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Taxwise Or Otherwise
By Maxencio A. Rios, Jr.
It has been several months since the issuance of Securities and Exchange
Commission (SEC) Memorandum Circular (MC) No. 15-2019, requiring all
registered domestic corporations to disclose their beneficial owners in their
General Information Sheet (GIS). The MC aims to assist in the implementation
of the Anti-Money Laundering Act (AMLA) and the Terrorism Financing
Prevention and Suppression Act (TFPSA).
Towards the end of 2019, however, reporting corporations with multiple layers
of ownership were still seeking guidance on the extent of the disclosure
requirements.
1. own at least 25% of the reporting corporation’s voting rights, voting shares or
capital;
6. acts as stewards of corporate properties where such properties are under the
natural person’s care or administration;
Under the MC, beneficial owners are identified through a three-tiered approach
based mainly on the natural person’s (a) ultimate ownership, (b) ultimate control,
and (c) position in the reporting corporation. This aligns with the nine categories
of beneficial owners. The ultimate ownership test covers individuals falling under
Category 1; The ultimate control test covers Categories 2 to 8, and positions
within the company cover Category 9.
Further, the MC elaborates that the ultimate ownership test covers 25% direct
or indirect ownership of the corporation’s voting shares or capital determined
through the Grandfather Rule, or indirect ownership or control of an estate, trust
or partnership owning at least 25% of the corporation. In this regard, the
illustration provided in the MC is instructive.
Once identified, the reporting corporations must provide the beneficial owners’
complete name, birth date, specific residential address, nationality, tax
identification number (TIN), and percentage of ownership, if any, in their GIS.
Any concern about data privacy is addressed by limiting the public’s access to
the page/s covering the beneficial owners’ personal information since these won’t
be uploaded to the SEC’s publicly accessible electronic database. This policy is
without prejudice to access by competent authorities for law enforcement and
lawful purposes.
COMPLIANCE DIFFICULTIES
While the MC is silent as to the manner of applying the three tests of determining
beneficial ownership, the SEC has verbally confirmed that it should be applied
one after the other.
In cases where no natural person can be identified using the first two approaches
on ultimate ownership or ultimate control, reporting corporations may resort to
the last one covering Category 9. Thus, they may report members of their Board
of Directors/trustees or senior managing officials as their beneficial owners.
In practice, however, reporting corporations may find it difficult to follow the
above. For instance, determining beneficial owners under Category 1 may prove
challenging for publicly listed companies where owners can change daily.
Moreover, the descriptions provided under Categories 2-8 for determining
ownership based on ultimate control are especially difficult for subsidiaries with
multiple layers of foreign ownership and those with numerous corporate
shareholders given that countless individuals may fall under any of the
categories provided. In light of this, it is highly likely that, for expediency,
reporting corporations may directly apply the last approach and just report their
Board of Directors/Trustees as their beneficial owners.
The views or opinions expressed in this article are solely those of the author and
do not necessarily represent those of Isla Lipana & Co. The content is for general
information purposes only and should not be used as a substitute for specific
advice.