The Corporate Transparency Act (CTA) requires the disclosure of the beneficial ownership information (otherwise known as “BOI”) of certain entities from people who own or control a company. However, on Friday March 1, 2024, a U.S. District Court ruled the CTA unconstitutional in a case brought by the National Small Business Association (“NSBA”). Although unconstitutional, the ruling only applies to members of the NSBA so new entities may still have to file in the 90-day window. On March 4, 2024, the Financial Crimes Enforcement Network (FinCEN), indicated that it will not enforce the CTA against the plaintiffs in the case, which seems to affect only NSBA member companies. The initial analysis appears to keep the CTA in effect for all companies not affected by the specific ruling. It is still too soon to know how this case will affect the overall CTA landscape for new and existing companies.
The CTA is not a part of the tax code, it is a part of the Bank Secrecy Act. Under the CTA, BOI reports will not be filed with the IRS, but with the Financial Crimes Enforcement Network (FinCEN), another agency of the Department of Treasury.
Below is some preliminary information for you to consider for this new reporting requirement. This information is meant to be general-only and should not be applied to your specific facts and circumstances without consultation with legal counsel and/or other retained professional adviser.
What entities are required to comply with the CTA’s BOI reporting requirement?
Entities organized both in the U.S. and outside the U.S. may be subject to the CTA’s reporting requirements. Domestic companies required to report include corporations, limited liability companies (LLCs) or any similar entity 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.
Domestic entities that are not created by the filing of a document with a secretary of state or similar office are not required to report under the CTA.
Foreign companies required to report under the CTA include corporations, LLCs or any similar entity that is formed under the law of a foreign country and registered to do business in any state or tribal jurisdiction by filing a document with a secretary of state or any similar office.
Are there any exemptions from the filing requirements?
There are 23 categories of exemptions. Included in the exemptions list are publicly traded companies, banks and credit unions, securities brokers/dealers, certain public accounting firms, certain tax-exempt entities and certain inactive entities, among others. Please note these are not blanket exemptions and many of these entities are already heavily regulated by the government and thus already disclose their BOI to a government authority.
In addition, certain “large operating entities” are exempt from filing. To qualify for this exemption, the company must:
- Employ more than 20 people in the U.S.;
- Have reported gross revenue (or sales) of over $5M on the prior year’s tax return; and
- Be physically present in the U.S.
Who is a beneficial owner?
Any individual who, directly or indirectly, either:
- Exercises “substantial control” over a reporting company, or
- Owns or controls at least 25 percent of the ownership interests of a reporting company
When must companies file?
There are different filing timeframes depending on when an entity is registered/formed or if there is a change to the beneficial owner’s information.
- New entities (created/registered in 2024) — must file within 90 days
- New entities (created/registered after 12/31/2024) — must file within 30 days
- Existing entities (created/registered before 1/1/24) — must file by 1/1/25
- Reporting companies that have changes to previously reported information or discover inaccuracies in previously filed reports — must file updated reports within 30 days
What sort of information is required to be reported?
Companies must report the following information: full name of the reporting company, any trade name or doing business as (DBA) name, business address, state or Tribal jurisdiction of formation, and an IRS taxpayer identification number (TIN).
Additionally, information on the beneficial owners of the entity and for newly created entities, the company applicants of the entity is required. This information includes — name, birthdate, address, and unique identifying number and issuing jurisdiction from an acceptable identification document (e.g., a driver’s license or passport) and an image of such document.
Risk of non-compliance
Penalties for willfully not complying with the BOI reporting requirement can result in criminal and civil penalties of $500 per day and up to $10,000 with up to two years of jail time. For more information about the CTA, visit https://www.fincen.gov/boi
Kindly note, we as a firm are currently not providing the service of identifying beneficial owners for clients as that involves legal analysis and we can not give legal advice. We recommend consulting with corporate legal counsel for additional advice.
We do plan on keeping up with and communicating changes that can benefit companies as they navigate this new regulation and its related reporting requirements.