Understanding Ultimate Beneficial Owner (UBO) Requirements and Risks

The Ultimate Beneficial Owner (UBO) owns or controls a business or legal entity. Understanding who UBOs are and the risks they pose can help financial institutions achieve regulatory compliance and enhanced security.

Jurisdictions differ on UBO definitions and requirements, but it’s critical that financial institutions verify company details, understand corporate structures and identify the UBO for due diligence and complying with Anti-Money Laundering (AML) and Know Your Customer (KYC) laws.

EU UBO requirements

EU financial institutions doing business with commercial clients must identify UBOs. The EU’s 4^th AML Directive (4AMLD) was the first to require UBO identification, and different member states have since passed enabling laws to enforce reporting requirements. For example, Sweden has legislation that requires notifying the Swedish Companies Registration Office of beneficial owners.

The Swedish legislation:

• Covers Swedish companies, companies operating in Sweden and people who administer trusts and other similar legal structures
• Defines a beneficial owner as anyone who controls the company directly or through agreements, has more than a 25% ownership stake or has the power to control at least half the board
• Requires that any beneficial ownership change be reported as soon as the entity becomes aware of the change

While each EU member state has specific legislation, the laws must conform to the 4AMLD. The 5^th AML Directive added requirements for member states to set up publicly available registers for companies, trusts and other legal arrangements.

The deadline for those registers was Jan. 10, 2020. But, according to BLOCKINT, a Netherlands-based international intelligence and investigative consultancy service, “not all of the registers in the EU member states are publicly accessible yet” and there are “several problems with quality and completeness of the UBO registers.”

Under the EU’s 6^th AML Directive, employees and officials of organizations — and entities working on behalf of those organizations — can now be held criminally liable.

U.S. UBO requirements

In the U.S., similar beneficial ownership disclosures are a part of the Financial Crimes Enforcement Network (FinCEN) Customer Due Diligence final rule, which took effect May 11, 2018.

“The CDD Rule outlines explicit customer due diligence requirements and imposes a new requirement for these financial institutions to identify and verify the identity of beneficial owners of legal entity customers, subject to certain exclusions and exemptions,” according to FinCEN’s rule guidance.

Financial institutions, according to the rule, refers to banks, broker-dealers, mutual funds, futures commission merchants and commodity brokers. A legal entity customer can be corporations, limited liability companies, limited or general partnerships, business trusts and similar entities. The rule defines beneficial owners as people who own 25% or more of the legal entity and those who can significantly control, manage or direct the entity.

Under the Corporate Transparency Act, U.S. companies will have to report to FinCEN the UBO’s full legal name, birth date, current residence or business address, and identifying number from a passport, driver’s license or other state-issued ID.

FinCEN has not yet released the proposed effective date.

International UBO standards

Other countries have international agreements that call for beneficial ownership disclosures. In 2003, the Financial Action Task Force (FATF) set beneficial ownership standards, and in 2012, 198 jurisdictions agreed to stronger FATF standards.

Two years later, a policy declaration at the G20 Brisbane Summit emphasized UBO transparency.

“Countries should ensure that competent authorities (including law enforcement and prosecutorial authorities, supervisory authorities, tax authorities and financial intelligence units) have timely access to adequate, accurate and current information regarding the beneficial ownership of legal persons,” according to the declaration.

But a 2016 FATF report found that only two of the G20 had achieved substantial effectiveness in establishing beneficial ownership requirements. The FATF, though, recognizes the complexity in implementing effective beneficial ownership transparency rules. Technologies and procedures that speed the process and improve accuracy can offer a path forward.

The FATF report, regulatory changes in Europe and the U.S., and major corruption scandals such as the Pandora Papers have pressured other G20 countries to establish effective beneficial ownership disclosure systems.

Legitimate governments do not want to be seen as soft on corruption. Whether it’s to collect more tax revenue, prevent terrorist financing, improve transparency or stop the flow of illegal funds, countries are trending toward requiring beneficial ownership due diligence.

Establishing UBO due diligence

There are four main steps that can help organizations create effective UBO programs.

1) Receive company vitals

Collect and verify an accurate company record such as identification number, company name, address, status or key management personnel, depending on jurisdictional requirements and the organization’s fraud prevention standards. Input that information into workflows.

2) Analyze ownership structure and percentages

Determine who has an ownership stake, either through direct ownership or through another party.

3) Identify beneficial owners

Calculate the total ownership stake, or management control, of any person and determine if it crosses the threshold for UBO reporting.

4) Conduct AML/KYC checks

Perform AML/KYC procedures, including UBO screening on everyone identified as a UBO.

Four steps might not seem too difficult, but without a proper system, UBO checks can be costly and time-consuming. Manually checking multiple registrars, importing data, tracking records and performing complex reviews can delay onboarding and monitoring, introduce human error and redirect important staff time to data entry.

Automating the business verification workflow, including AML/KYC checks, as much as possible can help organizations achieve UBO compliance today and prepare for new regulations on the horizon.

This post was originally published in 2017, and updated to reflect the latest industry news, trends and insights.