Know the latest pronouncement of the Tax Authority regarding the Registry of Beneficial Owners - RUB

1. Obliged to provide the register of Final Beneficiaries:

Given that the tax legislation indicates that among those obliged to provide information in the RUB are structures without legal personality or similar, for business collaboration contracts it was requested to clarify who is the subject obliged to make the report within the subjects belonging to the contract.

In this regard, the Tax Authority indicated that it must be the administrator, manager or representative of the structure without legal personality who must provide the information. 

2. Criteria for the determination of final beneficiary

2.1.  At this point, the petitioner pointed out that there seems to be a discrepancy between what is indicated by the criteria for defining the final beneficiaries in which it is indicated that there is a conjunction "and/or" on two criteria that can be used interchangeably (being the directly or indirectly holder of 5% or more of the capital or voting rights "and/or" benefiting from 5% or more of income and profits) contrary to what is indicated with respect to of the request for information for percentage of social participation and the percentage of benefits in the income since it seems that it is mandatory that all the information be required.

In this regard, the Tax Authority clarified that the standard establishes within the criteria that it can be and / or that is to say one or the other or both, and that for the requirement of the information it will depend on the criteria that is being followed .

2.2.  Additionally, the clarification was made that a natural person will not be considered a beneficiary of an entity by the mere fact of being a creditor of the latter.

2.3.  However, the petitioner requested that the natural person not be reached in the listed companies since according to the recommendations of the FATF-Financial Action Task Force, this would not be necessary. To the above, the Tax Authority answer that the tax legislation does not establish any express exception and therefore, the criteria established to report the information on final beneficiaries must be applied.

2.4.  Clarification was also sought on the term "bearer securities" to which the DIAN pointed out that the provision states that the nature of the bearer shares denotes that the person holding the title may not be known and the information must be with respect to the company issuing the shares.

It is necessary to bear in mind that in some jurisdictions it is allowed to have registered shares and that is that some people lend their name to appear as shareholders, but really who is the beneficiary is a person who is called nominator. Therefore, when conducting the due diligence process, the nominator should be singled out.