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.
To Whom Does the Reporting Requirement Apply?
The reporting requirement applies to all “legal entities” within the meaning of Article 1 para. 2 BORA with their registered offices in Austria. These are:
- Ordinary partnerships, limited partnerships
- Stock companies, limited liability companies
- Commercial and industrial cooperative societies
- Mutual insurance associations, small mutual insurance associations
- Savings banks
- European Economic Interest Groupings, European companies (SE), European cooperative societies (SCE)
- Private foundations pursuant to Article 1 of the Private Foundation Act (PSG)
- Other legal entities, if they are required to be recorded in the Commercial Register by Article 2 no. 13 of the Commercial Register Act (FBG)
- Associations pursuant to Article 1 of the Associations Act (VerG)
- Foundations and funds pursuant to Article 1 of the Federal Act on Foundations and Funds (BStFG 2015)
- Foundations and funds established on the basis of a regional act, provided that the application of this Federal Act is allowed under regional law
- Trusts and arrangements of a similar nature to trusts, if they are managed from Austria
The following are not legal entities within the meaning of the BORA and therefore are not reportable:
- Foreign companies recorded in the Commercial Register
- Condominium associations
- Agricultural associations
- Companies organised under civil law
What are the Exemptions From the Reporting Requirement?
To reduce the administrative burden on legal entities, an exemption from the reporting requirement was provided when data can be electronically imported from an existing register, such as the Commercial Register. Article 6 BORA governs reporting exemptions in detail.
There is a reporting exemption for ordinary partnerships and limited partnerships if all partners are natural persons. In that case, the partners recorded in the Commercial Register are deemed to be beneficial owners.
There is a reporting exemption for limited liability companies (GmbH) if all the shareholders are natural persons. In this case, the personally liability partners entered in the Commercial Register will be imported as beneficial owners if they hold an interest of more than 25%. If no shareholder holds an interest of more than 25%, the managing directors recorded in the Commercial Register shall be entered as the beneficial owners.
There is also a reporting exemption for commercial and industrial cooperative societies. The members of the management board recorded in the Commercial Register are imported as beneficial owners or, if directors are also recorded, only the directors are imported.
There is a reporting exemption for mutual insurance associations, small mutual insurance associations and savings banks. In this case, the members of the management board who are recorded in the Commercial Register or the Supplementary Register for Others are imported as beneficial owners.
There is also a reporting exemption for associations. In this case, the names of the official representatives of the association entered in the Register of Associations are imported 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.
Lapse of the Reporting Exemption
The reporting exemption lapses when “another” natural person is the beneficial owner of the reportable legal entity.
For example, this can be the case if more than 25% of the shares are held in trust by a shareholder or if there are relevant syndicates or pooled voting rights agreements. If, as a result, a natural person is identified as a beneficial owner who has not already been automatically imported into the Register, there is an obligation to waive the reporting exemption on the form and make a report.
Example: The sole shareholder of a GmbH (Person A) holds shares in trust for Person B. The GmbH is exempted from the reporting requirement and Person A is imported into the Register as beneficial owner. However, Person B is also a beneficial owner of the GmbH due to the trusteeship agreement. Therefore, the reporting exemption lapses and the GmbH must report Person A and Person B to the Register.
If persons who are not beneficial owners are automatically imported into the Register, there is no obligation to correct the Register. However, a report can be made voluntarily.
The Due Diligence Requirements of the Legal Entities
Legal entities are subject to a series of due diligence requirements with respect to the identification of their beneficial owners (Article 3 BORA).
Legal entities must determine the identities of their beneficial owners and take reasonable measures to check their identities until they are convinced that they know who their beneficial owners are.
The beneficial owners can be entered in the Register either by the company itself or by an authorised representative, such as a tax advisor, attorney, etc.
The legal entities must retain copies of the documents and information necessary to determine the beneficial owners until at least five years after the end of the natural person’s beneficial ownership.
The beneficial owners must be checked and updated at least once per year.
For trusts and arrangements of a similar nature to trusts, it is the responsibility of the trustee or person comparable to the trustee to report the beneficial owners. This person must ensure that the trust or arrangement of a similar nature to a trust is entered into the Supplementary Register for Others.
The due diligence requirements only apply to legal entities exempted from the reporting requirement to the extent necessary to determine the existence of the exemption.
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 “Cache” 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.