Rome October 12, 2023
Beneficial Owner – Registration in the Italian Company House Register
(Author: Donatella Canneddu)
On October 9 2023 the September 29 MIMIT Decree was published in the Gazzetta Ufficiale, which makes the Register of Beneficial Owners effective.
Therefore, the 60 days for filing all the necessary information begin from that date and the deadline will expire on December 11th, the first available working day.
This Circular Letter illustrates the main elements of the legislation and the basic fulfilments.
Who is the Beneficial Owner?
The Beneficial Owner is the natural person who owns or controls a legal entity, a trust or similar institution, or is a beneficiary thereof.
Below are the instructions to correctly identify the ” Beneficial Owner ”
1) Beneficial Owner of the company
It is the natural person (or natural persons) who holds at least:
- direct ownership of a stake exceeding 25% of the capital
- indirect ownership, if the same ownership exceeding 25% is held through controlled companies, trust companies or third parties.
In the absence of these conditions, the Beneficial Owner is identified by considering the following requirements, in the following order:
– the control of a majority or dominant number of votes in the ordinary shareholders’ meeting
– the existence of particular contractual constraints that allow the exercise of a dominant influence.
If attribution is not possible even with these criteria, the Beneficial Owner is the natural person (or natural persons) with administrative or management powers .
2) Beneficial Owner of private legal entities not incorporated in corporate form
It is the natural person (or natural persons) who holds one of the following roles:
- founder, if alive
- beneficiary
- holder of legal representation, management and administration functions
3) Beneficial Owner of Trusts and similar legal institutions
It is the natural person who holds one of the following roles:
- Settlor
- Trustee
- Guardian
- Beneficiary
- person who controls the Trust or the assets disposed in the Trust by direct or indirect ownership or other means.
How data is communicated
The data relating to the beneficial owner must be communicated to the relevant Chamber of Commerce, electronically, via the DIRE application.
It is important to note that this requirement may not be done by proxy; therefore, it is necessary for the Director of the Company, the Trustee of a Trust or the Legal Representative of other entities to hold a Digital Signature.
In order to clarify doubts that have been reported to us in the past: the SPID is not equivalent to the Digital Signature .
Entities not registered in the Company Register, such as associations and trusts, must also communicate a certified email address when filing the Beneficial Owner registration.
Annual confirmation fulfillment
Within twelve months from the date of the first communication, or from the last communication of change, the same entities must communicate the confirmation of the data and information .
Companies with legal personality can make the communication when filing the annual financial statements. This confirmation, if carried out when filing the financial statements, constitutes the only case in which the information about the Beneficial Owner is communicated at the same time as another requirement of the Company Register.
The communication can be formalized individually, with the director’s digital signature, or jointly with the financial statements but in this case, barring regulatory changes, the practice may be digitally signed solely and exclusively by the director and no longer by the intermediary.
Fulfillment of variations
In the event of changes in the Beneficial Owner, communication must be submitted within 30 days of the act giving rise to the change. In the event of changes in multiple beneficial owners, the entire structure comprising the “beneficial owner” must be presented again, repeating those communicated previously , eliminating the outgoing ones and inserting the new ones. The changes that concern the beneficial owner, in addition to the “change/addition/replacement” of the TE, also include registry changes such as those of residence and/or domicile.
We remain available for any further information as well as to assist you both in the activation of the Digital Signature and in the execution of the Beneficial Owner filing procedure.
In this case, given the particularly tight deadlines, the novelty of the provision and the possibility of not easily identifying the correct subject to indicate, it is necessary to proceed without delay.
Best regards,
Donatella Canneddu