CRS Commentary on Financial Institutions Holding Equity Interests

This episode examines a pivotal provision in the CRS Commentary—paragraph 178 (Section VIII, C(4))—and its implications for trusts that qualify as Reporting Financial Institutions (FI-trusts).

The key issue:

When equity interests in an FI are held through a Custodial Institution, who reports?

📘 The CRS Commentary (p. 178, C(4) – Equity Interest)

Under the Commentary issued by the Organisation for Economic Co-operation and Development, paragraph 69 clarifies that:

In the case of a trust that is a Financial Institution, an “Equity Interest” is considered to be held by any person treated as a settlor or beneficiary of all or a portion of the trust, or by any other natural person exercising ultimate effective control over the trust.

This defines who holds an equity interest in an FI-trust.

Paragraph 70 then adds a critical allocation rule:

Where Equity Interests are held through a Custodial Institution, the Custodial Institution is responsible for reporting, not the Investment Entity.🧱 The Reporting Allocation Principle

The Commentary provides a concrete example:

• Reportable Person A holds shares in Investment Fund L

• A holds those shares in custody with Custodian Y

• Fund L is an Investment Entity (an FI)

• Custodian Y is a Custodial Institution (an FI)

Under the CRS:

• Fund L treats Custodian Y as its account holder

• Because Y is a Financial Institution, it is not a Reportable Person

• Therefore, L does not report

Instead:

• Custodian Y reports the shares it holds for A

• Reporting responsibility rests with the FI closest to the Reportable Person

This illustrates the “closest FI” principle and prevents duplication.

⚖️ The Interpretative Tension

The Commentary appears explicit:

• If equity interests are held through a Custodial Institution

• The Custodial Institution reports

• The upstream FI does not look through

Critics argue that requiring FI-trusts to look through **all entities—including non-reportable entities such as Custodial Institutions—**conflicts with:

• Paragraph 70 of the Commentary

• The non-reportable status of Financial Institutions

• The structural allocation of reporting responsibility

Supporters may argue that broader transparency objectives justify expanded look-through in certain contexts.

🎯 Why This Matters

This debate is not theoretical. It affects:

• Whether FI-trusts must look through FI equity holders

• Whether Financial Institution status functions as a reporting “blocker”

• The risk of duplicate or redundant reporting

• Consistency between CRS text and administrative interpretation

At its core, the Commentary example reinforces a structural rule:

When an equity interest is held through a Custodial Institution, reporting responsibility rests with that Custodial Institution—not the upstream FI.

Understanding this allocation principle is critical for trustees, compliance officers, and cross-border advisors navigating divergent national interpretations.