Investment Limited Partnerships (Amendment) Act 2020
|
Amendment of Act of 1994 - new sections 46 to 59 relating to beneficial ownership registers (including central register) and associated procedures, obligations, etc. | ||
|
39. The Act of 1994 is amended by the insertion of the following sections after section 45: | ||
“Duty to keep and maintain a beneficial ownership register | ||
46. (1) The general partner of an investment limited partnership shall keep and maintain a register (which shall be known, and is in this Act referred to, as a ‘beneficial ownership register’) in which there shall be entered by it the information referred to in section 27A(1)(a) and (b) and (2). | ||
(2) A general partner that fails to comply with subsection (1) shall be guilty of an offence. | ||
(3) If— | ||
(a) the name of any individual is, without sufficient cause, entered in or omitted from an investment limited partnership’s beneficial ownership register, or | ||
(b) default is made or unnecessary delay takes place in entering in an investment limited partnership’s beneficial ownership register the fact that an individual has ceased to be a beneficial owner of it, | ||
the individual aggrieved or any other interested party may apply to the court for rectification of the register. | ||
(4) Where an application is made under subsection (3), the court may either refuse the application or may order rectification of the beneficial ownership register and payment by the investment limited partnership of compensation for any loss sustained by any party aggrieved. | ||
(5) On such an application, the court may— | ||
(a) decide any question as to whether the name of any person who is a party to the application should or should not be entered in or omitted from the beneficial ownership register, and | ||
(b) more generally, decide any question necessary or expedient to be decided for rectification of the beneficial ownership register. | ||
(6) The reference in this section to ‘any other interested party’ is a reference to any other individual who is a beneficial owner of the investment limited partnership. | ||
Discharge of initial central filing obligation - construction of references to that expression in sections 48 to 59 | ||
47. A reference in sections 48 to 59 to the discharge by a general partner of its initial central filing obligation is a reference to the delivery by the general partner of information to the Registrar in compliance with section 51(1) or (2). | ||
Delivery of information under sections 49 to 52: delivery may be effected by persons external to general partner (as well as by officers or employees of it) | ||
48. (1) This section applies in a case in which a general partner of an investment limited partnership is a body corporate. | ||
(2) The provision made by subsection (3) is in addition to the general law whereby a general partner acting through an officer or employee of the general partner may discharge an obligation referred to in this section. | ||
(3) An obligation imposed on a general partner of an investment limited partnership by any of sections 49 to 52 to deliver information to the Registrar may be discharged by a person, who is not an officer or employee of the general partner, acting on the general partner’s behalf. | ||
(4) Section 53 makes provision as respects certain information to be delivered to the Registrar where the obligation concerned is discharged on behalf of the general partner by a person acting as mentioned in subsection (3). | ||
(5) Section 51(6) applies to the delivery by a general partner of an investment limited partnership of information irrespective of whether the person who delivers the information is an officer or employee of the general partner or a person acting as mentioned in subsection (3). | ||
Registrar of Beneficial Ownership of Investment Limited Partnerships | ||
49. (1) There shall, for the purposes of this Act, be a registrar to be known as the ‘Registrar of Beneficial Ownership of Investment Limited Partnerships’, and in this Act referred to as the ‘Registrar’. | ||
(2) The Bank shall be the Registrar. | ||
Establishment and maintenance of central register | ||
50. (1) There is, by virtue of this section, established a register which shall be known as the ‘Central Register of Beneficial Ownership of Investment Limited Partnerships’ and is in this Act referred to as the ‘central register’. | ||
(2) The central register shall be maintained by the Registrar; the information required by sections 51 to 59 to be delivered or submitted to the Registrar shall be entered in that register by the Registrar and that register shall be kept in such form as the Registrar considers appropriate. | ||
(3) The provision made by subsection (2) as respects entry of information in the central register is subject to subsection (5) of section 52 (which prohibits disclosure of a PPS number). | ||
Obligation of general partner to deliver beneficial ownership information to Registrar and related obligations of designated person where certain discrepancies discovered | ||
51. (1) A general partner of an investment limited partnership, being a partnership that has been formed before the commencement of section 39 of the Investment Limited Partnerships (Amendment) Act 2020, shall deliver the information specified in section 52 to the Registrar within 6 months from such commencement. | ||
(2) A general partner of an investment limited partnership, being a partnership that has been formed on or after the commencement of section 39 of the Investment Limited Partnerships (Amendment) Act 2020, shall, within 6 months from the date of its formation, deliver the information specified in section 52 to the Registrar in such manner as the Registrar determines. | ||
(3) Where the following conditions are satisfied (and whether in the circumstances of the designated person taking the measures referred to in section 27A(7) or otherwise)— | ||
(a) any of the particulars, as referred to in section 27A(1)(a) and (b), contained in the beneficial ownership register of an investment limited partnership come to the knowledge of a designated person, and | ||
(b) the designated person forms the opinion that there is a discrepancy between the particulars referred to in paragraph (a) and the information in the central register (on referring himself or herself to the information in the central register as it relates to that investment limited partnership), | ||
then the designated person shall deliver, in a timely manner, to the Registrar, in such manner as the Registrar determines, notice of that opinion, specifying the particulars as respects which the foregoing discrepancy exists. | ||
(4) On receipt of a foregoing notice, the Registrar shall— | ||
(a) if the Registrar considers it appropriate to do so, make an entry in the relevant place in the central register which states that the notice has been received and specifies the particulars as respects which the foregoing discrepancy exists, and | ||
(b) serve a notice on the general partner of the investment limited partnership concerned which— | ||
(i) states that the foregoing notice has been received, and | ||
(ii) specifies the particulars as respects which the foregoing discrepancy exists, and requests the general partner of the investment limited partnership to deliver to the Registrar, within a period specified in the notice and in such manner as the Registrar determines— | ||
(I) a submission as to why the general partner of the investment limited partnership considers the opinion of the designated person concerned not to be well founded, or | ||
(II) if the general partner of the investment limited partnership considers the opinion of the designated person concerned to be well founded, such amended particulars (for entry in the central register) as are required where the general partner is satisfied that the delivery of such is the appropriate means by which the discrepancy can be resolved, | ||
and such a request shall be complied with by the general partner of the investment limited partnership accordingly. | ||
(5) None of the following— | ||
(a) an opinion stated in a notice delivered under subsection (3) by a designated person to the Registrar (nor the specification in such a notice of the particulars as respects which the discrepancy concerned exists), | ||
(b) any act done by the Registrar, as mentioned in subsection (4), on foot of the receipt by the Registrar of a notice delivered under subsection (3) and, in particular, any entry made in the central register by the Registrar on foot of such receipt, | ||
(c) a submission delivered under subsection (4)(b)(ii)(I) to the Registrar by a general partner, | ||
shall, of itself, be regarded as constituting defamatory matter. | ||
(6) The means specified in subsection (7), and no other means, shall be used by a general partner of an investment limited partnership to deliver, under this section or any of sections 52 to 59, information to the Registrar. If such means are not used to deliver the information concerned, the fact of the receipt by the Registrar of the particular information shall not constitute compliance with the requirement concerned of the section in question. | ||
(7) The means referred to in subsection (6) are those that are provided for under the Electronic Commerce Act 2000 . | ||
(8) The reference in this section to the use of the means provided for under the Electronic Commerce Act 2000 is a reference to their use in a manner that complies with any requirements of the Registrar of the kind referred to in sections 12(2)(b) and 13(2)(a) of that Act. | ||
Information which shall be delivered to Registrar | ||
52. (1) The following is the information referred to in section 51(1) or (2) that shall be delivered by a general partner of an investment limited partnership to the Registrar: | ||
(a) the name, date of birth, nationality and residential address of each beneficial owner of the investment limited partnership; | ||
(b) a statement of the nature and extent of the interest held, or the nature and extent of control exercised by, each such beneficial owner, | ||
and section 54 makes provision for occasions, subsequent to the discharge by the general partner of its initial central filing obligation, on which information shall be delivered by it to the Registrar. | ||
(2) In addition to what is provided in subsection (1), there shall be delivered to the Registrar by the general partner of the investment limited partnership— | ||
(a) for the purpose of verification of the information delivered under section 51(1) or (2) and without prejudice to paragraph (b), the PPS number of each beneficial owner to whom such a number has been assigned, or | ||
(b) such information as stands determined by the Registrar for the purposes of this section. | ||
(3) In addition to what is provided in subsections (1) and (2), where the obligation imposed on a general partner of an investment limited partnership by section 51(1) or (2) is discharged by its acting through an officer or employee of the general partner, there shall be delivered to the Registrar— | ||
(a) the name, address, phone number and e-mail address of the officer or employee for correspondence purposes, and | ||
(b) particulars as to the capacity in which the officer or employee is acting. | ||
(4) The Registrar shall delete from the central register information entered in it in relation to an investment limited partnership if 10 years have elapsed from the date on which the final distribution is made under the investment limited partnership (should such occur) and, as soon as may be after that deletion, the Registrar shall destroy that information. | ||
(5) As respects a PPS number of a beneficial owner that has been delivered under subsection (2) to the Registrar— | ||
(a) the Registrar shall not disclose that number, and | ||
(b) that number shall be stored securely by the Registrar. | ||
(6) The Registrar shall, as respects any information that has been received under subsection (3) and recorded by the Registrar, destroy the information as soon as may be after 10 years have elapsed from the date on which the final distribution is made (should such occur) under the investment limited partnership to which it relates. | ||
(7) Subsections (2) to (6) shall, with any necessary modifications, apply to amended particulars that are to be, or have been delivered, under section 51(4)(b)(ii)(II) as they apply to information that is to be, or has been, delivered under section 51(1) or (2). | ||
Information to be provided by presenter | ||
53. (1) This section applies where the information specified in section 51(1) or (2) is delivered to the Registrar by a person (in this section referred to as the ‘presenter’) acting on behalf of the general partner concerned as mentioned in section 48(3). | ||
(2) Where this section applies, the following information shall also be delivered by the presenter to the Registrar: | ||
(a) the presenter’s name, address, phone number and e-mail address; | ||
(b) particulars as to the capacity in which the presenter is acting; | ||
(c) if the presenter is not an individual, the name, address, phone number and e-mail address of an individual for correspondence purposes. | ||
(3) The Registrar shall, as respects any information that has been received under subsection (2) and recorded by the Registrar, destroy the information as soon as may be after 10 years have elapsed from the date on which the final distribution is made (should such occur) under the investment limited partnership to which it relates. | ||
Duty to keep information in beneficial ownership register and central register aligned and up to date | ||
54. (1) The purpose of this section is to require that any changes that occur in the information contained in an investment limited partnership’s beneficial ownership register be reflected by a corresponding change being made in the central register; accordingly there is imposed on the general partner of an investment limited partnership by this section an obligation - referred to in this section as the ‘follow up obligation’ - to deliver information to the Registrar so as to allow any such change to be reflected in the central register. | ||
(2) The provisions of this section shall have effect in relation to an investment limited partnership following the discharge by the general partner of the investment limited partnership of its initial central filing obligation (and in subsection (3) the time on which that obligation is so discharged is referred to as the ‘relevant time’). | ||
(3) Where at any time, subsequent to the relevant time, the obligation referred to in subsection (4) falls to be discharged by a general partner of the investment limited partnership, then there is also imposed on the general partner, by this section, the follow up obligation specified in subsection (5). | ||
(4) The first-mentioned obligation in subsection (3) of the general partner is the obligation to— | ||
(a) enter any information in the investment limited partnership’s beneficial ownership register, or | ||
(b) amend or delete any information in that register, | ||
whether by virtue of its duty under section 27A(1) to hold accurate and current information regarding the investment limited partnership’s beneficial ownership or any provision of section 27B, 27C, 28, 28A or 28B. | ||
(5) The general partner’s follow up obligation is to deliver to the Registrar, as appropriate— | ||
(a) the same information as that which (as mentioned in subsection (4)(a)) the general partner is required to enter in the investment limited partnership’s beneficial ownership register, or | ||
(b) the appropriate information that will enable the Registrar to make the same amendment or deletion of information in the central register as that which (as mentioned in subsection (4)(b)) the general partner is required to make in the investment limited partnership’s beneficial ownership register, | ||
and the follow up obligation shall be discharged within 14 days from the date on which the first-mentioned obligation in subsection (3) falls to be discharged by the general partner. | ||
(6) Section 52(2) to (7) and, as the case may be, section 53 shall apply in a case where information is delivered to the Registrar under subsection (5) as they apply in a case where information is delivered to the Registrar under section 51(1), (2) or (3). | ||
Unrestricted access to beneficial ownership information in central register | ||
55. (1) Subject to subsection (2), the following shall have the right to inspect the central register— | ||
(a) a member of the Garda Síochána, not below the rank of inspector, who is engaged in the prevention, detection, investigation or analysis of possible money laundering or terrorist financing, | ||
(b) a member of FIU Ireland within the meaning of Part 4 of the Act of 2010, | ||
(c) an officer of the Revenue Commissioners, holding a position not below that of Higher Executive Officer, | ||
(d) an officer of the Criminal Assets Bureau, holding a rank not below the rank of inspector in the Garda Síochána, or holding a position not below that of Higher Executive Officer. | ||
(2) The right referred to in subsection (1) shall not be exercised— | ||
(a) by a member of the Garda Síochána referred to in paragraph (a) of that subsection, unless he or she has been authorised to exercise the right by a member of the Garda Síochána, not below the rank of superintendent, | ||
(b) by a member of FIU Ireland, unless he or she has been authorised to exercise the right by a member of the Garda Síochána, not below the rank of superintendent, | ||
(c) by an officer of the Revenue Commissioners referred to in paragraph (c) of that subsection, unless he or she has been authorised to exercise the right by an officer of the Revenue Commissioners, holding a position not below that of Principal Officer, or | ||
(d) by an officer of the Criminal Assets Bureau referred to in paragraph (d) of that subsection, unless he or she has been authorised to exercise the right by a member of the Garda Síochána, not below the rank of superintendent. | ||
(3) Subject to subsection (4), a member, a member of staff or an officer of a competent authority who is engaged in the prevention, detection or investigation of possible money laundering or terrorist financing shall have the right to inspect the central register. | ||
(4) The right referred to in subsection (3) shall not be exercised— | ||
(a) by— | ||
(i) a member of staff of the Bank, | ||
(ii) an officer of the Minister for Justice and Equality, | ||
(iii) a member or member of staff of the Property Services Regulatory Authority, or | ||
(iv) a member or member of staff of the Legal Services Regulatory Authority, | ||
(each of which or whom is referred to in this paragraph as a ‘relevant competent authority’) unless he or she holds a position not below that of Higher Executive Officer and has been authorised to exercise the right by a member or member of staff or, as the case may be, an officer of the relevant competent authority concerned, holding a position not below that of Principal Officer, or | ||
(b) by a member or member of staff of— | ||
(i) the Law Society of Ireland, | ||
(ii) the General Council of the Bar of Ireland, or | ||
(iii) a designated accountancy body (within the meaning of Part 4 of the Act of 2010), | ||
unless he or she is a person designated by the President of the Law Society of Ireland, the chairperson of the General Council of the Bar of Ireland or the chief executive of (or a person holding an equivalent position in) the designated accountancy body, as the case may be, to be a person authorised for the purposes of subparagraph (i), (ii) or (iii), as appropriate, to exercise the right. | ||
(5) On there being made of the Registrar a request for inspection, under any of subsections (1) to (4), of the central register, the Registrar shall afford the maker of the request access, in a timely manner, to the register. | ||
(6) The Registrar shall, neither during the taking of the steps to afford the maker the access referred to in subsection (5), nor afterwards, alert the beneficial owners of any investment limited partnership concerned to the fact of such access having been afforded. | ||
(7) In subsection (6), ‘any investment limited partnership concerned’ means any investment limited partnership to which the information in the central register, the subject of the inspection concerned, relates. | ||
(8) Each of the following: | ||
(a) the Garda Síochána; | ||
(b) the Revenue Commissioners; | ||
(c) a competent authority; | ||
(d) the Criminal Assets Bureau, | ||
may disclose the information in the central register to any corresponding competent authority of another Member State (a ‘corresponding authority’); in the event of there being a request made of a body or other person referred to in any of paragraphs (a) to (d) by a corresponding authority for disclosure of such information, the request shall be complied with in a timely manner. | ||
(9) No fee shall be charged to a corresponding authority for the disclosure of the information in the central register. | ||
Restricted access to beneficial ownership information in central register | ||
56. (1) When— | ||
(a) a general partner of an investment limited partnership enters into an occasional transaction with a designated person, or forms a business relationship with a designated person, or | ||
(b) a designated person is taking customer due diligence measures in accordance with Part 4 of the Act of 2010 in relation to an investment limited partnership, | ||
the designated person shall, subject to subsection (6), have a right of access to the following information in the central register that relates to the investment limited partnership: | ||
(i) the name, the month and year of birth and the country of residence and nationality of each beneficial owner of it; | ||
(ii) a statement of the nature and extent of the interest held, or the nature and extent of control exercised, by each such beneficial owner, | ||
and that access shall be afforded in a timely manner. | ||
(2) The information obtained by a designated person by means of the access to the central register afforded under subsection (1) shall not be relied upon exclusively by the designated person to fulfil the designated person’s duty to apply customer due diligence measures under Part 4 of the Act of 2010 (which duty shall be fulfilled by using a risk-based approach). | ||
(3) Any person may, subject to subsection (6), request in writing access to the following information in the central register that relates to any investment limited partnership: | ||
(a) the name, the month and year of birth and the country of residence and nationality of each beneficial owner of it; | ||
(b) a statement of the nature and extent of the interest held, or the nature and extent of control exercised, by each such beneficial owner. | ||
(4) Any person may, subject to subsection (6), request in writing access to the following information in the central register that relates to any investment limited partnership which holds or owns a controlling interest in any corporate or other legal entity incorporated outside the European Union, through direct or indirect ownership, including through bearer shareholdings, or through control via other means: | ||
(a) the name, the month and year of birth and the country of residence and nationality of each beneficial owner of the investment limited partnership; | ||
(b) a statement of the nature and extent of the interest held, or the nature and extent of control exercised, by each such beneficial owner of the investment limited partnership, | ||
and that access shall be afforded in a timely manner. | ||
(5) The Data Protection Act 2018 shall apply to the access that the Registrar affords to a designated person and any member of the public in respect of the information in the central register that relates to an investment limited partnership. | ||
(6) Where a designated person or a member of the public seeks to have access to, or to inspect, any information in the central register so far as such information relates to a minor who is a beneficial owner of an investment limited partnership, the Registrar shall request the designated person or member of the public to provide, in writing, to the Registrar a summary of the grounds on which he or she considers it is in the public interest that that information be disclosed to him or her and— | ||
(a) if the designated person or the member of the public refuses or fails to comply with that request, or | ||
(b) unless the Registrar, having considered such a written summary provided to the Registrar, is of the opinion that there are substantial grounds for the contention of the foregoing person that it is in the public interest that the information be disclosed to him or her, | ||
the designated person or member of the public shall not be permitted by the Registrar to have access to, or to inspect, any information in the central register so far as such information relates to the minor concerned. | ||
(7) In subsection (1), ‘occasional transaction’ has the same meaning as it has in section 27A(7). | ||
Obligations of competent authorities to report certain discrepancies to Registrar | ||
57. (1) If— | ||
(a) any of the following: | ||
(i) the Garda Síochána; | ||
(ii) the Revenue Commissioners; | ||
(iii) a competent authority; | ||
(iv) the Criminal Assets Bureau, | ||
forms the opinion that there is a discrepancy between the information in the central register and the beneficial ownership information, as it relates to any investment limited partnership, available to, as the case may be, the Garda Síochána, the Revenue Commissioners or other foregoing authority or bureau (each of which is referred to in this section as a ‘relevant person’), and | ||
(b) to the extent that the doing of the following does not interfere unnecessarily with the performance of the relevant person’s functions, | ||
then the relevant person shall deliver, in a timely manner, to the Registrar, in such manner as the Registrar determines, notice of that opinion, specifying the particulars as respects which the foregoing discrepancy exists. | ||
(2) On receipt of a foregoing notice, the Registrar shall— | ||
(a) if the Registrar considers it appropriate to do so, make an entry in the relevant place in the central register which states that the notice has been received and specifies the particulars as respects which the foregoing discrepancy exists, and | ||
(b) serve a notice on the general partner of the investment limited partnership concerned which— | ||
(i) states that the foregoing notice has been received, and | ||
(ii) specifies the particulars as respects which the foregoing discrepancy exists, and requests the general partner to deliver to the Registrar, within a period specified in the notice and in such manner as the Registrar determines— | ||
(I) a submission as to why the general partner considers the opinion of the relevant person concerned not to be well founded, or | ||
(II) if the general partner considers the opinion of the relevant person concerned to be well founded, such amended particulars (for entry in the central register) as are required where the general partner is satisfied that the delivery of such is the appropriate means by which the discrepancy can be resolved, | ||
and such a request shall be complied with by the general partner accordingly. | ||
(3) None of the following— | ||
(a) an opinion stated in a notice delivered under subsection (1) by a relevant person to the Registrar (nor the specification in such a notice of the particulars as respects which the discrepancy concerned exists), | ||
(b) any act done by the Registrar, as mentioned in subsection (2), on foot of the receipt by the Registrar of a notice delivered under subsection (1) and, in particular, any entry made in the central register by the Registrar on foot of such receipt, | ||
(c) a submission delivered under subsection (2)(b)(ii)(I) to the Registrar by a general partner, | ||
shall, of itself, be regarded as constituting defamatory matter. | ||
(4) Subsections (2) to (7) of section 52 shall, with any necessary modifications, apply to amended particulars that are to be, or have been delivered, under subsection (2)(b)(ii)(II) as they apply to information that is to be, or has been, delivered under section 51(1) or (2). | ||
Fees may be charged for access to central register | ||
58. (1) The Registrar may require any of the persons referred to in section 56(1), (3) or (4) to pay to the Registrar a fee of such an amount as the Registrar may determine in respect of the access afforded to the central register under section 56(1), (3) or (4). | ||
(2) The amount of a fee required to be paid under subsection (1) shall not exceed the administrative cost incurred in affording access to the information concerned. | ||
Offence for failure to comply with section 51, 52, 53 or 54 and supplemental provisions | ||
59. (1) A general partner that fails to comply with section 51, 52 or 54 shall be guilty of an offence. | ||
(2) A general partner that fails, without reasonable excuse, to comply with a request, as referred to in subparagraph (ii) of subsection (4)(b) of section 51, or subparagraph (ii) of subsection (2)(b) of section 57, contained in a notice served on it under that subsection (4)(b) or (2)(b), as the case may be, shall be guilty of an offence. | ||
(3) A presenter that fails to comply with section 53 shall be guilty of an offence. | ||
(4) A person who, in purported compliance with section 51, 52, 53 or 54, makes a statement that is false in a material particular, knowing it to be so false or being reckless as to whether it is so false, shall be guilty of an offence. | ||
(5) A designated person who fails to comply with section 51(3) shall be guilty of an offence.”. |