FinCEN – the Financial Crimes Enforcement Network – is a division of the U.S. Treasury Department. It collects and distributes information to law enforcement relating to money laundering and financial crimes.
As part of the National Defense Authorization Act of 2021 Congress adopted the Corporate Transparency Act (or “CTA”). The CTA includes some of the most significant changes to US anti-money laundering (“AML”) laws in recent years.
Beneficial Ownership Reports and FinCEN
The CTA requires the beneficial owners of corporations, partnerships, limited liability companies and other businesses to file a report that discloses their beneficial ownership. This new law will have a significant impact on entrepreneurs, business owners, attorneys and others involved in the process of forming new companies. The U.S. government uses AML to identify parties involved in money transfers. Before the CTA it was possible to form a corporation, partnership or limited liability company without publicly disclosing the owners of that legal entity. The CTA will end that practice and will compel the beneficial owners of most businesses to disclose their ownership by filing a report with FinCEN, the Financial Crime Enforcement Network, an agency of the U.S. Treasury Department.
The CTA requires FinCEN to issue regulations to implement this new law. The regulations will require corporations, partnerships, limited liability companies and similar entities (“covered entities”) to report the identity of their beneficial owners. Newly formed entities will need to file a report at the time of their formation. Entities that exist before the effective date of the regulations will have one year to file an initial report. Covered entities will also need to file an amended report after any change in previously-reported information about a beneficial owner.
The CTA defines "beneficial owner" to include any individual, directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise who:
- Exercises substantial control over the covered entity, or
- Holds at least 25 percent of the ownership interests of the covered entity.
Importantly, the CTA does not define "substantial control" and does not describe how ownership interests are to be measured. We expect that the upcoming FinCEN regulations will define these terms.
Exempt Types of Beneficial Owner
The CTA provides several exemptions that apply to specific categories of beneficial ownership:
- Custodians/agents for an individual, or those acting solely as an employee of an entity.
- An entity's creditors, unless the creditor holds at least 25 percent of the ownership interests of the covered entity or substantial control.
- An individual whose only interest in a covered entity is through a "right of inheritance."
- A minor child if the information of the parent (or guardian) is reported.
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Information Required in a Beneficial Ownership Report
The obligation to file a FinCEN report is an obligation of the covered entity itself. The covered entity must report, for each beneficial owner, as well as the individual that files the paperwork to form or register an entity with a state secretary of state or similar office:
- Full legal name,
- Date of birth,
- Current residential or business street address, and
- A unique identifying number from an acceptable identity document or a unique identity number generated by FinCEN.
Importantly, if an exempt entity has a direct or indirect ownership in a covered entity, the covered entity must report the legal name of the exempt entity, but not the other information generally required.