Pursuant to Section 2(2) of the Beneficial Ownership Act 2020 (hereinafter referred to as “the Act”), the Act shall not apply to –

•  A listed company; 
• A legal person which is formed, incorporated or established outside of Seychelles, excluding an overseas company registered under the Companies Act.

Where one of the shareholders of an IBC is a listed company, the particulars of all the natural persons who ultimately owns or controls the listed company should be entered as beneficial owners on the IBC’s register of beneficial owner (“ROBO”).

As per paragraph 7 (f) of the Beneficial Ownership Guidelines, where the ownership structure of a legal person includes a legal arrangement that is a trust, the beneficial owners of the legal person would be the settlor, protector, trustee, named beneficiaries and any individual that meets conditions set out in Tier 2 (control through other means). This would apply, irrespective of whether the trust is registered in Seychelles.

The new beneficial owner will now have the obligation to make the declaration and update the ROBO accordingly.

The general principle is that a beneficial owner should at all times be a natural person. Consequently, if the trustee is a corporate trustee, the natural persons behind the corporate trustee will need to be identified.

As per regulation 3 (6) of the BO Regulations 2020, the beneficial owner shall be a natural person or persons who is:

  (a) the trustee

  (b) the settlor

  (c) the protector

  (d) the beneficiaries or class of beneficiaries

  (e) any other natural person exercising ultimate effective control over the trust or the legal arrangement, including any person who has, under the trust deed of the trust or any similar document, power   to -

       (i) appoint or remove any of the trustees of the trust;

       (ii) direct the distribution of funds or assets of the trust;

       (iii) direct investment decisions of the trust;

       (iv) amend the trust deed; or (v) revoke the trust; and

       (vi) any other person, known by the resident agent of the legal arrangement, who is exercising control over the legal arrangement.

Note that the 10% threshold is irrelevant when identifying the beneficial owners of trusts and other legal arrangements.

The same principle applies in the case of a discretionary trusts whereby all parties to the trusts are deemed BO of that trust.

Where the beneficiaries are named in the trust deed or are identifiable by reference to a class of beneficiaries, they are considered as beneficial owners for the purpose of the Act regardless of whether the interest has vested to the person and the registrable particulars should be entered on the ROBO accordingly.

Where the individuals (or some of the individuals) benefiting from the trust are yet to be determined or are not named in the trust deed, a description of the class of beneficiaries can be provided in the register of beneficial owners as provided under Paragraph 10 of the Beneficial Ownership Guidelines.

Yes, whether the nominee is a natural person or corporate body, details of the nominee should be entered into the ROBO, as per the registrable particulars of section 5 (1) of the Act. However, it is to be noted that the current provisions of section 5(1)(e)(i) of the Act does not appear to cater for details of corporate bodies at this point in time. In the event that a corporate body is serving as a nominee, the particulars to be entered would be:

•  the name of the legal person/corporate body; 
• registered address; 
• service address; and 
• incorporation number (as appropriate).

No, the Act clearly specifies that where the nominator is a legal person or body corporate, the identity of the natural person who ultimately owns or controls the nominator must be inserted.

By nature, a trust cannot own shares as it is not a legal entity. As its legal owner, Trustee A holds the shares of Company A on Trust A’s behalf. Bearing in mind the afore-mentioned, this cannot be considered as a nominee/nominator relationship as the trust does not nominate the trustee to hold shares on its behalf. The trustee does so in its capacity as the legal owner of the trust property for the fiduciary duty it holds towards the beneficiaries. Notwithstanding this and by virtue of regulation 3 (6) (a) of the Beneficial Ownership Regulations 2020, with regards to the trust, the trustee is only considered as a Beneficial Owner of the trust for the purpose of populating the ROBO and effectively a BO of Company A.

A shelf company is by nature owned by its Registered Agent. Thenceforth, the natural person(s) who ultimately owns or controls the Registered Agent shall be considered as its Beneficial Owners.

Pursuant to Regulation 3(2)(a) of the Beneficial Ownership Regulations, 2020, a natural person is considered a Beneficial Owner if he owns or controls 10% or more interests in a legal person. Therefore, if a person owns or controls less than 10% interest, the person need not be inserted on the ROBO and need not be populated on the Beneficial Ownership Database. In line with that and further to the provisions of the Beneficial Ownership Regulations, please be guided by sections 4 and 5 of the Beneficial Ownership Guidelines which shall assist in determining as to who should be considered as a Beneficial Owner and the circumstances in which they are considered as one.

However, in the case of identification of the beneficial owners of trusts and other legal arrangements, the 10% threshold is not applicable. All relevant persons must be identified.

The Act requires ROBO to be accurate and up to date. Consequently, it should capture all persons falling within the ambit of the new meaning of ‘beneficial owner’ introduced by the Act as from 28th August, 2020. Therefore, the details of any existing beneficial owner meeting the new definition as of that date, must be reflected in the ROBO.

Regardless of whether the foundation has identified any beneficiary, the ROBO of the foundation must kept. As per regulation 3 (4) of the Beneficial Ownership Regulations 2020, the beneficial owner in the case of a foundation shall be a natural person(s):

      (a) Who holds, whether directly or indirectly, absolute decision or veto rights in the conduct and management of the foundation;

      (b) Who holds the right, directly or indirectly to appoint or remove majority of the councilors of the Foundation;

      (c) Who is a beneficiary in whom an interest in vested;

      (d) Who is the default recipient of the assets of the foundation in the event of its termination; or

      (e) Any other person, who benefits from the foundation.

The nationality of a beneficial owner would usually be what is written on the nationality section on the individual’s passport. In other circumstances, if the identification document does not feature the nationality, the country that issues the identification document shall be considered as the nationality of the individual.