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At the end of 2020, the US Congress enacted the Corporate Transparency Act, mandating that the Financial Crimes Enforcement Network (FinCEN) of the Department of the Treasury establish and operate a US Federal Beneficial Owner Registry. On 7 December 2021, FinCEN released the Notice of Proposed Rulemaking (NPRM) for FinCEN Rule 6403, setting forth the pending regulations for the Corporate Transparency Act after having digested the comments submitted from interested parties. The proposed regulations in the NPRM address: (1) who must file; (2) when and how you must file; and (3) what information you must provide (including the scope of reportable Beneficial Owners). The following blog looks at point (3).
For an analysis of points (1) and (2), please refer to:
For an assessment of the impact of the Corporate Transparency Act on trusts, please refer to:
What information must you provide (Prop. Reg. 31 CFR 1010.380(d))
The Corporate Transparency Act compels Reporting Companies to disclose all US and non-US Person Beneficial Owners of the Reporting Company. The definition of Beneficial Owners per the Corporate Transparency Act refers to “any individual who, directly or indirectly, through any contract, arrangement, understanding, relationship, or otherwise—(i) exercises substantial control over the entity; or (ii) owns or controls not less than 25% of the ownership interests of the entity.”
There is no definition of “substantial control” provided for purposes of the Corporate Transparency Act, but three indicators of substantial control specified are (1) service as a senior officer; (2) authority over the appointment or removal of any senior officer or dominant majority of the board of directors; and (3) direction, determination, or decision of, or substantial influence over, important matters of the Reporting Company. However, a fourth miscellaneous category seeks to captures anyone exercising any other form of “substantial control” over the Reporting Company. This control may be exercised directly or indirectly via proxies.
As for the ownership prong, in most cases of direct ownership the application of the threshold will demand little more expertise than grade school arithmetic. However, FinCEN is already safeguarding against the anticipated efforts to avert reporting through opaque structuring (“indirectly”) or financial chicanery (“through any contract, arrangement, understanding, relationship, or otherwise”).
Any equity interests in a Reporting Company (or interests treated as such, see below) that are held through another entity must be calculated as a percentage of ownership of the Reporting Company and attributed to the natural person(s) owning the other entity. This amount must be added to any other amounts owned directly or indirectly in the Reporting Company. Further, FinCEN intends to promulgate an aggregation requirement such that equity interests held by related or subordinate parties must be added to any other amounts owned directly or indirectly in the Reporting Company. The complexity of these aggregation rules is not yet settled. Finally, there are essentially no blocker companies to obscure or dilute Beneficial Ownership. Only if the Reporting Company is owned via a company exempt from reporting under the Corporate Transparency Act (e.g. utilities, banks, charities; see this blog - The Corporate Transparency Act – Who must file, for further elaboration) may the identity of the ultimate Beneficial Owner be withheld.
Furthermore, the use of capital or profit interests (including partnership interests), options, warrants, convertible debt instruments and any other type of contract right granting the holder control over a Reporting Company akin to equity-based control all count too. Thus, the concept of beneficial ownership for purposes of the Corporate Transparency Act is broad, tall, and deep. In theory, therefore, only the five specifically excepted parties–minor children, nominee agents, employees qualifying solely due to their employment, rights holders due to future inheritance and certain creditors–will escape disclosure of their “Beneficial Ownership Information.” In fact, the only parties from whom Beneficial Owners can conceal their identities under the Corporate Transparency Act are the Reporting Companies they ostensibly control. By means of a FinCEN Identifier, Beneficial Owners may be reported under an identifying number obtained from FinCEN. In this way, the Reporting Companies can fulfil their disclosure obligations without learning the identity of their Beneficial Owners.
In addition to its Beneficial Owners, a Reporting Company must also disclose its “Company Applicant” to FinCEN under the Corporate Transparency Act. The Company Applicant is the person who signed or authorized the Reporting Company’s registration or application for establishment with the relevant secretary of state or similar state office.
The Reporting Company must disclose the following Beneficial Ownership Information for each of its natural persons qualifying as a Beneficial Owner or Company Applicant–
Furthermore, the Reporting Company must also disclose information on itself, as follows–
The Reporting Company and Beneficial Ownership Information reported on the FINCEN registry is non-public, but not completely inaccessible to outside parties. While the confidentiality measures around Beneficial Ownership Information will be the core theme of a subsequent FinCEN NPRM, the statute itself contemplates the distribution of confidential information to other US government agencies, to banks in special circumstances and even to foreign government authorities. The topic of confidentiality safeguards will be the focus of a later blog, once the NPRM for the Corporate Transparency Act focused on that subject is issued.
If you wish to learn more about the Corporate Transparency Act, please select one of the following topics–