Royal Decree 304/2014 of 5th May 2014, whereby the current Act 10/2010 on Money Laundering Prevention is developed in detail, included special provisions relating to Trusts which, due to their relevance, have been reproduced below, although it must first be stressed that they need to be implemented and interpreted within the general context of such a legal rule.
Article 6.3. of the said Regulations provides as follows:
3.- In the case of Anglo-Saxon Trusts or other similar legal instruments which, despite having no legal personality, can engage in commercial activities, the parties bound thereunder shall require the constitution document, without prejudice to identifying, or ascertaining the identity of, the person acting on behalf of the beneficiaries or in accordance with the terms of the Trust or legal instrument. To this end, trustees shall inform the parties bound under the Trust of their status as a trustee where, as such, they intend to establish commercial relationships or participate in any operations. Where a trustee fails to disclose such a status and this circumstance is ascertained by the party bound under the trust, the business relationship shall be terminated and the special examination referred to in Section 17 of Act 10/2010 of 28th April (ACT 8368(2010) shall be carried out.
On the other hand, as regards the identification of the actual beneficiary (i.e. not the formal holder but whoever ultimately benefits from, controls or disposes of the business operation or relationship), Article 9.5 of the said Regulations provides as follows:
- In the case of Anglo-Saxon Trusts, the parties bound thereunder shall identify, and take appropriate steps to ascertain the identity of, the trustor, the trustees, the guardian, the beneficiaries or classes of beneficiaries and any other individual who ultimately has effective control of the Trust, even where such a control is held through a chain of control or a chain of ownership. In the case of beneficiaries appointed by characteristics or classes, the information required to establish the identity of the beneficiary shall be obtained at the time the payment is made or when the beneficiary intends to exercise the rights conferred upon them.
In the case of legal instruments similar to the Anglo-Saxon Trust, the parties bound thereunder shall identify, and take appropriate steps to ascertain the identity of, the persons holding positions equivalent or similar to those indicated in the last preceding paragraph.
Identification of the actual bemeficiary.
Regarding the identification of the actual beneficiary, Article 8.c provides as follows:
c) The individual or individuals holding title to, or controlling, more than 25% of the assets of a legal instrument or person which administers or distributes funds or, where the beneficiaries are yet to be appointed, the category of persons for the benefit of whom the legal person or instrument has been created or acts. Where no individual exists who directly or indirectly owns or controls 25% or more of the assets referred to in the last preceding paragraph, the individual or individuals ultimately responsible for the direction and management of the legal person or instrument – including where the same is directed or managed through a chain of control or chain of ownership – shall be regarded as the actual beneficiaries.
Marbella, May 2014