Private Trust Companies Act 2015 (Gibraltar)

Private Trust Companies Act 2015

Published: 2015-09-17

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Private Trust Companies

2015-16

PRIVATE TRUST COMPANIES ACT 2015

Principal Act

Act. No. 2015-16 Commencement (LN. 2015/159) 17.9.2015

Assent 1.7.2015

Amending

enactments

Relevant current

provisions

Commencement

date

ARRANGEMENT OF SECTIONS

Section

1. Short title and commencement.

2. Interpretation.

3. Registration of Private Trust Companies.

4. Establishment of Registrar and Register of Private Trust Companies.

5. Application for registration.

6. Revocation, de-registration and restoration.

7. Registrar immunity.

8. Requirements of Private Trust Companies.

9. Registered Administrator.

10. Use of words “Private Trust Company”.

11. Disclosure of information.

12. Offences.

13. Regulations.

14. Amendment of Schedules.

SCHEDULE 1

CONNECTED INDIVIDUALS

SCHEDULE 2

APPLICATION FORM FOR REGISTRATION OF A PRIVATE TRUST

COMPANY

SCHEDULE 3

FEES

SCHEDULE 4

DECLARATION OF COMPLIANCE

SCHEDULE 5

DESIGNATING INSTRUMENT

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AN ACT TO MAKE PROVISION FOR THE VOLUNTARY

REGISTRATION OF PRIVATE TRUST COMPANIES AND FOR

MATTERS RELATED THERETO.

Short title and commencement.

1.(1) This Act may be cited as the Private Trust Companies Act 2015.

(2) This Act shall come into operation on the appointed by the Minister by

notice in the Gazette and different days may be appointed for different

provisions.

Interpretation.

2. In this Act, unless the context otherwise requires–

“the 1989 Act” means the Financial Services (Investments and Fiduciary

Services) Act of the laws of Gibraltar and any other law or

enactment replacing, substituting or amending it from time to time;

“Certificate of Registration” has the meaning given to it in section 5(2);

“Court” means the Supreme Court of Gibraltar;

“Class VII Licence” means a licence issued under Section 8 of the 1989

Act and classified as a Class VII licence under Schedule 1 to the

Financial Services (Licensing) Regulations 1991;

“Class VIII Licence” means a licence issued under Section 8 of the 1989

Act and classified as a Class VIII licence under Schedule 1 to the

Financial Services (Licensing) Regulations 1991;

“Companies Act” means the Companies Act 2014 of the laws of

Gibraltar and any other law or enactment replacing, substituting or

amending it from time to time;

“Connected Individual” means an individual whose relationship to

another is established in the manner set out in Schedule 1;

“Connected Trust Business” means Trust Business in respect of trusts

where the Settlor(s) of that or those trusts is / are either–

(a) the Designated Individual for the purposes of that Connected

Trust Business; or

(b) Connected Individuals of the Designated Individual;

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“Declaration of Compliance” shall mean the form set out in Schedule 4

or such other form as the Registrar may by notice published in the

Gazette prescribe from time to time for the purposes of this Act;

“Designated Instrument” shall have the meaning given to it in section

8(7)(a) and Schedule 5;

“Designated Individual” means the individual designated by a Private

Trust Company to be the Designated Individual for the purposes of

its Connected Trust Business;

“Income Tax Act” means the Income Tax Act 2010 of the laws of

Gibraltar and any other law or enactment replacing, substituting or

amending it from time to time;

“Minister” means the Minister with responsibility for financial services;

“Private Trust Company” means a company that has been registered as a

Private Trust Company under this Act;

“the Register” has the meaning given to it in section 4(2);

“Registered Administrator” means a company holding a valid Class VII

Licence or a valid Class VIII Licence;

“the Registrar” has the meaning given to it in section 4(1);

“Settlor” means any person who settles or gifts assets into a trust and

“Settlors” shall be construed accordingly;

“Trust Business” means the business of providing trustee services or

holding trusteeship of a trust or trusts or performing functions as

trustee of a trust or trusts and includes the holding of any one or

more trusteeships and for the avoidance of doubt a company

holding trusteeship of one trust shall be deemed to be undertaking

Trust Business.

Registration of Private Trust Companies.

3. A company that wishes to undertake Connected Trust Business from or

within Gibraltar may register as a Private Trust Company in accordance

with the provisions of this Act.

Establishment of Registrar and Register of Private Trust Companies.

4.(1) There is established the office of the Registrar of Private Trust

Companies which shall be held by the Registrar of Companies appointed

under section 420(1) of the Companies Act.

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(2) The Registrar shall establish and thereafter maintain a Register of

Private Trust Companies.

(3) Subject to subsection (4) any person may on the payment of the fee or

fees prescribed by the Minister from time to time inspect any records kept

by the Registrar for the purposes of this Act and may require–

(a) a copy in such form as the Registrar considers appropriate of

any information contained in those records; or

(b) a certified copy of, or extract from any such record.

(4) The right of inspection set out in subsection (3) above extends only to

the following information–

(a) the name of any Private Trust Company on the Register;

(b) the date on which any Private Trust Company was entered onto

the Register;

Company on the Register;

(d) the name of every director of any Private Trust Company on

the Register;

(e) the address of every director of any Private Trust Company on

the Register.

(f) the name of the Registered Administrator of any Private Trust

Company on the Register; and

(g) the address of the registered office of the Registered

Administrator of any Private Trust Company on the Register.

(5) The right of inspection extends to the originals of documents delivered

to the Registrar in printed form only where the record kept by the Registrar

of the contents of the document is illegible or unavailable.

(6) In all legal proceedings, a copy of an extract from a record certified in

writing by the Registrar to be an accurate record of the contents of any

document delivered to him under this Act, shall be admissible in evidence–

(a) as of equal validity with the original document; and

(b) as evidence of any facts stated in it of which direct oral

evidence would be admissible,

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and, for this purpose, it shall not be necessary to prove the

official position.

(7) Copies of or extracts from records furnished by the Registrar, instead

of being certified by him in writing to be an accurate record, may be sealed

with his official seal.

(8) Any person may require a Certificate of Registration of a Private Trust

Company, signed by the Registrar or authenticated by his official seal.

(9) No process for compelling the production of a record by the Registrar

shall issue from any court except with the leave of the Court, and any such

process shall bear on it a statement that it is issued with the leave of the

Court.

(10) Where−

(a) a person requires a copy of material on the Register under

subsection (3);

(b) that person expressly requests that the copy be certified as a

true copy; and

the Registrar’s certificate that the copy is an accurate record of the

contents of the original document shall be provided in accordance with

subsections (11) and (12).

(11) The certificate shall be authenticated by means of an electronic

signature which–

(a) is uniquely linked to the Registrar;

(b) indicates that the Registrar has caused it to be applied;

his sole control; and

(d) is linked to the certificate and to the copy provided under

subsection (3) in such a manner that any subsequent change of

the data comprised in either is detectable.

(12) For the purposes of this section, an “electronic signature” means data

in electronic form which is attached to or logically associated with other

electronic data and which serve as a method of authentication.

Application for registration.

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5.(1) A company that is desirous of operating as a Private Trust Company

under this Act may apply for registration by–

(a) submitting to the Registrar–

(i) a copy of its Memorandum of Association and Articles

of Association; and

(ii) an application form for registration as a Private Trust

Company in the form set out in Schedule 2 or such other

form as the Minister may by notice published in the

Gazette prescribe from time to time;

(b) paying to the Registrar the first registration fee specified in

Schedule 3; and

Compliance from the Registered Administrator pursuant to

section 9(3).

(2) Where the Registrar is satisfied that all the requirements of this Act in

respect of the registration of a Private Trust Company have been complied

with it shall register the Private Trust Company by entering its name on the

Private Trust Company.

(3) A Private Trust Company shall apply to the Registrar annually to

renew its registration as a Private Trust Company and the Registrar shall

renew the registration of that company as a Private Trust Company on–

(a) the receipt of a Declaration of Compliance from the

Registered Administrator pursuant to section 9(5) and;

(b) the payment of the annual registration fee specified in Schedule

(4) A company which–

(a) is registered as a Private Trust Company under subsection (2)

and (if applicable) has renewed its registration for the period of

operation under subsection (3); and

(b) complies with all the requirements of section 8(2) of this Act

shall be deemed not to be–

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(i) holding out as a professional trustee for profit or reward

for the purposes of paragraph 2 of Schedule 3 to the

1989 Act;

(ii) soliciting for business as a professional trustee for profit

or reward for the purposes of paragraph 2 of Schedule 3

to the 1989 Act; or

(iii) undertaking a Controlled Activity for the purposes of

Section 3 of and Schedule 3 to the 1989 Act.

Revocation, de-registration and restoration.

6.(1) The Registrar may by notice in writing revoke a Private Trust

Company’s registration as a Private Trust Company where–

(a) that Private Trust Company is found to be in contravention of

the provisions of section 8 of this Act; and/or

(b) the Private Trust Company fails to apply to renew its

registration as a Private Trust Company within thirteen (13)

months of registration under section 5(2) or its last renewal

under section 5(3) of this Act

upon which the name of the Private Trust Company shall be removed

from the Register.

(2) A person who is aggrieved by any decision made by the Registrar

under subsection (1) may make an application to the Registrar to restore the

company to the Register.

(3) An application made under subsection (2) must be accompanied by–

(a) an affidavit of–

(i) the applicant’s interest in the matter, and

(ii) a statement of the facts on which the application is

based;

(b) a Declaration of Compliance signed by the Registered

Administrator of the Private Trust Company; and

(4) In his discretion the Registrar may require that a person making an

application under subsection (1) give notice of that application (including

the facts on which the application is based and the relief sought) to such

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other person as the Registrar may specify, being a person who appears to the

Registrar to be concerned or to have an interest.

(5) On receipt of an application under subsection (2) the Registrar, if

satisfied that there are good grounds for restoration of the company to the

(6) Where an application to restore a company to the Register has been

made under subsection (2), in his discretion, the Registrar may refuse to

consider the application and require that the person by whom the application

was made apply to the Court for an order to restore the company.

(7) On an application to the Court under subsection (6), the Court may

refuse the application or order the Registrar to restore the company to the

(8) In any proceedings brought under subsection (6) the Court may

determine any question which may be necessary or expedient to decide in

connection with the restoration of the company to the Register.

(9) The Registrar shall be entitled to appear and be heard on any

application to the Court under subsection (6) and shall appear if so directed

by the Court.

(10) An order made by the Court under subsections (6) and/or (7) shall

direct that notice of the order shall be served on the Registrar in the

prescribed manner and, on receipt of the notice, the Registrar shall act

accordingly.

(11) A Private Trust Company may deregister as a Private Trust Company

by providing to the Registrar–

(a) written notice of its desire to deregister as a Private Trust

Company which such notice must be endorsed by the

Registered Administrator; and

(b) the Private Trust Company’s Certificate of Registration.

upon receipt of which the Registrar shall remove the name of

the Private Trust Company from the Register.

Registrar immunity.

7. The Registrar shall not be liable in damages for anything done or omitted

in the discharge or purported discharge of any powers or functions

conferred on the Registrar by this Act unless the act or omission is shown to

have been in bad faith.

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Requirements of Private Trust Companies.

8.(1) A company shall not be registered as a Private Trust Company under

this Act unless it–

(a) is incorporated under the Companies Act as–

(i) a private company limited by shares;

(ii) a private company limited by guarantee and not having a

share capital;

(iii) a private company limited by guarantee and having a

share capital;

(iv) a private unlimited company; or

(b) has established domicile in Gibraltar under Part XIII of the

Companies Act and Part I of the Companies (Re-

Domiciliation) Regulations 1996.

(2) A company registered as a Private Trust Company under this Act–

(a) shall ensure that, at all times, it has a Registered Administrator

in appointment;

(b) shall ensure that, at all times, its Registered Administrator

holds a valid Class VII Licence or a valid Class VIII Licence

and has its registered office in Gibraltar;

(i) solicit Trust Business or;

(ii) carry on any business other than Connected Trust

Business; or

(iii) carry on Connected Trust Business in respect of anyone

other than–

(a) the Designated Individual; or

(b) Connected Individuals of the Designated

Individual; or

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(iv) carry on any activity other than its Connected Trust

Business or any activity incidental to its Connected Trust

Business.

(3) If, subsequent to its appointment as the Registered Administrator of a

Private Trust Company, the Registered Administrator ceases to hold a valid

Class VII Licence or a valid Class VIII Licence, the Private Trust Company

may continue to undertake Connected Trust Business for a period of four

weeks following the date on which the Registered Administrator ceases to

hold a valid Class VII Licence or a valid Class VIII Licence during which

period the Private Trust Company shall–

(a) appoint a Registered Administrator holding a valid Class VII

Licence or a valid Class VIII Licence; and

may by notice published in the Gazette prescribe from time to

time for these purposes) of the change of Registered

Administrator and the change of registered office.

(4) A Private Trust Company shall notify the Registrar in writing (or in

any form as the Registrar may by notice published in the Gazette prescribe

from time to time for these purposes) of any change of Registered

Administrator.

(5) A Private Trust Company shall within ten (10) days of being so

requested by its Registered Administrator provide to it all information

which the Registered Administrator requires in order to enable the

Registered Administrator to discharge its obligations under this Act.

(6) A Private Trust Company shall ensure that–

(a) there is no provision under its Memorandum of Association or

Articles of Association which may cause or allow the Private

Trust Company to breach any of the provisions of this Act;

(b) it shall not conduct its operations in any manner inconsistent

with this Act.

(7) A Private Trust Company shall maintain at its registered office–

(a) a single Designating Instrument in the form specified in

Schedule 5 (or such other form as the Minister may by notice

published in the Gazette prescribe from time to time) which

identifies the individual who shall be the Designated Individual

in relation to that Private Trust Company; and

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(b) the trust deed and/or other document containing or recording

the trust and any deed instrument or document varying or

supplementing the trust in respect of each trust for which it

serves as trustee.

(8) In addition to all other requirements under this Act a Private Trust

Company shall hold at least one (1) meeting per calendar year at its

registered office where the Board of Directors and the Registered

Administrator shall be present.

(9) A Private Trust Company which acts in contravention of subsection

(2) of this section shall (subject to subsection (3)) be guilty of an offence

and shall–

(a) have its Certificate of Registration revoked and its name

removed from the Register under section 6(1); and

(b) be liable to punishment under section 12.

(10) A company which acts in contravention of any of the provisions of

this section other than the provisions of subsection (2) may have its

Certificate of Registration revoked and its name removed from the Register

under section 6(1).

Registered Administrator.

9.(1) No person other than a company holding a valid Class VII Licence or

a valid Class VIII Licence may act as a Registered Administrator of a

Private Trust Company.

(2) A company holding a valid Class VII Licence or a valid Class VIII

Licence shall not agree to act as the Registered Administrator of a Private

Trust Company unless–

(a) it is in possession of a copy of the Designating Instrument

identifying the individual who shall be the Designated

Individual in relation to that Private Trust Company’s

Connected Trust Business; and

(b) it has taken all reasonable steps to satisfy itself that the Private

Trust Company complies with section 8(2)(c).

(3) Upon being appointed Registered Administrator of a Private Trust

Company, the Registered Administrator shall as soon as is reasonably

practicable submit to the Registrar a Declaration of Compliance.

(4) A Registered Administrator shall at all times maintain at its registered

office a list of all Private Trust Companies for which it acts as Registered

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Administrator as well as copies of the following documents in relation to

each Private Trust Company for which it acts as Registered Administrator–

(a) Memorandum of Association and Articles of Association;

(b) Designating Instrument; and

containing or recording the trust in respect of every trust under

the Private Trust Company’s trusteeship.

(5) The Registered Administrator of a Private Trust Company shall on a

periodic basis take all reasonable steps to satisfy itself that the Private Trust

Company continues to comply with the requirements of section 8(2)(c) and

having so satisfied itself shall annually submit to the Registrar a Declaration

of Compliance.

(6) The frequency with which the Registered Administrator reviews the

compliance of a Private Trust Company with section 8(2)(c) shall be

determined by the Registered Administrator on the basis of its assessment of

the risk that the Private Trust Company may fail to comply with that section

provided that the Registered Administrator must satisfy itself that the

Private Trust Company is in compliance with the requirements of section

8(2)(c) of this Act immediately prior to its submission of a Declaration of

Compliance under subsections (3) and (5) of this section.

(7) Where the Registered Administrator of a Private Trust Company

discovers that the Private Trust Company has contravened any provision of

section 8(2)(c) or where the Private Trust Company fails to provide to the

Registered Administrator all the information which the Registered

Administrator has requested and requires in order to discharge its duties

under this Act and which the Private Trust Company is required to provide

to the Registered Administrator under section 8(5) the Registered

Administrator shall submit a report of non-compliance to the Registrar.

(8) The Registered Administrator shall submit the report of non-

compliance to the Registrar under subsection (7)–

(a) in cases where the Registered Administrator discovers that the

Private Trust Company has contravened a provision of section

6(2)(c) within seven (7) days of the discovery; and

(b) in cases where the Private Trust Company has failed to provide

to the Registered Administrator all the information which the

Registered Administrator has requested and which the Private

Trust Company is required to provide to the Registered

Administrator under section 8(5), within forty-five (45) days

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from the date on which the request for information was

received by the Private Trust Company.

(9) The Registrar may on receipt of the report of non-compliance

submitted by the Registered Administrator pursuant to subsections (7) and

(8) by notice in writing revoke a Private Trust Company’s registration as a

Private Trust Company under section 6(1) without further inquiry or

examination and remove the name of the Private Trust Company from the

(10) A person who is aggrieved by any decision made by the Registrar

under subsection (9) may appeal to the Court.

(11) The Registered Administrator shall within a period of five (5)

working days notify the Registrar in writing (or in any form as the Minister

may by notice published in the Gazette prescribe from time to time for these

purposes) of–

(a) any change to its registered office;

(b) its proposed retirement or resignation as Registered

Administrator of a Private Trust Company; or

VIII License or any variation or amendment to its Class VII

License or Class VIII License which it considers material to its

office as Registered Administrator of a Private Trust Company.

(12) A person who, whether by action or omission, contravenes

subsections (1), (2), (3), (4), (5), (7), (8) or (11) of this section is guilty of an

offence and is liable on conviction to the punishment set out in section 12 of

this Act.

Use of words “Private Trust Company”.

10.(1) Notwithstanding any provision of section 39 of the 1989 Act a

Private Trust Company may use the words “Private Trust Company” or the

letters “PTC” in the name by which the company is registered under the

Companies Act.

(2) A company shall not be registered under the Companies Act with the

words “Private Trust Company” or the letters “PTC” in the name of the

company unless that company is a Private Trust Company duly registered

under this Act.

(3) Where a Private Trust Company seeks to change the name of the

company it shall apply to the Registrar to do so and the Registrar may,

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subject to any conditions it may impose, consent to the change of name of

the Private Trust Company.

Disclosure of information.

11.(1) Subject to any provision in this Act to the contrary a person shall not

disclose any information relating to any application of a prospective Private

Trust Company or to the affairs of a Private Trust Company except when

authorised by the prospective Private Trust Company or the Private Trust

Company to do so or when lawfully required to do so by a court of

competent jurisdiction.

(2) Subsection (1) does not apply to a person carrying out any duty

imposed on him by the Income Tax Act or the Financial Services

(Information Gathering and Co-Operation) Act 2013 or the 1989 Act or

otherwise acting in pursuance of any international agreement to which

Gibraltar is a party.

Offences.

12. A person who is guilty of an offence under this Act is liable on

conviction to a fine not exceeding £25,000 or to a term of imprisonment not

exceeding six (6) months or to both.

Regulations.

13. The Minister may make regulations generally to give effect to this Act.

Amendment of Schedules.

14. The Minister may amend the Schedules by Order.

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SCHEDULE 1

CONNECTED INDIVIDUALS

1. For the purpose of this Act, the following persons shall be considered to

be a Connected Individual in relation to a Designated Individual–

(a) his/her spouse or civil partner; and

(b) the children and remoter issue of the Designated Individual and

his/her spouse or civil partner.

2. For any relationships listed in paragraph 1 that may be established by

blood that same relationship may also be established by adoption.

______________________

SCHEDULE 2

APPLICATION FORM FOR REGISTRATION OF A PRIVATE

TRUST COMPANY

1. Name of the private trust company:

2. Address of the registered office of the private trust company:

3. Names of the Directors of the private trust company:

4. Addresses of the Directors of the private trust company:

5. Name of the Registered Administrator of the private trust company:

6. Address of the Registered Administrator of the private trust company:

INSTRUCTIONS

This application form should be accompanied by:

(a) a copy of the certificate of incorporation under the Companies

Act in respect of the applicant company; and

(b) proof of payment of the appropriate registration fee.

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SCHEDULE 3

FEES

First registration fee 100

as a Private Trust Company

Annual registration fee

as a Private Trust Company 15

Change of name [

]

Restoration fee

of a company to the Register of Private Trust Companies

200

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SCHEDULE 4

DECLARATION OF COMPLIANCE

We, _______________________________, Registered Administrator of the

Private Trust Company, ________________________________ (the

“Company”), pursuant to section 9(3) / section 9(5) of the Private Trust

Companies Act 2015 (“the Act”), hereby declare that:

1. The Company is conducting only Connected Trust Business

and is not conducting or undertaking any other business.

2. The Company is not undertaking Connected Trust Business in

respect of anyone other than:

1. the Designated Individual; or

2. Connected Individuals of the Designated Individual.

3. The Company is not soliciting for Trust Business (as defined in

Section 2 of the Act).

We, _________________________, on the day of

20[ ], make this solemn declaration conscientiously believing it to

be true.

________________________________

Signed for and on behalf of the Registered Administrator

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SCHEDULE 5

DESIGNATING INSTRUMENT

[INSERT COMPANY NAME]

I, [INSERT DIRECTOR NAME], hereby confirm that in relation to

[INSERT COMPANY NAME], the Designated Individual pursuant to the

Private Trust Companies Act 2015 shall be:

[INSERT NAME OF DESIGNATED INDIVIDUAL].

Signed:

DIRECTOR