Trust or Company Service Providers

 

NB: This advice note does not purport to be a legal interpretation of the legislation, it is a matter for each designated person to familiarise themselves fully with their obligations under the Act.

It is important to note that a person who carries on business as a "trust or company service provider" without having first obtained the required authorisation will commit an offence under subsection 87. 1 (1) of the Act will be liable (a) on summary conviction, to a fine not exceeding €5,000, or imprisonment for a term not exceeding 12 months (or both), or (b) on conviction on indictment, to a fine or imprisonment not exceeding 5 years (or both).

There have been some very important changes to the law which include new measures to counter the risk of money laundering and terrorist financing in certain business sectors. Of most significance to your area of business is a new requirement for any person who wishes to provide any of the business services *detailed below to obtain an authorisation to carry on business as a "trust or company service provider" issued by the Minister for Justice and Equality.

*"trust or company service provider" means any person whose business it is to provide any of the following services:

 (a) forming companies or other bodies corporate;

 (b) acting as a director or secretary of a company under an arrangement with a person other than the company;

(c) arranging for another person to act as a director or secretary of a company;

(d) acting, or arranging for a person to act, as a partner of a partnership;

(e) providing a registered office, business address, correspondence or administrative address or other related services  for a body corporate or partnership;

(f) acting, or arranging for another person to act, as a trustee of a trust

(g) acting, or arranging for another person to act, as a nominee shareholder for a person other than a company whose securities are listed on a regulated market.

 

The legislation also imposes requirements on these designated businesses to provide to the fullest extent possible for the prevention of money laundering and terrorist financing. These obligations include ones to identify customers, to report suspicious transactions to An Garda Síochána and the Revenue Commissioners and to have specific procedures in place to provide to the fullest extent possible for the prevention of money laundering and terrorist financing.

You should familiarise yourself with the legislation in full.  

As trust or company services can be provided by a number of different entities (e.g. banks, financial institutions, solicitors, accountants, barristers, tax advisors etc.) responsibility for supervision may depend on the structure of the business providing the TCSP service. The general rule that should be applied is if a TCSP is not already subject to general "industry type" regulatory supervision then they will be considered to be a designated person subject to the supervision of the Minister for Justice and Equality. Should you have any enquiries please do not hesitate to contact the Department by email at the contact details provided. The authorisation process and ongoing monitoring of your compliance with the obligations contained in the Act will be administered by the Department of Justice and Equality, Anti-Money Laundering Compliance Unit.

 

 

The Anti-Money Laundering Compliance Unit will process all applications for authorisation to carry on business as a trust or company service provider and each authorisation will have a term of validity of 3 years and will be renewable. Included in this process is a requirement for the application of a fit and proper test to certain persons associated with each application for authorisation. The legislation specifies certain matters which would disqualify a person from being considered ‘‘a fit and proper person’’ for the purposes of an authorisation. In summary, these include having certain criminal convictions, refusing due payment of debt, being an undischarged bankrupt or otherwise not being a fit and proper person. The "fit and proper" test may require the Department to conduct enquiries relating to the applicant including checks against criminal convictions with An Garda Síochána, checks against financial rulings e.g. Bankruptcy and/or company law breaches.