The Ultimate Beneficial Owners (UBO) Register of Companies, Branch/Permanent Establishment and Private legal Entities, as well as of Trusts producing legal effects relevant for tax purposes and of Legal Institutions similar to Trusts, is operative also in Italy. The UBO Register consists in two sections and one is dedicated to trust.

Until now UBO information has been required from Banks, Tax and Payroll Providers, other Third Parties.

The “first” communication of the UBO, of the entities already established on  October 9^th 2023, expires on Monday 11^th December 2023.

The communication must be sent to the Companies Register of the Chamber of Commerce, territorially competent, where the Entities have their registered office or, in the case of a trust, in the province in which it was established.

TO WHOM IT APPLIES

The communication must be exclusively electronic and concerns:

• Companies with legal personality (i.e. Limited Company (Società a Responsabilità Limitata), Joint-stock Company (Società per Azioni), Cooperative (Cooperativa,) Consortia and Mutual Aid Societies (Consorzio), Branch/Permanent Establishment of an Abroad Company (Stabile Organizzazione di Società Estera);
• Private legal Entities (i.e. Associations, Foundations and other Institutions of a Private nature which acquire Legal Personality upon registration in the register of legal entities).

The recording and keeping in the ordinary section, must be carried out by the following subjects:

• Directors of Italian Companies with legal personality;
• Legal Representative of Italian Branch/Permanent Establishment of abroad Companies;
• Founder, if alive, or by the Subjects to whom the representation and administration of private legal entities is granted.

The recording and keeping in the special section for Trust must be made by the Trustee.

For Companies with legal personality, the data, of the individual identified as UBO, that must be communicated are name and surname, place and date of birth, citizenship, residence/domicile, Italian Tax Code (if already obtained from Italian Tax Office), the direct or indirect share participation in the Italian entity, or the control of the votes exercisable/dominant influence in the ordinary Shareholders meeting, or the presence of contracts that allows the exercise of a dominant influence, or the powers of representation, administration or management.

 TO WHOM IT DOES NOT APPLY

For the Partnerships, Individual Entrepreneurs and Non-recognized Associations the communication of the UBO does not apply to.

 WHO IS THE UBO?

The UBO, on the basis of the art. 20 Legislative Decree 231/2007, is (are) any natural person(s) who ultimately, directly or indirectly, owns or controls the entity.

COMPANIES – BRANCH/PERMANENT ESTABLISHMENT

If the client is a Company:

1. a) the indicator of the direct ownership is the ownership of shares for a percentage of more than 25% of the capital of the client, owned by a natural person;
2. b) the indicator of the indirect ownership is the ownership of shares for a percentage of more than 25% of the capital of the client, owned through a controlled company, a fiduciary company or an interposed person.

If the analysis of the ownership structure does not allow to determine clearly the natural person(s) who ultimately, directly or indirectly, own the entity, the beneficial owner means the natural person(s) that ultimately controls the entity due to:

1. a) control on the majority of voting rights exercisable in the ordinary shareholders meeting;
2. b) control of sufficient voting rights that entitle the exercise of a dominant influence on the ordinary shareholders meeting;
3. c) existence of special contractual links that enable to exercise a dominant influence.

Residually, if the application of the aforementioned criteria does not allow one or more UBO to be unequivocally identified, the UBO coincides with the natural person who hold, in accordance with their respective organizational or statutory structures, powers of legal representation, administration or management of the Company.

PRIVATE LEGAL ENTITIES

With regard to Private Legal Entities referred to in Presidential Decree 361/2000, the UBO are:

• the founders, if alive;
• the beneficiaries, when identified or easily identifiable;
• holders of powers of legal representation, management and administration.

TRUSTS AND LEGAL INSTITUTIONS RELATED TO TRUSTS

With regard to Trusts and similar legal institutions, the UBO are the settlor or settlors, the trustee or trustees, the guardian or guardians or other person on behalf of the trustee, if any, the beneficiaries or class of beneficiaries and other natural persons who exercise control over the trust or similar legal institution and any other natural person who exercises, ultimately, control over the assets transferred to the trust or similar legal institution through direct or indirect ownership or through other means.

 TIMING OF THE UBO COMMUNICATIONS

The communication must confirm who is the UBO at that date.

 FIRST POPULATION OF THE REGISTER

The first population of the Register expires on December 11^th 2023 with the communications of the beneficial ownership required for:

• Companies and Branch/Permanent Establishment already established (i.e. already registered in the Companies Register) as of October 9^th 2023;
• private legal entities already established (i.e. already registered in the appropriate register) as of October 9^th 2023;
• trusts and similar legal institutions already established as of October 9^th 2023.

NEW ENTITIES

The communication of the UBO is also mandatory for entities established after October 9^th 2023. In this case the deadline is within 30 days of incorporation and/or registration of the Entity.

RECURRING COMMUNICATIONS

The information on UBO must be constantly updated and any changes must be communicated within 30 days of the act that gave rise to the change.

The change could concern the individual of the UBO (i.e. the takeover of a new shareholder with a participation share in the share capital exceeding 25%, the appointment of a new director of a private legal entity, the change of the beneficiaries of the trust or of the subjects who exercise control over the trust) as well as the data, already disclosed, of the UBO (i.e. the address of the UBO, the requirement according to which he/she was indicated as UBO).

Furthermore, a yearly communication must be filled, within 12 months from the date of the first or previous communication or from the last change. Anyway, Companies has to carry out the communication at the same time as filing the yearly Financial Statements.

WHO SIGN THE COMMUNICATION?

The communication of beneficial ownership must be signed with Italian digital signature:

• by the Legal Representative or by one of the Directors, or the Liquidators, or by the liquidator, or by the Judicial Commissioner, in the case of a Company;
• by the Founder or by one of the Individuals with powers of representation and administration, or by the Liquidator in the case of a Private legal person;
• by the Trustee, in the case of Trusts or similar legal institutions.

A special form, called “TE”, must be filled and digitally (with the Italian digital signature) signed.

No delegations to Third Parties for the signature of the form are permitted.

In the TE form the UBO is identify through some codes depending on the legal entity to which the declaration refers. The below codes are related to companies:

SELF-CERTIFIED DECLARATION AND PRESERVATION OF DOCUMENTATION

The self-certified declaration included in the TE form, pursuant to art. 48 of Presidential Decree 445/2000, is “of responsibility and awareness regarding the sanctions provided for by criminal legislation and by special laws regarding the falsity of documents and declarations made“.

This self-certified declaration is sufficient to obtain the registration of UBO in the Companies Register, as there are, in general, no attachments or documents to be sent in support of what has been declared. This documentation, however, must be carefully kept by who is obliged to finalize the communication, and must be provided by them to the Register offices at a subsequent stage, if requested. The obliged persons must also keep track of the reasons that did not allow the UBO.

The UBO must cooperate with the Director, Legal Representative, Founder, Trustee and more in general whit who is obliged to make the communication, to provide the correct information.

WHAT ARE THE CONSEQUENCES FOR MISSING THE COMMUNICATION OR IS MADE FALSELY?

In case of missing the communication related to the data of the UBO, the persons required to do, will be punished with a pecuniary administrative sanction from €103 to €1,032. If the communication is made within 30 days from expired time limit the sanction is reduced to one third.

The communication must be true and who is obliged to finalized it, intentionally provides false data or untrue information could be subject to the penalty of the imprisonment from 6 months to 3 years over a fine ranging from €10,000 to €30,000.

 WHO HAS ACCESS TO THE REGISTER?

The access is allowed to: Tax Policy, Minister of Economy and Finance, National anti-mafia and anti-terrorism Authority, Judicial Authority, who is obliged to check the UBO positions, other Authorities, other Third Parties (in presence of exceptional circumstances, the access to UBO’s info can be excluded, when the UBO could be exposed to a disproportionate risk of fraud, kidnapping, blackmail, extortion, harassment, violence or intimidation, or the beneficial owner is an incapacitated person or a minor).

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