The Public Register of Trusts should be online imminently
In the Official Journal of July 2, 2016 the Ministerial Order dealing with the conditions of access and use of the information contained in the Public Register of Trusts was published. The online availability of the Register was subject to such Ministerial Order. The Public Register of Trusts can now be released online at any time.
Reminder of the texts
The first rectifying finances law for 2011 (n°2011-900 of July 29, 2011) introduced reporting obligations for the trustees of trusts of which a settlor or beneficiary is a French tax resident or, which holds a French situs asset.
Thereafter, the law n°2013-1117 of December 6, 2013 dealing with the fight against tax evasion and serious economic and financial crimes created a Public Register of Trusts which modalities for consultations would be determined by decree by the Conseil d’Etat.
Following the Panama Papers case, the decree defining the implementation methods of the Public Register of Trusts was published (decree n° 2016-567 dated May 10, 2016).
However, the effective release of the online Public Register of Trusts was subject to the entry into force of a Ministerial Order governing the automated processing of information. Such order was just released.
Who will be able to access the Register?
The Order provides that any individual or company having a fiscal « occurrence » in France via its tax representative can consult the Public Register of Trusts.
In practice, it seems that the access will be through the online secured account of the taxpayer on the website www.impots.gouv.fr. Non-French residents who would not have any French tax number should therefore not be able to access the Register.
The user will have to accept the general conditions of use of the service and the fact that the French tax authorities will keep track of the access ; for each access, the French tax authorities will memorize during one year the user’s identification (tax number), his IP-address and the date and time of the access.
Which information will be available in the Register?
The request of information should expressly mention the identification of the trust, its date of setup, the identification of the settlor(s), of the beneficiary(ies) or of the trustee(s). It should not be possible to access the list gathering all the trusts.
For each request, the information provided to the user will be (when the trustee provided them to the French tax authorities):
- The name, first name, date of birth, date of death, place of birth, place of death of the settlor(s), beneficiary(ies) and settlor(s);
- The business name, the number with the registry of the companies of the settlor(s), beneficiary(ies) and trustee(s);
- The title/name of the trust, its address, date of creation, date of extinction if any.
Such information will be updated on a regular basis and will be accessible during a maximum period of 10 years after the extinction of the trust.
The user will not be able to access the nature and/or valuation of the trust’s assets.
The use of the data and the protection of privacy
The Ministerial Order governs the use of the data provided by the Public Register and provides that the data cannot be used outside of the scope of the respect of the privacy laws. It provides for criminal procedures in case of abusive broadcast of the information contained in the Public Register of Trusts.
Nonetheless some of our clients consider that the Public Register of Trusts disproportionately infringes their right to privacy considering that its access is not limited to persons fighting against tax fraud and serious economic and financial crimes. We assist them with actions for annulment (objection of illegality and unconstitutionality) against such Register.