Who is the beneficiary? You may have heard this word in the news on television or in the movies. However, this term itself is not popular enough, even taking into account the peculiarities of the development of the economy, business and entrepreneurship, as well as the era of the Internet.

We will try to answer the question, who is the beneficiary, as fully developed as possible. At the same time, it is worth highlighting some details, since the word has several meanings, and therefore there are some difficulties with their definitions, for example, in the areas of business and law.

Term

The word itself beneficiary has French roots (from benefice - income, profit) and translates as beneficiary... It is possible that it also came from the English benefit, which translates as wealth... In any case, the context is related to the monetary sphere and values.

Definition

In the broadest sense, a beneficiary is a person who owns some valuable property and benefits from it, for example, by transferring his property for use. At the same time, the nature of values ​​can be completely different: real estate, transport, securities, production facilities and other assets. The simplest example is the landlord of an apartment: very often people who rent out real estate are called rentiers. It also includes sublease, that is, the removal of real estate with the aim of renting it out at a higher price.

However, the term beneficiary there are other areas of application, as it is used in many areas related to law and economics. In particular, insurance, brokerage and business. This will be discussed in more detail.

Why you might not have heard about this term

Despite such logical things as the spread of the Internet, the emergence of many different portals and sites dedicated to jurisprudence, economics and business, the word itself beneficiary used quite rarely.

The most commonly used words are, for example, business founder, landlord, owner, owner, but the term described is almost never used and is highly specialized. The reason lies in the fact that this foreign word is unusual, and also has many synonyms and expressions similar in context, examples of which you can see above.

The wider dissemination of the word to which this article is devoted occurred with the appearance of the edition of the federal law, which came into force on December 21, 2016, which obliges legal entities to disclose information about the beneficiaries. This innovation will be discussed further, after highlighting some of the facts.

Who can be the beneficiary

Both legal entities and individuals can be beneficiaries. An example is the owners of production facilities, vehicles and premises that are rented and used by enterprises.

However, this terminology is used in different areas: Even though the meanings are similar, the meanings may differ slightly depending on the context, which can lead to confusion and difficulties. The following are the most common examples from various fields where the described term appears widely.

Insurance companies

In the insurance industry, a beneficiary is a person who can claim a payment. It is important to note that this is not necessarily the owner of the insured property. For example, the recipient of the funds may be a bank.

If we are talking about life insurance, then the beneficiary can be not only the insured person, but also, for example, a spouse or heir.

Lending

In the credit sector, the above mechanism is called a bank guarantee. It implies a tripartite agreement in which the bank will be the beneficiary and will receive a payment from the insurer (guarantor) upon the occurrence of the appropriate case for the client. This practice helps to reduce various risks associated with non-repayment of debt due to accidents and other negative factors that may affect the borrower.

In general, there are many nuances and peculiarities in this area, for example, in accordance with the Civil Code, the guarantor may refuse to satisfy the beneficiary's claim for payment in cases provided for by law. For example, these may be clear violations of the terms of the warranty, problems with some documents, etc.

Federal Law "On Counteracting Legalization (Laundering) of Criminally Obtained Incomes and Financing of Terrorism" dated 07.08.2001 N 115-FZ

This normative legal act and its latest editions contain a clause, the meaning of which is that legal entities are obliged to provide state authorities with information about beneficial owners. Even based on the name of this regulatory document, it can be concluded that the purpose of the changes is to counteract various crimes and offenses.

An indicative list of data includes:

• passport data;
• address;
• TIN (if any);
• information on citizenship, a document confirming the legality of stay in the country (for foreigners).

Information about the beneficiaries can be requested not only by government agencies, but also by banks and credit institutions. For this, there are special forms and forms, in addition, some data can be clarified by requesting additional documents and information.

The duties of legal entities include the collection and storage of information about beneficial owners, as well as documentary evidence of the information received. In addition, legal entities must update the received information about the beneficiaries every 12 months. Information storage is carried out for 5 years after receipt.

The collection of data is carried out by means of inquiries against the members of the firm, who are obliged to provide the information they have. Authorized state bodies and credit organizations have the rights to receive such information. The document that contains such information is called "Certificate of Beneficiaries" and contains information about the owners.

Corresponding letterheads and forms that indicate owners can be found in various sources. In addition, they are often present on the official websites of banks and lending institutions.

Beneficial owner

This term has a more precise meaning, as it appears in the above federal law and is more clearly specified. We are talking about such persons who have real power when making different solutions in firms due to ownership of shares (over 25%) in the authorized capital. Key actions can be carried out both directly and through third parties.

As an example, one can cite the founders of organizations, holders of large blocks of shares (in the case of joint-stock companies), as well as participants with a large share in the capital of enterprises.

In addition, the federal law has the interpretation of the term beneficiary... The latter refers to the entity that receives income from the activities of the firm.

Thus, the beneficiaries legal entity- these are entities that have more than 25% of the company's assets and the ability to make decisions, and beneficiaries are persons who profit from the activities of the company, for example, on the basis of various contracts, commissions, etc.

Ultimate beneficiary

This term refers only to an individual. This is the true owner of any company. If you do not delve into complex structures and legal terms, but give a brief description, you can use the most simple example... For example, there is a limited liability company that makes a profit due to the fact that it is the founder of another organization. In turn, the owner of the first company will be the ultimate beneficiary, since he can benefit from the activities of several enterprises.

Thus, this definition describes precisely the individual who has the most influence and the largest share among the participants in the organization.

Rights

If we consider the beneficiaries as founders, participants and shareholders, then the possibilities will be quite standard. These include such opportunities as disposing of their assets, controlling the work of the organization's management, participating in meetings, making decisions in accordance with their shares, making a profit, dividends. It is very important to document activities and conclude contracts related to the management of property or securities.

Outcomes

Thus, we have answered the question of who the beneficiary is. V general sense is a person who has any sources of income that can be presented in completely different forms: securities, real estate, various production facilities, etc.

As a summary, we can conclude that recent changes in federal law oblige legal entities to disclose their beneficiaries. The latter, in turn, are obliged to provide the necessary information. In addition, data can be collected by various banking institutions and credit organizations.

This legislation can contribute not only to the prevention of offenses, but also to the protection of the beneficiaries themselves, since it involves fixing transactions and operations on a contractual basis, which can become a pillar in protecting the rights of owners and founders.

In addition, the above federal law contains the most accurate legal definition of who the beneficiary is.

It is important to note that the article is for informational and informational purposes only: the above information is subject to change in accordance with current legislation and future amendments.

If the reader needs more data, then it is better to fully study the federal law specified in the article on his own or seek help from qualified lawyers.

recipient of cash payment, income, profit and other advantages and benefits according to a debt document or agreement, the so-called person who transfers his property to trust and receives income from this

Information about the concept of the Beneficiary, the rights of the Beneficiary, their identification, the code of the Beneficiary, and what the beneficiary is

Expand content

Collapse content

Beneficiary is the definition

Beneficiary is, a legal entity or an individual who receives money, financial benefits based on a debt document or contract. In addition, he also receives income from the trust, also renting property to another person. And, of course, the Beneficiary can make a profit when transferring shares to shareholders for the use of a broker.

There are several other interpretations of the term beneficiary. The beneficiary in the conduct of trust operations is the person in whose favor the trust management of the property is carried out. In insurance, the beneficiary is the person designated to receive the benefits. His name is entered on the insurance policy.

You can also become a beneficiary by virtue of inheritance law. This happens when the person recorded in the insurance policy as the beneficiary does not live to see the expiration of the insurance contract. When insuring property, any owner becomes the beneficiary if the property belonging to him is insured in his favor by another person. In addition, the beneficiary is any person in whose favor the issuing bank opens a documentary credit.

Beneficiary(also beneficiary, beneficiary from French benefice - profit, benefit)- this is, a natural or legal person to whom the payment is intended, the recipient of the money.

A beneficiary is one who receives income from his property transferred into trust management to another person, legal or natural (when renting out, hiring), or from the use of his property by third parties (for example, when a shareholder transfers shares for use by a broker in order to obtain maximum profit (dividend)), the true owner.

Beneficiary is, in the case of a trust, the person receiving the proceeds from the trust.

Beneficiary is, in insurance, a person appointed by the policyholder to receive insurance benefits under an insurance contract. It is recorded in the insurance policy.

Beneficiary is may also be a person by virtue of inheritance law, if the person designated in the insurance policy (contract) as such does not live up to the expiration of the insurance contract.

In property insurance, any owner can be a beneficiary if the property belonging to him is insured by another person in his favor. For example, the lessee (lessee) enters into an insurance contract as the insured, and the lessor (lessor) acts as the beneficiary under the contract.

The beneficiary is also the person in whose favor the issuing bank opens a documentary credit

Beneficiary rights

As noted by G. Avanesova "the rights of the beneficiary to receive a monetary amount under a bank guarantee may be threatened in accordance with article 174 of the Civil Code * (384), which states that if the powers of a body of a legal entity to complete a transaction are limited by its constituent documents compared with the way they are defined in the power of attorney, in the law, or how they can be considered obvious from the situation in which the transaction is made, and when such a body of the legal entity went beyond these restrictions, the transaction may be recognized by the court as invalid at the suit of the person in in whose interests the restrictions are established, if it is proved that the other party to the transaction knew or should have known about these restrictions.

In addition, it should be borne in mind that according to Article 173 of the Civil Code of the Russian Federation, "a transaction committed by a legal entity in contradiction with the goals of activity, definitely limited in its constituent documents, or a legal entity that does not have a license to engage in the relevant activity may be recognized by the court as invalid at the suit of this legal entity, its founder (participant) or a state body exercising control or supervision over the activities of the legal entity, if it is proved that the other party to the transaction knew or should have known about its illegality "

With the adoption of the Federal Law "On State Registration of Legal Entities" and in connection with the amendments made on August 7, 2001 to the Federal Law "On Banks and Banking Activities", the problem of determining the legal capacity of the guarantor becomes less complicated. Nevertheless, the need to study the legal capacity of the guarantor remains. As G. Avanesova correctly notes, the check by the beneficiary of the guarantor's documents confirming the legality of its creation, special legal capacity, legality and powers of the bodies acting on his behalf should not seem to him a waste of time, since the information contained or absent in the constituent documents will help correctly decide on the acceptance of the guarantee and the fulfillment of the basic obligation.

Main source information about the guarantor is its charter and therefore, before starting to study it, the beneficiary must make sure that he has the latest version of the charter. He should look at the original copy of the certificate of state registration of a legal entity, as on its reverse side marks are made about all the changes made to the charter. * (387)

A bank guarantee cannot be revoked by the guarantor, unless otherwise provided therein.

The right of claim against the guarantor belonging to the beneficiary under the bank guarantee cannot be transferred to another person, unless otherwise provided in the guarantee.

The beneficiary's demand for the payment of the amount of money under the bank guarantee is submitted to the guarantor in writing with the attachment of the documents specified in the guarantee. In the demand or in the annex to it, the beneficiary must indicate what constitutes the violation by the principal of the main obligation, in support of which the guarantee was issued.

The beneficiary's claim must be submitted to the guarantor before the end of the period specified in the guarantee for which it was issued.

Upon receipt of the beneficiary's demand, the guarantor must immediately notify the principal of this and provide him with copies of the demand with all documents related to him.

The guarantor must review the claim of the beneficiary with the documents attached thereto within a reasonable time and exercise reasonable care to establish whether this demand and the documents attached thereto comply with the terms of the guarantee.

The guarantor refuses to satisfy the beneficiary's demand if this demand or the documents attached to it do not comply with the terms of the guarantee or are presented to the guarantor at the end of the period specified in the guarantee. The guarantor must immediately notify the beneficiary of the refusal to satisfy his claim.

If the guarantor, prior to the satisfaction of the beneficiary's claim, becomes aware that the main obligation secured by the bank guarantee has already been fulfilled in full or in the relevant part, has ceased on other grounds or is invalid, he must immediately inform the beneficiary and the principal about this.

The repeated claim of the beneficiary received by the guarantor after such notification shall be subject to satisfaction by the guarantor.

Beneficiary code (KBe decoding)

KBe (Beneficiary Code) contains encrypted information about the recipient of funds.

The value of this field consists of two digits: the first digit indicates whether the recipient is a resident of the Republic of Kazakhstan, the second indicates the sector of the economy to which he belongs.

First digit - Residence code

1 - resident of the Republic of Kazakhstan

2 - non-resident of the Republic of Kazakhstan

Second digit - economic sector

1 - Central Government

2 - Regional and local governments

3 - Central (national) banks

4 - Other depository institutions

5 - Others financial institutions

6 - State non-financial organizations

7 - Non-governmental non-financial organizations

8 - Non-profit organizations serving households

9 - Households

Application of an individual (beneficiary)

The specified information is requested by the Bank from the Client on the basis of subparagraph 2 of paragraph 1 of Article 7 of the Federal Law of 07.08.2001 No. 115-FZ "On Counteracting the Legalization (Laundering) of Criminally Obtained Incomes and Financing of Terrorism." Of Law 115-FZ, the Client is obliged to provide the Bank with the specified information.

In accordance with Article 3 of Law 115-FZ (as amended by Federal Law No. 134-FZ of June 28, 2013 "On Amendments to Certain Legislative Acts of the Russian Federation regarding Counteraction to Illegal Financial Transactions"), the beneficial owner is an individual , which ultimately directly or indirectly (through third parties) owns (has a predominant share of more than 25 percent in the capital) by the client - a legal entity or has the ability to control the client's actions. possession of more than 25%, the questionnaire includes information about an individual (individuals) who has (are) able to control the actions of the Client - a legal entity.

It is necessary to attach to the questionnaire a diagram of the ownership structure of the Client - a legal entity, including intermediate organizations, up to the ultimate owners - individuals with a share of direct / indirect (through third parties) ownership of more than 25%, drawn up by analogy with Appendix 1 to this questionnaire.

What is Benefit?

Beneficium (from the Latin beneficium - good deed). In the Middle Ages and later, this word denoted land ownership transferred for life on the condition of performing service - court, administrative, but mainly military; therefore, beneficiary is usually understood as a military conditional land holding (as opposed to a precary, which was a conditional holding of a peasant type). Failure to comply with the conditions by the holder entailed the liquidation of the beneficiary. In the event of the death of the recipient or the appellant, the benefits were returned to the owner or his heirs. Then the beneficiaries could be transferred on the basis of a new agreement.

Appearance of the benefice- one of the manifestations of the agrarian revolution that took place in the Frankish state in the VIII century. : allods, donations to full unconditional ownership have been replaced by grants for life. The social structure of Frankish society has changed, a new military layer of beneficiaries has appeared, connected with the royal power by land relations. In the IX-X centuries. the benefice acquired the features of a feudal (Lena). Benefits contributed to the emergence of professional warrior-knights, as well as the emergence of a relationship of personal loyalty and patronage (vassalage) between the benefactor and the beneficiary. Benefits were distributed not only by kings, but also by large feudal lords. Soon, many of the beneficiaries became more powerful than the kings.

From the beginning of the 6th century, this term also began to be understood as a lucrative position or land plot received by clergy as a reward.

Who is the beneficial owner?

Representatives of the authorities have repeatedly spoken about the need to identify the ultimate owners, justifying this by the task of ensuring transparency of the ownership structure and interested-party transactions, tax aspects, as well as the desire of the state to clearly understand who is behind the business structures and is ultimately responsible for their activities. As a result, in June 2013, the concept of “beneficial owner” appeared in Russian legislation. At first glance, nothing has changed in the activities of business entities - no additional liability has yet been introduced. However, collecting information on beneficial owners is only the first step towards the coming changes in the area of ​​business control.

Beneficial owner vs controlling person

The concept of "beneficial owner" was introduced into the Federal Law of 07.08.2001 No. 115-FZ "On Combating the Legalization (Laundering) of Criminally Obtained Incomes and the Financing of Terrorism" by the Federal Law of 28.06.2013 No. 134-FZ "On Amending Certain legislative acts of the Russian Federation in terms of countering illegal financial transactions ”.

The new concept will be used for the compulsory collection and storage of information about any company that is a client of an organization that carries out transactions with funds or other property.

The innovation will affect almost all legal entities that have a bank account or are clients of insurance companies or professional participants in the securities market.

The need to adopt these changes is due to the alignment of Russian legislation with the requirements of the Financial Action Task Force on Money Laundering (FATF) and the Organization for Economic Cooperation and Development (OECD).

In general, the definition of the beneficial owner given in Law No. 115-FZ corresponds to the definition contained in the Directive of the European Parliament and of the Council European Union 2005/60 / EC of October 26, 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing (Directive 2005/60 / EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing) .In accordance with the said Directive, the beneficial owner is the natural person (s) who ultimately owns or controls the client, and (or) the natural person on whose behalf the transaction is being carried out or activity.

It is easy to see that the new concept is similar to the concept of "controlling person" already used in the legislation (federal laws dated April 22, 1996 No. 39 FZ "On the securities market", dated October 26, 2002 No. 127-FZ "On insolvency (bankruptcy)") (hereinafter - Law No. 127-FZ). The main difference between them lies in the threshold of ownership of shares in the authorized capital - a person who has the ability to dispose of more than 50% of the votes in the supreme governing body of the controlled organization is recognized as controlling.

To this can also be added the concepts already contained in Russian legislation:

Affiliates;

Group of persons;

Interdependent persons;

Interested persons.

Active discussion continues with regard to the novels provided for by the proposed amendments to the Civil Code of the Russian Federation. Along with the concept of "affiliated persons", whose status is determined by formal signs, it is proposed to introduce into the Civil Code of the Russian Federation the concept of "controlling person", whose status is associated, first of all, with the ability to control the management of a legal entity, including informally. Behind the proposed wording about “the possibility of giving instructions binding for such a legal entity” (Article 53.3 of the draft federal law No. 47538-6) there are unlimited grounds to classify various relationships as entailing control of one person over another.

In the current legislation, such relations of dependence are governed by Art. 105 of the Civil Code of the Russian Federation "Subsidiary Economic Society", which deals only with the relationship of dependence between societies or partnerships. The changes proposed in the Civil Code of the Russian Federation also introduce individuals and organizations of other organizational and legal forms into the circle of controlling persons and imply both direct and indirect control.

The variety of definitions seems to be superfluous, but it is caused by the difference in the tasks facing the legislator. The main goal of the fiscal authorities is to oppose the so-called tax planning, and in this case, the recognition of the beneficial owner of an individual who is ultimately the actual recipient of income would be consistent with this goal.

The aim of the antimonopoly authorities is to control economic concentration, and they (as well as regulators of the securities market), rather, need information about the persons exercising actual control, as well as about the forms and grounds of dependence (economic and legal), i.e. on controlling persons. Law No. 115-FZ pursues another goal - combating the legalization (laundering) of proceeds from crime (here we also include corruption) and the financing of terrorism.

The legal status (personality, rights and obligations) of the beneficial owner is not defined by law. Information is collected in order to counter illegal financial transactions.

However, the state has more than once voiced other plans. For example, the Budget Message of the President of the Russian Federation to the Federal Assembly of 05/25/2009 "On budgetary policy in 2010-2012" contained recommendations to legislatively consolidate mechanisms to counter the use of agreements on the avoidance of double taxation in order to minimize taxes when carrying out transactions with foreign companies in cases where the ultimate beneficiaries are not residents of the country with which the agreement is concluded.

The main directions of the tax policy of the Russian Federation for 2012 and planning period 2013 and 2014 (approved by the Government of the Russian Federation on July 7, 2011) provide for amendments to the Tax Code of the Russian Federation in order to counteract the use of international tax treaties for unseemly purposes, as well as in order to create tax incentives for organizations to move from offshore zones to the jurisdiction of the Russian Federation. In particular, it is assumed that the benefits and preferences provided for by existing international treaties to which the Russian Federation is a party will not be applied in cases where their ultimate beneficiaries are not residents of the countries that are parties to such treaties. It is possible that the information base that is being created at present will be later used in other spheres of state interests.

Returning to the question of the relationship between the concepts of “beneficial owner” and “controlling person”, one cannot but recall the responsibility of controlling persons already existing in the current legislation.

In particular, in accordance with Law No. 127-FZ, the persons controlling the debtor jointly bear subsidiary liability for his monetary obligations and (or) obligations to pay mandatory payments.

So, in one of the cases, the defendant was brought to subsidiary liability for debts, since, in the court's opinion, he established actual informal control over the debtor's activities through the persons who formally control him. When making the decision, the court considered various evidence of the debtor's control over the defendant (including a letter of representation sent to the auditor, which contained a list of companies controlled by the defendant) (Resolution of the Seventeenth Arbitration Court of Appeal dated February 27, 2012 No. 17AP-1775/2010-GK in case No. A60-1260 / 2009). Obviously, the availability of beneficial owner information in the event of such litigation will be further evidence of effective control. Do not forget about the above-mentioned proposed amendments to the Civil Code of the Russian Federation, which also suggest introducing, in some cases, liability jointly and severally with the controlled legal entity for the obligations of the controlled entity.

Information disclosure

This is not the first time that Russian business is faced with the need to disclose the beneficial owner. So, in early 2012, in accordance with the Instruction of the Chairman of the Government of the Russian Federation No. VP-P13-9308 dated December 28, 2011, many enterprises (mainly companies with state participation) began to send counterparties requests to provide information regarding the entire chain of owners, including beneficiaries, in including final. In the absence of an appropriate concept and legal regulation of the procedure for disclosing the ultimate beneficiary, many organizations encountered difficulties in providing the requested information.

It must be said that with the introduction of the definition of the beneficial owner, the procedure did not become clearer. However, from July 1, 2013, banks are required to take steps to identify the beneficial owners of customers.

In accordance with Law No. 115-FZ, the volume, nature and procedure for providing information on the beneficial owners of customers are determined in the manner established by the Government of the Russian Federation. Since such a procedure has not yet been published, it can be assumed that the requirements of Law No. 115-FZ and the Regulation on the identification of customers and beneficiaries by credit institutions in order to counter the legalization (laundering) of proceeds from crime and the financing of terrorism will apply.

In accordance with Law No. 115-FZ, in order to identify the beneficiary - an individual, the following should be established:

Surname, name and patronymic;

Citizenship;

Date of birth;

Details of the identity document;

Data of a migration card, a document confirming the right of a foreign citizen or stateless person to stay (reside) in the Russian Federation;

Address of the place of residence (registration) or place of stay;

Taxpayer identification number (if any).

It should be noted that along with the new concept of “beneficial owner”, Law No. 115-FZ uses the concept of “beneficiary” and the Regulation regulates the process of identifying the beneficiary. According to Law No. 115-FZ, such a person is a person for whose benefit the client acts, including on the basis of an agency agreement, contracts of assignment, commission and trust management, when conducting transactions with funds and other property. Based on the above definition, Law No. 115-FZ admits that a legal entity can also be a beneficiary.

However, only an individual can be the beneficial owner. Thus, banks should be expected to require disclosure of information about both the beneficial owner and the beneficial owner.

If everything is more or less clear with the question of identifying the beneficial owner (since it means establishing the identity of an individual - the beneficial owner), then the question of actually establishing the beneficial owner remains open. Its establishment is in fact confirmation of the circumstances on the basis of which it is recognized as a person who complies with the concept of “beneficial owner” given in Law No. 115-FZ. The legislation does not contain requirements for confirmation of such circumstances, and the credit institution has no reason to request from the client information other than those required to identify the beneficial owner.

Currently, banks have the right to use any sources to generate information on beneficial owners, including information and documents provided by the client (a legal entity's questionnaire, a client's letter addressed to the bank, etc.). At the same time, Law No. 115-FZ has now also introduced a provision stating that "if, as a result of the adoption of measures provided for by this Federal Law to identify beneficial owners, the beneficial owner is not identified, the sole executive body of the client can be recognized as the beneficial owner." This rule is obviously aimed at combating the so-called fly-by-night firms, however, most likely, it will be applied in relation to organizations, the beneficial owner of which is really impossible to establish.

There will be many such organizations, including:

Non-profit organizations that do not have an owner (although there may be beneficiary beneficiaries);

Mutual funds;

Companies that have several shareholders or members, none of which meets the characteristics of a beneficial owner established by the Law;

Societies whose members use trust structures to own assets, etc.

As already mentioned, all legal entities with a bank account or a client of an organization carrying out cash transactions will have to disclose information about the beneficiaries. The obligation to disclose beneficial owners will not affect only the following categories clients:

state authorities, other state bodies, local self-government bodies, institutions under their jurisdiction, state extra-budgetary funds, state corporations or organizations in which the Russian Federation, constituent entities of the Russian Federation or municipalities have more than 50% of shares (stakes) in the capital;

international organizations, foreign states or administrative-territorial units of foreign states with independent legal capacity;

issuers of securities admitted to organized trading, disclosing information in accordance with the legislation of the Russian Federation on securities.

In accordance with Art. 6 of the Federal Law of July 27, 2006 No. 152-FZ "On Personal Data", the consent of the subject of personal data to their processing is not required if such processing is necessary for:

Achievement of the goals stipulated international treaty RF or law;

Implementation and fulfillment of the functions, powers and duties assigned by the legislation of the Russian Federation to the operator.

About the final beneficiaries

The campaign to find the ultimate beneficiaries of Russian companies is not giving very noticeable results so far. At least when it comes to new requirements of the Federal Financial Markets Service. According to the amendments to the law on the securities market, shareholders holding more than 5% of shares must notify joint stock companies about the persons who control them. The FFMS regulation prescribes that the issuers themselves must then disclose this information in the form of material facts and publish it on the agency's tapes.

Approximately 250 Russian issuers actually disclosed information about the ultimate beneficiaries before the beginning of May, that is, within the specified timeframe. In total, about 750 messages were published on the news agency feeds. It seems that the indicator is not bad.

However, ideally, all 4,000 Russian issuers that publish quarterly reports and entities should have received notices from their shareholders and disclosed this information. In fact, some companies did not disclose information, since they had previously reported on their beneficiaries and should not have done it again. As far as can be judged, the remaining companies, of which the vast majority, did not disclose the information, because their shareholders and beneficiaries simply did not send them notifications. It should also be borne in mind that, according to the logic of the new regulation, companies had to separately disclose information about each person who sent them information - that is, along the entire chain of owners.

As a result, in most cases, the issuers who did publish the messages limited themselves to disclosing data on intermediate owner companies, and not on individuals - the ultimate beneficiaries. Thus, among 25 large companies, only 4 issuers reported about private owners.

Finally, I will quote the document. In accordance with the order of the Federal Financial Markets Service of Russia No. 11-44 / pz-n, no later than 90 days from the date of entry into force (i.e., no later than the beginning of May 2012), shareholders had to notify the issuers that they had controlling persons or their absence. In addition, persons entitled to directly or indirectly control more than 5% of the votes in the issuer had to send a notification about the share he controls, and organizations controlled by the issuer - a notification about the number of voting shares or ADRs that he has the right to dispose of, or about the absence such a right

Beneficiary and L / C

The beneficiary is responsible for scrutinizing the letter of credit to ensure that:

The beneficiary is able to receive all the documents provided for in the letter of credit;

All conditions of the letter of credit can be met;

The letter of credit was opened in accordance with a purchase and sale agreement or with another agreement.

In addition to the fact that problems arise as a result of insufficient agreement between the applicant and the beneficiary on the essential details of the main agreement, a significant part of the difficulties in operations with documentary letters of credit is due to the fact that the beneficiary did not scrupulously study the letter of credit immediately after receiving it in order to clarify the above points.

Beneficiary, letter of credit and advising bank

During the above verification of the letter of credit, the beneficiary is strongly advised to contact the advising bank for advising and consultations, and at this stage the advising bank can give its expertise.

In the course of consultations with the advising bank, the beneficiary should find out the essence of any changes that need to be made, especially if circumstances have changed since the moment of agreement.

Obligations of the Beneficiary

In addition to the obligation to check the letter of credit after receiving it and ask for any necessary changes, the beneficiary has the obligation to ship or fulfill obligations in accordance with the letter of credit and to submit the required documents under the letter of credit.

Processing changes to a letter of credit

Despite the valid agreement and the letter of credit under which the beneficiary can act, discrepancies may arise during the preparation of the beneficiary's submission of documents. In this case, the beneficiary may contact the applicant to assess the latest discrepancies and see if the applicant would object to these discrepancies.

Valid presentation of documents

The d / a specialists should keep in mind that although most of the beneficiaries carefully examine the received documents for their compliance with the letter of credit, some beneficiaries submit documents without due diligence.

The beneficiary is obliged to ensure that:

All stipulated documents are collected for their submission in accordance with the terms of the letter of credit and that any required drafts are duly;

Signed and endorsed if necessary;

Where there are discrepancies, they are flagged and explained, and the accompanying letter provides instructions on how to deal with them;

The covering letter indicates where and how the payment should be made, the contact person, his phone numbers, fax numbers, etc.

It is the beneficiary's responsibility to ensure that a valid presentation of documents has been made and that the bank to which the presentation was made has precise instructions on how the presentation of documents should be handled.

Beneficiary and applicant

The beneficiary must be wary of any request by the applicant to agree to the applicant being identified as the consignee in the transport documents provided for by the letter of credit. If the beneficiary agrees to such a request, then in case of non-payment, the beneficiary will no longer be able to prevent the issuing bank or another party responsible for delivering the goods to the ordering party as consignee.

For the smooth flow of documentary credit transactions, it is always useful if a friendly relationship is established between the beneficiary and the applicant, which at least allows solving work problems from a position of goodwill.

We disclose the beneficiaries of foreign companies

The peculiarities of the Anglo-Saxon legal system make it possible to separate the figures of shareholders and beneficiaries of the company. And if information about shareholders is publicly available in almost all countries (with the exception of offshore jurisdictions, direct cooperation with companies which entails the recognition of transactions as controlled), then information about the beneficiaries of the company is more difficult to obtain - only the company, the registrar and the servicing bank, has it.

Recently, more and more media have been mentioning the disclosure of various foreign ownership structures, amendments to bilateral international agreements regarding the exchange of information on the ownership of bank accounts, etc.

Consider three typical situations in which it becomes necessary to disclose the beneficiaries of a company formally controlled by an independent foreign company.

First, the disclosure of beneficiaries voluntarily - directly by the beneficiary itself

The last most striking situation is associated with the owners of Domodedovo. Recall that after the terrorist attack at Domodedovo in 2011, all possible checks were carried out against the group of companies - from the tax to the check by the General Prosecutor's Office, which led to the initiation of a criminal case on violation of aviation security rules. The president demanded to disclose the owners of the airport, however, apart from the fact that the owner of the main company is a resident of the classic offshore Isle of Man, it was not possible to find out anything. Then an IPO was announced, the IPO was canceled, and even the sale of the company to new investors was announced. The buyer, however, was a Cypriot company, and the ultimate owners were not disclosed.

In our opinion, the impossibility of filing claims, at least at the tax level, was caused by the observance of the “golden rule”: not to confuse ensuring property security with tax optimization.

After that, the stick was replaced by a carrot, promising significant federal investment in infrastructure development. The disclosure of the ultimate owners of the companies became quite a logical condition for this: according to the President, “it is important to clearly understand who, at whose expense, in what amount will finance the development of the airport infrastructure and what is ultimately responsible for”.

After that, one of the top managers of the company, the chairman of the Board of Directors, called himself the beneficiary of the airport. It is still difficult to predict how the situation will develop further: a number of experts are of the opinion that the newly announced beneficiary is not such and is covering up a much more influential figure, but in the context of our story, it is not the beneficiary who is important, but the motivation to reveal it. The transition from some prohibitive and threatening measures to stimulating ones is quite symbolic.

The second situation - let's call it voluntary-compulsory

It is connected with the recently introduced amendments to the Federal Law “On Counteracting Legalization (Laundering) of Criminally Obtained Incomes” in order to counteract financial transactions. We wrote about the changes in detail earlier.

In accordance with the amendments, banks and other organizations carrying out transactions with monetary funds and other property are obliged to take measures to identify the beneficial owners of organizations when opening a current account, as well as regularly update information on beneficiaries and beneficial owners. It is prohibited to open a bank account without identifying the beneficial owner of the legal entity. Moreover, if the legal entity does not provide information about its beneficiaries, the director of the company can be recognized as the beneficiary.

Recall that the beneficial owner is an individual who ultimately directly or indirectly (through third parties) owns (has a predominant share of more than 25 percent in the capital) of the client - a legal entity or has the ability to control the client's actions.

In other words, the bank may require disclosure of the ownership structure of the company if its participant, for example, is a foreign organization. Being interested in opening a bank account in a specific "convenient" bank, clients themselves disclose all information to the bank. Currently, such information is confidential, but does not belong to bank secrecy, and therefore can be provided at the request of the authorized bodies.

Third situation requiring disclosure of beneficiaries

It is connected with litigation and the need to prove the lack of communication between some of the parties to the transactions.

A striking illustration was the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of March 26, 2013 on case No. 14828/12 (the text of the resolution was published only in July 2013).

Higher Arbitration court pointed out that if an offshore company participates in a litigation, it has the burden of proving the presence or absence of circumstances indicating the independence of the offshore company in relations with other participants in the process. Such proof is carried out, first of all, by disclosing information about who actually stands behind the company, that is, disclosing information about its ultimate beneficiary.

Examples of Beneficiaries

Minister of Natural Resources Trutnev turns out to be the beneficiary of Uralkali

The conflict "Yuri Trutnev - Oleg Chirkunov" flared up in earnest. The spark for a powerful political fire, as usual, was the accident in Berezniki. The two politicians have almost opposite views on the solution of the Berezniki problem. His high-ranking friend, the head of Rosoboronexport, Sergei Chemezov, helps the Perm leader to withstand the dispute with the minister. Meanwhile, a sensational fact became known to URA.Ru: Yuri Trutnev is the beneficiary of Uralkali. In this regard, many words and movements of the minister appear in a slightly different light ...

The mutual hostility of the Governor of the Perm Territory Oleg Chirkunov and the Minister of Natural Resources of the Russian Federation Yuri Trutnev has already become difficult to hide. And this applies to both politicians. Their opposition is especially noticeable in the course of solving the problem with the accident in Berezniki.

The misunderstanding began a long time ago. As a high-ranking source in the regional government told URA.Ru, immediately after the accident at the mine in 2006, the Perm governor said that the disaster in Berezniki was technogenic. Thus, the company itself was also guilty of the emergency. However, the Minister of Natural Resources of the Russian Federation thought differently. From his words, it turned out that these are exclusively natural disasters. Accordingly, Uralkali in this case was not involved in the accident.

Mr. Chirkunov did not manage to resist for a long time. At the federal level, a government commission was created to monitor the progress of solving the problem in Berezniki. It was expected that it will be headed by the head of the Ministry of Emergency Situations Sergei Shoigu. But in the end, Yuri Trutnev still won the right to lead the structure. Accordingly, the minister had many new opportunities to lobby his interests.

In this regard, the sensational fact that has become the property of "URA.Ru" seems very interesting. A trusted source in the government told URA.Ru that Mr. Trutnev is the beneficiary of Uralkali. Naturally, in the situation with the accident at the First Mining Administration of the company, the minister tried in every possible way to shield Uralkali.

The authorities quickly "forgot" about the budget funds that were allocated several years ago, when Uralkali was privatized, to fill the karst voids in Berezniki. "URA.Ru" learned that these funds were not fully utilized and the filling of voids was also not completed in full. Nor did Uralkali remember that in 2006, in preparation for the IPO, the company sharply increased its production of raw materials in order to increase the value of securities, and this was one of the reasons for the accident at the mine.

To top it all off, the expertise acknowledged that the disaster at the First Mining Administration of Uralkali was "natural", and the company was allowed not to participate in financing the elimination of the consequences of the accident. All the money for the liquidation of the state of emergency was allocated from the budget. Only recently Uralkali attracted two social projects in Berezniki for investment.

At the same time, Yuri Trutnev slowed down the solution of the issue with the construction of a bypass 6-kilometer section of the railway in Berezniki. The fact is that Uralkali doesn't care much about this detour. First of all, two enterprises suffer from problems with the railway - Silvinit and VSMPO-Avisma. It is this section of the railway track that is used to transport carnallite from Silvinit to VSMPO-Avisma. As for Uralkali, the company is successfully operating without this bypass. Moreover, it even benefits from the problems of competitors, in particular, "Silvinit". Therefore, the minister was in no hurry with the solution of the "railway issue" and focused on the resettlement of Berezniki residents from the danger zone.

So, probably, in Moscow, they would not pay attention to the railway line somewhere in the distant Urals, if not for the intervention of the head of "Rosoboronexport" Sergei Chemezov. Oleg Chirkunov, who has been friends with the Muscovite since the days of his work in the KGB, talked to a friend about his problems with Yuri Petrovich. Sergey Chemezov turned out to be quick-witted and quickly found a solution to the issue. The head of Rosoboronexport decided to surprise a friend and called him with intriguing news: “Watch TV channels on November 13. You will see something interesting. "

Oleg Chirkunov was really impressed. On November 13, at a meeting of the Presidium of the State Council in Krasnoyarsk, Russian President Vladimir Putin demanded that the government and Russian Railways take more seriously the problem of building a section of the railway bypassing the risk zone in the city of Berezniki. “We need to do this, this is not a joke,” the president said. After that, everything went like clockwork. The real work began. The authorities began to regularly report progress in the construction of the bypass. It turned out that Sergei Chemezov found an approach to Vladimir Vladimirovich and asked him to understand the Berezniki situation.

In the press service of OJSC Uralkali, all questions from URA.Ru regarding the situation with the accident at the mine were left without comment. Representatives of the press service of the Ministry of Natural Resources of the Russian Federation reacted in a similar way. “Unfortunately, to your question about Yuri Trutnev as the beneficiary of Uralkali, I can’t answer anything except that this is nonsense,” stressed Nikolai Gudkov, deputy head of the press service of the Ministry of Natural Resources of the Russian Federation.

Representatives of the press service of the governor of the Kama region turned out to be more talkative: “I would like to note that the program for filling voids in Berezniki has been completed to date. For about 10 years, 90% of the voids under the city were filled with waste ore. That is why now Berezniki has almost complete guarantee that the rest of the city will not go underground. As for the railway bypass, this section is needed not only by Silvinit and VSMPO-Avisma. In total, about a dozen enterprises are interested in this branch, ”said a press officer.

At the same time, Anastasia Zhdanova, an analyst with BrokerCreditService, has a slightly different opinion. She confirms that in the 6-kilometer under construction railroad, first of all, it is Silvinit and VSMPO-Avisma that are in need. “I haven’t heard anything about other companies. Of course, there are many other factories in the Solikamsk-Bereznikovsky junction. But they, in any case, did not complain about the lack of a bypass section and did not threaten to stop the supply of their products. And Uralkali, naturally, only benefits from the current situation. He doesn't have any problems, ”the expert emphasized.

Dmitry Kamenshchik and Valery Kogan

According to the Investigative Committee of Russia (ICR), businessmen Dmitry Kamenshchik and Valery Kogan, interviewed as witnesses in a criminal case on non-compliance with transport security requirements at Domodedovo airport, refused to recognize themselves as owners of the airport and generally to discuss the ownership structure of their enterprise with the investigator. Their position is quite understandable: according to the legislation in force at the time of the terrorist attack in January of this year at Domodedovo, it was the owner of the airport who was to be responsible for the safety of passengers at the facility belonging to him. The investigation, in turn, promises to establish the owners based on the results of operational development and with the help of already appointed accounting examinations.

As Kommersant was told in the TFR, the investigation of the criminal case on "failure to comply with the requirements for ensuring transport security at transport infrastructure facilities and vehicles" (Art. 263-1 of the Criminal Code of the Russian Federation), initiated after the terrorist attack committed in January this year at Domodedovo airport, is underway in two directions.

One operational-investigative group is developing the so-called official, or police, component of the terrorist attack and has already come to some conclusions. So, for example, the investigation established that the suicide bomber Magomed Yevloyev, who detonated the bomb at the airport and thus killed 37 people, could not have hidden the "infernal machine" under his jacket, but carried it openly - at the entrance to the arrival hall of the militant anyway there was no one to stop. As can be seen on the recordings seized by the investigation from the video cameras in the waiting room, at the time of the criminal's passage through street doors The only traffic policeman guarding the entrance had just left his post to chat with the pretty room cleaner. When the mined terrorist started walking around the hall, looking for the most populous place for an explosion, the policeman completely disappeared somewhere.

The investigators also have questions about the canine service at the Domodedovo Department of Internal Affairs - after all, a dog trained on hexogen could be better than any policeman to figure out Evloyev stuffed with explosives, but the animals were not involved in guarding the arrival hall.

The ICR has already established that funds for the maintenance of the police kennel were regularly allocated, and now the financial experts have to find out whether the "dog's" money was spent as intended.

As follows from the official report of the TFR, its employees have already repeatedly interrogated as suspects dismissed after the terrorist attack, the former head of the transport department of the Ministry of Internal Affairs of Russia in the Central Federal District, Andrei Alekseev, ex-head of the Domodedovo Department of Internal Affairs, Alexander Trushanin, and his ex-deputies, Alexander Budtsov and Alexander Degtyarev. Ex-policemen, as they say in the TFR, may have to answer for the negligence or abuse of office, expressed in inaction in ensuring the safety of passengers.

Meanwhile, the second investigative team is working out the commercial aspect of the crime - the ICR believes that not only policemen, but also employees of the privately owned airport could have contributed to the tragedy. According to the investigation, it is already known, for example, that the entrance to the hall at the time of the terrorist attack was blocked by only one metal detector frame, which, due to the huge number of people entering, simply could not fulfill its functions, and the passengers walked around the structure. Suffice it to say that now Domodedovo has three frames at each of the entrances, and even they, according to the TFR, are still not enough to handle the passenger traffic of the largest airport in Russia.

"The airport complex was not provided with serviceable control systems and screening of passengers and visitors, and the existing screening equipment was not checked and adjusted systematically," the ICR said in an official statement. The Domodedovo administration, it was found, did not consider it necessary to purchase the security framework at all, using rented equipment instead.

According to the investigation, the work of the Aviation Security Service (SAB), which is structurally part of the staff of Domodedovo employees, was also very conditional. There were not enough SAB employees at all, but also those who were on duty, their management failed to organize correctly: the guards, as the investigation found out, did not have a clear idea of ​​which of them was responsible for which sector and how they needed to interact with the nearby employees transport police.

Interestingly, while studying the electronic documentation of Domodedovo OJSC seized during the recent searches, the investigators discovered along the way that the administration of the largest airport did not always use licensed computer programs in its activities. This circumstance, as the participants in the investigation say, is not directly related to the safety of passengers, but indirectly speaks of the austerity regime in which the company operated. Namely, the desire of the owners of the enterprise to save on equipment and personnel, as believed in the TFR, became the key problem that made the tragedy possible.

[Izvestia.Ru, 20.07.2011, "Special services found counterfeit software at Domodedovo airport": - Specialized aviation and other programs that were used in the management of the airport complex and aeronautical equipment are counterfeit. There are no guarantees of the correct operation of the control programs of the airport complex and air navigation equipment, - a source in the bureau of special technical measures of the Ministry of Internal Affairs told Izvestia. - Box K.ru]

At the same time, the attempts of the TFR to find the owners of Domodedovo, as officially announced yesterday in the department, have so far been unsuccessful. According to the ICR, hired top managers of Domodedovo were questioned as suspects. Among them were Igor Borisov, director of the Russian representative office of the offshore airport management company Airport Management Company Limited (AMCL), registered on the Isle of Man, and Vyacheslav Nekrasov, his deputy. In addition, Andrey Danilov, Managing Director of the Airport Aviation Security Domodedovo CJSC in charge of security at the airport, and Anatoly Moiseev, the head of the aviation security service of this CJSC, gave evidence.

The alleged owner of the airport Dmitry Kamenshchik and his partner Valery Kogan, according to the ICR, were only questioned as witnesses, since both flatly refused to recognize their ownership of the enterprise. In the ICR report, both merchants, respectively, appear as "Kamenschik, who is positioning himself as chairman of the board of directors of Domodedovo airport" and "positioning himself as chairman of the supervisory board of Kogan airport." According to the committee, Mr. Kamenshchik told the investigator that he was only positioning himself as the head of the airport, since this was provided for by his contract with AMCL, but in fact he was just a consultant to the company's representative office in the Russian Federation. The witness refused to show the contract and name the real owners of the airport, referring to Art. 51 of the Constitution of the Russian Federation, which allows not to testify against oneself. Mr. Kogan, in turn, refused to name not only his position, but even his surname and place of residence, motivating the refusal with the same 51st article. According to the investigation, the businessman is also listed as a consultant to the AMCL representative office.

The silence of the alleged owners of Domodedovo is understandable. The fact is that the owners of the airport established by the investigation will automatically become suspects, and in the long term - and the main accused in the framework of a criminal case on failure to ensure transport security. As follows from the provisions of the Federal Law of the Russian Federation of February 9, 2007 "On Transport Security" in force at the time of the attack, it was the owner of the enterprise who had to ensure the safety of passengers at his facility. According to paragraph 1 of Art. 4 of the law, "ensuring transport security of transport infrastructure objects and vehicles is assigned to the subjects of transport infrastructure, unless otherwise provided by the legislation of the Russian Federation." Item 9, Art. 1 of the same law, in turn, indicates that "the subjects of the transport infrastructure are legal entities and individuals who own the objects of transport infrastructure and vehicles."

The TFR, in turn, calls the failed polls a tactical retreat, but not a defeat. "In addition to interviewing witnesses, we have at our disposal financial and economic expertise, as well as operational methods that will help in the very near future to identify and prosecute the true owners of the airport," the ICR noted.

"There have been terrorist attacks in Russia both in the subway and in residential buildings, however, never within the framework of the criminal cases initiated for these crimes were the heads of the metro or the Moscow mayor's office interrogated, "the representatives of ZAO Domodedovo noted. In their opinion, law enforcement officers should be responsible for the unforeseen terrorist attack, and the activity of the investigation in relation to businessmen Kamenshchik and Kogan at the airport they call it "an attempt to use the terrorist attack as a lever of economic pressure on the owners of the enterprise."

Jeffrey Galmond

A member of the IPOC board of directors told the court that Reiman was referred to in the fund's documents as an “economic beneficiary”

Information that Minister Reiman could be the beneficiary of the fund surfaced on Tuesday at a hearing in the London Privy Council (the highest court of appeal in civil disputes). These hearings ended in defeat for IPOC - it did not have an opportunity to sue for a blocking stake in Megafon in the courts of British jurisdiction, and Alfa Group again got the opportunity to dispose of this stake. However, the IPOC was hit not only by the judges, but also by the member of the IPOC board of directors, Swiss David Hausenstein. “The moment has come when the foundation can no longer maintain its position,” he admitted in his affidavit given last week.

IPOC's board of directors will no longer insist that Jeffrey Galmond is the sole beneficiary of the fund, and that Galmond's testimony to the contrary “could create the wrong impression,” Hausenstein's testimony, available to The Wall Street Journal, says. Nevertheless, Jeffrey Galmond called a press conference on Wednesday, at which he reiterated that he is the sole owner of the IPOC fund, and publicly apologized to the Minister of Information Technology Leonid Reiman for his partners, because of which the name of the minister “groundlessly” surfaced in a London court ...

In his testimony, Hausenstein says that at one of Galmond's meetings with him in 2001, he “named Leonid Reiman the economic beneficiary of the Meridium trust company”. Hausenstein also told the court the content of some documents seized by the Liechtenstein police from Bank von Ernst and from the office of one of the law firms. In the conversation, Galmond admitted that his Danish law firm had sent a letter in June 2002 to a bank in Liechtenstein, in which Reiman was named the “ultimate beneficiary shareholder” of IPOC, as well as the “economic beneficiary” of some companies controlled by Galmond. But this was a mistake of the employees, the lawyer assures.

He also disputes the testimony of a member of the IPOC board of directors regarding an internal memorandum, where, according to Galmond Reiman, he was named the “economic beneficiary” of three different trust companies, from which IPOC was subsequently formed. However, Hausenstein stressed that he does not know for sure whether Reiman is the owner of the IPOC International Growth Fund Ltd.

Hausenstein confirmed to the WSJ the day before yesterday that his testimony to the London Privy Council was accurate, but declined to comment further. And in his testimony to the court it is said that now the IPOC board of directors "is forced to seek legal assistance."

“It is impossible to blame Jeffrey Galmond for this situation, since he has repeatedly confirmed that I am not the beneficiary of IPOC and the companies affiliated with him,” the press service of the Ministry of Communications told Vedomosti Leonid Reiman’s comments. “As for its employees, it is the company's task to resolve the issue with people who damage the reputation and solidity of the company in which they work.” Indeed, over the past three years, Galmond has testified under oath against IPOC and Reiman at least five times, amounting to several thousand pages. (Used materials from WSJ.)

Semyon Mogilevich is 59 years old, he is from Kiev, a certified economist. According to law enforcement agencies, in the early 1970s, he was associated with the Lyubertsy (currency), and later with the Solntsevo group. He was tried twice in Russia. In 1990 he emigrated to Israel, then moved to Hungary. By 1992 he became a citizen of Russia, Ukraine, Israel, Hungary. In the mid-1990s, he acquired a stake in Inkombank. He is on the list of people wanted by the FBI for alleged participation in the manipulation of the shares of YBM Magnex International, Inc., which cost the company's investors $ 150 million. In the US, Mogilevich is also accused of racketeering, fraud, and money laundering. 1998-1999 $ 10 billion passed through the account in the Bank of New York, owned by Mogilevich, in the United States and Israel they suspect that they went to finance the transportation of weapons and drugs. A study commissioned by the National Institute of Justice (USA) states that Mogilevich controls a network of prostitutes in nightclubs in Budapest and Prague.

Yesterday in an interview with the Financial Times, the head of the Ukrainian Security Service, Oleksandr Turchynov, said that the SBU is investigating whether Semyon Mogilevich has indirect control over RosUkrEnergo. "The surname Mogilevich is not mentioned in the documents of the founding companies of RosUkrEnergo, but there are many indirect indications that a number of people controlled by Mogilevich may participate in the activities of the company." SBU press secretary Marina Ostapenko told Vedomosti that the SBU, while investigating a number of criminal offenses in the country's oil and gas complex, checks both former and current intermediaries in the supply of Turkmen gas to Ukraine, including their possible connection with international criminal groups.

RosUkrEnergo is engaged in the transportation of Turkmen gas to Ukraine through the territory of Russia. Gazprom has always supplied this gas through intermediaries - first through Itera, then through the Hungarian Eural TG, since 2004 - through RosUkrEnergo.

In the spring, Ukraine began to demand from Gazprom to transfer its share in RosUkrEnergo to it. It was not possible to agree, and Ukraine decided to act. In June, Aleksandr Turchinov said that the activities of Eural TG and RosUkrEnergo were accompanied by “the most serious abuses”, due to which the budget missed more than $ 1 billion, and “a number of criminal cases were initiated” on the revealed facts.

“Yesterday's statement by the SBU is a signal that Ukraine intends to go all the way to its goal [of transporting Turkmen gas], even if by initiating a scandal,” says Ivan Poltavets, an expert at the Kiev Institute for Economic Research and Political Consulting. "Unleashing a PR war will not benefit either Ukraine or Russia." “With such statements, Ukraine is trying to put pressure on Gazprom in order to knock out preferences in the gas agreement, but this tactic is unlikely to ensure its success,” a source in Gazprom is sure. Gazprom and Raiffeisen Investment claim that Mogilevich has nothing to do with RosUkrEnergo. Deputy Chairman of the Board of Gazprom Alexander Medvedev told Vedomosti that he was surprised by the information that Raiffeisen Investment is a nominal structure, and dubious firms may be Gazprombank's true partners in RosUkrEnergo: “We are perfectly aware who our partner is in the RosUkrEnergo JV.

The representative of Raiffeisen Investment Wolfgang Puchek called the accusations of the SBU "groundless". This is not the first time such accusations have been made, but the SBU has not provided evidence, Puchek said.

It was not possible to contact Mogilevich yesterday. Energy resources is one of Mogilevich's businesses, says an entrepreneur familiar with him.

Press Secretary of the Prime Minister of Ukraine Vitaliy Chepinoga did not comment on the words of the head of the SBU, stressing that Yulia Tymoshenko had already stated that she was against gas intermediaries.

Vadim Kleiner from Hermitage Capital Managment believes that it makes no sense for Gazprom to have an intermediary engaged in business, which Gazprom itself may well do. According to him, the profit of RosUkrEnergo this year alone may amount to $ 950 million and it is not clear why Gazprom should share half of these revenues.

Oleg Deripaska

The sole owner and ultimate beneficiary of the aluminum concern Rusal and the management company Basic Element is entrepreneur Oleg Deripaska. Under pressure from international investors, Russia's largest aluminum producer has revealed its ownership structure.

The European Bank for Reconstruction and Development (EBRD) and the International Finance Corporation (IFC) agreed to provide loans to Rusal and Sual companies in the amount of $ 150 million for the implementation of the Komi Aluminum project. The total cost of the project is estimated at $ 1.2 billion.

The decision was made after Oleg Deripaska admitted that he is the sole owner of Rusal and Basic Element.

Earlier, IFC and the EBRD decided to provide financing to Sual for the expansion of the Sredne-Timanskoye field in Komi. But in April 2005, Sual transferred 50% of the project to Rusal. After that, IFC and EBRD put the deal on hold because "the new ownership structure of the partnership was a significant change to the original loan agreement." The main condition for granting a loan for the Komi Aluminum project was the streamlining of Rusal's ownership structure. The aluminum concern agreed to this requirement.

On Tuesday, investment institutions announced that the decision to lend to an aluminum project in Komi had been made. IFC and EBRD will allocate $ 75 million each for a period of 9 years. The funds will be used to increase the production of bauxite at the Sredne-Timanskoye field and to build an alumina refinery in the Sosnogorsk region. EBRD and IFC are also considering financing the next phases of the project.

“This decision is an important step towards a final agreement on the transfer of funds. It is based on full disclosure of ownership by the owner of Rusal and Basic Element, Oleg Deripaska, and assumes additional clearly defined commitments to improve transparency, good corporate governance and high business standards for Rusal and Basic Element. Compliance with these obligations is enshrined in legal documents with EBRD and IFC, ”report the EBRD and IFC.

In a joint press release, the EBRD and IFC name Oleg Deripaska as the owner of Rusal and Basic Element.

From a legal point of view, the use of the term "owner" means that Oleg Deripaska owns 100% of the shares of these companies - he is the ultimate beneficiary of the aluminum concern. " It is that Oleg Deripaska is the sole owner of these assets. Perhaps he owns them not directly, but through certain structures, but everything belongs to him, ”Valery Tutykhin, a partner at the law firm“ John Tyner and Partners ”, explained to Gazeta.Ru.

“The press release was compiled after consultation with lawyers, so all the terms used are extremely accurate. The document does not say that Deripaska controls Rusal and Basel, but the term "owner" is used. Rusal and Basic Element belong to Oleg Deripaska, ”a source at the EBRD told Gazeta.Ru.

In addition to disclosing information about the ultimate owner, Rusal has adopted an 18-month plan that includes “material disclosure of corporate property, publication of financial information and specific steps to improve corporate governance”. In particular, it is planned to introduce three independent directors into the company. Independent directors, who must be approved by IFC and the EBRD, will chair and constitute a majority on subcommittees overseeing audit, governance and other corporate matters. Basel, in turn, will disclose information about the holding's investments and will approve a code of ethics.

Rusal's management welcomed the decision of the EBRD and IFC. “The participation of two leading world financial institutions in this project will allow solving one of the most important strategic tasks of the Russian aluminum industry - expanding its own raw material base,” said the CEO of the company Alexander Bulygin. “I am confident that our first experience of cooperation with the EBRD and IFC will create a good basis for partnership on a number of new projects both in Russia and abroad,” added the top manager.

Experts interviewed by Gazeta.Ru were not surprised that Oleg Deripaska is the sole owner of Rusal and Basic Element. The disclosure of information about the owner will have a positive effect on the development of companies, analysts are sure.

“Even when Millhouse was selling a blocking stake in Rusal in 2003, everyone believed that Oleg Deripaska was most likely the buyer. However, no official confirmation has been published, says Stanislav Kleschev from Financial Bridge Investment Company. - Disclosure of information about owners will be a breakthrough for companies.

After all, “Basic Element” had problems with attracting loans in the past because of the lack of clarity with who is its owner ”. According to Brokercreditservice analyst Vyacheslav Zhabin, the fact that Oleg Deripaska is the sole owner of Rusal will not prevent the company from placing its shares on the Western stock exchange (Rusal's IPO, according to unofficial information, is scheduled for 2006-2007). “I see no reason for concern in this,” the expert notes. - Now Rusal will be able to optimize the ownership structure. Numerous assets of the group are cross-owned. Such schemes are used to hide the ultimate beneficiaries of the business. Now there is no need for this. "

Sources of

otvetim.info - educational online magazine

images.yandex.ru - image search engine

youtube.com - video hosting

clj.ru - corporate law practice

nb-law.com - Breev Emelyanov's blog

operbank.ru - banking operations

toplegal.com.ua - eridic company

spark-interfax.livejournal.com - live journal

shpargalki.ru - site of cheat sheets

yurchenko.kz - site of individual entrepreneur Yurchenko

With the development of trade relations and entrepreneurial activity, there are more and more new terms that define work different people... But most of them have many meanings. For example, the term “beneficiary” is most often applied to those who make a profit from a company or enterprise, although this is not entirely accurate. Who is the beneficiary? What does the beneficiary do? What are the rights and obligations of the beneficiary?

Beneficiary - who is it, meaning of the term

The concept of beneficiary originated in France from the word “benefits”, but the term itself comes from the Latin “beneficium”. This means a blessing or profit. The term is used in trading activities, and in corporate law.

A beneficiary or beneficiary is a person who benefits from a certain type of documents. These can be legal transactions, ownership, inheritance, and many others. At its core, the beneficiary is the person who owns the assets or valuables.

The beneficiary can be both a legal entity and an individual who, according to the contract, owns certain values.

The peculiarity of the beneficiary is that the beneficiary is not the one who has income at the moment. He owns the assets, the opportunity to make a profit in the future, so almost all company owners or managers are beneficiaries.

The ultimate beneficiary - who is it and how to hide it?

The two terms that need to be separated are the beneficial owner and the company beneficiary, but at some point they may change. In the second option, at first the company is the beneficiary for the customer, but at the next stages, but he is the one who is indicated as the seller in the settlement of the letter of credit. This is ultimate beneficiary, who is the owner of the company and has all the rights of ownership.

There is a system by which an enterprise can hide the ultimate beneficiary by means of discovery. This will help transfer money to foreign accounts and reduce the amount of taxes that a business owner will have to pay in the country. But according to the law, the data of the real owner of the company must be indicated during the registration of an account with the bank, which is opened for this company. And in this case, the ultimate beneficiary will be the one to whom the bank account is recorded.

Who is the beneficial owner and who can become one?

A separate concept is the beneficial owner is a person who takes part in the management of a legal entity, a company. These include executives or directors who own at least 25% of the firm's shares and can make decisions at the same level as the owner.

Beneficiary owners can be:

1. The heirs who are indicated in the will. They will take over the management of the property in the future, but they are already the beneficiaries. In fact, they are everyone who will receive some benefit in the event of the death of the current owner.
2. Landlords who rent out their property. They can be both real estate and equipment.
3. Bank account holders who have a deposit and can receive interest on their money.
4. Trust fund holders, as well as clients of trust organizations, who donate their property to another person's management.
5. Owners of securities that make a profit from time to time.
6. Individuals who receive payments under an insurance policy.
7. Directly the owners of the companies.

What are the rights and obligations of the beneficiary?

The owner-beneficiary has obligations and rights in accordance with the law, as well as agreements that fit with banks, credit institutions and partners.

• He must provide all information about himself in the relevant documents, as well as respond to requests from government agencies that control the work of the company. This helps to better see how the company is functioning and see the real owners, control the payment of taxes.
• The information must also be provided to banking organizations, which, in turn, after a request from the state, must provide in full all the data of the account holder.
• The beneficiary has the right to freely dispose of his share in the legal entity (part of the inheritance, company). This means that he can sell his share in whole or in part.
• Receive income or part of the profit from a company that belongs to him. The amount is determined in accordance with the agreements. This can be a percentage of income or a specific amount every month.

Especially many problems arise with those enterprises that have a nominal owner. Many companies have a pseudo-manager who is indicated in the documents, a bank account is registered for him, but the company itself is managed by a completely different person. According to the law, everything can be formalized correctly, because this is really allowed, but government bodies pay more attention to such firms. This is because there is room for fraud.

That is why during the conclusion of contracts with banks, suppliers or partners, it will be necessary to provide the entire chain of documents that show not only the official beneficiary, but also the final beneficiary, the executive head of the company.

This article seeks to answer the “riddle” associated with legislation and human rights. Namely - who is the beneficial owner? What rights and obligations he has, and how he can hide or betray himself, what they are necessary for, and in what laws can a restriction for such a circle of persons be kept. We will try to consider all these questions here.

Introduction

Who is the beneficial owner? This is a person in the form of an owner or a certain group of such persons who, through direct or indirect interference, can influence the decision of a legal entity or even control it. The beneficial owner can be a person not specified in the title deed. However, it will be the direct owner of the existing assets and will be able to benefit from the influence on the organization's activities.

The beneficial owners of legal entities are the subjects that most often hide from the law by covering up nominee companies and their board of directors with chains. This can be used to launder money that was obtained illegally. Legal owners take advantage of this tax plan phenomenon.

Beneficial owner in Russia

We found out who the beneficial owner is, but when did it become legal? In the territory of the Russian Federation, this subject became legally enshrined in legislation only in 2013, and the approach to the term was borrowed from the general legal system. Prior to the introduction of this into the law, the literature used concepts such as affiliated or controlling person, as well as interested parties. With regard to the ability to influence the decision-making of legal entities, they have a general description. However, they all contain a number of features, which does not allow us to accurately determine the meaning of the concept.

The concept of the ultimate beneficiary

There is always an ultimate beneficial owner. This is a person of the physical type who owns the beneficiary entity. The right to own a company may belong not only to shareholders and nominee managers, but also to other organizations. The person who actually owns the organization, who has his share in different companies, and is called the ultimate beneficiary.

Difference between beneficiary and beneficiary

Federal Law No. 115 makes it possible to distinguish between similar phenomena, such as beneficial owner and beneficiary. They have several characteristics in common, for example, both are able to benefit from the actions of assets. However, the owner has a total stake in the company of 25% or more, which gives him the right to control and manage, if not complete, then at least allowing him to influence the decision of the organization's activities. Such companies undertake, subject to certain conditions, to provide data that will help in the fight against crime and terrorism, the legalization of illegal capital, etc. This allows them to take measures to prevent financial fraud.

Federation law

The Federal Law of August 7, 2001 (No. 115-FZ), covering the issues of countering the legalization of capital obtained by criminal means and financial terrorism, ruled that the beneficial owner is a person of a physical type capable of interfering, both indirect and direct , control and own legal entities. face in the form of a client. This gives rise to the presence of one distinctive feature between the concepts that we considered above. Namely: the beneficial owner of a legal entity is a subject that does not have a number of rights or obligations in the Russian Federation that are determined by its position.

Registry

The use of influence of an indirect or direct type finds its application in the implementation of any transactions, as well as in the ability to influence their conditions, the course of financial transactions, etc. There is another number of factors by which a person can be classified as a beneficial owner.

May 2014 was the month in which the special authorities developed the possibility of introducing a register including beneficial owners. This was due to the need to determine the ultimate owners in order to strengthen measures to combat financial criminals.

Identification

The identification of the beneficial owner is a necessary measure to better manage the country's funds. It is important to constantly update the data on such subjects. If it is not possible to determine the ultimate beneficiary, then the executive authority in the organization can be appointed as the owner. It follows from this that almost any organizational structure holding bank accounts may be affected by identification. All types of credit institutions are making a lot of efforts with which they expect to find the ultimate owners of the business. Such goals involve finding information from any source.

Data exploitation

Identification of beneficial owners by collecting any practically significant information is necessary to improve the efficiency of legislation in the field of criminal money laundering and other assets. The fight against the activities of terrorist entities is also one of the important points that determine the need for data transfer.

In 2013, the concept of a duty was introduced, providing for the compulsion to transfer information at the request of banks' structures. Further, the bank is forced to provide information about the ultimate owner of personal clients in the possession of Rosfinmonitoring, which has the legal right to impose a fine of up to five hundred thousand rubles for denying access to this type of data.

The beneficial owners of a bank are one of the important problems of modern tax law. Since these people, being beneficiaries, may not disclose their identity to the law with a share of more than 25%, it is impossible to bring them to justice by law, since they are hiding. It is extremely difficult to obtain this data.

Very often, a large account is opened by a person who has only the right to sign documents, but in fact he is the owner of the title type. This makes it necessary to take measures to increase control over the activities of the beneficial owner.

The introduction into the legislation of the concept of the subject in question led to the creation of such a document as a questionnaire of the beneficial owner. It is used in banking to identify all owners of a particular business, including ultimate, likely individuals.

Practice abroad

Practice abroad has not yet created a clear mechanism by which it is possible to eliminate the existing contradictions arising from the ambiguity in the interpretation of the list of legal possibilities and powers, which would make it possible to determine the owner of beneficial ownership.

The definition of the concept of the owner, dividing into two types of subjects, namely the actual manager and the founder according to the documents, leads to the loss of boundaries that allow us to determine the importance of responsibility for the company's activities.

It is known from history that the term was first mentioned in 1966 in the protocol, which was signed by representatives of the US and British authorities and was an addition to the Bilateral Treaty concluded in 1945.

Finding information about beneficial owners is one of the main tasks of the tax legislation of any country.

On the territory of the United States, this type of owner does not have a clearly defined definition, but it can be considered the entity that is capable of significantly influencing the activities of the organization in any form, giving orders and managing the voting process, and using shares. This type of person undertakes to disclose personal data in the event that the share of his possession in valuable documents exceeds five percent. However, to which category of owners he attaches himself is chosen individually by the subject himself.

In the territories of the PRC, the term “actual manager” is used, which in the meaning corresponds to the beneficial owner. This is a person who is able to exert actual and practical influence on the activities of the company, but at the same time will not be a shareholder. Control occurs through a series of investment relationships defined by agreements or contracts.

Danish legislation considers, under the description of this term, a subject capable of disposing of the income received by an independent decision. Such a person is not intermediate.

In accordance with the third EU directive, nat. a person who fully controls customers or individuals, while exploiting their ability to independently complete transactions, can be considered the beneficial owner. Another condition necessary for giving a person the status of the ultimate owner should be the availability of more than 25% of the shares.

The FATF defines a person, considered in the article, as a natural person who has the right to control the activities of an organization or company.

Legal options and responsibilities

Beneficiaries have a number of rights that are protected by legislation, but they are also assigned a certain list of obligations.

The beneficiary can protect the rights to own his property by drawing up contractual trust agreements. Failure to comply with the contractual clauses will impose liability on both the beneficiary and the nominee type performer.

The final person who owns the assets, in order to ensure the protection of the property, must provide in the terms of the agreement for the possibility of pledging the property of the trustee of the subject of the transaction. Activities that do not meet the expectations of the beneficiary allows him to involve other persons in the business.

When making transactions of this kind, special guarantees may be indicated with a banking basis based on specifically established conditions. An exception may be contracts between beneficiaries and principals or beneficiaries. Only a natural person can be the guarantor.

The main task of the agreement is to enforce the payment of material claims by the principal in favor of the beneficiary on the written instructions of the latter. The lender must always act as the beneficiary of the guarantee. The beneficiary has the right to choose the type of guarantee.

The legal possibilities of creditors when concluding agreements based on a bank guarantee provide for giving them the right to timely repay debts. The basis lies in the availability of timely fulfillment of the conditions for the transfer of goods and assets.

If the beneficiary has a benefit of a material nature, then he can demand the performance of obligations from the guarantors both with grounds and without them, which depends on the predetermined conditions of the agreement. However, any claims can be made only before the expiration of the time allotted for the fulfillment of the obligations of the guarantor. The guarantor must notify the principal that certain actions have been taken, and also study the possible justifications put forward by the requirements of the beneficiary.

Summing up

By considering the issue of defining the concept of beneficial owner, studying how it differs from similar terms, determining the importance of data collection, we can now clearly define who the beneficial owner is.

In our market time, a lot of specific words have appeared that people did not know about before. Many of them are, as they say, "heard", for example, the beneficiary. What is it - in simple words we can say that this term is associated with monetary transactions, and this is generally true, but everywhere there are nuances.

Who is the beneficiary?

The interpretation of this term can be found in various dictionaries of economic, legal, financial orientation, business reference books:

1. Translated from different European languages, it has the semantic meaning of profit, good deed, benefit, the owner of the letter of credit receiving money from it, etc .;
2. Is an a citizen who receives income from his property in his trust management, as well as, for example, inheritance by will;
3. Can be a person in favor of whom payments are made or gaining profit as a result of renting out his property, hiring, when transferring the right to use it to third parties;
4. Human, receiving cash on an insurance policy, the credit card on which they were transferred to him for the performance of any work;
5. Bank customer who instructed this credit institution managing your funds by agreement or agreement;

Parallel to this term, the name “beneficiary” can be used.

History of the financial term

It takes its origins in ancient times:

1. During the heyday Ancient Rome this concept was widely used to refer to those people who were in military service and were released from heavy work. Usually they served in the protection of the official - the tribune. In the era of the empire, they could claim the title of centurion;
2. In the middle ages beneficiary a certain land ownership was called, which, as a rule, was allocated on the terms of military service to those to whom it was given. However, there were options with administrative or court service;
3. This word has merged into modern language with meanings that are very different from the original ones. At the same time, the range of areas in which it is successfully and widely used has expanded significantly. This includes, in particular, the activities of financial, legal, business organizations. The term has become quite capacious and multifaceted.

Beneficiary and Beneficiary: What's the Difference?

Generally, these terms are synonymous but have some differences in their practical application:

• The beneficiary can be not only a citizen, but also an organization acting as a legal entity, and acts mainly in the insurance business;
• He is mentioned separately in the text of the relevant contract concluded between the policyholder and the insurer, as a third party who, in a certain case, has a legal right to receive the payment, or in in kind(for example, in the form of a medical service), or in cash (when receiving an inheritance). In the latter case, he is mentioned in the policy as the recipient, or in the will or order of the insured person;
• As a beneficiary, you can use not only cash, but also a commodity letter of credit in transactions between organizations and enterprises, companies;
• In the contract of trust management of property, it can be either the founder of the management himself, or a special person in whose interests this process is carried out.

The above terminology also has such a notion as “recipient”.

Who is the beneficial owner?

The wording was introduced in 2013 and revised in 2016 on the basis of Russian legislation of 2001 regarding the fight against proceeds of crime (Law No. 115-FZ):

• The term means the presence of a specific a person who benefits from the activities of a company or who has the ability to control it. The methods of influence can be direct or indirect, through the ownership of a certain number of shares. If the client is a citizen, i.e. a natural person, then he is considered the beneficial owner. In some cases, however, there are reasons to consider him a completely different person;
• The concept of a beneficiary is defined by law as the receipt of a profit by an individual from a client as a result of an agreement concluded with him for the performance of a certain type of financial or commodity transactions;
• According to Article 6.1 of the above law, the company is obliged to have, update and provide information about its beneficial owners to the state authorities. It also has the right to request information about these persons from its founders and shareholders.

The law of the Russian Federation provides an opportunity to disclose information about the true owners of a legal entity, which is reflected in the company's statements.

What are the types of agreements with the beneficiary?

Exists different kinds profit purchase agreements:

• A bank guarantee that ensures the financial security of the transaction between the customer (beneficiary) and the executor (principal). The essence lies in the intermediation of the guarantor bank, which, for a certain amount of commission from the transaction, ensures the customer the fulfillment of obligations on the part of the contractor. If the latter does not comply with the terms of the transaction, the bank pays the agreed amount and then claims its reimbursement from the principal;
• Agreements with trust organizations for the trust management of property, companies, money, securities, etc. on the terms agreed with the founder (beneficiary, owner), are concluded for a strictly defined period;
• Insurance policies of various subjects, where the role of the beneficiary can be both the policyholder and a specially registered person who, upon the occurrence of an appropriate event, will receive the reimbursed amount, for example, by will.

If you receive interest on a rich inheritance, congratulations, you are the beneficiary. What is it - in simple words it is defined as person receiving income, beneficiary, which you probably already understood from the text of the article. Acquisition forms are different, the essence is the same - profit.

Video: ordinary people to difficult questions

In this video, Yuri Antonov will interview people on the street for knowledge of the financial term "beneficiary":