PROCEEDS OF CRIME (BUSINESS IN THE REGULATED SECTOR) ORDER 2015

Transcription

1 Proeeds of Crime (Business in the Regulated Setor) Order 2015 Artile 1 Statutory Doument No. 2015/0073 Proeeds of Crime At 2008 PROCEEDS OF CRIME (BUSINESS IN THE REGULATED SECTOR) ORDER 2015 Approved by Tynwald: 17 Marh 2015 Coming into Operation: 1 April 2015 The Department of Home Affairs makes the following Order under paragraph 3 of Shedule 4 to the Proeeds of Crime At Title This Order is the Proeeds of Crime (Business in the Regulated Setor) Order Commenement If approved by Tynwald, this Order omes into operation on 1 April Amendment of Shedule 4 to the Proeeds of Crime At 2008 For paragraph 1 (business in the regulated setor) of Shedule 4 to the Proeeds of Crime At 2008 substitute the text set out in the Shedule to this Order. 4 Revoation The Proeeds of Crime (Business in the Regulated Setor) Order 2013 is revoked. 2 1 Tynwald approval is required by setion 223 of the Proeeds of Crime At SD 2013/0097. SD No. 2015/0073 Page 1

2 Artile 4 Proeeds of Crime (Business in the Regulated Setor) Order 2015 MADE 17 FEBRUARY 2015 JUAN WATTERSON Minister for Home Affairs Page 2 SD No. 2015/0073

3 Proeeds of Crime (Business in the Regulated Setor) Order 2015 SCHEDULE SCHEDULE [Artile 3] AMENDMENT OF SCHEDULE 4 TO THE PROCEEDS OF CRIME ACT 2008 «1 Business in the regulated setor (1) A business is in the regulated setor to the extent it onsists of () (d) (e) (f) (g) business arried on by a building soiety within the meaning of setion 7 of the Industrial and Building Soieties At 1892; business arried on by a soiety (other than a building soiety or redit union) registered under the Industrial and Building Soieties At 1892; any ativity arried on for the purpose of raising money authorised to be borrowed under the Isle of Man Loans At 1974; the business of an estate agent within the meaning of the Estate Agents At 1975; the provision by way of business of audit servies in respet of a body orporate; the business of an external aountant, where external aountant means any person who, by way of business, provides aountany servies to third parties. However, external aountant does not inlude aountants employed by (i) publi authorities; or undertakings whih do not by way of business provide aountany servies to third parties; and, for the avoidane of doubt, does not inlude an employed person whose duties relate solely to the provision of aountany servies to his or her employer; any ativity whih is speified in sub-paragraph (h) that is undertaken by (i) an advoate within the meaning of the Advoates At 1976; (iii) (iv) a registered legal pratitioner within the meaning of the Legal Pratitioners Registration At 1986; a notary publi within the meaning of the Advoates At 1995 and the Notaries Regulations ; or any other legal professional who by way of business provides legal servies to third parties, 3 SD 671/00 as amended by SD 0850/02. SD No. 2015/0073 Page 3

4 SCHEDULE Proeeds of Crime (Business in the Regulated Setor) Order 2015 exept for any suh persons who are employed by publi authorities or undertakings whih do not by way of business provide legal servies to third parties; (h) when undertaken by a person referred to in subparagraph (g) (i) managing any assets belonging to a lient; the provision of legal servies whih involves partiipation in a finanial or real property transation (whether by assisting in the planning or exeution of any suh transation or otherwise) by ating for, or on behalf of, a lient in respet of (A) (B) the sale or purhase of land; managing bank, savings or seurity aounts; (C) organising ontributions for the promotion, formation, operation or management of bodies orporate; (D) (E) the sale or purhase of a business; or the reation, operation or management of a legal person or legal arrangement; (i) insurane business within the meaning of the Insurane At 2008; (j) (k) (l) (m) (n) (o) (p) (q) the business of ating as an insurane manager for or in relation to an insurer within the meaning of the Insurane At 2008; the business of insurane intermediary within the meaning of the Insurane At 2008; any ativity permitted to be arried on by a liene holder under a asino liene granted under the Casino At 1986 or on premises in respet of whih a temporary premises ertifiate is in issue under Part IIA of that At; a olletive investment sheme within the meaning of setion 1 of the Colletive Investment Shemes At 2008; the business of a bookmaker within the meaning of the Gaming, Betting and Lotteries At 1988; the business of providing online gambling within the meaning of setion 1 of the Online Gambling Regulation At 2001; the business of engaging in any regulated ativity within the meaning of the Finanial Servies At 2008; investment business within the meaning of setion 3 of the Finanial Servies At 2008 and Class 2 of Shedule 1 to the Regulated Ativities Order whether or not exlusions or 4 SD 0884/11 as amended by SD 0373/13. Page 4 SD No. 2015/0073

5 Proeeds of Crime (Business in the Regulated Setor) Order 2015 SCHEDULE (r) (s) (t) (u) (v) (w) (x) (y) (z) (aa) (bb) () (dd) (ee) exemptions ontained within the Order or the Finanial Servies (Exemptions) Regulations apply; orporate servies or trust servies within the meaning of setion 3 of the Finanial Servies At 2008 and Classes 4 and 5 of Shedule 1 to the Regulated Ativities Order 2011 whether or not exlusions or exemptions for that lass ontained within the Order or the Finanial Servies (Exemptions) Regulations 2011 apply; deposit taking within the meaning of setion 3 of the Finanial Servies At 2008 and Class 1 of Shedule 1 to the Regulated Ativities Order 2011 whether or not exlusions or exemptions for that lass ontained within the Order or the Finanial Servies (Exemptions) Regulations 2011 apply; business arried on by a soiety registered as a redit union within the meaning of the Credit Unions At 1993; ating as a retirement benefits shemes administrator within the meaning of Part 6 of the Retirement Benefits Shemes At 2000; ating by way of business as the trustee of a retirement benefits sheme within the meaning of the Retirement Benefits Shemes At 2000; any ativity arried on for the purpose of raising money by a loal authority; the business of a bureau de hange; the business of the Post Offie in respet of any ativity undertaken on behalf of the National Savings Bank; any ativity involving money (inluding any representation of monetary value) transmission servies or heque enashment failities; the provision of safe ustody failities for ash or liquid seurities on behalf of other persons; the business of dealing in goods of any desription (inluding dealing as an autioneer) whenever a transation involves aepting a total ash payment of euro 15,000 or more; administering or managing money on behalf of other persons; servies to olletive investment shemes as defined in setion 3 of the Finanial Servies At 2008 and Class 3 of Shedule 1 to the Regulated Ativities Order 2011 whether or not exlusions or exemptions for that lass ontained within the Order or the Finanial Servies (Exemptions) Regulations apply; any business involving the issuing and managing of means of payment (inluding but not limited to redit and debit ards, 5 SD 0885/11 as amended by SD 0374/13. 6 SD0885/11. SD No. 2015/0073 Page 5

6 SCHEDULE Proeeds of Crime (Business in the Regulated Setor) Order 2015 (ff) (gg) (hh) (jj) (kk) (ll) heques, traveller s heques, money orders, bankers drafts and eletroni money); subjet to paragraph (4), the business of lending inluding, but not limited to, onsumer redit, mortgage redit, fatoring and the finane of ommerial transations in respet of produts other than onsumer produts for and on behalf of ustomers; subjet to paragraph (4), the business of providing finanial leasing arrangements in respet of produts other than onsumer produts for and on behalf of ustomers; subjet to paragraph (4), the business of providing finanial guarantees and ommitments in respet of produts other than onsumer produts for and on behalf of ustomers; subjet to paragraph (5), the provision of safe ustody failities, deposit boxes or other seure storage failities suitable for highvalue physial items or assets, jewellery, preious metals and stones, bullion or douments of title; the business of a tax adviser as defined by the Inome Tax At 1970; the ativity of a speified non-profit organisation; the business of a payroll agent; (mm) the business of issuing, transmitting, transferring, providing safe ustody or storage of, administering, managing, lending, buying, selling, exhanging or otherwise trading or intermediating onvertible virtual urrenies, inluding rypto-urrenies or similar onepts where the onept is aepted by persons as a means of payment for goods or servies, a unit of aount, a store of value or a ommodity; (nn) the business of selling or supplying ontrolled mahines within the meaning of the Gaming (Amendment) At (2) A business is not in the regulated setor by reason of the provisions of subparagraph (1)(h)(i) in relation to managing any assets belonging to a lient where those assets only represent advane payment of fees. (3) A business is not in the regulated setor by reason of the provisions of subparagraphs (1)(p) or (r) in relation only to the servie of the onveyane of letters, douments or parels or ommuniation by post or any other means. (4) A business is not in the regulated setor by reason only of the provisions of subparagraphs (1)(ff), (gg) or (hh) if the lending, leasing or provision of guarantees or ommitments (as the ase may be) is made by a parent undertaking to a subsidiary of that parent undertaking; a subsidiary of a parent undertaking to the parent undertaking; or Page 6 SD No. 2015/0073

7 Proeeds of Crime (Business in the Regulated Setor) Order 2015 SCHEDULE () a subsidiary of a parent undertaking to another subsidiary of that parent undertaking. (5) A business is not in the regulated setor by reason only of the provisions of subparagraph (1) if the servies provided are () (d) (e) the storage of goods suh as luggage, household items or motor vehiles; the storage of non-physial property suh as omputer data; the seure transportation of high value items; the offering of safe ustody on an oasional or very limited basis, suh as hotels providing a safe for use by guests; or legal professionals storing legal douments other than douments of title. (6) For the purposes of subparagraph (1) higher risk jurisdition is a jurisdition whih the business in the regulated setor determines presents a higher risk of money laundering, the finaning of terrorism or of proliferation having onsidered any relevant guidane; payroll agent is a person that is involved with the payment of earnings to or for the benefit of any individual, where the payroll agent is not that individual s employer, but does not inlude servies provided by tehnial servie providers, whih support the provision of payment servies, without the tehnial servies provider entering at any time into possession of the funds to be transferred; speified non-profit organisation means a body orporate or other legal person, the trustees of a trust, a partnership, other uninorporated assoiation or organisation or any equivalent or similar struture or arrangement, established solely or primarily to raise or distribute funds for haritable, religious, ultural, eduational, politial, soial or fraternal purposes with the intention of benefiting the publi or a setion of the publi and whih has an annual or antiipated annual inome of 5,000 or more; and remitted, or is antiipated to remit, at least 30% of its inome in any one finanial year to one or more ultimate reipients in or from one or more higher risk jurisditions; tehnial servie provider means a person that supports the provision of payment servies by providing servies inluding (but not limited to) servies of the following kinds, but that does not, at any time, possess the funds to be transferred () the proessing and storage of data; trust and privay protetion servies; data and entity authentiation; SD No. 2015/0073 Page 7

8 SCHEDULE Proeeds of Crime (Business in the Regulated Setor) Order 2015 (d) (e) information tehnology and ommuniation network provision; and the provision and maintenane of terminals and devies used for payment servies. (7) For the purposes of subparagraph (4) parent undertaking means an undertaking whih, in relation to another undertaking (a subsidiary ) () (d) owns or ontrols, whether diretly or indiretly, shares or other interests in the subsidiary together aggregating in exess of 50 per ent of the votes exerisable at general or other meetings of the subsidiary on any or all matters; has a right to appoint or remove a majority of its board of diretors, or other governing body; has the right to exerise a dominant influene over the subsidiary (i) by virtue of the provisions ontained in the subsidiary s onstitutional douments, or by virtue of a ontrol ontrat; or ontrols, alone or pursuant to an agreement with other persons, a majority of the voting rights in the subsidiary; and undertaking means a natural person, body orporate, trustees of a trust, partnership, foundation or uninorporated assoiation. (8) For the purpose of subparagraph (7) () an undertaking is taken to have the right to exerise a dominant influene over another undertaking only if it has a right to give diretions with respet to the operating and finanial poliies of that other undertaking with whih its diretors are, or governing body is, obliged to omply whether or not they are for the benefit of that other undertaking; a ontrol ontrat means a ontrat in writing onferring a dominant influene right whih (i) is of a kind authorised by the onstitutional douments of the undertaking in relating to whih the right is exerisable; and is permitted by the law under whih that undertaking is established; and any undertaking whih is a subsidiary of another undertaking is also a subsidiary of any further undertaking of whih that other is a subsidiary.». Page 8 SD No. 2015/0073

9 Proeeds of Crime (Business in the Regulated Setor) Order 2015 Explanatory Note EXPLANATORY NOTE (This note is not part of the Order) This Order replaes paragraph 1 of Shedule 4 to the Proeeds of Crime At 2008 (the At). That paragraph sets out the list of businesses that are businesses in the regulated setor for the purposes of the At. The substituted paragraph 1 updates the list to ensure that all relevant businesses are subjet to the anti-money laundering and ontrol of terrorist finaning provisions of the At. The main hange made in the substituted paragraph 1 is the inlusion of ertain ategories of business that pose a higher potential money laundering and terrorist finaning risk. This hange will aid the Island in meeting its obligations under international requirements. SD No.2015/0073 Page 9