Starting January 1, 2024, a significant number of businesses will be required to comply with the Corporate Transparency Act (“CTA”). The CTA requires the disclosure of the beneficial ownership information (otherwise known as “BOI”) of certain entities from people who own or control a company.
Background on the New BOI Reporting
The intent of the BOI reporting requirement is to help U.S. law enforcement combat money laundering, the financing of terrorism and other illicit activity. The CTA was enacted into law as part of the National Defense Act for Fiscal Year 2021. The CTA is not a part of the tax code. Instead, it is a part of the Bank Secrecy Act, a set of federal laws that require record-keeping and reporting on certain types of financial transactions. 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 as you approach the implementation period 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 competent legal counsel and/or other retained professional advisor. The below information is not legal advice and should not be taken as such. You should contact your legal advisor to discuss how the new BOI report filing requirements applies to your situation.
Note: Please be advised, as of this writing, we are uncertain as to whether DWC will be able to file BOI reports on behalf of our clients – or if we will have to recommend you seek legal counsel. Our professional organization, the American Institute of Certified Public Accountants (AICPA) believes that completion of the BOI reporting may be deemed a “practice of law” that can only be completed by licensed attorneys. We are awaiting further guidance on this issue.
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, public accounting firms, 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:
a) Employ more than 20 people in the U.S.;
b) Have reported gross revenue (or sales) of over $5M on the prior year’s tax return; and
c) 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
An individual has substantial control of a reporting company if they direct, determine or exercise substantial influence over important decisions of the reporting company. This includes any senior officers of the reporting company, regardless of formal title or if they have no ownership interest in the 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 within 30 days.
What 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, and an IRS taxpayer identification number (TIN).
Additionally, information on the beneficial owners of the entity and for newly created entities, including: 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
The penalties for 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 new FinCEN BOI reporting and to follow further developments, please visit www.fincen.gov/boi. Companies should also reach out to their legal advisor to proactively assess their filing obligations and deadlines in the coming months.
