Draft legislation requiring the registration of overseas entities owning UK property was laid before Parliament on 23 July 2018.
The primary aim of the legislation is to curb the use of overseas entities which purchase land in the UK to launder money or invest illicit funds. The guidance to the bill states that criminal investigations in the UK are often hampered by a lack of information about who ultimately holds or controls overseas entities owning UK property.
A summary of the draft bill is outlined below, which was released with an overview document. This document invites responses to various questions around the appropriateness of the draft over the course of a consultation period which closes on 17 September.
Summary of the bill
The bill sets out the framework for a register of overseas entities which hold UK property. All information on the register may be made publicly available, with the exception of most individuals' dates of birth and residential addresses.
Overseas entities will not initially have to register but will not be able to transfer, charge, grant long leases or become proprietors of UK property without having registered.
After 18 months, registration will become mandatory for any overseas entity which holds UK property. The entity and its officers will be committing a criminal offence if they do not register before that date, with offenders liable to a fine or imprisonment for up to two years.
The overseas entity will have to update the register every twelve months with any changes to the information or a statement that nothing has changed. Failure to update on time will also be an offence, punishable by a fine. Continued contravention will incur a daily default fine of up to £750.
What is an overseas entity?
The bill applies to legal entities governed by the law of a jurisdiction outside the UK. A legal entity includes any body corporate, partnership or other entity that is a legal person under the law by which it is governed.
What about trusts and foundations?
Notably, as drafted, trustees that hold land directly would fall outside of the scope of the legislation as currently drafted, unless a beneficiary exercised significant influence or control over the trust as outlined below. The same appears to be true where an SPV is held by a trust, provided again there are no registrable beneficial owners. Whether a particular structure falls within the bill would be determined by the law of the relevant jurisdiction in relation to legal personality and, as a result, foundations are likely to be captured.
Registrable beneficial owners
A registrable beneficial owner of an overseas entity is any individual, legal entity, government or public authority which:
- holds more than 25% of the shares in the overseas entity, either directly or indirectly;
- holds more than 25% of the voting rights in the overseas entity, either directly or indirectly;
- has a right to appoint or remove a majority of the board of directors of the overseas entity;
- exercises, or has the right to exercise, significant influence or control over the overseas entity; or
- if there is a trust, partnership or other unincorporated entity which would meet the above criteria if it were a legal person, then any person who exercises significant influence or control over that trust or entity is a registrable beneficial owner of the overseas entity.
Gathering the information
The overseas entity must take reasonable steps to identify its registrable beneficial owners. These "reasonable steps" must include giving notice to any person it knows or has cause to believe is a registrable beneficial owner. This notice would require the person to state whether they are a registrable beneficial owner and confirm or correct the necessary information. Any individual not complying with such a notice is committing an offence.
Once the overseas entity has taken reasonable steps to identify its registrable beneficial owners, it will make one of the following statements to the registrar:
- that the overseas entity has no reasonable cause to believe that it has any registrable beneficial owners;
- that the overseas entity has identified one or more registrable beneficial owners and their "required information" is included; or
- that the entity has reasonable cause to believe that it has registrable beneficial owners but is unable to identify some of them or unable to provide the "required information" about them.
If the last statement is made, then the overseas entity must give the "required information" about each managing officer of the entity (as well as about any registrable beneficial owners which it has identified and collected the "required information" from).
What Information will be on the Public Register?
Any overseas entity must give to the registrar:
- its name;
- country of incorporation;
- registered office;
- service address;
- an email address;
- its legal form and the law by which it is governed;
- any public register in which it is entered; and
- any registered number it has on that register.
If any of the registrable beneficial owners are legal entities then they will also have to give the information listed above as their "required information".
If the registrable beneficial owners are individuals then the "required information" is:
- name, date of birth and nationality;
- usual residential address; and
- service address.
If the overseas entity is instead giving the "required information" about its managing officers then it would also need to supply the information listed above.
Where it is not possible to disclose the details of persons with significant control, such as where there are none, or where the entity cannot identify them, then the entity will need to provide information on its managing officers. Managing officer has been defined in the draft legislation as a director, manager or secretary of an overseas company. This mean that directors, managers of overseas entities will see their personal information entered on the public register as follows:
- name, date of birth and nationality
- any former name
- usual residential address
- a service address (which may be the entities registered address or principal office).
Where the managing officer is itself an entity, then the information to be published would be:
- registered or principal office
- a service address
- the legal corm of entity and jurisdiction
- any public register in which it is entered, and its registered number.
Overseas entities have historically been used for a number of reasons, not in the least to preserve the privacy of the ultimate owner. The new regime means that individuals who own UK residential property through an overseas entity will now see their personal information on a public register.
The introduction of this new regime, in combination with the Annual Tax on Enveloped Dwellings for residential UK properties, the removal of inheritance tax and capital gains tax advantages for overseas owners means that holding through an overseas company is much less attractive. We have seen some clients seeking to remove the Property either by selling or de-enveloping the Property from the overseas entity.
Tax advice should be taken before embarking on the “de-enveloping” process, as there may be significant consequences on restructuring.
The legislation is currently in draft form, but we have seen very little change from the previous announcements, with the new regime coming into force in 2021. Those who own residential property in an overseas entity should start taking steps now to review their structures.
This note is intended only to summarise the key effects of the draft legislation and advice should be sought in relation to individual circumstances.