How to create a Compliance Program ?

A Compliance Program (CP) is a manual that contains the internal policies and procedures of a listed business. The Know Your Customer (KYC) forms are attached as appendices to the compliance program.

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What are the key elements of a Compliance Program?

The staring point is that there must be a risk based approach in the Anti-Money Laundering (AML) Compliance Program.

The four (4) pillars of an effective Anti-Money Laundering (AML) Compliance Program are:

  1. The development of internal policies, procedures, and related controls;
  2. The designation of a competent and qualified Compliance Officer;
  3. Ongoing AML training for all staff, directors of the listed business;
  4. Independent review of the Compliance Framework by a competent and qualified AML auditor.

Yes we create Compliance Programs!!

The author is the first Online Lawyer based in Trinidad and Tobago. She specialises in Anti-Money Laundering Compliance.

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Anti-Money Laundering (AML) Training for staff, directors;

Anti-Money Laundering Audits;

Compliance Program drafting;

Consulting services and much more.

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Ebooks on Sale:

How to Register a Sole Trader;

How to De-Register a Sole Trader;

How to Register a Partnership;

How to Change from a Sole Trader to a Limited Liability Company Trinidad;

How to Dissolve a Limited Liability Company.

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What does PEP mean? AML Compliance Consultants

PEP is an acronym for Politically Exposed Person. The FATF Recommendations require the application of additional CDD to business relationship with PEPs due to the potential risk associated with PEPs.

This does not only refer to politicians but there are different categories of PEPs:

Category 1Foreign PEP;

Category2- Domestic PEP;

Category #3 -International Organizations;

Category #4-Immediate Family Category # 5- Close associate

The author is the first Online Lawyer  based in Trinidad and Tobago. She specialises in Anti-Money Laundering Compliance.

She is a Certified Professional in the following areas:

Anti-Money Laundering and Financial Crimes;

Taxation;

Corporate Training;

Fraud Risk Management;

Graphic Design.

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How to conduct EDD on PEPS? AML Compliance Consultants

The following steps are required to conduct Enhanced Due Diligence (EDD) on Politically Exposed Persons (PEPS):

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  1. Ensuring that appropriate risk-management systems are in place to determine whether the customer or the beneficial owner is a PEP, or immediate family member or close associate of a PEP (Reg. 20 (2);
  2. Obtaining senior management approval BEFORE establishing (continuing, for existing customers) the business relationship (Reg 20 (4);
  3. Ensuring that reasonable measures are taken to determine the source of wealth and source of funds (Reg. 20 (5); and
  4. Conducting enhanced on-going monitoring of the business relationship (Reg. 20 (5).

The author is an attorney at law based in Trinidad . She specialises in Anti Money Laundering and Fraud and Risk Management.

Website : http://asydneygroup.com

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Are Lawyers required to comply with the Financial Intelligence Unit (FIU) in Trinidad and Tobago?:AML Compliance Consultants

According to the CFATF Mutual Evaluation Report June 2016 “there is no evidence that the legal profession complies with AML/CFT measures in Trinidad and Tobago. This is a serious deficiency having regard for the significant role played by these professional as financial intermediaries (gatekeepers) in introducing and facilitating such a large percentage of financial transactions”.

Gatekeepers are professionals who can facilitate the entry of illicit money into the financial system . These professionals include: Accountants, Auditors, Lawyers, Notaries, Company Formation Agents.

In AML CFT terminology, lawyers fall under the umbrella term DNFB-Designated Non Financial Businesses and Professions.

The First Schedule of the Proceeds of Crime Act (POCA) captures lawyers as listed businesses but states that the lawyer is only accountable when performing the following functions on behalf of a client:

a)Buying and selling real estate;

b)Managing of client money, securities and other assets;

c)Management of banking, savings or securities and other assets;

d)Organization of contributions for the creation, operation or management of companies;

e)Creation, operation or management of legal persons or arrangements, and buying and selling of business entities.

Lawyers are susceptible to being used as a conduit to money launderers to facilitate their nefarious purposes.1

It is therefore imperative that local attorneys understand their AML/CFT obligations and comply with the FIU to safeguard their practice and to retain their reputation.

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Which lawyers are at risk?

Sole practitioners, small firms and large firms are all plagued by the risk of being used by money launderers and perpetrators of other financial crimes. A risk assessment ought to be conducted to ensure that measures are put in place that are commensurate with the risks posed by the customer.

What are attorneys required to do?

  • Register with the FIU;
  • Create a Compliance Program;
  • Appoint a Compliance Officer;
  • Submit a Fit and Proper Form for the Compliance Officer to be approved by the FIU;
  • Train staff on the Compliance Program;
  • Receive internal suspicious activity and transaction memos from staff;
  • Report Suspicious Activity in the SAR/STR to the FIU;
  • Undergo Continuous training;
  • Conduct an annual internal review of the Compliance Program;
  • Conduct annual external review of the Compliance Program.

How do money launderers use the legal and professional services  law firms and sole practitioners to launder their funds?

  • Creating corporate vehicles and complex legal entities such as trusts. These obscure the links between the proceeds of crime and the perpetrator.2
  • Buying and selling property can be used in the layering stage, or in the integration stage where the asset is purchased and retained.3
  • Performing financial transactions on behalf of a client (making deposits, issuing cheques, making and receiving wires, buying and selling stock).4
  • Providing financial and tax advice. Criminals may pose as wealthy individuals who need help sheltering wealth from tax.5

The issue of lawyers  providing advice to their client is controversial, as they have a confidential relationship with their clients.6

According to the CFATF Mutual Evaluation Report June 2016 at paragraph 260 “Financial Institutions (FIs) have indicated that they have particular concerns with doing business with real estate entities and lawyers that buy and sell real estate due to concerns that there is inadequate AML/CFT understanding and application of the requirements such as CDD”.

The Evaluators at paragraph 282 of the MER requested that there be collaboration between the FIU and the Law Association to make the legal fraternity aware the AML/CFT legislative requirements as well as their obligations to implement these requirements.

The Evaluators noted at paragraph 317 of the MER that there appears to be a gap in the registration of lawyers. The majority of lawyers opined that they did not qualify for inclusion as a listed business since their services did not fall withAre Lawyers required to comply with Financial Intelligence Unit (FIU) in Trinidad and Tobago? clearly identify who should be registered.

Penalties

For the offence of Money Laundering, the penalty :

  • On summary conviction,  is  a fine of $10M & to imprisonment for 10 years
  • On Indictment, to a fine of $25M & to imprisonment for 15 years under POCA, S 53 (1)

For the offence of the Financing of Terrorism the penalty,

  • On conviction on indictment for  Individuals $5M & 25 years imprisonment;
  • On summary conviction Legal entities $5M & 5 years imprisonment  under Anti Terrorism Act s 22 A (3) (4) .

When must legal practitioners conduct Customer Due Diligence(CDD)?

When the services provided to the client falls under those services described in the First Schedule of the POCA. This CDD must be applied on a risk sensitive basis when lawyers  establish a “business relationship” with a client, when attorneys carry out an occasional transaction, when they suspect money laundering, when they suspect terrorist financing or when they doubt the veracity of identification documents.7

When must legal practitioners conduct Enhanced Due Diligence (EDD)?

For ongoing matters that present a higher risk of money laundering or terrorist financing, where the client has not been physically present for identification purposes or where the client is a Politically Exposed Person (PEP).8

Kevin Shepherd back in 2002 stated that “Some believe that the special relationship between lawyers and their clients gives lawyers an early inside view into crimes that could make their insights invaluable in the war on domestic and international criminal activity.”9

Lawyers as gatekeepers must start the Know Your Customer (KYC) process. “There is just no other current way of ensuring that the information an Financial Institution (FI) receives is not just a big cobweb of complexities created by a lawyer, helping the customer protect personal identification and corporate ownership information”.10

The time is coming when lawyers will be closely observed by the regulators as powerful and effective gatekeepers. Please get your affairs in order.

The author is an internationally certified Anti Money Laundering specialist and  attorney at law in Trinidad .

Please see the website : http://asydneygroup.com

For a quotation Call/Whatsapp 868 373-1166

Services:

AML Audits;

AML Training;

Compliance Programs;

Consulting

References

1 – http://www.telegraph.co.uk/money/criminal-activities/anti-money-laundering-solicitors-front-line-defence

2- 6 http://aml-expert.com/study-notes/Gatekeepers:_Accountants_Auditors_Lawyers_Notaries_Company_Formation_Agents

7-8 https://www.niceactimize.com/blog/Regulation-of-UK-lawyers-as-gatekeepers-for-AML-538

9-10 http://www.cypressresources.com/blog/aml-gatekeepers-engage

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Updated 19th June 2019

PEP Talk: Why do Financial Institutions ask if you are a Politically Exposed Person (PEP):AML Compliance Consultants

Do you recall being asked whether you are a Politically Exposed Person (PEP) on an application form to open a new deposit account with your financial institution? Welcome to the club! I erroneously interpreted this question as the bank’s attempt to determine my political alignment. Knowledge has since found me and enlightened me. I have been forgiven of my blissful ignorance and I am not afraid to tell you about the good news of the banks’ rationale in seeking to determine whether a potential customer is a PEP.

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What are PEPs?

Politically Exposed Persons (PEPs) are those individuals presently or formerly holding a powerful local or foreign public position, and family members and close associates of that individual.[1]

PEPS are classified according to the potential risks involved[2].

High Risk – Level 1 PEPs

Heads of state and government;

Members of government (national and regional);

Members of Parliaments (national and regional);

Heads of military, judiciary, law enforcement and board of central banks;

Top ranking officials of political parties.

Medium-High Risk – Level 2 PEPs

Senior officials of the military, judiciary, and law enforcement agencies;

Senior officials of other state agencies and bodies and high ranking civil servants;

Senior members of religious groups;

Ambassadors, consuls, high commissioners.

Medium Risk – Level 3 PEPs

Senior management and board of directors of state-owned businesses and organisations – e.g. Chairman of a Bank

Low Risk – Level 4 PEPs

Mayors and members of local county, city and district assemblies

Senior officials and functionaries of international or supranational organisations

Why are PEPs high risk clients to a Financial Institution?

PEPs are potential targets for bribes due to their prominent position in public life. They have a higher risk of corruption due to their access to state accounts and funds[3]. The FIU has warned that it is not to be assumed that all PEPs are involved in criminal activity. Not all PEPs have acquired wealth through illicit means; many entered public life with a substantial net worth. Not all PEPs are corrupt, but they are vulnerable to bribery and corruption at hands of well dressed criminal elements desirous of furthering their nefarious  activities. PEPs are in envious positions to award lucrative contracts and many criminals long for such friends in high places. PEPs pose a substantial risk to the financial institutions and FATF[4] issued guidelines on dealing with same.

PEPs and Money Laundering

Corrupt PEPs may abuse their power and exploit the regulatory difference between jurisdictions to facilitate the laundering of corruption proceeds and/or illegally diverted government, supranational or aid funds[5].

How do Financial Institutions combat money laundering risks posed by PEPs?

Financial Institutions ought to regularly monitor PEPs.

Guidance on dealing with PEPs[6]

Recommended actions institutions should take:

Identify the PEP from within the customer base;

Identify the country associated with the PEP;

Identify the type of business, industry, personal financial situation of the PEP (this is basic Know Your Customer information);

Identify the PEP’s affiliations, employment, associations, etc. Develop a profile of the PEPs transactions;

Determine if the transactions are as expected by comparing the actual transactions to what is known about the PEP;

Identify and investigate transactions that are outside the norm, or which are high-risk.

General Guidelines on dealing with Foreign PEPs[7]

With respect to foreign PEPs ,the financial institution must perform Enhanced Due Diligence (EDD) on same and  monitor the activities of the foreign PEP  to understand the following:

Source of Funds;

Source of Wealth;

Transactions;

Differences in sums actual deposited compared to expected sums.

In closing, I hope that you in turn spread the wonderful news about the banks’ reasoning behind asking whether a customer is a PEP . That’s all for PEP Talk people.

The author is an attorney at law based in Trinidad. She has specialized in Anti Money Laundering and Fraud Risk Management.. Please call 868 373-1166 for a Consultation. Website http://asydneygroup.com

Services;

AML Training;

AML Audits;

AML Consulting;

Compliance Program

Sources:

[1]https://www.lexisnexis.com/legalnewsroom/taxlaw/b/federaltaxation/archive/2014/05/21/politically-exposed-persons-peps.aspx#sthash.agZvV1eB.dpuf

[2] https://complyadvantage.com/fatf-definition-of-pep/

[3] http://www.aic.gov.au/publications/current%20series/tandi/381-400/tandi386.html

[4] http://www.fatf-gafi.org/media/fatf/documents/recommendations/Guidance-PEP-Rec12-22.pdfhas

[5] http://www.aic.gov.au/publications/current%20series/tandi/381-400/tandi386.html

[6]http://www.bankinfosecurity.com/politically-exposed-persons-tips-for-how-financial-institutions-should-handle-a-873

[7]http://www.bankinfosecurity.com/politically-exposed-persons-tips-for-how-financial-institutions-should-handle-a-873