The Register of Beneficial owners (RBO)
New procedure for the registered entities to access their own data On 22 November 2022, the Court of Justice of the European Union (CJEU) published a decision affecting European member states national beneficial ownership registers. This judgment by the Court, sitting as the Grand Chamber in Luxembourg, has held that, in the light of the Charter, the provision of the anti-money-laundering directive whereby Member States must ensure that the information on the beneficial ownership of corporate and other legal entities incorporated within their territory is accessible in all cases to any member of the general public is invalid. Anti Money Laundering Directives In accordance with anti-money laundering directives across Europe, member states were obliged to create an online register to detail the beneficial owners of companies registered in each member state. In Ireland, this was created by the CRO establishing the Central Register of Beneficial owners of companies and Industrial and provident societies (CBRO). www.rbo.gov.ie. This online register enabled anyone to have public access to specific details on the beneficial owner of an entity by paying a small access fee online. However, this accessibility was recently challenged by a Luxembourg-registered company and its beneficial owner, with a judgement, decided at the end of November 2022. In summary, therefore, the ECJ believes that while maintaining registers of Ultimate Beneficial Owners is vital in the fight against money laundering and terrorism financing, it is not proportionate that the general public should have completely unfettered access to entity ownership information. Irish Register Accordingly, the Irish register has now been closed to the general public, and only ‘designated persons‘ can access who must apply by filing an online request form BEN3A1. The term ‘designated person’ is outlined in Section 25 of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010, as amended, and includes financial institutions, accountants, auditors, tax advisers, legal professionals, property service providers, virtual currency service providers and dealers in expensive goods such as houses, cars, jewellery, artworks, etc. Also, under Section 33 of the 2010 Act, ‘designated persons’ are obliged to conduct customer due diligence tests on customers “prior to the establishment of a business relationship with a customer”, “prior to carrying out an occasional transaction with, for or on behalf of a customer” or “carrying out any service for the customer….…” While public access is suspended, this does not take the obligation to register away from beneficial owners. Companies are still obliged to create and maintain their internal registers of beneficial owners and to communicate any changes to the CRBO. For new companies, this must be completed within five months of incorporation. If a relevant entity does not file with the RBO, it may be guilty of an offence and be liable on summary conviction to a Class A fine of up to €5,000 and on conviction on indictment to a fine of up to €500,000. Final Word Just because public access has been restricted, this has not changed the requirements for companies to maintain their registers and communicate any changes to the CRBO. Designated persons will need to register to still access this information as part of their onboarding / know-your-client requirement as required by law. Contact Us We have previously assisted many companies in completing their registration requirements to establish their new Irish company. Contact us to discuss the impacts of any of these changes to your company structures or your filing requirements here in Ireland. Please contact a team member to discuss further.
February 22, 2023
Roberts Nathan merger with James O’Brien & Co Accountants
We are delighted to announce that James O’Brien & Co Accountants has merged with Roberts Nathan. Post-merger, the firm will trade as Roberts Nathan and employ over 55 professionals in both Cork and Dublin. Now more than ever scale and access to specialists, valuable business advice, and international capabilities are increasingly important. This is the driver behind our strategic decisions, the wish to deliver to our clients the breadth and depth of service they require. This exciting merger gives us increased scale and resources, allowing us to continue providing a personal partner-led service to all of our clients. Pictured below (l-r) Gail Ellis, James O’Brien and Vivian Nathan.
January 26, 2023
New Year, New Career Opportunities
New year, new career opportunities..... Roberts Nathan's team is continuing to grow and we are hiring in both our Cork and Dublin offices. This is a great opportunity for motivated and hard-working individuals to join a dynamic team. For a full list of job roles, please click here. [video width="1920" height="1920" mp4="https://www.robertsnathan.com/wp-content/uploads/2023/01/New-Year-New-Career-5.mp4"][/video]
January 18, 2023
Company car drivers face benefit-in-kind increases.
As people get back in their cars after the pandemic to carry out face to face business development, many employers are back considering whether to lease or buy cars for staff. When an employer provides a vehicle to their employee and this vehicle is available for private use, they may be chargeable to tax on the benefit in kind (BIK) arising. The employee will be subject to tax on the cash equivalent value of the vehicle. There are a number of changes being imposed from 2023 in relation to vehicles provided to employees. The changes are largely driven by the government’s Climate Action Plan 2021 to lower emissions by 2030. From 2023 onwards, the BIK cash equivalent on the use of an employer provided car will be determined based on both the business mileage undertaken and the vehicle’s CO2 emissions, as outlined below. i. The amount of business mileage and CO2 emission category
ii. The CO2 emissions category of the car is as per the following table
A Car in category B is made available to an employee and they use the car for both personal and business use. The Original Market Value (OMV) of the car is €40,000. The business mileage was 40,000km.
The cash equivalent would be €40,000 x 15.75% = €6,300.
Prior to 2023, an electric vehicle made available to an employee did not incur a BIK charge if the OMV was less than €50,000. For vehicles with an OMV greater than €50,000, the balance of the OMV was multiplied by 30% to get the cash equivalent value.
However, for an electric vehicle made available for an employee’s private use during the years 2023 – 2025, the cash equivalent will be calculated based on the actual OMV of the vehicle reduced by:
|Lower Limit||Upper Limit||A||B||C||D||E|
|Vehicle Category||CO2 Emissions (CO2 g/km)|
|A||0g/km up to and including 59g/km|
|B||More than 59g/km up to and including 99g/km|
|C||More than 99g/km up to and including 139g/km|
|D||More than 139g/km up to and including 179g/km|
|E||More than 179g/km|
- €35,000 in respect of vehicles made available in the 2023 year of assessment;
- €20,000 in respect of vehicles made available in the 2024 year of assessment; and
- €10,000 in respect of vehicles made available in the 2025 year of assessment.
December 12, 2022
Registration for the Temporary Business Energy Support Scheme is now open
One of the positive announcements for businesses in Budget 2023 was the introduction of the Temporary Business Energy Support Scheme (TBESS) to reimburse businesses for the increase in energy costs. Registration for the scheme opened on 26th November and claims can be made from 5th December 2022. The scheme will cover the period from 1st September 2022 to 28th February 2023 with the deadline for a claim being 4 months from the end of the month for which the claim relates (i.e. 31st January 2023 for a September 2022 claim). Where a business has seen an increase in energy costs of over 50% from the corresponding month in the prior year then it will be entitled to claim for 40% of the increase. A claim is limited to a cap of €10,000 per month per business line or €30,000 per month where more than two business lines with separate MPRNs exist. Given the significant energy cost increases for business we would anticipate a high participation in the scheme with the government setting aside €1.2bn for the energy bill subsidies. We would encourage you to speak to us about registration and submission of claims to ensure timely compliance with the scheme.
November 28, 2022
Finance Bill 2022
On 3rd November 2022, Brendan Murphy, tax partner at Roberts Nathan, analysed the Finance Bill as part of the annual Irish Tax Institute's Finance Bill seminar. A few of the key items discussed on the day were: 1. Full details of the Temporary Business Energy Support Scheme which will apply from 1st September 2022 to 31st December 2022; the first claim for which will be due by the end of January 2023. 2. The impact of the changes to the R&D tax credit and the cash flow impact of the new refund process. 3. New proposal on returns required by employers of reportable benefits provided to employees. For more information, please contact Brendan Murphy. [video width="1280" height="720" mp4="https://www.robertsnathan.com/wp-content/uploads/2022/11/RN_Finance_Bill.mp4" autoplay="true"][/video]
November 7, 2022
Are You Having Difficulty Opening a Business Bank Account in Ireland?
One of the most challenging aspects of setting up a business in Ireland today is opening a business bank account. This can be as true for a domestic business as for an international business however for those based abroad it can be particularly demanding. There are a number of reasons for this principally the difficulty in satisfying the particular banks KYC (Know your client) and AML (Anti Money laundering) requirements. The reality here is that many of these provisions and rules were brought in to rightly shore up illegal and questionable activities being conducted however what we see happening now is that these regulations are being used on all types of businesses. In my opinion, it is the equivalent of using a sledgehammer to crack a nut. The demands that are placed on potential customers in the current climate make it very difficult to open an account in what are known as the main pillar commercial banks if the proposal has any international or non-run of the mill flavour to it. We have over the past year encountered significant hurdles ranging from language problems, to face to face meeting requirements to cultural differences that can all lead to frustration for the client. While we in Roberts Nathan have a very high success rate it can take some time and anyone looking at potentially setting up a business/ company in Ireland would need to bear this in mind and allow for 6/8 weeks for the whole process to arrive at the point where the account is fully opened and online banking access operational. There is a simpler and easier set up option being the use of one the newer online banking platforms which we have considerable experience in but this may not be suitable for all types of entities - in particular if one is involved in multiple currency and or significant wire transfer transactions. If this can be made to work it can short circuit a lot of problems and time for the client.
Why is this happening one asks?It is not a uniquely Irish problem - certainly our experience with other jurisdictions would indicate to us that similar issues are felt across Europe, The USA, Asia and beyond. One of the key factors here is that the banks systems and software simply have not kept pace with technology and it seems that there is significant underinvestment here. In addition the lack of being able to directly liaise with the compliance officers within the bank is also an issue - in the most part one deals with a relationship manager employed by the bank who acts as the go between. It is hard to provide a roadmap or blueprint as to how to navigate this process as each case is very individual but over the past 20 years we have encountered almost all circumstances so a brief initial consultation with us on the matter should enable us to tease out what is required for your business or entity. It is certainly true that having an Irish resident director (which we can provide) helps no matter what the circumstances. Once the hard part of opening the business bank account has been achieved it’s operation is very straightforward and the online platforms for the three main pillar banks in Ireland are robust and easy to use. It should also be noted that Ireland is viewed very favourably internationally so it is akin to someone having a powerful passport in the business world. We would be delighted to discuss in further detail any queries you may have here on a one to one basis - in terms of fees it is challenging to be precise as the specifics of cases vary however once we have had the initial consultation we will be able to provide this prior to any engagement.
May 31, 2022
How SCARP Helps Small Companies Settle Debts with Creditors
SCARP, the Small Companies Administrative Rescue Process is a restructuring process similar to the Examinership process in Ireland, used to restructure companies in, or facing financial distress. Examinership, whilst it has saved thousands of jobs over the last thirty years, is expensive and complex for many small and medium sized companies. SCARP is the government’s response to the need to provide a restructuring process that is cost effective and more accessible to micro, small and medium sized companies. Its introduction is timely, as we emerge from Covid-19 many businesses are facing difficult and uncertain trading conditions. With government Covid-19 supports now tapering off, the commencement of repayment of warehoused tax liabilities, the impact of the war in Ukraine, increased energy costs, raw material shortages and labour supply issues, businesses are now heading towards what one might consider a perfect economic storm. Whilst the indications are ‘the economic headwinds’ will be short lived; companies and businesses will have to weather these storms and unfortunately some will not survive. SCARP provides a restructuring tool that will allow companies to restructure their debts whilst continuing to trade. The restructuring plan once finalised and agreed with creditors becomes legally binding. Key considerations Who is SCARP available to: SCARP is available to companies where:
- Turnover does not exceed €12 million.
- The balance sheet total does not exceed €6 million.
- The average number of employees does not exceed 50.
- be unable or is likely to be unable to pay its debts.
- not be in liquidation or have a receiver appointed.
- have not used the process or had an examiner appointed in the last five years.
- The process is led by a qualified Insolvency Practitioner (IP). The IP will be appointed as Process Advisory (PA) and will be tasked with formulating a rescue plan for the company.
- The process will have a defined timeline lasting up to 70 days.
- There is no automatic court protection from creditors once a company enters the process. The PA can seek this court protection once appointed.
- A rescue plan is approved when a 60% majority in number and a majority in value of one class of creditor approves the scheme.
- There is the ability to repudiate onerous contracts (e.g. leases).
- State debt is classified as ‘Excludable Debt’. Essentially the state creditors (e.g. Revenue) has the option to opt out of the process. It has 14 days from the giving of notice to opt out, if there is no objection within that timeframe, Revenue may be included in the rescue plan.
- A rescue plan may require additional investment in the company. There is the ability to fund the plan over a period of time, subject to the approval of creditors.
- The PA is obliged to report to the Officer of the Director of Corporate Enforcement (‘ODCE’) on the historical conduct of the directors of the company.
May 17, 2022
Company Registers – What You Need to do
Having seen a recent an increase in new company incorporations with many companies having been incorporated post Brexit by UK parent groups we are receiving more queries around the legal requirements around the statutory books to be maintained for these companies. Company registers are the official books kept by a company relating to legal and statutory matters and are often referred to as the statutory registers, combined registers or company books. There is a legal obligation under the Irish Companies Acts for every company to have and maintain their company registers which is a responsibility of the Company Secretary. Failure to keep the registers correctly is a category 3 offence by the company and every officer of it who is in default. The company registers are however often overlooked and not reviewed and updated on a regular basis. It is often only when there is a possible sale or a dispute within a company that the registers can suddenly become a priority which can lead to delays and issues between parties.
Company saleQuestions about the whereabouts of the company registers and their status usually arise when a company is to be sold and the purchaser requests the registers in order to conduct the company secretarial due diligence as part of the sale process. If the company registers have not been properly maintained, they will need to be reconstituted prior to the sale. Even if the registers were maintained, they should be reviewed as part of the pre-sale company health check to ensure that they correctly reflect the current position of the company to avoid unnecessary complications during the sale process. If there are any deficiencies that cannot be remedied, the purchaser may require the seller to indemnify the purchaser for any loss they may suffer due to the statutory registers not having been properly maintained. We frequently see that transactions in relation to the share capital of the company or changes in company officers have not been kept up to date in the registers of the company.
What are the registers each company must have?Under European Legislation and the Companies Act 2014 there are seven mandatory statutory registers required to be maintained by all companies incorporated under the laws of Ireland. These are:
- Register of Members pursuant to Section 169 of the Act
- Register of Directors and Secretaries pursuant to Section 149 of the Act
- Register of Directors' and Secretaries' Interests in Shares or Debentures pursuant to Section 261 of the Act
- Register of Directors' Service Contracts pursuant to Section 154 of the Act
- Register of Directors' Interests in Contracts pursuant to Section 231 of the Act
- Register of Instruments creating Charges pursuant to Section 414 of the Act
- Register of Ultimate Beneficial Ownership pursuant to Article 30 of the 4th EU Anti Money Laundering Directive
Register of membersThe most important register is the register of members. The register of members shows past and present members and is evidence of who the current members of the company are and the number and classes of shares they hold. This information is vital for conducting company meetings and passing resolutions, especially in companies with large numbers of members or where members change frequently. It helps to ensure that all decisions are taken properly and to avoids decisions made to be challenged in the future. If there is a dispute in relation to the company’s shareholding, the Court will ask to see the register of members as evidence of who the existing shareholders are.
Inspection and location of the registersThe registers should be kept at a company’s registered office address or its principal place of business or another place within the State. The registers shall be open to inspection by any member of the company without charge. The members of the company are also entitled to request a copy of the registers and a copy of the minute book of the members' meetings. It should also be noted that any other person may also inspect the register of members, directors and secretaries and disposable interests and request a copy of those registers (for a small fee). The registers can be kept in paper or electronic format.
Rectification of company registers by Court OrderAs mentioned above any person has a right to request to view the registers of a company. If a person’s name is omitted from the register or entered without sufficient cause or the registers were not updated to reflect that a person ceased to be a member, the aggravated person may apply to the court for rectification of the register. The Court may then order rectification of the register and payment by the company of compensation for any loss sustained by any party affected. If the company was sold, the seller could also face a claim for breach of warranty and associated damages in respect of the cost to the company and the purchaser. It is important to note however that a company can rectify its registers without a Court Order. As soon as any omission or error has been identified, the company registers should be rectified.
How we can helpThese issues highlight the importance of maintaining the company registers in good order which reflect the current company position from the outset when a company is first incorporated. How Roberts Nathan can help – we can review and assist in an overall health check on your company registers and where necessary carry out a reconstitution, or rectification of the registers. If you would like to discuss the above you can contact Aidan or email us at email@example.com Contact Us
May 3, 2022
Do you need to Switch your bank from KBC and Ulster Bank?
With the closure of KBC and Ulster Bank, over 120,000 customers will be searching for their new banking service. Ulster Bank will be issuing letters shortly to account owners to begin the process of transferring to a new bank. Ulster Bank will be providing account holders with 6 months to make the switch to their new bank. The moving process is expected to span over a year, which will be done on a staggered basis. KBC have sold their deposit accounts to Bank of Ireland. However Bank of Ireland have not agreed to take the current accounts, and they have to be moved elsewhere. You may be in the same position as some of our clients find themselves in as a current account holder with KBC or Ulster Bank, if so you may wish to consider the following when selecting your new bank:
Do I Require a Full Service Bank?A full service bank contains options for current, deposit, overdraft accounts etc. These banks include AIB, Bank of Ireland and Permanent TSB. You should consider and compare charges for transactions, monthly/quarterly fees, caps on savings and negative interests when choosing what bank suits your needs. There are also online banking options such as Revolut and N26 which have now acquired European banking licenses. These new licenses can provide you with an IBAN, allowing you to set up your salary, direct debits, etc. These services seem more cost efficient but there are higher withdrawal fees or a % fee applied to withdrawals that go over the free allowance limit. It will be up to the individual to inform employers, tenants or anyone who lodges money into their account of their new bank details. This also applies for direct debit transactions etc. Talk to your new bank about a new switching pack which will help move over any direct debits as seamlessly as possible. You should also ensure your account details on Revenue Online (ROS) are updated to allow you to make your tax payments from the updated account.
What Are my Next Steps?Once you have opened an account with your new bank, you must close your account with Ulster Bank and KBC. Ulster Bank have recently begun to issue closure forms to their account holders which can be filled out and posted back to the bank. Once the request is submitted it can take 5-7 working days for the account to close. In this time, you should not use your account as it may delay the closing procedure. Also check that there are no pending transactions and the account has been inactive for 24 hours.
After Closing your Account
- Securely destroy all cards, cheque books and pre-printed cheques associated with the account
- Update standing orders and direct debit payments with your new bank
- Inform originators of credits to Ulster Bank and KBC of your new account details
What do I Need to Set up a New Bank Account?
- Photo identification,
- A recent bank statement
- A recent utility bill
- Your PPS number (might not be mandatory).
April 26, 2022