If you run a Company, Foreign Company, or a Limited Liability Partnership (“LLP”), you are required to set up a Register of Controllers. This is in accordance with the new requirement that was introduced on 31 March 2017 by the Accounting and Corporate Regulatory Authority (“ACRA”). ACRA subsequently issued and revised the ACRA Guidance on Register of Controllers which delineate these requirements.
The aim of this Register is to increase the transparency of business entities in Singapore, and while it is not disclosed to the public, it must be made available to the Registrar or public agencies eg ACRA, Commercial Affairs Department (CAD), Corrupt Practices Investigation Bureau (CPIB), Inland Revenue Authority of Singapore (IRAS) upon request. Companies in breach of their duties in relation to the Register can be fined up to $5000. It is therefore important to comply with the requirements to create and maintain a Register of Controllers.
While these requirements may seem vague and complex, this article sets out a simplified guide to the process that will hopefully allow your company to comply with setting up your Register of Controllers on time, and ensuring that it is kept accurate and updated. The legal duties in relation to this Register broadly include that of
- maintaining a register of registrable controllers and their particulars
- taking reasonable steps to identify registrable controllers, which includes sending the relevant notices to anyone whom they know or have reasonable grounds to believe to be controllers
- ensuring the particulars in their register of registrable controllers are updated, by sending the relevant notices to anyone whom they know or have reasonable grounds to believe to be controllers
- producing the Register and any relevant supporting documents to the Registrar or public agencies upon request
The following entities are exempted from having to set up a Register of registrable controllers
- Listed companies
- Singapore financial institutions
- Companies wholly owned by the Government
- Companies whose shares are listed on a foreign securities exchange
However, note that the exemption only applies to the requirements on keeping a register of registrable controllers, not to the registrable controller’s duty to provide information.
What is a controller?
A controller is an individual or legal entity that has a ‘significant interest’ in, or ‘significant control’ over a company or LLP.
Significant interest, in companies with share capital, denotes interest in more than 25% of shares or total voting power in the company, while in companies without share capital, it denotes the right to share in more than 25% of the capital or profits of the company, or any surplus assets of the LLP in a winding up.
Significant control denotes
- the right to appoint or remove directors holding a majority of the voting rights at directors’ meetings, or
- more than 25% of the rights to vote on matters that are to be decided upon by a vote of the shareholders of the company, or
- the right to exercise or actually exercising significant influence or control over the company.
For instance a retired founder, though not a shareholder but having absolute right to adopt or amend business plans, has significant control.
One must have regard to the registers of members, the company’s constitution, the laws of the foreign company’s home jurisdiction that set out voting rights, LLP agreements and other agreements in order to check if one has direct or indirect significant interest or control and thereby identify any controllers.
When should the Register be set up?
The Register should be set up 30 days from incorporation of the company or foreign company or registration of the LLP. Previously exempted companies which are subsequently not exempted are to set it up 60 days after being required to do so.
Where should the Register be kept?
It must be declared whether the register will be kept at the company’s registered office or that of its appointed registered filing agent.
In what form should the Register be kept?
The register can be kept electronically or in hard copy form.
What particulars are to be recorded in the Register?
If the registrable controller is an individual, the following particulars will have to be recorded in the Register of Controllers:
- Full name;
- Aliases, if any;
- Residential address;
- Identity card number/Passport number;
- Date of birth;
- Date on which the registrable individual controller became an individual controller of the company; and
- Date on which the registrable individual controller ceased to be an individual controller of the company, if applicable.
If however the registrable controller is a legal entity, the following particulars are required:
- Unique entity number issued by the Registrar, if any;
- Address of registered office;
- Legal form of registrable corporate controller;
- Jurisdiction where, and statute under which, the registrable corporate controller is formed or incorporated;
- Name of the corporate entity register of the jurisdiction in which the registrable corporate controller is formed or incorporated, if applicable;
- Identification number or registration number of the registrable corporate controller on the corporate entity register of the jurisdiction where the registrable corporate controller is formed or incorporated, if applicable;
- Date on which the registrable corporate controller became a corporate controller of the company; and
- Date on which the registrable corporate controller ceased to be a corporate controller of the company, if applicable.
Taking Reasonable Steps and Sending Notices
Companies, Foreign Companies and LLPs have a duty to review and update their registers annually with respect to the controllers and their particulars. This includes
- Identifying controllers: sending a Notice for Controllers to any person whom you know or have reasonable grounds to believe is a registrable controller
- Identifying persons who may know controllers: sending a Notice for Persons Who Know Controllers to any person who has or is likely to have knowledge of someone who is a registrable controller
- Confirming particulars of controllers: sending notices to registrable controllers whose particulars you know or have reasonable grounds to believe have changed or are inaccurate
A relevant change occurs, for instance, if an individual or legal entity ceases to be a registrable controller in relation to the Corporate Entity, or any other change occurs as a result of which the particulars of the registrable controller in the Corporate Entity’s register of registrable controllers are incorrect or incomplete.
The obligations pertaining to confirming particulars of controllers are presented in a flowchart as follows:
Note that supporting documents, to provide confidence that the Register is updated and accurate, may be requested by public agencies upon inspection of the registers.
Where can I find the relevant templates?
- Register of Registrable Controllers
- Notice for controllers
- Notice for persons who know controllers
- Notice for change in particulars
- Notice for incorrect particulars