CTA Injunction Reinstated!
The Corporate Transparency Act saga took a welcome turn yesterday after a Fifth Circuit Court panel reinstated the nationwide injunction against the statute.
As a result of the order, Main Street businesses are not required to comply with the Corporate Transparency Act’s reporting requirements until the Fifth Circuit is able to more fully consider the injunction and the underlying merits of the legal challenge. The key paragraphs from that ruling are below:
On December 3, 2024, the district court entered an order enjoining enforcement of the Corporate Transparency Act and its corresponding Reporting Rule. The Government requested a stay of the preliminary injunction, which the district court denied. The Government appealed, and on December 23, 2024, a motions panel of this court granted the government’s emergency motion for a stay pending appeal. The order also expedited the appeal to the next available oral argument panel.
The merits panel now has the appeal, which remains expedited, and a briefing schedule will issue forthwith. However, in order to preserve the constitutional status quo while the merits panel considers the parties’ weighty substantive arguments, that part of the motions-panel order granting the Government’s motion to stay the district court’s preliminary injunction enjoining enforcement of the CTA and the Reporting Rule is VACATED.
The panel also announced today that it would hear arguments on March 25 on whether to keep the injunction in place while the broader case is heard by the full court. So absent the federal government appealing yesterday’s decision to the Supreme Court – and SCOTUS intervening in the case – the injunction will stay in place through at least the end of March 2025, at the earliest. In other words, yesterday’s order means covered entities do not need to file their Beneficial Ownership Information reports prior to that proceeding.
Meanwhile, we are still waiting on the Eleventh Circuit ruling on the case from Alabama and expecting a decision soon from the Western District of Michigan where the judge has already signaled his sympathy for the plaintiffs.
And finally, the new administration takes office on January 20th and S-Corp is working to get an administrative delay implemented through the end of 2025. Key members of the Trump team have already weighed in against the CTA (here, here and here). We just need to turn those concerns into action.
The unpredictability we’re seeing in the courts is a central part of our argument for an administrative delay. Yesterday’s ruling is a welcome development that should give us the time necessary to get that done.
CTA Filing Deadline Extended to January 13th
It’s far short of the one-year delay S-Corp was seeking, but businesses covered by the Corporate Transparency Act received a small stocking stuffer yesterday, courtesy of the Treasury Department.
Following the unfavorable ruling by the Fifth Circuit which reinstated the Corporate Transparency Act, the Financial Crimes Enforcement Network (FinCEN) has extended the general CTA filing deadline two weeks, until January 13th. According to the notice posted on the FinCEN website:
Reporting companies that were created or registered prior to January 1, 2024 have until January 13, 2025 to file their initial beneficial ownership information reports with FinCEN. (These companies would otherwise have been required to report by January 1, 2025.)
You can read the entire post here.
Meanwhile, the legal fight is far from over. The plaintiffs in the Fifth Circuit case filed an emergency petition for an en banc hearing by January 6th, or one week before the new filing deadline. The petition was filed last evening and makes the case for why the earlier three-judge panel errored both with necessity of the injunction and on the merits of the case:
The panel had nothing to say about the practical consequences of suddenly reinstating the compliance deadline with just days left to comply, disregarding an obvious consideration that was elaborated upon in amicus briefs by half the states and dozens of major industry groups. Tens of millions of business entities are subject to the CTA’s reporting mandate, and the injunction and its effect have been widely publicized by the media and FinCEN itself. The panel’s decision to bring the CTA back into force with just a few business days remaining in the middle of the holiday season will harm many, as those responsible for reporting scramble to understand and fulfill obligations that the government informed them only weeks ago had been postponed.
And:
At bottom, the panel erroneously accepted the government’s vague assertion that Congress may exercise plenary authority, irrespective of the limits of its enumerated powers, in any field it has legitimately entered. If that were so, then Congress’s longstanding regulation in the healthcare field would have supported the ACA’s insurance mandate. Of course, it did not.
The S Corporation Association is named as an Amici in the petition, as are numerous other trade groups and twenty five states.
We also are waiting for the 11th Circuit to rule on the government’s appeal of the Northern District of Alabama’s decision last March that the CTA is unconstitutional. Oral arguments in that appeal took place in September, so a decision could come at any time.
And finally, we noted in last week’s Wire that a district court in Michigan had signaled serious concerns regarding the scope of the CTA and its incompatibility with the Constitution, suggesting we may soon have a third Federal court ruling against this onerous law.
So a modicum of good news just before Christmas. Existing entities now have an extra two weeks to file their initial beneficial ownership reports, and the legal process may still deliver more meaningful relief. Credit to NFIB for keeping the fight going and to FinCEN for recognizing how disruptive this process has been. More to come.
Government Wins, Private Businesses Lose
An appellate court today ruled in favor of the federal government in reversing a nationwide injunction against the Corporate Transparency Act. The decision means that the CTA’s reporting requirements are now back in full effect, giving the approximately 20 million entities who have not yet submitted their filings just a few days to do so.
The injunction that’s currently in place was ordered by a Texas court which found that the CTA is “likely unconstitutional” and that Congress went beyond its authority in enacting the statute. The government quickly requested that the injunction be stayed pending a final ruling.
In response, S-Corp, in addition to more than a dozen organizations and 25 states, filed amicus briefs urging the Fifth Circuit to keep the injunction in place. Our argument was that doing so would give millions of businesses more time to learn about their new filing obligations while giving the courts time to make a final ruling. As a practical matter, lifting the injunction this close to the filing deadline also presents a logistical nightmare for countless businesses.
That nightmare is about to become a reality. At of the start of December, federal regulators estimated that just a third of the entities required to file under the CTA had done so. Given the massive education gap we know exists, there’s little doubt that most of the remaining 20 million entities will not be in a position to comply with the filing requirements before the end of the year.
This fight is not over. Next step on the advocacy side will be to work with the incoming Trump Administration to delay the filing deadline administratively. This won’t help existing companies which already reported their Beneficial Ownership Information, but it will help new incorporations and those businesses that failed to file.
Over at the courts, we expect the NFIB to appeal the Fifth Circuit Court decision. Word is an expedited appeal hearing on the stay is already in the works, but that hearing is unlikely to take place before the end of the year.
Meanwhile on the merits, today’s court order argues that the government is likely to succeed in its defense of the CTA, but that decision was written by two Democrat judges, so it may not reflect the views of the full Fifth Circuit or the Supreme Court.
Finally, we have yet to hear from the Eleventh Circuit, which is considering the government’s appeal of the North District of Alabama District Court decision that the CTA is unconstitutional. That decision could come down any day now.
So bad news right before Christmas, but lots more to come on the CTA. Looking forward to better results next year.
S-Corp Files CTA Amicus Brief
The S Corporation Association filed an Amicus brief yesterday in support of the nationwide injunction on enforcement of the Corporate Transparency Act.
With the filing deadline just days away, and millions of covered businesses not having yet filed, the importance of keeping this injunction in place cannot be overstated – a concern that is compounded by the fact that the 1-year delay provision moving through Congress is now stalled as lawmakers fight over the contents of the year-end spending bill.
Yesterday’s brief, filed on behalf of the S Corporation Association and the Private Investor Coalition, makes the case for keeping the injunction in place, giving millions of businesses more time to learn about this new filing requirement, and giving the courts time to rule that the CTA is unconstitutional.
Why all the fuss? The CTA is the most aggressive, unrestrained data grab in American history. As the brief notes:
No other federal information-collection statute presents comparable privacy risks. Other kinds of personal information given to the federal government are protected by the Privacy Act of 1974, which generally precludes the Government from using information collected for one reason for incompatible purposes. Personal information given to federally regulated financial institutions is likewise protected under the Right to Financial Privacy Act of 1978, which generally requires the Government to obtain a warrant, subpoena, or other form of process before it can access a citizen’s personal information without their consent. Tax information collected by the Government is protected under the Internal Revenue Code, which generally requires a court order before the IRS may share information with non-tax enforcement agencies.
The CTA provides no similar panoply of protections. If the Government obtains a stay or a narrowing of the District Court’s injunction, the Amici’s members and millions of other American citizens and businesses will be forced to hand over private information for a criminal-investigation database that can be accessed by any federal agency and many foreign, state, and local governments and their agencies. The privacy bell will be incapable of being un-rung.
The recent Texas ruling joined the Northern District of Alabama decision from last March in casting doubt that the CTA falls within the government’s constitutional authority. We may soon have a third court weigh in. As Law360 notes:
A federal judge in Michigan said new disclosure requirements for small businesses seem burdensome and intrusive during a Monday hearing focused on the privacy implications of the currently blocked anti-money laundering law….
During a hearing in a separate legal challenge to the CTA, U.S. District Judge Robert J. Jonker said he was troubled by both the “massive amount” of information the government was seeking from small businesses and that the government was requiring the disclosure of nonpublic information to assist in criminal investigations without the need for a warrant.
“It invites the conclusion that the main purpose of the whole act is to get around the Fourth Amendment,” Judge Jonker said.
So the case against the CTA is gathering momentum. S-Corp is confident the constitutional challenges raised against the CTA will ultimately prevail, but that will take time and the CTA’s filing deadline is in two short weeks.
With the legislated delay in jeopardy and the 11th Circuit appeal still pending, the Texas injunction may be the last opportunity to protect the privacy of millions of business owners. As the judge in Michigan notes, once that data is collected, there’s no going back.
Main Street Still Fighting for CTA Delay
Today more than 100 trade associations joined with S-Corp in asking lawmakers to pass a Continuing Resolution bill that includes language delaying the Corporate Transparency Act’s reporting deadline. The effort was mounted following reports that some House members were seeking to strip the provision from the broader package, a move that would needlessly expose millions of law-abiding business owners and employees to stiff fines and penalties.
As the letter makes clear, a one-year delay is critical and would provide much needed relief and certainty to businesses, give federal regulators more time to execute affected entities, and allow various legal challenges to make their way through the courts:
FinCEN estimates that more than 32 million such entities will be affected by the new law just this year, with an additional 6 million each subsequent year as new businesses are formed. Yet as of December 1, 2024 – just one month before a year-end deadline – FinCEN has received less than 30 percent of the required filings, highlighting the stark education gap when it comes to the compliance obligations mandated by the CTA.
Adding to the confusion are the myriad legal challenges that have been filed throughout the country, and which stand at various stages of the legal process. Notably, a nationwide injunction against the CTA was recently appealed and will be heard by the Fifth Circuit, while an Alabama court ruling that found the CTA unconstitutional is pending appeal in the Eleventh Circuit. Small businesses therefore find themselves in a precarious position: they are currently under no obligation to file, but a single ruling could reverse that dynamic, leaving them with just days to comply with this burdensome and costly statute.
So where do things currently stand? We’ve heard from numerous offices that – thanks at least in part to outreach from our trade association allies and our collective members – the provision may be safe.
However, the broader bill is now in danger as more and more Republicans come out against it as the day progresses. As that opposition mounts, we once again urge those to reach out to their elected officials and ask them to include delay language in the final CR.