Category: Thought Leadership

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The CTA’s Effect on Bearer Stock: An Introduction

The Corporate Transparency Act (CTA), enacted to promote transparency and combat illicit activities, has significant implications for various aspects of corporate governance and ownership structures.
 
One notable area affected by the CTA is the issuance of bearer stock, a once-common method in some states for evidencing ownership interest in a company.
 
The CTA explicitly prohibits the issuance of bearer shares, fundamentally altering how ownership interests can be documented and transferred.
 
This article explores the impact of the CTA on bearer stock and the broader implications for corporate transparency and compliance.

Understanding Bearer Stock

Bearer stock refers to shares of a company owned by whoever holds the physical stock certificates, without the need for registration or ownership records. This form of stock ownership has historically been attractive due to its anonymity and ease of transfer.
 
However, these same characteristics have made bearer stock a vehicle for money laundering, tax evasion, and other illicit activities, as it allows ownership to be transferred without leaving a paper trail.

The Corporate Transparency Act’s Provisions

The CTA includes a specific prohibition against the issuance of bearer shares. According to the CTA §5336(f):

“A corporation, limited liability company, or other similar entity formed under the laws of a State or Indian Tribe may not issue a certificate in bearer form evidencing either a whole or fractional interest in the entity.”

The core premise of bearer stock—anonymous ownership—is fundamentally at odds with the transparency objectives of the CTA.
 
By explicitly prohibiting the issuance of bearer shares, the CTA ensures that all ownership interests must be registered and traceable. Companies that previously relied on bearer stock for anonymity must now transition to registered shares, where ownership is documented and reported.

Effect on BOI Reporting Requirements

The CTA imposes a new compliance requirement on companies, including regular updates and corrections to beneficial ownership information (BOI) filings.
 
Bearer stock, which lacks a mechanism for tracking ownership changes, means companies with these shares must adopt more transparent ownership structures that allow for accurate and timely reporting to the Financial Crimes Enforcement Network (FinCEN).
 
Entities that continue to issue bearer stock or fail to comply with BOI reporting requirements face increased regulatory scrutiny and potential penalties. The CTA empowers authorities to enforce compliance and penalize non-compliant entities, further deterring the use of bearer stock.
 
Companies must ensure their ownership structures align with the CTA’s transparency goals to avoid legal and financial repercussions.

Broader Implications for Corporate Governance

The CTA effect on bearer stock is part of a broader shift towards greater transparency and accountability in corporate governance.
 
By eliminating anonymous ownership, the CTA fosters a business environment where illicit activities are harder to conceal. This shift benefits legitimate businesses by creating a level playing field and enhancing trust among investors, regulators, and the public.
 
Companies must adapt to these new requirements by transitioning to registered shares and ensuring compliance with BOI reporting obligations.

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The Corporate Transparency Act (CTA) represents a significant shift in the regulatory landscape for businesses in the United States, requiring them to report their beneficial ownership information (BOI) to the Financial Crimes Enforcement Network (FinCEN). This new mandate has led legal professionals, CPAs, and advisors to adopt varied approaches to assist their clients in complying with the regulations. In light of this, the question stands: how are legal professionals approaching the CTA? Here’s a closer look at how they are navigating the CTA compliance terrain.

Legal Professionals Approach the CTA: White-Glove Service

One way legal professionals approach the CTA is by taking a comprehensive approach, offering white-glove service to clients. This includes not just initial filings but also managing subsequent updates to the BOI as required. While this service model demands significant resources, it also opens up a new revenue stream for firms willing to invest in it. The primary challenge here is not the initial filing but the ongoing management of updates, especially given the tight 30-day deadline for reporting any changes. Firms offering this service must establish robust mechanisms for smooth communication and operation, ensuring changes are filed promptly to avoid penalties. Despite the resource intensity, many clients expect this level of service, making it a valuable offering for firms that can deliver.

Legal Professionals Approach the CTA: Referral

In contrast, some professionals opt out of the direct filing process, instead referring clients to trusted resources or platforms. This approach allows firms to navigate the complexities of CTA compliance without overextending their resources. Clients with simpler ownership structures may find it easy to manage their filings independently with the right guidance, while those with more complex arrangements might need specialized services. Referrals can lead clients to other firms offering white-glove services or to platforms equipped to help business owners with their filing process.

Legal Professionals Approach the CTA: Initial Filing Support

A middle-ground approach involves legal professionals advising clients on the CTA and assisting with the initial BOI report filing but not engaging in the ongoing maintenance of updates. This model caters to clients who are capable of handling minor updates on their own with some initial guidance. It strikes a balance, providing essential support without the commitment to continuous update management, making it an attractive option for both professionals and clients who prefer a less hands-on approach while still receiving the initial guidance needed to file correctly.

The Role of Technology Solutions

Secure Compliance steps in to bridge the gap with solutions designed to manage all aspects of BOI reporting. Our services, including SecurePRO and SecureFILE, are designed for flexibility, allowing them to function both independently and in conjunction, to meet the varied demands of clients. 

The best part is, you don’t have to pick one platform. SecurePRO offers features such as user management tools, secure data collection, and e-signatures provide essential tools for professionals. 

SecureFILE offers step-by-step guidance through an intelligent wizards that make compliance accessible for all business owners, regardless of their familiarity with the CTA. 

Each of these approaches has its merits and challenges.

• Offering white-glove service can significantly enhance client satisfaction and loyalty but requires an investment in resources.
• Referring clients to external resources can be a practical solution for firms unable to commit these resources but may result in missed opportunities for additional revenue or building the client relationship.
• Providing initial filing support offers a compromise, helping clients navigate the initial compliance hurdle while empowering them to take charge of subsequent updates.

 As legal professionals and advisors continue to navigate the CTA landscape, the choice of strategy will largely depend on their firm’s capabilities, resources, and client expectations.

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Should You Get a FinCEN Identifier?

In an era where financial transparency and security are paramount, understanding and utilizing tools like the FinCEN Identifier (FinCEN ID) can be crucial. As outlined by the Corporate Transparency Act (CTA), which took effect on January 1, 2024, the FinCEN ID is 12-digit unique identifying number for reporting companies, beneficial owners, and company applicants that can be used on Beneficial Ownership Information reports (BOIR). While this identifier, issued by the Financial Crimes Enforcement Network (FinCEN), is not required for compliance, it is a strategic asset for individuals involved in the corporate sphere. This article dives deeper into why it may be optimal for individuals and reporting companies to get a FinCEN identifier.

Enhanced Data Security

One of the standout reasons to get a FinCEN ID is the enhanced data security it offers. If you’re a beneficial owner or involved in the formation of multiple companies, your personal data is sensitive information. Traditionally, sharing this data across various platforms poses a risk. However, with a FinCEN ID, you provide your information directly to FinCEN, significantly reducing exposure and risk of data breaches. This streamlined approach not only protects your data but also reinforces confidentiality, a critical aspect for many in the business world. For example, consider an attorney hired to create entity formation documents and file them with the State for a new startup. Their role in the formation process would result in the attorney needing to report their information on the newly formed companies BOIR as the ‘company applicant’. The attorney may be hesitant to send certain information to their client, such as an image of their driver’s license. In such scenarios, a FinCEN ID could allow the attorney to securely submit personal details directly to FinCEN, ensuring data security and peace of mind for both the applicant and the business owner.

Administrative Efficiency

The corporate world is often a web of complex relationships and multiple associations. For individuals linked to several companies, managing personal information can be daunting. Here, a FinCEN ID becomes an invaluable tool. It eliminates the need to repeatedly submit the same personal information for different companies, instead only needing to provide your 12-digit ID number to them. With a single FinCEN ID, you can associate your identity across various entities, saving considerable time and administrative effort. This efficiency is not just a convenience; it’s a strategic tool in managing your corporate affairs more effectively.

The Corporate Angle: Benefits for Reporting Companies

The finalized rule about the use of FinCEN IDs, an amendment to FinCEN’s Beneficial Ownership Information (BOI) Reporting Rule, addresses concerns about potential obscurity in beneficial owner identities due to the use of reporting entity FinCEN identifiers. Effective January 1, 2024, this rule stipulates clear criteria for reporting companies to report another entity’s FinCEN identifier, instead of individual beneficial owner information. These criteria ensure transparency while facilitating reporting processes:

1. The entity must have a FinCEN identifier and provide it to the reporting company.
2. The entity is considered a beneficial owner of the reporting company due to an ownership interest.
3. The beneficial owners of both the entity and the reporting company are the same individuals.

If these conditions are not met, the individual beneficial owners of the entity must be fully disclosed in the BOI report. This approach balances the need for ease in reporting with the necessity of transparent beneficial ownership disclosure.

How to Obtain a FinCEN Identifier

Obtaining a FinCEN ID is a straightforward, electronic process. It involves submitting essential personal information, including legal name, date of birth, residential address, and a qualifying document like a driver’s license or passport. The process, designed to be user-friendly, takes about 20 minutes and is a small investment of time for the long-term benefits it offers. Individuals and reporting companies can have one FinCEN ID. So, if you will be a beneficial owner and a company applicant, you will have one ID that serves both roles. Here is a step-by-step outline of how to obtain your FinCEN ID:

1. Go to: https://fincenid.fincen.gov/
2. Either sign in with an existing login.gov account, or create a new one (if you don’t have one yet)
   – The government is using this across agencies now to verify identities, so it will eventually come in handy elsewhere also.
3. Fill out your name, DOB, address, and information from your driver’s license or passport.
   – Note: If you are going to be reported on a BOIR (or multiple BOIRs) where you will assume the beneficial owner role and company applicant role, you must enter both your residential address and business address.
4. Upload a copy of your driver’s license or passport.
5.  Submit!

A Tool for Navigating Financial Regulations

The FinCEN ID, for both reporting companies and individuals, is a proactive tool for enhancing data security and administrative efficiency. Whether you’re an individual with multiple corporate roles or a company looking to streamline your reporting processes, a FinCEN ID offers a way to navigate the complexities of financial regulations with greater ease and security. As the corporate landscape evolves, tools like the FinCEN ID will become increasingly important in managing your financial and corporate responsibilities effectively.

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The NSBA Lawsuit: An Overview

The National Small Business Association (NSBA), a small business advocacy group, has taken a stand against the Treasury Department’s newest mandate which requires over 30 million small businesses to disclose detailed information about their owners and beneficiaries.

Called the Corporate Transparency Act (CTA), the regulation is aimed at putting a stop to the misuse of anonymous shell companies for criminal activities. Filed on November 15 in the U.S. District Court for the Northern District of Alabama, the NSBA lawsuit argues that this regulation disproportionately burdens small enterprises, infringes on constitutional rights such as the right to privacy, association, and free speech, and encroaches upon states’ authority over business governance. The Treasury Department has defended the necessity of this database, citing its importance in unveiling sources of criminal behavior, particularly in the context of sanctioning Russian oligarchs and associates of Russian President Vladimir Putin amid the Ukraine conflict. While Treasury Secretary Yellen hailed the rule as a means to impede criminals from concealing identities and laundering money through financial systems, the NSBA contends that existing federal regulations on money transfers render this new requirement excessive and intrusive for small businesses. “The CTA is a poorly thought out and heavy-handed federal mandate that will be a bureaucratic nightmare for small-business owners,” said NSBA President and CEO Todd McCracken. “If implemented, small businesses will be forced to spend millions of hours and billions of dollars on paperwork instead of creating jobs and helping grow our economy.” [See Related: NSBA.biz | CTA Lawsuit Update] In its complaint, the NSBA highlights that the estimated 32.6 million companies subject to this regulation encompass various entities ranging from small family businesses, franchisees, manufacturers, online retailers, to service providers like plumbers, restaurateurs, electricians, lawyers, architects, dentists, healthcare professionals, fitness studios, and landscapers, among others. They also brought to light that the CTA also encompasses entities not involved in commercial activities, including non-profit entities lacking federal tax-exempt status, entities formed solely to hold private property, and local private social clubs without intent to pursue federal tax-exempt status. They describe the CTA as an extensive law enforcement tool imposed on law-abiding citizens and permanent residents who own or oversee small businesses in the U.S., without any established legal or regulatory justification for demanding such personal information. Moreover, the NSBA argues that this regulation infringes upon states’ authority in chartering and regulating businesses under state law, asserting that the federal government lacks constitutional authority to impose additional requisites on entity formation or dictate conditions for entity charters under state laws. In conclusion, the clash between the Treasury Department’s push for enhanced disclosure through the CTA and the NSBA’s lawsuit highlights the complex balance between combating illicit activities and safeguarding the rights of small business owners. The dispute raises critical questions about privacy, governmental overreach, and the regulatory burdens placed on businesses. As this legal battle unfolds, it serves as a focal point emphasizing the need for a nuanced approach that addresses concerns of national security while respecting the legitimate worries of small enterprises about intrusive mandates.

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The implementation of the Corporate Transparency Act (CTA) in the United States has led to widespread curiosity about the reasons and methods behind gathering data on businesses and their proprietors. Interestingly, several other nations have had requirements for reporting beneficial ownership information (BOI) for quite some time now. BOI reporting in different countries varies significantly, reflecting unique legal and regulatory frameworks. These requirements are typically designed to increase transparency, prevent money laundering, and combat financial crimes.

BOI Reporting in Different Countries

Here’s an overview of beneficial ownership reporting requirements in various countries outside the United States:

1. European Union (EU): The EU has implemented the Fifth Anti-Money Laundering Directive (5AMLD), which requires member states to maintain beneficial ownership registers for companies and trusts. These registers are partially or fully accessible to the public. Companies must identify and verify the identity of their beneficial owners and report this information to the relevant national register.
2. United Kingdom: The UK has established a public register of beneficial ownership known as the “People with Significant Control” (PSC) register. Companies, LLPs, and eligible Scottish partnerships are required to identify and record the people who have significant control over the company and report this information to Companies House. Also, changes to beneficial ownership information for companies required to register with the UK Registry must be reported within 15 days of the change.
3. France: France adopted requirements for the identification and registration of beneficial owners in May of 2015. The information reported by required companies is accessible, without restriction, to judicial authorities, the national financial intelligence unit, agents of the customs administration, authorized agents of the public finance administration responsible for tax collection and control, and certain supervisory authorities. Companies and certain other types of associations and groups must file updates to beneficial ownership information within one month of the update.
4. Canada: Canada has enhanced its beneficial ownership transparency measures. Federally incorporated companies are required to maintain a register of individuals with significant control. Provinces and territories have also been updating their legislation to introduce similar requirements.
5. Australia: Australia is in the process of enhancing its beneficial ownership transparency. While there is no public register yet, companies are required to keep records of their beneficial ownership and control.
6. India: India mandates companies to maintain a register of significant beneficial owners and file returns with the Registrar of Companies. The definition of a significant beneficial owner includes individuals holding a certain percentage of shares or voting rights.

Switzerland, Singapore, Hong Kong, and a variety of other countries require companies to maintain records of beneficial owners and significant controllers and disclose information upon request, however this information is not publicly accessible. These regulations are part of a global trend towards greater financial transparency and are often aligned with recommendations from international bodies like the Financial Action Task Force (FATF). It’s important to note that the specifics of these requirements can change, and companies operating internationally should stay informed about the regulations in each jurisdiction where they do business.

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Debunk CTA Misconceptions: Introduction

The Corporate Transparency Act (CTA), enacted January 1 of 2021, marked a significant shift in the legal landscape for businesses in the United States. Intended to target illicit activities often facilitated by opaque corporate structures, the Act aimed to end the use of “shell” companies in money laundering, terrorist financing, and fraudulent practices. However, misconceptions about its scope, impact on small businesses, constitutionality, and potential consequences persist among business owners. With the CTA comes the Beneficial Ownership Information (BOI) reporting rule, which needs to be on the radar for professionals and business owners in the United States.

Small Business Exemption

Many small business owners assume they are exempt from the CTA’s purview. However, the Act casts a broad net and specifically includes small businesses to prevent criminals from hiding behind corporate veils. Compliance is essential unless the business qualifies for an exemption (for example, certain large businesses are exempt).  There are 23 types of entities that are exempt from filing a BOI report (BOIR). To put this in perspective, of all existing entities in 2024, 88.9% of them are not exempt and will need to file a BOIR.

Influence of Industry Lobbyists

Some believed industry lobbyists would prevent the Act’s passage. However, despite historical attempts to block similar legislation, the CTA was passed, showcasing bipartisan support and a commitment to combatting illicit activities. There have been proposed rulings to extend deadlines and requests to clarify certain definitions, but make no mistake, the CTA is finalized and effective.

Constitutional Concerns

Questions about the Act’s constitutionality persist. There has been one major lawsuit filed against the Treasury.

Filed on November 15, 2022, in the U.S. District Court for the Northern District of Alabama, the National Small Business Association (NSBA) lawsuit argues that this new regulation disproportionately burdens small enterprises, infringes on constitutional rights such as the right to privacy, association, and free speech, and encroaches upon states’ authority over business governance. There hasn’t been any recent news about the complaint since it was filed, but with the CTA effective today, it’s still uncertain what will come of the lawsuit.

Ignoring Reporting Obligations

Some business owners contemplate non-compliance. However, overlooking reporting obligations could lead to significant repercussions, including fines of up to $10,000 per violation, criminal penalties, and even imprisonment.

Disregard for Fiduciary Duties

Business owners with substantial control over reporting entities must understand their fiduciary duties. Failure to comply can breach these duties, leading to legal repercussions, potential personal liabilities, and even criminal sentences. Those who meet the definition of a beneficial owner (even individuals with no financial stake in the entity can fall under the CTAs definition of a beneficial owner), must be reported on a reporting company’s BOIR. If you know that you will need to be reported on a BOIR, now’s the time to talk to your senior officers and/or management to ensure filing is completed.

The Road Ahead

Despite initial shockwaves, the CTA is a reality that demands attention. With its implementation deadline passed, businesses need to prepare for compliance. Waiting for clearer guidelines from FinCEN is not a viable strategy. Each entity must take steps to comply with reporting requirements. The CTA has disrupted traditional norms in beneficial owner reporting and its enforcement mechanisms will leave no room for evasion. Secure Compliance can provide you with the tools you need to file your BOIR efficiently and quickly. Whether you’re a CPA, lawyer, or business owner, there is a platform tailored just for you.

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