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Confirmed: both usufructuary and bare owner are to be included in the UBO register

Wednesday 30/01/2019
Hands typing on laptop

The Belgian Ultimate Beneficial Owner (UBO) register went live on 31 October 2018. On the basis of the legal texts and the explanatory notes, as ultimate beneficiary/ies of companies, the natural person(s) who directly or indirectly hold(s) a sufficient percentage of the voting rights or of the ownership interest in this company must first be notified. A holding of at least 25% is an indication of a sufficient percentage.

In the event of a division of the ownership right over the shares into bare ownership and usufruct, the voting right is often assigned to the usufructuary under the articles of association. Provided that the usufructuary thus represents at least 25% of the voting rights, they must already be declared in the UBO register.

The bare owner, however, does not have voting rights in this case, although this person's participation does represent a certain percentage in the company's capital, which could indicate an 'ownership interest'. Until recently, it was not clear whether a bare owner, representing at least 25% of the company's capital, should also be included in the UBO register of the company subject to the reporting obligation.

Politician Luk Van Biesen asked the Finance Minister to clarify this on 3 October 2018, on the occasion of the session in the Finance and Budget Commission. The Minister referred this question to the General Administration of the Treasury, which was charged with the management and supervision of the UBO register. To date, this question has not been addressed in the FAQ, which can be consulted on the government's website.

The legal department of the General Administration of the Treasury has now confirmed in writing to our office that, in the event that the participation is at least 25%, both the usufructuary and the bare owner must be entered in the UBO register. Their capacity as usufructuary or bare owner must be specified in the "comments" field provided for this purpose.

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Bert Lutin
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Julie De Roy
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