Castellán

As we informed in due course ( http://castellan.com.uy/es/noticias/44/nueva-realidad-del-secreto-bancario-y-acciones-nominativas-luego-de-ley-de-transparencia-fiscal-internacional .html ), the obligation to identify the ultimate beneficiary by certain entities was established, as well as to provide a framework for reporting nominative and scriptural shares.
In this article, we will briefly review some of the novelties of the regulatory decree.

Identification of ultimate beneficiaries.

Law 19,484 considers the ultimate beneficiary to be the natural person who, directly or indirectly, owns at least 15% of the integrated capital or its equivalent, or voting rights, or who in other ways exercises final control over an entity.
In short, the aim of the regulations is to know who the person is " in the flesh " owner or ultimate beneficiary of the resources.
The decree adds to the Law the definition of "indirect final control" as: " exercised through a chain of ownership by the interposition of one or more persons or other legal structures between the entity and the natural person who meets the conditions of ultimate beneficiary or through any other means of control ".

Who must identify their ultimate beneficiaries?

Among others, the following resident entities : anonymous societies, limited liability companies, agricultural societies and associations (Law No. 17,777), trusts and investment funds, de facto societies, cooperatives, and civil societies and associations.
Likewise, non-resident entities must also identify their ultimate beneficiary, those non-resident entities that: a) operate in the national territory through a permanent establishment; b) establish their effective management headquarters in the national territory (management and control); c) own assets located in the national territory worth more than 2,500,000 UI (two million five hundred thousand indexed units); d) are trusts or investment funds from abroad, or similar foreign entities, where the administrators or trustees are natural or legal persons residing in the national territory.
It is worth noting that the decree establishes that non-resident entities obliged to identify the ultimate beneficiary must register with the DGI.

Identification of holders of nominative shares or participations and communication to the Central Bank of Uruguay (BCU)

As expressed at the time ( http://www.castellan.com.uy/es/noticias/13/ley-18-930-iquest-el-anonimato-en-las-nominativas.html ), the regulations excluded the obligation to report to the BCU the holders of nominative shares (even creating a special regime that streamlined and facilitated the eventual transformation of bearer shares into nominative shares). In this context, a significant percentage of companies that had their capital represented in bearer shares chose to transform their shares into nominative ones.
Therefore, as we anticipated in our previous report when referring to Law 19,484, entities with nominative or scriptural shares or participations will now be obliged to communicate, through a sworn statement, the data of their holders to the BCU, under the same conditions as the holders of bearer shares or participations.
The Decree expressly states that the following are required to submit this information specifically: anonymous societies, limited partnerships by shares, agricultural societies and associations (Law No. 17,777), and trusts and investment funds. Then, it makes a general reference to any other social type that has scriptural or nominative participations.
Likewise, the information relating to ultimate beneficiaries, including the ownership chain up to the ultimate beneficiary, must be registered with the BCU through a sworn statement.
The decree details the content of these sworn statements.

What is the deadline for reporting to the BCU?

The deadline for entities to comply with these sworn statements is 60 consecutive days from:
a) August 1, 2017, for entities with bearer shares and non-residents with a permanent establishment or effective management headquarters in our country to report their ultimate beneficiaries (and ownership chain in case the beneficiary is indirect); and
b) May 1, 2018, for issuing entities of nominative shares, personal societies, and other entities.

Can any third party access this information?

No. The information compiled by the BCU will, in principle, be confidential, and access to it will require:
a) resolution of the Director General of Taxes of the DGI, provided that such information is requested once a formal inspection procedure has begun;
b) Resolution of the National Secretariat for the Fight against Money Laundering and the Financing of Terrorism and the Financial Information and Analysis Unit of the BCU; or
c) reasoned resolution of the Criminal Justice or the competent Justice if an alimentary obligation was at stake; or
d) Resolution of the Transparency and Public Ethics Board.

What sanctions are provided for in case of non-compliance?

According to the decree, the sanctions will be applied taking into account the economic dimension and the non-compliance period.
The economic dimension is defined at the time of the sanction taking into account the assets and income stated in the financial statements corresponding to the end of the last fiscal year.
Entities whose assets do not exceed 7,500,000 UI or whose income does not exceed 24,000,000 UI will be considered a small entity and a medium economic dimension.
The decree establishes minimum fines, without altering the maximum fines provided for by the Law.



Montevideo, July 7, 2017.