory where there is a valid and relevant power of attorney in place or where there is contractual permission to file. If acting as agent, please select on behalf of whom you are submitting the BOC17 form. Agents will normally submit information on behalf of the company secretary. Submissions filed by agents will be accepted on a bona fide basis. The Registry reserves the right to seek evidence of authority. If not proven upon request, the filings will be deleted from our files within one month of the Registry being placed on notice and action may be taken against the agent for submitting false or misleading information in breach of the Control of Borrowing (Jersey) Law 1947, as amended. Upon such deletion of the information held by the Companies Registry, the Companies Registry shall reinstate the previous entry relating to Beneficial Ownership and Control. The onus is on the Company to ensure that the Companies Registry maintains an accurate and current record relating to Beneficial Ownership and Control. The Statement will be retained by the JFSC for a minimum of 21 years following the dissolution, continuance-out or merger of the company and/or cancellation of a registerable partnership. Information may be shared with law enforcement agencies as detailed in the Information Sharing Agreement between the JFSC and JFCU dated 30 June 2017: Page 10 Particulars of the presenter Page 11 Summary The system will automatically identify who the presenter of the particulars. If these are incorrect, you must update your profile of the Registry portal home page. A summary of what has been submitted is presented. Ensure you check this summary is correct before submitting the application. Page 17 of 17 Issued: January 2018