Under new secrecy rules, Malta trusts must declare beneficial owners

The new year has brought about a sea change in anti-money laundering rules, which now make it mandatory to report all beneficial owners of trusts to the Registrar of Legal Persons.

In recent legal amendments designed to bring Malta up to date with the 4th Anti-Money Laundering Directive (AMLD4), “beneficial owners” of trusts will now include settlers, trustees, protectors, and any beneficiaries who exercise ultimate control through direct or indirect ownership.

This new definition goes beyond previous versions of the directive, which placed higher thresholds on the identification of trust beneficiaries.

Trusts have been involved in major tax evasion and corruption scandals in the past, and are usually used by elites seeking to hide their assets under the ownership of complex trusts in a bid to avoid tax. More recently in Malta, the Panama Papers revealed the use of two offshore trusts by minister Konrad Mizzi and the PM’s chief-of-staff Keith Schembri connected to their offshore companies in Panama.

A EUROPOL representative had told MEPs during a November 2016 hearing on money laundering and tax evasion that trusts were among “the main schemes that were used to hide tax revenue or launder money”.

The new law now obliges Malta to require that the identity of all parties to a trust or foundation, be available to be accessed by national tax authorities and EU financial intelligence units, apart from being held in a central register held by the Malta Financial Services Authority.

Malta will have to ensure timely and unrestricted access to the register without alerting the parties of the trust concerned.

Where a registered trustee contravenes or fails to comply with any of the provisions of the new rules, the MFSA may impose an administrative penalty of not more than €150,000, unless trustees can prove they exercised all due diligence to comply with the rules.

The new rules also apply to all associations established for either a private interest, or social purpose and non-profit associations. Each association will now have to keep updated information on its beneficial owners, with penalties for non-compliance reaching €500, or up to €5,000 and a six-month imprisonment for providing false or misleading information.

However, access to information on a beneficial owner of an association may not be granted, if it can be justified that such access to such beneficial ownership information would expose the owner to the risk of fraud, kidnapping, blackmail, violence or intimidation, or whether the beneficial owner is a minor or otherwise incapable.

The register of beneficial owners will be held by the Registrar for Legal Persons, who will be appointed by a government minister. The register will be interconnected with the central registers of other member states.

Since the introduction of harsher anti-money laundering rules at a European level, Maltese banks had already stated extensive due diligence exercises for politically-exposed persons.

In one example, HSBC Malta’s CEO informed then Opposition leader Simon Busuttil that a VIP team at the bank would be responsible for the management of PEP due diligence obligations.

Hundreds of people across the Maltese islands could be affected under tighter rules to fight money laundering, as the definition of a politically exposed person now includes not just people with political functions, but also their spouses and close associates and relatives.

The obligations of customer due diligence for banks are legally binding, and all PEP customers must complete them in order to retain their accounts with the banks.

For PEP relatives, the new AMLD rules will mean that opening a bank account will now be subject to enhanced due diligence measures.

Not only politicians, or party executives and directors of government entities will be subject to enhanced due diligence, but also their family members, such as spouses and partners, children, the PEP’s parents, as well as ‘close associates’ who have business relations or joint ownership of companies.

This will mean that institutions such as banks or insurance companies will have to obtain senior management approval to even establish a business relationship with such persons, as well as make sure they can establish the source of wealth and funds that PEPs and their associates have.

Even after a PEP is no longer entrusted with a public function, banks will still have to continue applying their enhanced due diligence for the next 12 months at minimum, until that person can be considered to be no longer a ‘PEP risk’.