A register of people with significant control (otherwise known as a "PSC Register") is a new statutory register which certain UK companies and all UK limited liability partnerships ("LLPs") will be required to keep. It will contain details of all those people or legal entities with control over the company or LLP in question. Failure to comply with the new requirements is a criminal offence.
The rules relating to the PSC Register are quite complex. This article only gives a very brief summary of the key points. We would recommend that you take advice or review the government guidance before attempting to complete your PSC Register.
The government guidance can be found here.
We would recommend starting with the document headed "PSC register summary guidance" and then, for more detail, reading the document headed "PSC guidance for companies, LLPs and SEs". You will also see some statutory guidance and you must have regard to this in certain circumstances (see 14 below). Please be aware that at the moment the guidance is regularly being updated.
The following entities must keep a PSC Register:
If you are part of a group, even if you do not need to keep a PSC Register, other members of the group may have to.
They are very similar but there are some differences to account for the different nature of the two types of entity.
Companies and LLPs subject to the requirement must have a PSC Register in place on 6 April 2016. However, your PSC Register doesn't need to be fully complete by then and can just contain a statement that you have not yet finished taking your reasonable steps (see 16 below).
Your obligations can be broken down into four basic steps:
Any new company or LLP incorporated after 30 June 2016 will need to submit the information along with the other incorporation documents. Existing companies and LLPs will need to file the information when they submit their next confirmation statement (which will replace the annual return) after 30 June 2016.
An individual will be a PSC if he or she meets one or more of the five specified conditions (the "Conditions").
An individual will be a PSC if:
A PSC is, by definition, an individual and not a legal entity (e.g. a company or LLP). However, the rules talk about also being able to register "relevant legal entities" or "RLEs" in some circumstances.
An entity is an RLE if it:
You register an RLE if it is the first legal entity you come to when investigating a particular chain of ownership. Ordinarily, you will not need to investigate or record who owns or controls that RLE.
If the entity is not an RLE you cannot register it in your PSC Register. Instead, you need to see whether there is anyone with a 'majority stake' in that entity and, if they are a PSC or RLE, register them instead.
Yes. The PSC Register must show each of the Conditions the PSC or RLE meets. However, if the PSC or RLE meets any of Conditions 1 to 3 you can ignore Condition 4 in relation to that PSC or RLE.
You may need to register the holder(s) of the shares or rights if they meet any of Conditions 1 to 4. In addition, you should also establish whether anyone has the right to exercise, or actually exercises, significant influence or control over the trust or firm for the purposes of Condition 5. Separate statutory guidance explains the concept of "significant influence or control".
Yes. It is advisable to review the government guidance and, in respect of Conditions 4 and 5, you must have regard to the statutory guidance that has been issued.
Some particular points to note are as follows:
You need to take 'reasonable steps'. If you are a company then this will, among other things, require you to review your register of members, articles of association and shareholders' agreements. You may also need to serve notices on members (or others you think they may have relevant information) requiring them to supply or confirm information. The government guidance contains suggested wording for these notices.
Ultimately you must do what you think a reasonable person would do if that person knew what you know and you must not stop until you have the information you require or there is nothing more you can reasonably do.
Yes. Failure to respond to a notice requesting information in relation to a PSC Register within a month is a criminal offence (as is providing false information).
Yes. You can serve a 'warning notice' and, if the information is still not forthcoming, you can serve a 'restrictions notice'. Among other things, a restrictions notice prevents the person's shares or rights being transferred or exercised.
You can only enter information in relation to PSCs and RLEs when you have all the information you need and, in relation to PSCs, that information has been confirmed as being accurate by the PSC or someone acting on their behalf.
No. The PSC Register must always contain something even if it is a statement that there are no PSCs or that you have not yet finished taking reasonable steps.
Yes. The government guidance specifies the wording that must be used for particular statements.
If you have any queries regarding the changes set out in this article please contact Frank Shephard, Partner and Head of Corporate at DWF LLP.