The Fourth and Fifth Anti-Money Laundering Directives have established specific obligations to identify the beneficial owner for those subjects obliged to comply with anti-money laundering legislation, understood cumulatively:

1. the constituent;
2. the oi trustee;
3. the guardian, if any;
4. the beneficiaries or the category of persons in whose main interest the legal institution or legal entity is established or operates;
5. any other natural person who ultimately exercises control over the trust through direct or indirect ownership or through other means.

The trustees of productive trusts of tax obligations and similar legal institutions, are required to obtain, maintain and provide information on beneficial ownership and to communicate that information to a central registry.

The EU regulation was implemented in Article 22 of Legislative Decree 231/2007, requiring trusts producing legal effects relevant for tax purposes, pursuant to Article 73 of Presidential Decree No. 917 of January 22, 1986, to register in a special section of the Companies Register, to be filed by the trustee or trustees or by another person on the trustee's behalf.

Furthermore, to ensure legal certainty and conditions of substantial equality, the Fifth Directive has included among the subjects obliged to communicate also the legal institutions which, in terms of structure and functions, appear similar to the trust (express and voluntary), regardless of the nomen juris used.

The expansion of the range of obligated entities was incorporated into national legislation through the introduction of paragraph 5-bis of Article 22 of Legislative Decree 231/2007, according to which legal institutions similar to trusts are considered to be those entities and institutions that, due to their structure and functions, determine legal effects equivalent to those of express trusts, also taking into account the allocation of assets to a specific purpose and control by a party other than the owner, in the interest of one or more beneficiaries or for the pursuit of a specific purpose.

At the same time, entities exercising rights, powers, and faculties equivalent to those of the trustee of express trusts are required, on the one hand, to acquire and maintain data and information on beneficial ownership and, on the other, to register in the relevant special section of the Company Register.

On 23 December 2019, the Ministry of Economy and Finance, in agreement with the Ministry of Economic Development, put the draft ministerial decree relating to the aforementioned Register of beneficial owners up for public consultation, thus concretely implementing the provisions contained in art. 21, paragraph 5 of Legislative Decree 231/2007, which delegated to secondary legislation the establishment of guidelines relating to the provision, access and consultation of personal data and information on the professional status of beneficial owner of companies with legal personality, private legal entities, trusts producing legal effects relevant for tax purposes and similar legal institutions.

The draft decree is divided into three sections:

– Section I, containing the indication of the subjective, objective and temporal requirements and the methods of communication by the obligated parties:

-Section II, with the methods of access by the authorities and the rules for consultation by entities obliged to comply with anti-money laundering regulations and third parties;

– Section III concerns, on the one hand, the information exchange relationships between INFOCAMERE (which manages the national information system on behalf of the Chambers of Commerce) and the Revenue Agency and the Territorial Government Offices and, on the other, the methods of interconnection between the central registers established by individual Member States, aimed at monitoring and recording information on the beneficial ownership of trusts and similar legal entities within European borders.

The special section of the company register will, upon implementation, contain the information and identifying data of natural persons who hold the status of beneficial owner in trusts producing legal effects relevant for tax purposes and similar legal institutions, established or resident in the territory of the Italian Republic.

Article 4 of the draft decree contains a list of the data and information to be communicated, which includes:

1. the identification data of the beneficial owner(s) of the express trust and of the similar legal institutions required;
2. the institution's tax code;
3. the name, date, place and details of the deed establishing the trust or similar legal institution;
4. any indication of the status of a counter-interested party to access of the natural person indicated as the beneficial owner and of the reasons why access would expose the beneficial owner to a disproportionate risk of fraud, kidnapping, blackmail, extortion, harassment, violence or intimidation;
5. the declaration, pursuant to Presidential Decree no. 445 of 28 December 2000, of responsibility and awareness regarding the sanctions provided for by criminal legislation and special laws regarding the falsity of documents and declarations made.

With specific reference to trusts and similar institutions, the trustee will have until March 31, 2021, to communicate the beneficial ownership data previously acquired as well as any related changes, to be sent within 30 days of the act that gave rise to them.

Section II of the decree under consultation contains all the information relating to the methods of accessing and consulting the data and information communicated by the entities required to register.

Access to the data contained in the special section is permitted, subject to accreditation:

1. to the Ministry of Economy and Finance, to the sector supervisory authorities, to the Financial Intelligence Unit, to the Anti-Mafia Investigation Directorate, to the Guardia di Finanza in its capacity as Currency Police, without any restriction;
2. to the National Anti-Mafia and Anti-Terrorism Directorate and to the judicial authority, in accordance with their institutional responsibilities;
3. to the authorities responsible for combating tax evasion, exclusively within the limits of that purpose;
4. the entities required to comply with anti-money laundering regulations indicated in art. 3 of Legislative Decree 231/2007, upon payment of secretarial fees[1];
5. to the public upon payment of fees, unless they are counter-interested in access.

Pursuant to Legislative Decree 125/2019, the deadline for issuing the final decree establishing the Register of Beneficial Owners for anti-money laundering purposes was July 3, 2020. Given that the draft decree requires the first communication to be submitted by the obligated entities to the Chambers of Commerce by March 15, 2021, it follows that to meet this deadline, the decree must be issued at least by that date.

Emiliano Marvulli

[1] Of particular relevance is the provision contained in art. 6, paragraph 4 of the draft decree which establishes the obligation for the obliged subjects to promptly report any inconsistencies between the information obtained following access to the register section and that acquired during customer due diligence, in order to create specific alert systems on the quality and veracity of the data deposited with the Chamber of Commerce.