Reports to the Register All reportable legal entities must report their beneficial owners via the one-stop-shop Business Service Portal called 'Unternehmensserviceportal' (USP) or can be represented by a legal professionals acting in a professional capacity.
Who is subject to reporting to the Register?
All legal entities within the meaning of § 1 II of the Beneficial Owners Register Act (Wirtschaftliche Eigentümer Registergesetz, WiEReG) having their registered office in Austria are subject to reporting. These are:
- General partnerships under Austrian law, limited partnerships under Austrian law
- Stock corporations under Austrian law, limited companies under Austrian law
- Commercial and industrial cooperatives
- Mutual insurance companies, small mutual insurance companies
- Savings banks
- European Economic Interest Groupings, European Companies (SE), European Cooperative Societies (SCE)
- Private foundations under § 1 of the PSG
- Other legal entities whose entry in the register of companies is required pursuant to § 2 XIII of the Austrian Commercial Register Act (Firmenbuchgesetz, FBG)
- Associations according to § 1 of the Austrian Law on Associations (Vereinsgesetz, VerG)
- Foundations and funds according to § 1 of the Austrian Federal Foundation and Fund Act (Bundes-Stiftungs- und Fondsgesetz, BStFG) 2015;
- Foundations and funds established on the basis of a state law, provided that the application of this federal law is provided for by state law;
- Trusts and trust-like arrangements, if managed from within Austria.
The following are not legal entities within the meaning of the WiEReG and therefore not subject to reporting:
- Branch offices of foreign companies registered in the register of companies
- Condominium owners’ associations
- Agricultural communities
- Companies under civil law
What exemptions from the reporting obligation are there?
In order to reduce administrative burdens, an exemption from the reporting obligation has been provided for cases where data can be automatically transferred from other registers such as the register of companies. § 6 BORA regulates the exemptions from reporting in detail. The exemptions from reporting are automatically detected by the system and activated for the respective legal entities. No action by the legal entity is required for this. A legal entity exempt from reporting therefore does not need access to the Business Service Portal.
General partnerships under Austrian law and limited partnerships under Austrian law are exempt from the reporting obligation if all personally liable shareholders are individuals. The shareholders entered in the register of companies are then carried over as beneficial owners. Limited partners are carried over as beneficial owners if no more than three shareholders are registered in the register of companies. If four or more shareholders are registered in the register of companies, the managing partners registered in the register of companies are carried over as subsidiary beneficial owners (top management level).
Limited companies under Austrian law (GmbH) are exempt from reporting if all shareholders are individuals. The shareholders entered in the register of companies are then carried over as beneficial owners, provided that they hold an interest of more than 25%. If no shareholder holds an interest of more than 25 %, the managing directors entered in the register of companies are registered as beneficial owners.
Commercial and industrial cooperatives are exempt from reporting. The members of the executive board entered in the register of companies or, if managers are also registered, only the managers are carried over as beneficial owners.
Mutual insurance companies, small insurance companies and savings banks are exempt from reporting. Here, the members of the executive board entered in the register of companies or in the supplementary register for other affected parties are carried over as beneficial owners.
Associations are exempt from reporting. The tax group representatives entered in the register of associations are carried over as beneficial owners.
Reporting exemption on the form
The page of the reporting form for “legal entities” contains an item regarding exemption from the reporting requirement. If there is a reporting exemption, the system will automatically recognise it and give notice. The legal entity can choose whether or not to waive the reporting exemption. If the reporting exemption is not being waived, “No” can be selected as the answer. If the reporting exemption is being waived, this can be confirmed by selecting “Yes”. In this case, additional pages of the form will open, and the beneficial owners can be reported.
Cessation of the exemption from reporting
The exemption from reporting ceases to apply if an “other” individual is the beneficial owner of the legal entity subject to reporting.
This may be the case, for example, if shares of more than 25% are held in trust by a shareholder or if corresponding syndicate agreements or voting commitment agreements exist. If an individual is subsequently identified as the beneficial owner who has not already been automatically entered in the register, then there is an obligation to waive the exemption from reporting in the form and submit a report.
Example: The sole shareholder (person A) of a GmbH holds the shares in trust for person B. The GmbH is exempt from the reporting obligation, and person A is entered in the register as the beneficial owner. However, on the basis of the trusteeship agreement, person B is also the beneficial owner of the GmbH. The exemption from reporting is therefore no longer applicable, and the GmbH is obligated to report person A and person B to the register.
If persons who are not beneficial owners at all are automatically entered into the register, there is no obligation to correct the register status. However, a report can be submitted voluntarily.
Due diligence obligations of the legal entities
Legal entities are subject to a number of due diligence obligations with regard to the determination of their beneficial owner (§ 3 BORA).
Legal entities shall establish the identity of their beneficial owner and take reasonable steps to verify the identities of the same, so that they are satisfied that they know who their beneficial owner is.
Entry of the beneficial owner can be carried out either by the company itself or by an authorised representative, for example tax advisor, lawyer, etc.
Legal entities shall keep copies of the documents and information necessary to identify the beneficial owner for at least five years after the end of the beneficial ownership of the individual.
Verification and updating of the beneficial owner shall take place at least once a year.
In the case of trusts and trust-like arrangements, reporting of the beneficial owner is the responsibility of the trustee or a person comparable to the trustee. In particular, this person must ensure that the trust or trust-like arrangement is entered into the supplementary register for other affected parties.
The legal entities exempt from the reporting obligation shall fulfil the due diligence obligations to the extent necessary to assess the (continued) existence of the exemption.
All legal entities that are not exempt from the reporting obligation pursuant to § 6 are subject to an annual reporting obligation. Within four weeks of the due date of the annual review, they need to report any changes found during the review or confirm data the previously reported.
This only applies to those legal entities exempt from reporting that have waived the exemption from reporting.
Procedure for the identification and verification of beneficial owners of companies
The beneficial owners of companies (§ 1 II 1 to 11, 13 and 14 BORA) include all individuals who directly or indirectly hold a sufficient portion of shares or voting rights (including in the form of bearer shares), have a sufficient interest in the company (including in the form of an interest of business or capital), or exert control over the company. A distinction must be made between direct and indirect beneficial owners.
Direct beneficial ownership exists if an individual holds more than 25% of the shares or voting rights or an interest of more than 25% in the company, or if one or more individuals jointly exert direct control over the company.
Indirect ownership exists if a legal entity holds more than 25% of shares or voting rights or an interest of more than 25% in the company, and one or more individuals jointly exert direct or indirect control over this legal entity.
Direct beneficial owners of companies can usually be identified and verified by inspection of publicly accessible registers and non-public documents.
In the identification and verification of indirect beneficial owners it is necessary to obtain the relevant evidence of the beneficial owner in accordance with the national standard and practice, or of the ownership and control relationships, respectively. On the basis of these documents and information, it is advisable to prepare a graphic illustration of the relationships up to the beneficial owner in the form of a complete organisational chart, indicating the proportions of shares, holdings, control or voting rights, in order to better understand complex ownership and control relationships. Professional party representatives can call up an extended extract from the register prior to reporting, which contains a semi-automatically generated representation of the relevant domestic shareholding structure and a preliminary calculation of the beneficial owners.
However, only direct and indirect beneficial owners and the associated top-level legal entities must be reported to the register. Reporting of the intermediate levels is not provided.
In the case of beneficial owners of the legal entity whose principal residence is in Austria, it is sufficient to provide the first name, surname and date of birth when reporting. No further documents are required for proof of identity. In this case, an automatic reconciliation with the central register of residents is carried out during the reporting process to ensure that only individuals who actually exist can be reported to the register.
If beneficial owners do not have a registered principal residence in Austria, the address of residence and nationality must be reported in addition to first name, surname and date of birth. As evidence of identity, upload a copy of an official photo ID and indicate the number and type of the official photo ID.
For all beneficial owners, the nature and extent of the beneficial interest (for example ownership, control, voting rights, etc.) must also always be disclosed.
If no individual can be identified as the beneficial owner, the legal entity must report to the register the individuals at the top management level of the company as subsidiary beneficial owners. The term “top management level“ always refers to the highest operative management level of the legal entity subject to reporting (i.e. its executive board).
As a rule, the persons who belong to the top management level do not have to be entered separately, but the data can be taken semi-automatically from the register of companies.
A distinction must be made here between whether there are no beneficial owners because no individual has a sufficient shareholding in the legal entity subject to reporting, or whether the beneficial owners cannot be identified due to a lack of sufficient documents or evidence. In the latter case, this fact must be disclosed.
Identification and verification of beneficial owners of foundations, trusts and trust-like legal arrangements
The beneficial owners of private foundations are the persons named in the definition in § 2 III a WiEReG due to the exercise of their functions. Thus the founders, the beneficiaries or the group of beneficiaries, respectively, must be determined and verified on the basis of the foundation deed or, if applicable, the supplemental foundation deed. If persons from the group of beneficiaries receive grants from the private foundation whose value exceeds € 2,000 in a calendar year, then these are to be reported as one-time beneficiaries. Furthermore, the members of the foundation council are to be identified and reported on the basis of the extract from the register of companies.
If another person ultimately controls the private foundation in some other way, this person is also to be reported as a beneficial owner. It should be emphasised that the aforementioned persons are always considered beneficial owners due to their function, even if another person ultimately controls the foundation.
In the case of foundations and funds pursuant to § 1 of the BStFG 2015, the founders, the members of the foundation or fund management board, the group of beneficiaries and any other individual who ultimately controls the foundation or fund in some other way are to be reported as beneficial owner. If a founder is deceased, only this founder’s first name and surname are to be reported.
A trust within the meaning of the BORA is a legal relationship created by a person (the trustor/settlor) by means of a legal transaction between living persons or by testamentary disposition, in which assets are placed under the supervision of a trustee for the benefit of a beneficiary or for a specific purpose, whereby the trust itself may also have legal capacity (§ 1 III WiEReG).
A trust or trust-like arrangement whose function and structure is comparable to a trust is a legal entity subject to reporting if it is managed in Austria. In particular, domestic management in Austria is deemed to exist if the trustee has his/her residence or registered office in Austria. In addition, trusts and trust-like arrangements whose management is not located in Austria or in another Member State are also covered by the scope of application if the trustee enters into a business relationship or acquires real estate in Austria on behalf of the trust or trust-like arrangement.
In order for a trust or a trust-like arrangement to be able to submit a report to the register, the trust or trust-like arrangement must be entered in the supplementary register for other affected parties. Information about the entry in the supplementary register for other affected parties can be found on the Homepage of the Federal Ministry for Digitisation and Business Location.
The following persons or groups of persons must be reported to the Register as beneficial owners due to the exercise of certain functions for a trust: the trustor/settlor, the trustee(s), the protector (if any), and the beneficiaries or group of beneficiaries. As in the case of private foundations, one-time beneficiaries and persons who ultimately control the trust by other means are to be reported.
The data on beneficial owners to be reported are the same for foundations, trusts and trust-like legal arrangements as for companies. As nature and extent of the beneficial interest, the respective function must be indicated by (for example founder, beneficiary, foundation council, etc.).
Disclosure of trusteeships
Each legal entity has to report the nature and extent of the beneficial interest for each beneficial owner, including whether a fiduciary relationship exists. It is therefore necessary to indicate for each beneficial owner whether a fiduciary relationship exists (Yes/No). If so, state whether a beneficial owner is a trustor or trustee. The legal entity should therefore verifiably enquire with its legal and beneficial owners or the relevant superordinate legal entities whether there are any trusteeship agreements relevant for the determination of beneficial ownership. Further information on trusteeships can be found in the sample collection and in the decree of the BMF.
Making the report
When you call up the report, you see the mask for reporting beneficial owners. In addition to general information, you see three headings: “Cover”, “Form” and “Change log”. The cover contains general information about reporting.
The reporting form has five pages:
- Legal entities
- Direct beneficial owners
- Ultimate legal entities
- Indirect beneficial owners
You can navigate through the pages of the form by clicking on the relevant tab or using the “Next” and “Back” buttons at the bottom right of the page.
You can access all the pages of the form to make entries except for the “Summary” page. The “Summary” is automatically generated via the “Indirect beneficial owners” tab after completion of all entries by using the “Next” button, and its purpose is to check the entries made. If wrong entries have been made or necessary information is missing, the system will indicate this with appropriate error messages. An erroneous or incomplete report cannot be sent.
You have the option of saving your work in progress at any time by using the “Safe” button and continuing to edit the report at a later date.
The “Check” button allows you to check the reporting form for the accuracy and completeness of the entries. Alternatively, the checking function will be carried out automatically when the summary is created.
The individual pages of the form in detail:
This is the first page of the reporting form. Here you can see the general information about the legal entity (name, legal form, etc.), the date of the last report, any remarks made and the status of the reporting exemption.
Direct beneficial owners
Here you can enter the direct beneficial owners of the legal entity or edit the entries in a previous report.
If the reported main place of residence is in Austria
If the principal place of residence is in Austria, the first and last names and the birth date of the beneficial owner must be entered. The system then imports the available data, such as address, etc. from the Central Residence Register (ZMR). If multiple persons with the same name and birth date exist, the system will request additional information to clearly identify the beneficial owner.
If there is no reported principal place of residence in Austria
If there is no reported principal place of residence in Austria, then there is no data about the person in the ZMR. Therefore, the necessary information must be entered manually.
In addition, information on nationality and proof of identity in the form of a scanned-in valid ID document, such as a passport, is required
If the direct beneficial owner is deceased, only the first and last names must be entered.
In addition to the personal information about the beneficial owner, trusteeships must be listed, as well as the nature and scope of the beneficial interest. If “Yes” is selected when asked whether a trusteeship relationship exists, then it must be indicated whether the beneficial owner is the trustee or the trustor.
The beneficial interest in a legal entity is divided into ownership, voting rights, control and other means. The proper category must be selected.
The share of “Ownership” and “Voting rights” must be listed as a percentage.
Ultimate legal entity
Here you must enter whether the ultimate legal entity is located in Austria or in a foreign country.
Registered office in Austria
If the ultimate legal entity has its registered office in Austria, the data will be imported automatically using the identification registry number (Commercial Register, Register of Associations or Supplementary Register). It is only necessary to select the relevant register, e.g. the Commercial Register and enter the corresponding identification number, e.g. Commercial Register number.
Registered office in a foreign country
If the ultimate legal entity has its registered office in a foreign country, the requested information must be entered manually.
Indirect beneficial owner
Indirect beneficial owners are entered in a manner analogous to direct beneficial owners with the difference that the ultimate legal entity must also be specified here. Ultimate legal entities that have previously been entered can be selected from the drop-down menu.
Secondary report of beneficial owners
Pursuant to Article 2 no. 1 lit b BORA, a secondary report on the top management level of the company must be made for companies for which no natural persons can be identified as beneficial owners.
Important point: This relates to the management level of the reporting legal entity and not to higher level companies, such as group parent companies.
For this purpose, check “Report on natural persons who belong to the top management level of the company” on the reporting form under the “legal entities” tab and under the item “Secondary report on the management level pursuant to Article 2 no. 1 lit. b BORA”
By clicking on the “Next” button, you will arrive at the “Direct beneficial owners” page.
The entries are checked automatically before you reach this page of the form. If there are erroneous entries or if necessary information is missing, the system will indicate this with appropriate error messages. An erroneous or incomplete report cannot be sent.
When you arrive at the “Summary” page of the form, you can check your entries again and send your report to the registry authority by clicking on the “Send” button. You can make changes by clicking on “Back”. You will then return to the previous pages of the form. You can also store the form and send it at a later time. Stored forms can only be viewed in your USP account.
When you have sent the form, you can also print out the reporting form.
Reports by legal professionals
Legal professionals, such as tax advisors or attorneys, can make reports to the Register of Beneficial Owners for their clients. For this purpose, legal professionals can search for legal entities by entering their identification number (Commercial Register number) and accessing the appropriate reporting forms. The reporting form itself is the same as the regular reporting form.