PART 1010—GENERAL PROVISIONS
1. The authority citation for part 1010 is amended to read
as follows:
Authority: 12 U.S.C. 1829b and 1951-1959; 31 U.S.C. 5311-5314, 5316-5336; title III, sec. 314 Pub. L. 107-56, 115 Stat. 307; sec. 701 Pub. L. 114-74, 129 Stat. 599; sec. 6403, Pub. L. 116-283, 134 Stat. 3388.
2. Add § 1010.380 to subpart C to read
as follows:
Reports of beneficial ownership information
(a) Reports required; timing of
reports— (1) Initial report. Each reporting company shall file an
initial report in the form and manner specified in paragraph (b) of this
section as follows:
(i) Any domestic reporting company
created on or after January 1, 2024 shall file a report within 30 calendar days
of the earlier of the date on which it receives actual notice that its creation
has become effective or the date on which a secretary of state or similar
office first provides public notice, such as through a publicly accessible
registry, that the domestic reporting company has been created.
(ii) Any entity that becomes a foreign
reporting company on or after January 1, 2024 shall file a report within 30
calendar days of the earlier of the date on which it receives actual notice
that it has been registered to do business or the date on which a secretary of
state or similar office first provides public notice, such as through a
publicly accessible registry, that the foreign reporting company has been
registered to do business.
(iii) Any domestic reporting company
created before January 1, 2024 and any entity that became a foreign reporting
company before January 1, 2024 shall file a report not later than January 1,
2025.
(iv) Any entity that no longer meets
the criteria for any exemption under paragraph (c)(2) of this section shall
file a report within 30 calendar days after the date that it no longer meets
the criteria for any exemption.
(2) Updated report. (i) If there
is any change with respect to required information previously submitted to
FinCEN concerning a reporting company or its beneficial owners, including any
change with respect to who is a beneficial owner or information reported for
any particular beneficial owner, the reporting company shall file an updated
report in the form and manner specified in paragraph (b)(3) of this section
within 30 calendar days after the date on which such change occurs.
(ii) If a reporting company meets the
criteria for any exemption under paragraph (c)(2) of this section subsequent to
the filing of an initial report, this change will be deemed a change with
respect to information previously submitted to FinCEN, and the entity shall
file an updated report.
(iii) If an individual is a beneficial
owner of a reporting company by virtue of property interests or other rights
subject to transfer upon death, and such individual dies, a change with respect
to required information will be deemed to occur when the estate of the deceased
beneficial owner is settled, either through the operation of the intestacy laws
of a jurisdiction within the United States or through a testamentary
deposition. The updated report shall, to the extent appropriate, identify any
new beneficial owners.
(iv) If a reporting company has reported
information with respect to a parent or legal guardian of a minor child
pursuant to paragraphs (b)(2)(ii) and (d)(3)(i) of this section, a change with
respect to required information will be deemed to occur when the minor child
attains the age of majority.
(v) With respect to an image of an
identifying document required to be reported pursuant to paragraph
(b)(1)(ii)(E) of this section, a change with respect to required information
will be deemed to occur when the name, date of birth, address, or unique identifying
number on such document changes.
(3) Corrected report. If any
report under this section was inaccurate when filed and remains inaccurate, the
reporting company shall file a corrected report in the form and manner
specified in paragraph (b) of this section within 30 calendar days after the
date on which such reporting company becomes aware or has reason to know of the
inaccuracy. A corrected report filed under this paragraph (a)(3) within this
30-day period shall be deemed to satisfy 31 U.S.C. 5336(h)(3)(C)(i)(I)(bb) if filed within
90 calendar days after the date on which the inaccurate report was filed.
(b) Content, form, and manner of
reports. Each report or application submitted under this section shall be
filed with FinCEN in the form and manner that FinCEN shall prescribe in the
forms and instructions for such report or application, and each person filing
such report or application shall certify that the report or application is
true, correct, and complete.
(1) Initial report. An initial
report of a reporting company shall include the following information:
(i) For the reporting company:
(A) The full legal name of the
reporting company;
(B) Any trade name or "doing business
as" name of the reporting company;
(C) A complete current address
consisting of:
(1) In the case of a reporting company with a principal place
of business in the United States, the street address of such principal place of
business; and
(2) In all other cases, the street address of the primary
location in the United States where the reporting company conducts business;
(D) The State, Tribal, or foreign
jurisdiction of formation of the reporting company;
(E) For a foreign reporting company,
the State or Tribal jurisdiction where such company first registers; and
(F) The Internal Revenue Service (IRS)
Taxpayer Identification Number (TIN) (including an Employer Identification
Number (EIN)) of the reporting company, or where a foreign reporting company
has not been issued a TIN, a tax identification number issued by a foreign
jurisdiction and the name of such jurisdiction;
(ii) For every individual who is a
beneficial owner of such reporting company, and every individual who is a
company applicant with respect to such reporting company:
(A) The full legal name of the individual;
(B) The date of birth of the
individual;
(C) A complete current address
consisting of:
(1) In the case of a company applicant who forms or registers
an entity in the course of such company applicant's business, the street
address of such business; or
(2) In any other case, the individual's residential street
address;
(D) A unique identifying number and the
issuing jurisdiction from one of the following documents:
(1) A non-expired passport issued to the individual by the
United States government;
(2) A non-expired identification document issued to the
individual by a State, local government, or Indian tribe for the purpose of
identifying the individual;
(3) A non-expired driver's license issued to the individual by a
State; or
(4) A non-expired passport issued by a foreign government to
the individual, if the individual does not possess any of the documents
described in paragraph (b)(1)(ii)(D)( 1), (b)(1)(ii)(D)( 2), or
(b)(1)(ii)(D)( 3) of this section; and
(E) An image of the document from which
the unique identifying number in paragraph (b)(1)(ii)(D) of this section was
obtained.
(2) Special rules —(i) Reporting
company owned by exempt entity. If one or more exempt entities under
paragraph (c)(2) of this section has or will have a direct or indirect
ownership interest in a reporting company and an individual is a beneficial
owner of the reporting company exclusively by virtue of the individual's
ownership interest in such exempt entities, the report may include the names of
the exempt entities in lieu of the information required under paragraph (b)(1)
of this section with respect to such beneficial owner.
(ii) Minor child. If a reporting
company reports the information required under paragraph (b)(1) of this section
with respect to a parent or legal guardian of a minor child consistent with
paragraph (d)(3)(i) of this section, then the report shall indicate that such
information relates to a parent or legal guardian.
(iii) Foreign pooled investment
vehicle. If an entity would be a reporting company but for paragraph
(c)(2)(xviii) of this section, and is formed under the laws of a foreign
country, such entity shall be deemed a reporting company for purposes of
paragraphs (a) and (b) of this section, except the report shall include the
information required under paragraph (b)(1) of this section solely with respect
to an individual who exercises substantial control over the entity. If more
than one individual exercises substantial control over the entity, the entity
shall report information with respect to the individual who has the greatest
authority over the strategic management of the entity.
(iv) Company applicant for existing
companies. Notwithstanding paragraph (b)(1)(ii) of this section, if a
reporting company was created or registered before January 1, 2024, the
reporting company shall report that fact, but is not required to report
information with respect to any company applicant.
(3) Contents of updated or corrected
reports— (i) Updated reports—in general. An updated report required
to be filed pursuant to paragraph (a)(2) of this section shall reflect any
change with respect to required information previously submitted to FinCEN
concerning a reporting company or its beneficial owners.
(ii) Updated reports—newly exempt
entities. An updated report required to be filed pursuant to paragraph
(a)(2)(ii) of this section shall indicate that the filing entity is no longer a
reporting company.
(iii) Corrected reports. A
corrected report required to be filed pursuant to paragraph (a)(3) of this
section shall correct all inaccuracies in the information previously reported
to FinCEN.
(4) FinCEN identifier— (i) Application.
(A) An individual may obtain a FinCEN identifier by submitting to FinCEN an
application containing the information about the individual described in
paragraph (b)(1) of this section.
(B) A reporting company may obtain a
FinCEN identifier by submitting to FinCEN an application at or after the time
that the entity submits an initial report required under paragraph (b)(1) of
this section.
(C) Each FinCEN identifier shall be
specific to each such individual or reporting company, and each such individual
or reporting company (including any successor reporting company) may obtain
only one FinCEN identifier.
(ii) Use of the FinCEN identifier.
(A) If an individual has obtained a FinCEN identifier and provided such FinCEN
identifier to a reporting company, the reporting company may include such
FinCEN identifier in its report in lieu of the information required under
paragraph (b)(1) of this section with respect to such individual.
(B) [Reserved]
(iii) Updates and corrections.
(A) Any individual that has obtained a FinCEN identifier shall update or
correct any information previously submitted to FinCEN in an application for
such FinCEN identifier.
(1) If there is any change with respect to required information
previously submitted to FinCEN in such application, the individual shall file
an updated application reflecting such change within 30 calendar days after the
date on which such change occurs.
(2) If any such application was inaccurate when filed and
remains inaccurate, the individual shall file a corrected application
correcting all inaccuracies within 30 calendar days after the date on which the
individual becomes aware or has reason to know of the inaccuracy. A corrected
application filed under this paragraph within this 30-day period will be deemed
to satisfy 31 U.S.C. 5336(h)(3)(C)(i)(I)(bb) if filed within
90 calendar days after the date on which the inaccurate application was
submitted.
(B) Any reporting company that has
obtained a FinCEN identifier shall file an updated or corrected report to
update or correct any information previously submitted to FinCEN. Such updated
or corrected report shall be filed at the same time and in the same manner as
updated or corrected reports filed under paragraph (a) of this section.
(c) Reporting company— (1) Definition
of reporting company. For purposes of this section, the term "reporting
company" means either a domestic reporting company or a foreign reporting
company.
(i) The term "domestic reporting
company" means any entity that is:
(A) A corporation;
(B) A limited liability company; or
(C) Created by the filing of a document
with a secretary of state or any similar office under the law of a State or
Indian tribe.
(ii) The term "foreign reporting
company" means any entity that is:
(A) A corporation, limited liability
company, or other entity;
(B) Formed under the law of a foreign
country; and
(C) Registered to do business in any
State or tribal jurisdiction by the filing of a document with a secretary of
state or any similar office under the law of a State or Indian tribe.
(2) Exemptions. Notwithstanding
paragraph (c)(1) of this section, the term "reporting company" does not
include:
(i) Securities reporting issuer.
Any issuer of securities that is:
(A) An issuer of a class of securities
registered under section 12 of the Securities Exchange Act of 1934 (15 U.S.C. 78l); or
(B) Required to file supplementary and
periodic information under section 15(d) of the Securities Exchange Act of 1934
(15 U.S.C. 78o(d)).
(ii) Governmental authority. Any
entity that:
(A) Is established under the laws of
the United States, an Indian tribe, a State, or a political subdivision of a
State, or under an interstate compact between two or more States; and
(B) Exercises governmental authority on
behalf of the United States or any such Indian tribe, State, or political
subdivision.
(iii) Bank. Any bank, as defined
in:
(A) Section 3 of the Federal Deposit
Insurance Act (12 U.S.C. 1813);
(B) Section 2(a) of the Investment
Company Act of 1940 (15 U.S.C. 80a-2(a)); or
(C) Section 202(a) of the Investment
Advisers Act of 1940 (15 U.S.C. 80b-2(a)).
(iv) Credit union. Any Federal
credit union or State credit union, as those terms are defined in section 101
of the Federal Credit Union Act (12 U.S.C. 1752).
(v) Depository institution holding
company. Any bank holding company as defined in section 2 of the Bank
Holding Company Act of 1956 (12 U.S.C. 1841), or any savings and loan holding
company as defined in section 10(a) of the Home Owners' Loan Act (12 U.S.C. 1467a(a)).
(vi) Money services business.
Any money transmitting business registered with FinCEN under 31 U.S.C. 5330, and any money services business
registered with FinCEN under 31 CFR 1022.380.
(vii) Broker or dealer in
securities. Any broker or dealer, as those terms are defined in section 3
of the Securities Exchange Act of 1934 (15 U.S.C. 78c), that is registered under section
15 of that Act (15 U.S.C. 78o).
(viii) Securities exchange or
clearing agency. Any exchange or clearing agency, as those terms are
defined in section 3 of the Securities Exchange Act of 1934 (15 U.S.C. 78c), that is registered under sections
6 or 17A of that Act (15 U.S.C. 78f, 78q-1).
(ix) Other Exchange Act registered
entity. Any other entity not described in paragraph (c)(2)(i), (vii), or
(viii) of this section that is registered with the Securities and Exchange
Commission under the Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.).
(x) Investment company or investment
adviser. Any entity that is:
(A) An investment company as defined in
section 3 of the Investment Company Act of 1940 (15 U.S.C. 80a-3), or is an investment adviser as
defined in section 202 of the Investment Advisers Act of 1940 (15 U.S.C. 80b-2); and
(B) Registered with the Securities and
Exchange Commission under the Investment Company Act of 1940 (15 U.S.C. 80a-1 et seq.) or the Investment
Advisers Act of 1940 (15 U.S.C. 80b-1 et seq.).
(xi) Venture capital fund adviser.
Any investment adviser that:
(A) Is described in section 203(l) of
the Investment Advisers Act of 1940 (15 U.S.C. 80b-3(l)); and
(B) Has filed Item 10, Schedule A, and
Schedule B of Part 1A of Form ADV, or any successor thereto, with the
Securities and Exchange Commission.
(xii) Insurance company. Any
insurance company as defined in section 2 of the Investment Company Act of 1940
(15 U.S.C. 80a-2).
(xiii) State-licensed insurance
producer. Any entity that:
(A) Is an insurance producer that is
authorized by a State and subject to supervision by the insurance commissioner
or a similar official or agency of a State; and
(B) Has an operating presence at a
physical office within the United States.
(xiv) Commodity Exchange Act
registered entity. Any entity that:
(A) Is a registered entity as defined
in section 1a of the Commodity Exchange Act (7 U.S.C. 1a); or
(B) Is:
(1) A futures commission merchant, introducing broker, swap
dealer, major swap participant, commodity pool operator, or commodity trading
advisor, each as defined in section 1a of the Commodity Exchange Act (7 U.S.C. 1a), or a retail foreign exchange dealer
as described in section 2(c)(2)(B) of the Commodity Exchange Act (7 U.S.C. 2(c)(2)(B); and
(2) Registered with the Commodity Futures Trading Commission
under the Commodity Exchange Act.
(xv) Accounting firm. Any public
accounting firm registered in accordance with section 102 of the Sarbanes-Oxley
Act of 2002 (15 U.S.C. 7212).
(xvi) Public utility. Any entity
that is a regulated public utility as defined in 26 U.S.C. 7701(a)(33)(A) that provides
telecommunications services, electrical power, natural gas, or water and sewer
services within the United States.
(xvii) Financial market utility.
Any financial market utility designated by the Financial Stability Oversight
Council under section 804 of the Payment, Clearing, and Settlement Supervision
Act of 2010 (12 U.S.C. 5463).
(xviii) Pooled investment vehicle.
Any pooled investment vehicle that is operated or advised by a person described
in paragraph (c)(2)(iii), (iv), (vii), (x), or (xi) of this section.
(xix) Tax-exempt entity. Any
entity that is:
(A) An organization that is described
in section 501(c) of the Internal Revenue Code of 1986 (Code) (determined
without regard to section 508(a) of the Code) and exempt from tax under section
501(a) of the Code, except that in the case of any such organization that
ceases to be described in section 501(c) and exempt from tax under section
501(a), such organization shall be considered to continue to be described in
this paragraph (c)(1)(xix)(A) for the 180-day period beginning on the date of
the loss of such tax-exempt status;
(B) A political organization, as
defined in section 527(e)(1) of the Code, that is exempt from tax under section
527(a) of the Code; or
(C) A trust described in paragraph (1)
or (2) of section 4947(a) of the Code.
(xx) Entity assisting a tax-exempt
entity. Any entity that:
(A) Operates exclusively to provide
financial assistance to, or hold governance rights over, any entity described
in paragraph (c)(2)(xix) of this section;
(B) Is a United States person;
(C) Is beneficially owned or controlled
exclusively by one or more United States persons that are United States
citizens or lawfully admitted for permanent residence; and
(D) Derives at least a majority of its
funding or revenue from one or more United States persons that are United
States citizens or lawfully admitted for permanent residence.
(xxi) Large operating company.
Any entity that:
(A) Employs more than 20 full time
employees in the United States, with "full time employee in the United States"
having the meaning provided in 26 CFR 54.4980H-1(a) and 54.4980H-3, except that the term "United States"
as used in 26 CFR 54.4980H-1(a) and 54.4980H-3 has the meaning provided in
§ 1010.100(hhh);
(B) Has an operating presence at a
physical office within the United States; and
(C) Filed a Federal income tax or
information return in the United States for the previous year demonstrating
more than $5,000,000 in gross receipts or sales, as reported as gross receipts
or sales (net of returns and allowances) on the entity's IRS Form 1120,
consolidated IRS Form 1120, IRS Form 1120-S, IRS Form 1065, or other applicable
IRS form, excluding gross receipts or sales from sources outside the United
States, as determined under Federal income tax principles. For an entity that
is part of an affiliated group of corporations within the meaning of 26 U.S.C. 1504 that filed a consolidated return,
the applicable amount shall be the amount reported on the consolidated return for
such group.
(xxii) Subsidiary of certain exempt
entities. Any entity whose ownership interests are controlled or wholly
owned, directly or indirectly, by one or more entities described in paragraphs
(c)(2)(i), (ii), (iii), (iv), (v), (vii), (viii), (ix), (x), (xi), (xii),
(xiii), (xiv), (xv), (xvi), (xvii), (xix), or (xxi) of this section.
(xxiii) 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 by a foreign person,
whether directly or indirectly, wholly or partially;
(D) Has not experienced any change in
ownership in the preceding twelve month period;
(E) Has not sent or received any funds
in an amount greater than $1,000, either directly or through any financial
account in which the entity or any affiliate of the entity had an interest, in
the preceding twelve month period; and
(F) Does not otherwise hold any kind or
type of assets, whether in the United States or abroad, including any ownership
interest in any corporation, limited liability company, or other similar entity.
(d) Beneficial owner. For
purposes of this section, the term "beneficial owner," with respect to a
reporting company, means any individual who, directly or indirectly, either
exercises substantial control over such reporting company or owns or controls
at least 25 percent of the ownership interests of such reporting company.
(1) Substantial control— (i) Definition
of substantial control. An individual exercises substantial control over a
reporting company if the individual:
(A) Serves as a senior officer of the
reporting company;
(B) Has authority over the appointment
or removal of any senior officer or a majority of the board of directors (or
similar body);
(C) Directs, determines, or has
substantial influence over important decisions made by the reporting company,
including decisions regarding:
(1) 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;
(2) The reorganization, dissolution, or merger of the reporting
company;
(3) Major expenditures or investments, issuances of any equity,
incurrence of any significant debt, or approval of the operating budget of the
reporting company;
(4) The selection or termination of business lines or ventures,
or geographic focus, of the reporting company;
(5) Compensation schemes and incentive programs for senior
officers;
(6) The entry into or termination, or the fulfillment or
non-fulfillment, of significant contracts;
(7) 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; or
(D) Has any other form of substantial
control over the reporting company.
(ii) Direct or indirect exercise of
substantial control. An individual may directly or indirectly, including as
a trustee of a trust or similar arrangement, exercise substantial control over
a reporting company through:
(A) Board representation;
(B) Ownership or control of a majority
of the voting power or voting rights of the reporting company;
(C) Rights associated with any
financing arrangement or interest in a company;
(D) Control over one or more
intermediary entities that separately or collectively exercise substantial
control over a reporting company;
(E) Arrangements or financial or
business relationships, whether formal or informal, with other individuals or
entities acting as nominees; or
(F) any other contract, arrangement,
understanding, relationship, or otherwise.
(2) Ownership Interests— (i) Definition
of ownership interest. The term "ownership interest" means:
(A) Any equity, stock, or similar
instrument; preorganization certificate or subscription; or transferable share
of, or voting trust certificate or certificate of deposit for, an equity
security, interest in a joint venture, or certificate of interest in a business
trust; in each such case, without regard to whether any such instrument is
transferable, is classified as stock or anything similar, or confers voting
power or voting rights;
(B) Any capital or profit interest in
an entity;
(C) Any instrument convertible, with or
without consideration, into any share or instrument described in paragraph
(d)(2)(i)(A), or (B) of this section, any future on any such instrument, or any
warrant or right to purchase, sell, or subscribe to a share or interest
described in paragraph (d)(2)(i)(A), or (B) of this section, regardless of
whether characterized as debt;
(D) Any put, call, straddle, or other
option or privilege of buying or selling any of the items described in
paragraph (d)(2)(i)(A), (B), or (C) of this section without being bound to do
so, except to the extent that such option or privilege is created and held by a
third party or third parties without the knowledge or involvement of the
reporting company; or
(E) Any other instrument, contract,
arrangement, understanding, relationship, or mechanism used to establish
ownership.
(ii) Ownership or control of
ownership interest. An individual may directly or indirectly own or control
an ownership interest of a reporting company through any contract, arrangement,
understanding, relationship, or otherwise, including:
(A) Joint ownership with one or more
other persons of an undivided interest in such ownership interest;
(B) Through another individual acting
as a nominee, intermediary, custodian, or agent on behalf of such individual;
(C) With regard to a trust or similar
arrangement that holds such ownership interest:
(1) As a trustee of the trust or other individual (if any) with
the authority to dispose of trust assets;
(2) As a beneficiary who:
(i) Is the sole permissible recipient of income and principal
from the trust; or
(ii) Has the right to demand a distribution of or withdraw
substantially all of the assets from the trust; or
(3) As a grantor or settlor who has the right to revoke the
trust or otherwise withdraw the assets of the trust; or
(D) 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.
(iii) Calculation of the total
ownership interests of a reporting company. In determining whether an
individual owns or controls at least 25 percent of the ownership interests of a
reporting company, the total ownership interests that an individual owns or
controls, directly or indirectly, shall be calculated as a percentage of the
total outstanding ownership interests of the reporting company as follows:
(A) Ownership interests of the
individual shall be calculated at the present time, and any options or similar
interests of the individual shall be treated as exercised;
(B) 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;
(C) 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:
(1) 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
(2) 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; and
(D) If the facts and circumstances do
not permit the calculations described in either paragraph (d)(2)(iii)(B) or (C)
to be performed with reasonable certainty, any individual who owns or controls
25 percent or more of any class or type of ownership interest of a reporting company
shall be deemed to own or control 25 percent or more of the ownership interests
of the reporting company.
(3) Exceptions. Notwithstanding
any other provision of this paragraph (d), the term "beneficial owner" does not
include:
(i) A minor child, as defined under the
law of the State or Indian tribe in which a domestic reporting company is
created or a foreign reporting company is first registered, provided the
reporting company reports the required information of a parent or legal
guardian of the minor child as specified in paragraph (b)(2)(ii) of this
section;
(ii) An individual acting as a nominee,
intermediary, custodian, or agent on behalf of another individual;
(iii) An employee of a reporting
company, acting solely as an employee, whose substantial control over or
economic benefits from such entity are derived solely from the employment
status of the employee, provided that such person is not a senior officer as
defined in paragraph (f)(8) of this section;
(iv) An individual whose only interest in
a reporting company is a future interest through a right of inheritance;
(v) A creditor of a reporting company.
For purposes of this paragraph (d)(3)(v), a creditor is an individual who meets
the requirements of paragraph (d) of this section solely through rights or
interests for the payment of a predetermined sum of money, such as a debt
incurred by the reporting company, or a loan covenant or other similar right
associated with such right to receive payment that is intended to secure the
right to receive payment or enhance the likelihood of repayment.
(e) Company applicant. For
purposes of this section, the term "company applicant" means:
(1) For a domestic reporting company,
the individual who directly files the document that creates the domestic
reporting company as described in paragraph (c)(1)(i) of this section;
(2) For a foreign reporting company,
the individual who directly files the document that first registers the foreign
reporting company as described in paragraph (c)(1)(ii) of this section; and
(3) Whether for a domestic or a foreign
reporting company, the individual who is primarily responsible for directing or
controlling such filing if more than one individual is involved in the filing
of the document.
(f) Definitions. For purposes of
this section, the following terms have the following meanings.
(1) Employee. The term
"employee" has the meaning given the term in 26 CFR 54.4980H-1(a)(15).
(2) FinCEN identifier. The term
"FinCEN identifier" means the unique identifying number assigned by FinCEN to
an individual or reporting company under this section.
(3) Foreign person. The term
"foreign person" means a person who is not a United States person.
(4) Indian tribe. The term
"Indian tribe" has the meaning given the term "Indian tribe" in section 102 of
the Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C. 5130).
(5) Lawfully admitted for permanent
residence. The term "lawfully admitted for permanent residence" has the
meaning given the term in section 101(a) of the Immigration and Nationality Act
(8 U.S.C. 1101(a)).
(6) Operating presence at a physical
office within the United States. The term "has an operating presence at a
physical office within the United States" means that an entity regularly
conducts its business at a physical location in the United States that the
entity owns or leases and that is physically distinct from the place of
business of any other unaffiliated entity.
(7) Pooled investment vehicle.
The term "pooled investment vehicle" means:
(i) Any investment company, as defined
in section 3(a) of the Investment Company Act of 1940 (15 U.S.C. 80a-3(a)); or
(ii) Any company that:
(A) Would be an investment company
under that section but for the exclusion provided from that definition by
paragraph (1) or (7) of section 3(c) of that Act (15 U.S.C. 80a-3(c)); and
(B) Is identified by its legal name by
the applicable investment adviser in its Form ADV (or successor form) filed
with the Securities and Exchange Commission or will be so identified in the
next annual updating amendment to Form ADV required to be filed by the
applicable investment adviser pursuant to rule 204-1 under the Investment
Advisers Act of 1940 (17 CFR 275.204-1).
(8) Senior officer. The term
"senior officer" means 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.
(9) State. The term "State"
means any state of the United States, the District of Columbia, the
Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands,
American Samoa, Guam, the United States Virgin Islands, and any other
commonwealth, territory, or possession of the United States.
(10) United States person. The
term "United States person" has the meaning given the term in section
7701(a)(30) of the Internal Revenue Code of 1986.
(g) Reporting violations. It
shall be unlawful for any person to willfully provide, or attempt to provide,
false or fraudulent beneficial ownership information, including a false or
fraudulent identifying photograph or document, to FinCEN in accordance with
this section, or to willfully fail to report complete or updated beneficial
ownership information to FinCEN in accordance with this section. For purposes
of this paragraph (g):
(1) The term "person" includes any
individual, reporting company, or other entity.
(2) The term "beneficial ownership
information" includes any information provided to FinCEN under this section.
(3) A person provides or attempts to
provide beneficial ownership information to FinCEN if such person does so
directly or indirectly, including by providing such information to another
person for purposes of a report or application under this section.
(4) A person fails to report complete
or updated beneficial ownership information to FinCEN if, with respect to an
entity:
(i) such entity is required, pursuant
to title 31, United States Code, section 5336, or its implementing regulations,
to report information to FinCEN;
(ii) the reporting company fails to
report such information to FinCEN; and
(iii) such person either causes the
failure, or is a senior officer of the entity at the time of the failure.
Himamauli Das,
Acting Director, Financial Crimes
Enforcement Network.
About The Author
Jonathan Wilson is the co-founder of FinCEN Report Company with 31 years of experience in corporate, M&A and securities matters. He is the author of The Corporate Transparency Act Compliance Guide (to be published by Lexis Nexis in the summer of 2023) and the Lexis Practical Guidance Practice Note on the Corporate Transparency Act.