Download DIRECTIVE 3b ON TRUSTS, ANSTALTEN, FOUNDATIONS

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DIRECTIVE 3b
ON TRUSTS, ANSTALTEN, FOUNDATIONS AND SIMILAR ENTITIES
1.
General
This Directive in no way amends or diminishes the guidelines, rights and obligations contained
in other Directives, particularly Directives 2 and 3 on authenticating the identity of contracting
parties and on identifying beneficial owners. It is intended to set out solutions for implementing
the Anti-Money Laundering Act (hereinafter “MLA”) that are tailored to situations involving
trusts, foundations, Anstalten and, by extension, other entities whose contracting party and/or
beneficial owner cannot always be determined in accordance with the usual rules.
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SITUATIONS IN WHICH THE FINANCIAL INTERMEDIARY IS HIMSELF A TRUSTEE
OR BOARD MEMBER OF THE ANSTALT OR FOUNDATION
2.
Identifying the contracting party
A financial intermediary acting as trustee or board member of an Anstalt or foundation must
strive wherever possible to authenticate the identity of the contracting party, as prescribed in
Directive 2. This applies to the settlor of a trust, the founder of an Anstalt or foundation and to
each of the persons who has transferred title to assets to the trust, Anstalt or foundation.
When a financial intermediary takes office as a trustee or board member of an existing trust,
foundation or Anstalt as a substitute for or in addition to a trustee or board member of such
trust, foundation or Anstalt, he may deem his contracting party to be the person who has
appointed him to such office.
3.
Identification of the beneficial owner by a trustee or board member of an Anstalt or
foundation
Once assets have been deposited in a trust, Anstalt or foundation, the beneficial owner, within
the meaning of the MLA, shall in principle be deemed by the financial intermediary acting as
trustee or board member of the Anstalt or foundation to be all persons who, regardless of their
capacity or title, as a result of documents of incorporation and provisions permitting them to be
amended, added to or revoked have the right or prerogative to use or dispose of, for their
benefit, the assets that form the basis of the trust, Anstalt or foundation.
In particular, in the case of a revocable vehicle, the financial intermediary shall deem the
person(s) with authority to revoke the vehicle for their benefit to be the beneficial owner(s) (Art.
53, subs. 2, FINMA Ordinance on the Prevention of Money Laundering and Terrorism
Financing [MLO-FINMA]) and, if different, the person(s) for whose benefit the vehicle may be
revoked.
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4.
Identification where there is no determinable contracting party or beneficial owner; T form
When a financial intermediary acting as a trustee or board member of an Anstalt or foundation
is confronted by any of the following situations:
a)
it is impossible for the financial intermediary to determine who his contracting party is,
often because the trust, Anstalt or foundation has been set up and/or assets have been
transferred to it as a result of instruments that do not require a “meeting of the minds”
between the financial intermediary and another person, or as a result of instruments
arising from the death or non-consensual substitution of a previous trustee or board
member of the Anstalt or foundation;
b)
it is impossible for the financial intermediary to determine who all the beneficial owners of
the trust, Anstalt or foundation are, often because the appointment of the persons who,
regardless of their capacity or title, as a result of documents of incorporation and
provisions permitting them to be amended, added to or revoked, have the right or
prerogative to use or dispose of, for their benefit, the assets that form the basis of the
trust, Anstalt or foundation, is left to the discretion of the trustee or board member of the
Anstalt or foundation, or because it is not possible for some other reason
the financial intermediary acting as trustee or board member of the Anstalt or foundation shall
then obtain the identity-related information provided in Directive 2 in respect of the following
individuals or entities, provided they exist:
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the settlor/founder or his actual principal if such settlor/founder is acting on a fiduciary
basis
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the persons who, regardless of their capacity or title (e.g. protectors, receivers or similar
officers), may as a result of the settlement/deed of foundation amend, add to or revoke
these instruments and, in particular, appoint beneficiaries
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the appointed beneficiaries and persons eligible to become beneficiaries
together with information relating to any non-individualised categories of persons eligible to be
appointed as beneficiaries.
The financial intermediary acting as trustee or board member of the Anstalt or foundation shall
set down this information in a statement in writing (T form), which he shall fill in by drawing on
all available sources of information and which one (or more, depending on the signing
procedure applicable to the entity) of the trustees or board members of the Anstalt or
foundation shall sign himself.
The information contained in the statement in writing must be kept up to date and registered in
the MLA register.
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5.
Clarification of the origin of the funds by the trustee, Anstalt or foundation
The financial intermediary acting as trustee or board member of the Anstalt or foundation must
to the extent possible obtain a clarification from each of the persons who has transferred title to
assets (except for small amounts paid solely for the formalities of setting up the entity) to the
trust, Anstalt or foundation regarding the economic origin and provenance of the assets thus
transferred.
When the transfer of assets arises from instruments requiring a ”meeting of the minds” between
the financial intermediary and another person or from instruments arising from a death or
predating the financial intermediary’s taking of the office in question, the financial intermediary
acting as trustee or board member of the Anstalt or foundation shall clarify to the extent
possible the origin and provenance of the assets prior to their transfer, drawing on all the
available sources of information.
The search for this information and the relevant findings must be documented and the
documents kept in the client’s file.
6.
Documents
Trustees or Anstalt/foundation board members who work as financial intermediaries in
Switzerland must keep the original or a copy of all settlements and documents of incorporation
and provisions permitting these to be amended, added to or revoked. These documents must
be kept in Switzerland.
B.
SITUATIONS IN WHICH THE FINANCIAL INTERMEDIARY REMAINS OUTSIDE OF
THE TRUST, ANSTALT OR FOUNDATION BUT HAS A BUSINESS RELATIONSHIP WITH
THE ENTITY
7.
Authentication of the identity of the contracting party for a trust or entity with or without
legal personality by an financial intermediary outside of such entity
When a financial intermediary outside of a trust establishes a business relationship pertaining
to the trust’s assets, he shall deem the trustee to be his contracting party and shall authenticate
such trustee’s identity in accordance with Directive 2. In the case of other entities without legal
personality the financial intermediary may deem his contracting party to be any person having
the capacity or power to act on behalf of the entity with which he establishes a business
relationship. Entities endowed with legal personality, such as Anstalten and foundations, shall
themselves be the contracting party of the financial intermediary who establishes a business
relationship with them.
8.
Identification of the beneficial owner of a trust, Anstalt or foundation by a financial
intermediary outside of such entity
In cases where the financial intermediary remains outside of a trust, Anstalt or foundation, the
trustee or board member of such Anstalt or foundation must on the financial intermediary’s
behalf and in accordance with Directive 3 identify the beneficial owners of the assets involved in
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the business relationship as soon as it is possible to determine who such beneficial owners are,
pursuant to Article 3 above.
If only the circle of beneficial owners is defined (e.g. “all the founder’s descendants”), then the
identity of any person forming part of such circle must be authenticated or completed, as the
case may be.
However, if there are twenty or more beneficial owners, the financial intermediary is required to
obtain an identification only of the ascertained beneficial owners whose rights or prerogatives
attaching to use or disposition pertain to more than 5% of the assets forming the basis of the
business relationship.
In all cases where the identities of any or all of the beneficial owners of the trust, Anstalt or
foundation cannot be determined, or not as yet, the financial intermediary shall obtain a signed
statement in writing pursuant to Article 4 above from the trustee or board member of the Anstalt
or foundation.