Where a nominee holds an asset for a foreign partnership (rather than the individual partners), only the nominee has to register, but who are the beneficiary(ies)?
(a) the partnership? (you have to ignore that the partnership is not a legal person)
(b) the effective PSCs of the partnership by applying Reg 5(3) (meaning of beneficial owner: …partnership) as a supplement to Reg 6 (Meaning of beneficial owner: trusts…)
(c) all the partners of the partnership
I like option (b) as a commercial approach but I’m not at all sure that the legislation says that. (a) just sounds wrong, leaving you with (c) which potentially leaves you with a very long list of beneficiaries.
I assume that the nominee is holding on an express trust and that it is a “UK trust” or a non-UK trust which is a relevant trust.
Reg 45 (taxable relevant trusts) relates to “beneficial owners” and “potential beneficiaries”. The first term is as defined in Reg 6(1) and (2) and NOT Reg 5. The second term is expanded rather than defined because “beneficiary” and thus potential “beneficiary” are not defined at all. I would say they are used in a trust technical sense in context. As regards information Reg 45(2) divides the prescribed details into three classes: individuals, legal entities, and classes of beneficiaries or potential beneficiaries. “Legal entity” is not defined here (save as to Reg44(2) (b) where the word does not appear—Doh!) nor in the Act. So strictly it does not engage the definition of “body corporate” in Reg 3(1) but seems a phrase which might well be taken to mean roughly the same. (A legal entity could figure in the third category). So if a foreign partnership is a legal person under its governing law it is a legal entity, s45(7) applies and, significantly, uses the word “firm”. The firm is the beneficiary. If it is not a legal entity the partners are the “beneficiaries” and 45(6) applies if they are individuals and 45(7) if they are legal entities.
Reg 45ZA follows a similar path for a non-taxable express trust.
A nominee need not be an express trustee but usually will if any kind of property is involved. A non-taxable trust may be excluded under para 14 Sch 3A.
Reg 5 is only engaged where the Regs apply to the beneficial owners of a partnership outside of Regs 44, 45 and 47ZA and ZB