The federal government has again burdened otherwise law-abiding businesses with additional on-going compliance regulations for the purpose of catching a handful of bad actors. Beginning in 2024, regulations under the Corporate Transparency Act (passed in 2021 as part of the National Defense Authorization Act) require most private companies (“reporting companies”) to report the identities and locations of their “beneficial owners” to a FinCEN (a division of the U.S. Treasury) website. That information is to be retained in a nonpublic database accessible to various law enforcement agencies for the purpose of investigating financial and other crimes.
As a general matter, “beneficial owners” include individuals (i.e., human beings) who directly or indirectly have substantial control over the company (such as the CEO of a corporation) and individuals who have voting or capital interest of 25% or more. The definition presumably picks up spouses of beneficial owners if the spouse has a community property interest.
Reporting companies include all entities created by the filing a document, such as articles of incorporation, with a governmental agency – other than companies fitting within one of 23 exempt categories. For example, nonprofit corporations that are not tax-exempt, such as a condominium association, are covered.
Reporting companies formed prior to 2024 must submit the initial report by the end of 2024. Reporting companies formed in 2024 have 90 days from the filing date to submit. And reporting companies formed after 2024 have 30 days from the filing date.
Thereafter, reporting companies have 30 days from any changed information to report the changes – for example, any new beneficial owners arising from a company’s recapitalization. A less obvious example might be the personal representative of a deceased beneficial owner needing to report the change in ownership to the deceased’s estate. It is, thus, easy to see how reporting companies can run afoul of the reporting requirements.
The act’s regulations provide for penalties for failure to provide the required information or for providing false information. Civil penalties of $500 per day may be assessed – or criminal penalties of $10,000 and/or up to two years imprisonment. Beneficial owners may be liable for failing to provide required information to the reporting company.
The CTA is currently subject to multiple lawsuits seeking to invalidate it. A federal court in Alabama has, in fact, found the act unconstitutional in a case brought by the National Small Business Association on behalf of its members. But this decision has been appealed to the 11th Circuit and, regardless, applies only to the named parties. On the other hand, legislation to repeal CTA have been filed in both houses of Congress.
The foregoing information does not constitute legal advice and the author makes no representations or warranties as to the accuracy of such information or its applicability to any particular set of facts and circumstances.