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At the beginning of 2021, Congress passed the Corporate Transparency Act (CTA), which many legal experts believe is the widest-reaching federal business entity law ever enacted. ICSC opposed many of the provisions in the legislation as unduly burdensome. Now, we are working with a broad coalition of associations representing small business to make the requirements under the law as workable as possible. With most of the law’s beneficial ownership rules now final, ICSC members – both investors and operators – need to be aware of whether or not they will be responsible for complying with the law’s requirements.
The CTA applies to privately held and many non-profit entities, including corporations, limited liability companies, limited partnerships, business trusts and other similar entities that are created by the filing of a document with a secretary of state or similar governmental office.
As a general rule, businesses not meeting one of several exceptions will, beginning January 1, 2024, have to report for their beneficial owners and control persons, certain personally identifiable information (PII) to the Department of Treasury’s Financial Crimes Enforcement Network (FinCEN). This PII will include the individual’s full legal name, date of birth, physical residential street address, government issued ID number and a photograph of the government ID. This information must be reported for each “beneficial owner” of the business and for anyone exercising “substantial control” over the business. Both the beneficial ownership and substantial control analyses are complex, and ICSC members should consult with their legal counsel to determine if their interest in a given business entity requires their PII to be reported.
FinCEN estimates that there will be at least 32.6 million “reporting companies” (entities that meet the core definition of a “reporting company” and are not exempt) in existence when the proposed rule becomes effective. Some exceptions do exist. For example, exemptions are granted for businesses regulated by the Securities and Exchange Commission, utilities, financial institutions, pooled investment vehicles and IRC Section 501(c) tax-exempt non-profits. “Large operating companies” are also excluded if they have a physical street address in the United States, 21 or more full-time employees, and more than $5 million in annual U.S. gross receipts as reported on the prior year’s federal tax return.
Companies in existence prior to January 1, 2024, will have 12 months to report the relevant information to FinCEN. Companies formed on or after this date will have 30 days to comply.
October’s ICSC+U.S. Law event will include a seminar on the CTA compliance, and we encourage our members who believe they may be impacted by this law to consult with their legal counsel directly.
The final rules can be found here and an FAQ document is available here.
For more information contact Moutray McLaren at mmclaren@icsc.com.