In April 2016, a new regime was introduced under the Small Business Enterprise and Employment Act which requires certain companies to file information about their ownership and management in a persons with significant control (PSC) register.
The aim of the register is to promote transparency and improve corporate trust by obliging companies to be open about who ultimately owns and controls them.
Essentially, the Government wishes to improve corporate behaviour, deter money laundering and help to sanction those who hide their ownership or control of UK companies for the purpose of facilitating illegal activities.
To be a PSC, one or more of the following tests have to be met. The individual, either a person or registrable legal entity, would:
- hold more than 25% of shares.
- hold more than 25% of voting rights.
- have the right to appoint or remove the majority of directors.
- have the right to personally exercise significant influence or control.
- have significant influence or control through a trust or firm. On June 26, 2017, the PSC regime changed again and an even more onerous obligation of reporting ownership changes has now been introduced.
This has come about because UK law has implemented the EU’s Fourth Money Laundering Directive (4MLD) which has more stringent rules relevant to the PSC regime.
As a result, companies may no longer use the annual filing of the confirmation statement to inform Companies House of changes to its PSC Register.
Changes must be reported within 28 days. This gives the company 14 days to update its register and a further 14 days to file the relevant forms. The purpose is to make the Companies House database up to date and to promote event-driven filing, as with a large number of other Companies House filings.
Any change to PSC information prior to June 26, 2017, which has not yet been notified to Companies House must be done so immediately by using forms PSC01 to PSC09. Common changes that companies will now need to report directly to Companies House, as well as updating the PSC register, include:
- the emergence of a new PSC eg if someone buys shares and their ownership exceeds 25%.
- PSC changes address.
- someone ceasing to be a PSC if they sell shares.
The confirmation statement will continue to hold PSC information and companies will have to confirm in that statement that the PSC information is correct.
In Northern Ireland all private limited companies, limited liability partnerships and SEs are legally required to maintain a PSC register.
Failure to comply with the requirements is a breach of statutory duties and a criminal offence which could result in a personal fine or a prison sentence of up to two years.
Ciara Lagan is partner in the corporate department of law firm Tughans