The Corporate Transparency Act Starter FAQs – The Genesis of a National Beneficial Owner Registry

Q1. What is the Corporate Transparency Act?
A1. 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 federal beneficial owner registry.
 
Q2. How does the Corporate Transparency Act function?
A2. The Corporate Transparency Act compels entities qualifying as “Reporting Companies” to disclose all US and non-US Person beneficial owners of the Reporting Company.
 
Q3. What counts as a Reporting Company pursuant to the Corporate Transparency Act?
A3. The Reporting Companies includes all US corporations, US limited liability companies (LLCs) and other similar enterprises that are created by the filing of a document with a secretary of state or similar state office.

For more on Reporting Companies please refer to:

• The Corporate Transparency Act - Who must file

Q4. Are any US entities not Reporting Companies under the Corporate Transparency Act?
A4. Yes, entities that do not need to register with or submit a form to a secretary of state or similar state office in order to be set up do not qualify as Reporting Companies. Examples vary by state, as each state sets its own requirements, but generally the omitted entities include simple partnerships and trusts.​

For more on trusts under the Corporate Transparency Act, please refer to:

• The Corporate Transparency Act - The impact on trusts

Q5. So only a US entity can qualify as a Reporting Company per the Corporate Transparency Act?
A5. No, but a non-US entity will not qualify unless it actively registered to do business in a US State.
 
Q6. Who counts as a “Beneficial Owner” for purposes of the Corporate Transparency Act?
A6. The definition of Beneficial Owners 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.”
 
Q7. What counts as substantial control under the Corporate Transparency Act?
A7. There is no definition of substantial control provided, but three of the 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.
 
Q8. Does indirect ownership by a Beneficial Owner refer to ownership stakes held through other entities?
A8. Yes, and there are no blockers.
 
Q9. Will the Reporting Company need to apply ownership aggregation rules in order to calculate ownership percentages?
A9. Yes, almost surely, but hopefully milder versions than the ones set out in the US tax code.

For more on Beneficial Owners please refer to:

• The Corporate Transparency Act - What information must you provide

Q10. Are the Beneficial Owners the only reportable parties under the Corporate Transparency Act?
A10. No, a Reporting Company must also disclose its Company Applicant, who 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.
 
Q11. What information needs to be disclosed under the Corporate Transparency Act?
A11. The Reporting Company must disclose the following “Beneficial Owner Information” (or “BOI”) for each of its natural persons qualifying as reportable–

• Full legal name;
• Date of birth;
• Current residential or business street address; and
• A unique identifying number from one of a set of approved documents and a copy of that document.

The Reporting Company must also disclose information on itself, as follows–

• Full legal name;
• A trade name or “doing business as” name, if any;
• Current business street address;
• The jurisdiction of formation; and
• The TIN or EIN issued by the IRS.

 
Q12. Is the information reported under the Corporate Transparency Act confidential?
A12. The registry is non-public, but the information is not completely off-limits. The registry information will be made available to other federal agencies for purposes of law enforcement and, in limited circumstances, to other governments pursuant to a valid request
 
Q13. How many times must a Reporting Company disclose its Beneficial Owner?
A13. Just one time is mandatory, but the Reporting Company must update the disclosure within one year of a change in circumstance to the beneficial ownership information originally submitted.
                                                                                         
Q14. By when must a Reporting Company disclose its Beneficial Owners and Company Applicant?
A14. The Corporate Transparency Act’s mandatory disclosures must be made at the time of formation for Reporting Companies established on or after the effective date of the forthcoming final regulations. Reporting Companies already in existence at that time must submit the disclosure within two years from the effective date of the final regulations.​

For more on the reporting mechanics and confidentiality safeguards under the Corporate Transparency Act, please refer to:

• The Corporate Transparency Act - What information must you provide

Q15. Can any of this change before the Corporate Transparency Act comes into force?
A15. Yes, but it is most unlikely. 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 final regulations are expected in a few months and are unlikely to contain material revisions.
 
If you wish to learn more about the Corporate Transparency Act, please select one of the following topics–

• The Corporate Transparency Act – Who must file
• The Corporate Transparency Act – When and how must you file
• The Corporate Transparency Act – What information you must provide
• The Corporate Transparency Act – The impact on trusts​

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