Coming January 1, 2024: The Corporate Transparency Act Goes into Effect

The new year brings a paradigm shift in corporate transparency with new regulations to curb illegal activities like money laundering, corruption, fraud, and terrorism financing. Under the Corporate Transparency Act (CTA), effective January 1, 2024, smaller and previously unregulated companies will have to provide more information about owners. That will make it more difficult for bad actors to hide in the shadows of seemingly legitimate companies.

CTA reporting requirements will be phased in with deadlines based on when entities were formed. All companies should be aware of what is required and determine whether they are exempt.

What is the CTA?

The Corporate Transparency Act (CTA), enacted as part of the National Defense Authorization Act in 2021, introduces significant changes to the financial legal landscape, primarily aimed at preventing money laundering through the illicit use of anonymous shell companies. The CTA’s goal is to lift the veil of anonymity shrouding many legitimate business entities in the U.S. that has historically been exploited, with alarming frequency, by criminals, tax evaders, and money launderers to hide their identities and illegal activities.

To shed light on such identities, the CTA imposes new requirements on corporations, LLCs, and similar entities to disclose their beneficial owners to the Financial Crimes Enforcement Network (FinCEN) of the U.S. Department of Treasury. By requiring the disclosure of beneficial owners, the CTA strives to enhance the transparency of business entities and enable law enforcement and other authorities to better track and combat illicit financial activities.

Why is it Happening?

The United States has faced international criticism for being a haven for anonymous shell companies even as it wields its own influence. The CTA brings the U.S. in line with coalescing international standards for financial transparency, improving its global reputation and compliance with international anti-money laundering guidelines.

Congress hopes the implementation of this Act will prevent the misuse of corporate structures for illicit purposes and align the U.S. with global standards in financial transparency. The opacity of corporate structures has long been exploited for illicit activities. By mandating transparency in entity ownership, the CTA aims to make it more difficult for individuals to use American entity structures for illegal purposes like money laundering, fraud, and financing terrorism. Further, law enforcement agencies, armed with tools to investigate and combat illegal activities, will be provided access to the beneficial ownership information crucial in tracing assets and uncovering the individuals behind suspect entities.

While the CTA imposes new compliance obligations on businesses, the overall intent is to fortify the integrity and transparency of the U.S. financial and corporate systems by helping financial institutions better understand those with whom they are doing business. Thus, the CTA can be viewed as partnering in compliance with existing know-your-customer (KYC) and anti-money laundering (AML) regulations.

What Type of Entities Does the CTA Apply To?

“Reporting companies” including corporations, limited liability companies, limited liability partners, limited partnerships, and similar entities created “by the filing of a document with the secretary of state or any similar office under the state,” as well as foreign entities registered to do business in the U.S. must prepare a beneficial ownership information (BOI) report under the CTA.

However, if the entity did not file “a document with the secretary of state”, then it is not required to report. General partnerships formed in states that do not require a filing with the secretary of state will not be considered a “reporting company” for purposes of the CTA. Further, in most states, a trust can be formed without filing a document with the secretary of state; provided, however, some trusts such as statutory trusts (such as Delaware Statutory Trusts) are required to file a document with the state in which they are formed and therefore will be required to report to FinCEN.

What Entities are Exempt from the CTA?

There are 23 types of exemptions from the reporting requirements including:

• 1) Large operating company
  • Entities meeting specific criteria regarding employees (more than 20 full-time U.S. employees – not counting employees of affiliated entities), physical office presence (have an operating presence in the U.S.), and gross receipts in the U.S (reported more than $5 million of revenue from U.S. sources on a consolidated basis to the IRS for the previous year).
• 2) Securities reporting issuer
  • Issuers of securities registered under the Securities Exchange Act of 1934 or required to file supplementary and periodic information under the same Act.
• 3) Governmental authority
  • Entities established under U.S. laws, including those of Indian tribes, states, political subdivisions, or interstate compacts, exercising governmental authority.
• 4) Bank
  • Banks as defined in various sections of the Federal Deposit Insurance Act, Investment Company Act of 1940, and the Investment Advisers Act of 1940.
• 5) Credit Union
  • Federal or state credit unions as defined in the Federal Credit Union Act.
• 6) Depository institution holding company
  • Bank holding companies as defined in the Bank Holding Company Act of 1956 or savings and loan holding companies as per the Home Owners’ Loan Act.
• 7) Money services business
  • Money transmitting businesses registered with FinCEN and money services businesses registered under certain codes.
• 8) Broker or dealer in securities
  • Brokers or dealers registered under the Securities Exchange Act of 1934.
• 9) Securities exchange or clearing agency
  • Exchanges or clearing agencies registered under specific sections of the Securities Exchange Act of 1934.
• 10) Other Exchange Act registered entity
  • Entities other than those in exemptions 1, 7, or 8 registered with the SEC under the Securities Exchange Act of 1934.
• 11) Investment company or investment advisor
  • Entities that are investment companies or advisers and are registered with the SEC.
• 12) Venture capital fund advisor
  • Investment advisers described in the Investment Advisers Act of 1940 and have filed specific items with the SEC.
• 13) Insurance company
  • Insurance companies as defined in the Investment Company Act of 1940.
• 14) State-licensed insurance producer
  • Insurance producers authorized by a state and having an operating presence in the U.S.
• 15) Commodity Exchange registered entity
  • Entities defined in the Commodity Exchange Act or registered with the Commodity Futures Trading Commission.
• 16) Accounting firm
  • Public accounting firms registered as per the Sarbanes-Oxley Act of 2002.
• 17) Public utility
  • Regulated public utilities providing specific services within the U.S.
• 18) Financial market utility
  • Financial market utilities designated by the Financial Stability Oversight Council.
• 19) Pooled investment vehicle
  • Vehicles operated or advised by persons described in exemptions 3, 4, 7, 10, or 11.
• 20) Tax-exempt entity (nonprofit entities, political organizations and certain tax-exempt trusts)
  • Entities described in specific sections of the Internal Revenue Code and are tax-exempt.
• 21) Entity assisting a tax-exempt entity
  • Entities operating exclusively to provide financial assistance to, or hold governance rights over, tax-exempt entities.
• 22) Subsidiary of certain exempt entities
  • Entities controlled or wholly owned by entities described in various exemptions.
• 23) Inactive entity
  • Any entity that (a) was in existence on or before January 1, 2020, (b) is not engaged in active business, (c) is not owned, directly or indirectly, wholly or partially, by a foreign person, (d) has not sent or received more than $1,000 in the preceding twelve months, and (f) does not hold any assets.

If CTA Applies, What Needs to be Reported?

Under the CTA, a reporting company filing its initial beneficial ownership report must include the following:

• Reporting company’s full legal name.
• Any fictitious, d/b/a, and/or trade name.
• Complete current address.
• State or jurisdiction of reporting company’s formation.
• Reporting company’s taxpayer identification number (TIN) (including an employer EIN number) or where a foreign reporting company that does not have a TIN, a tax identification number issued by a foreign jurisdiction and the name of such foreign jurisdiction.
• Each beneficial owner of the reporting entity and the following information regarding such beneficial owner:
  • Full legal name
  • Date of birth
  • Residential street address
  • A unique identifying number (which may be a non-expired US passport, non-expired identification document such as a driver’s license, issued by a state, local government or Indian tribe, or a non-expired passport issued by a foreign government).
  • Image file of the document that provides the unique identifying number.

FinCEN defined “beneficial owner” as any individual who, directly or indirectly, either (a) exercises substantial control over the reporting company or (b) owns or controls at least 25 percent of the ownership interests of the reporting company. 

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An individual is a “beneficial owner” for purposes of the CTA if the individual meets either (a) the 25% ownership test or (b) the “substantial control” test, each as discussed in greater detail below.

25% Ownership Test

FinCEN provides several rules for calculating whether an individual owns or controls at least 25% of the ownership interests of a reporting company to assist in calculation of ownership interests.

In calculating ownership interests of a reporting company, the following rules apply for purposes of the CTA analysis:

• Calculate on a Fully-Diluted Basis.
  • Ownership interests of the individual shall be calculated on a fully diluted basis, with any options or convertible securities being treated as exercised.
• Tax Partnerships Measured as a Percentage of Outstanding Capital and Profits.
  • For reporting companies that issue capital or profit interests (including entities treated as partnerships for federal income tax purposes), the individual’s ownership interests are the individual’s capital and profit interests in the entity, calculated as a percentage of the total outstanding capital and profit interests of the entity.
• Corporate Ownership Rule.
  • For corporations, entities treated as corporations for federal income tax purposes, and other reporting companies that issue shares of stock, the applicable percentage shall be the greater of:
    • the total combined voting power of all classes of ownership interests of the individual as a percentage of total outstanding voting power of all classes of ownership interests entitled to vote; or
    • the total combined value of the ownership interests of the individual as a percentage of the total outstanding value of all classes of ownership interests.
  • Failsafe rule
    • If the facts and circumstances do not permit the calculations described in either above to be performed with “reasonable certainty”, any individual who owns or controls 25% or more of any class or type of ownership interest of a reporting company shall be deemed to own or control 25% or more of the ownership interests of the reporting company.

Substantial Control Test

If an individual does not qualify as a beneficial owner under the 25% ownership test, such individual may be a beneficial owner if the individual directly or indirectly exercises “substantial control” over the reporting company. FinCEN defines “substantial control” through a facts and circumstances test that requires several factors to be considered.

An individual exercises substantial control over a reporting company if that individual:

• Serves as a senior officer of the reporting company.
• Has authority over the appointment or removal of any senior officer or a majority of the board of directors (or similar body).
• Directs, determines, or has substantial influence over important decisions made by the reporting company including decisions regarding:
  • The nature, scope, and attributes of the business of the reporting company, including the sale, lease, mortgage, or other transfer of any principal assets of the reporting company.
  • The reorganization, dissolution or merger of the reporting company.
  • Major expenditures or investments, issuances of any equity, incurrence of any significant debt, or approval of the operating budget of the reporting company.
  • The selection or termination of business lines or ventures, or geographic focus, of the reporting company.
  • Compensation schemes and incentive programs for senior officers.
  • The entry into or termination, or the fulfillment or non-fulfillment, of significant contracts.
  • Amendments of any substantial governance documents of the reporting company, including the articles of incorporation or similar formation documents, bylaws, and significant policies or procedures.
• Has any other form of substantial control over the reporting company?
  • As the definition of “substantial control” is a facts and circumstances test, any facts and circumstances that might bear on substantial control, including family relationships among beneficial owners, voting rights, employment agreements and other arrangements, should be considered by the party(ies) determining beneficial ownership.

Attributing Beneficial Ownership to Individuals

The CTA establishes the definition of “beneficial owner” is limited to “any individual” and does not include legal entities. However, FinCEN’s rule generically provides that “an individual may directly or indirectly own or control an ownership interest of a reporting company through any contract, arrangement, understanding, relationship, or otherwise.”

Therefore, if an interest in a reporting company is owned by another legal entity, the individual natural person who has the ultimate beneficial ownership of that interest will be reported to FinCEN. This is not difficult when an individual owns the interest but can get complicated when an interest in a reporting company is owned by one, more or even a series of entities (i.e., not individuals) and the reporting company’s beneficial ownership must be traced all the way down to the constituent individuals.

Where an interest in a reporting company is owned by more than one non-natural person, determining those natural persons who will be attributed ownership in the reporting company requires the reporting company to look “through ownership or control of one or more intermediary entities, or ownership or control of the ownership interests of any such entities, that separately or collectively own or control ownership interests of the reporting company.”

FinCEN also provides guidance on attribution when ownership of the reporting company is held by a trust “or similar arrangement.”

Excluded Individuals

FinCEN, through its final rule, provides that “beneficial owner” does not include the following “excluded individuals”:

• A minor child.
• An individual acting as a nominee, intermediary, custodian, or agent on behalf of another individual
• An employee of a reporting company, acting solely as an employee (not including senior officer), whose substantial control over or economic benefits from such entity are derived solely from the employment status of the employee.
• An individual whose only interest in a reporting company is a future interest through a right of inheritance.
• A creditor of a reporting company.
• Individuals whose only interest in the reporting company is not described in these categories are excluded from the definition of “beneficial owner.”

Who Sees Reported Information?

Beneficial ownership information will be submitted to FinCEN’s database and will not be publicly available.

The information will be disclosed to the following:

• Federal agencies engaged in law enforcement, national security or intelligence activity, to be used in furtherance of such activity;
• State, local and tribal law enforcement for use in criminal or civil investigations and with authorization of a court of competent jurisdiction;
• Select foreign agencies engaged in law enforcement, national security or intelligence activity;
• Financial institutions subject to customer due diligence requirements, to facilitate compliance with these requirements, and their regulators; and
• Certain Treasury officers and employees, including tax administration.

What are the Consequences of Noncompliance?

It is unlawful for any person to willfully provide, or attempt to provide, false or fraudulent beneficial ownership information or to willfully fail to report complete or updated beneficial ownership information to FinCEN. The CTA provides civil and criminal penalties (up to a $10,000 fine and 2 years’ imprisonment) for willfully providing false information, failing to provide complete information, or failing to update information.

The CTA places the reporting requirements on companies; however, the enforcement provisions are directed at individuals. This led to the question during rulemaking – if a reporting company fails to file or files inaccurate information, what individuals are liable for such corporate reporting failure? FinCEN addressed the question in the final rule by establishing a “reporting failure” is the obligation of both the individual who “causes the failure … or is a senior officer of the entity at the time of the failure.”

A “senior officer” is defined as “any individual holding the position or exercising the authority of a president, chief financial officer, general counsel, chief executive officer, chief operating officer, or any other officer, regardless of official title, who performs a similar function.”

To protect the information provided, the CTA also provides civil and criminal penalties for unauthorized disclosure and use of beneficial ownership information.

CTA Criticism

Critics of the CTA focus on the enormous collection and individual compliance burdens created by the legislation as well as the potential for data security breaches. The goal of the CTA is worthwhile, but those in opposition argue that the burden of reporting outweighs the transparency that will be created. While the CTA aims to prevent illicit activities, it also raises potential concerns around privacy and data security, as FinCEN will be maintaining – and sharing - a significant amount of sensitive information. The data collected under the CTA will be the largest government data collection outside of the tax code. This underscores the importance of robust and secure data management practices within FinCEN.

Conclusion

The enactment of the CTA represents a significant move towards increased corporate transparency and the strengthening of anti-money laundering and anti-corruption measures. It substantially changes the reporting requirements for many U.S. and foreign entities doing business in the U.S., compelling all such entities to disclose information about their beneficial owners unless an appropriate exemption from compliance exists.

At the end of the day, the CTA will require many businesses to review and potentially modify their existing compliance programs. Entities subject to the CTA will need to ensure they have processes in place to identify and report beneficial ownership information, as non-compliance can lead to significant civil and criminal penalties. Each senior officer of the reporting company will be liable for any willful failure on the part of the reporting company to provide accurate information when required. Also, a beneficial owner or company applicant who willfully provides false or fraudulent information to a reporting company may be liable for the reporting company’s failure to provide accurate information when required.