The UK Treasury has published a consultation paper on the transposition of the EU’s Fifth Anti-Money Laundering Directive (5AMLD), which expands upon the scope of registration for trusts and widens the accessibility provisions to the beneficial ownership records. The 5AMLD Directive provides for public access, but it is up to each Member State to decide whether or not they will restrict this.
5AMLD will require that all UK express trusts register with HMRC, not just those with UK tax consequences (as was the case with 4AMLD). It will also bring into scope non-EU resident trusts that own UK land or property. STEP is concerned that under 5AMLD, a much wider range of trusts will need to be registered. Express trusts may include co-ownership of land, insurance trusts and other dormant trusts, which will significantly enhance the number of trusts that need to be reported. The consultation seeks to clarify the definition of express trusts, which we hope will provide some clarity and narrow the scope.
Access to the register
There will be expanded accessibility provisions. In the UK, the records will be accessible by law enforcement agencies, any UK obliged entity that enters into a business relationship with a trust, and anyone who can show that they have a ‘legitimate interest’ in the data. An exception is that if a trust has a ‘controlling interest’ in a non-EU company, then anyone will be able to access the information by making a written request and no legitimate interest is required. A trust will be deemed to hold a controlling interest in any corporate or other legal entity when the trust has 25 per cent or more of either the voting shares or other means of control over that entity as defined in the Persons with Significant Control (PSC) guidance. It is currently unclear how legitimate interest applications will be dealt with by the government since ‘legitimate interest’ is not defined within 5AMLD.
The government will need to decide whether or not requests for trust data meet the definition of legitimate interest. The current train of thought is that those with legitimate interest should be limited to people with active involvement in anti-money laundering or counter-terrorist financing activity, or those who have reason to believe or evidence that a particular trust or person is involved with money laundering or terrorist financing.
We hope that the government will require strong evidence of illegality and/or wrongdoing that clearly implicates the trust concerned before agreeing to consider a legitimate interest application. There are many people who seek to obtain confidential information about individuals and families with wealth for purposes other than the exposure of illegality or wrongdoing. People are often keen to obtain information about the affairs of the wealthy and those in the public domain, for example, and we are concerned that vague assertions of impropriety could be used to obtain confidential information about family trusts.
The consultation does, however, acknowledge that many trusts are used for children and vulnerable adults, and requests for personal information on either of these will be given ‘special consideration’ and will possibly even be withheld, which we fully endorse.
For trusts already in existence on 10 March 2020, the government proposes a deadline of 31 March 2021 for them to register. This gives a long lead-in time, given the greater number of trusts that will need to be registered.
For trusts created on or after 1 April 2020, the government proposes that the trust should be registered within 30 days of its creation. The government envisages that this approach will be the most straightforward, as registration can occur as part of the set-up process, when the required details should be readily available to trustees/agents. The proposal for registration within 30 days for new trusts means there is no single deadline each year and it seems sensible for the trust to be registered at the same time it is created.
It is also intended that this 30-day deadline will be used for any amendments that need to be made to the trust register data, for example, to update an address or change a trustee.
Due to the fact that 5AMLD extends registration to non-taxpaying trusts, the government considers that the self-assessment penalty regime is not a suitable basis for the 5AMLD penalty framework. The new regime is also being consulted on within the paper.
STEP will be submitting a response to the consultation, which closes on 10 June 2019. The transposition deadline is December 2019, with an implementation deadline of January 2020. There is an extended trust register deadline for the UK of March 2020.