Beneficial Ownership Registers
What is a Resident Agent?
A resident agent is either:
a) An individual, resident in Guernsey who is a director of the company, or
b) A Corporate Services Provider.
A company can have more than one director as resident agent and, in such cases their functions and responsibilities will be joint and several.
Each company must keep a record of its resident agent and this must include:
• In the case of a resident agent who is a director - their name
• In the case of a resident agent who is a Corporate Service Provider, the name and its address.
The company must notify the Registrar of any changes in its resident agent or in the recorded details within 14 days of the date of the change.
A company that fails to comply with these requirements is guilty of an offence under section 485 of the Companies (Guernsey) Law, 2008.
Why do I need to have a Resident Agent?
In some cases a member is not the ultimate beneficial owner of the member's interest that is recorded against the member's name. Details of the underlying beneficial ownership of members' interests in companies are not recorded on the public register. It is important that the authorities are able to obtain details of underlying beneficial ownership for use in criminal or regulatory investigations and proceedings. Resident agents are subject to obligations that are intended to facilitate access to this information.
What are the duties of a Resident Agent?
The resident agent is responsible for ascertaining the identity of the beneficial owners of members' interests in the company. Member means either a shareholder or a guarantee member.
Members' interests means:
a) In the case of members who are shareholders, their shares.
b) In the case of members who are limited guarantee members, their interests in the company by virtue of being guarantee members up to a specified limit.
c) In the case of members who are unlimited members, their interests in the company by virtue of being an unlimited member.
The resident agent MUST take reasonable steps to ascertain the identity of the persons who are the beneficial owners of the interests of all members of a company, except for members who hold less than 10% of the total voting rights of all the members of the company having a right to vote at general meetings. What amounts to reasonable steps will vary according to the particular circumstances of a given case, but in most cases is likely to include the kind of measures set out in Chapter 4 of the Guernsey Financial Services Commission's Handbooks for Financial Services Businesses and Prescribed Businesses on Countering Financial Crime and Terrorist Financing , available here: http://www.gfsc.gg/FCA/Pages/Handbook-and-Regulations.aspx
A resident agent who establishes that a member is not the beneficial owner of the interest recorded against that member must maintain a record of the identity and other specified details of the beneficial owner in a register at the company's registered office.
Do I need a separate Beneficial Ownership Register?
When considering whether a separate beneficial ownership register is required - ask yourself this question:
'Do all the members hold legal and beneficial ownership of their interests?'
i.e. are the shareholders the ultimate beneficial owner of those shares.
If the answer is yes - then no separate record is required as their names as shareholders will already be recorded in the member's book held by the company.
If the answer is no - then a separate register of beneficial ownership is needed.
In the case where a members' interest is owned by a class of individuals of such a size that it is not reasonably practicable to identify each member of the class, the resident agent may identify and describe the class of individuals.
How do I record Beneficial Ownership Information?
If the beneficial owner is not a member (shareholder) of the company then a separate register of beneficial owners must be held at the company's registered office.
A sample register of beneficial owners can be downloaded below. This has been split into two parts:
• Where the beneficial owner is an individual, and
• Where the beneficial owner is a Guernsey company or overseas company.
This sample register details the information required under the Law.
It is the duty of the resident agent to update this register should the beneficial ownership details change.
Disclosure of Beneficial Ownership Information
A resident agent may be required to disclose information regarding beneficial ownership to Her Majesty's Procureur, the Guernsey Financial Services Commission, a police officer, or a customs officer on receipt of a certificate stating:
• what information is required;
• that the information is required for a purpose specified in the Law (essentially actual or potential criminal or regulatory investigations or proceedings); and
• that disclosure is proportionate to what is sought to be achieved.
Do ALL companies need a resident agent?
No, the following companies are not required to have a resident agent and can, therefore, tick the 'resident agent exempt' box on incorporation and any subsequent annual validation submissions:
• Companies (or any subsidiary thereof) listed on a stock exchange recognised by the Registrar - See the Companies (Recognised Stock Exchanges) Regulations 2009 for a full list.
• Open-ended investment companies (or any subsidiary of).
• Closed-ended investment companies (or any subsidiary of).
• Supervised companies—within the meaning of Section 530 of the Law
• States trading companies—within the meaning of Section 540 of the Law.
What happens if a company doesn't have a resident agent?
A company that does not have a resident agent, and is not exempt from the requirement to have one, is guilty of an offence under section 484 of the Companies (Guernsey) Law, 2008 and is liable to be struck off the Register of Companies.
Further Information
This note provides basic guidance on the requirements of the Law in respect of resident agents, but is not a comprehensive summary of all the relevant provisions of the Law.
For full details of the requirements, and the responsibilities and powers of resident agents, please refer to the following legislation:
• Part XXIX of the Companies (Guernsey) Law, 2008
• The Companies (Beneficial Ownership) Regulations, 2008 (GSI no. 36 of 2008)
• The Companies (Recognised Stock Exchanges) Regulations 2009 (GSI no. 25 of 2009)
Resident Agent details should be added or changed on the company record using the on-line services portal. For further guidance on this submission please refer to the 'Change Resident Agent Submissions' guidance.
If you need any further information about resident agent or beneficial ownership then please call +44 1481 743800 or email enquiries@guernseyregistry.com
The Guernsey Registry is not able to provide legal advice to registry users and this note is for guidance only.
Registry users are responsible for ensuring that they comply with the requirements of the Law and, if in any doubt, should seek independent legal advice.
