Treasury last week made good on its promise to deliver much-needed relief from the Corporate Transparency Act, a move that did not go unnoticed by the Main Street business community. In a letter sent earlier today, over 100 trade associations applauded a new interim rule that exempts American companies from the CTA’s onerous reporting requirements and implements a risk-based enforcement approach instead. The letter reads:
This rule appropriately narrows the scope of entities required to report BOI by exempting domestic reporting companies and U.S. persons who are beneficial owners of foreign reporting companies. By doing so, the Department has alleviated substantial compliance burdens that would have disproportionately affected law-abiding Main Street businesses, while also shifting to a risk-based enforcement protocol that will ultimately strengthen the effectiveness of the CTA.
The original CTA reporting requirements encompassed an estimated 32 million legal entities with 20 or fewer employees or $5 million or less in revenues, effectively targeting nearly every small business in the United States. The interim final rule’s exemption for domestic reporting companies ensures that these businesses can continue to operate without the added complexity and potential penalties associated with BOI reporting. Furthermore, additional narrow exemptions for certain U.S. persons demonstrate a balanced consideration of privacy concerns and the practicalities of compliance.
We believe these revisions will allow the Department to focus its resources on entities that pose genuine risks of money laundering and other illicit activities, thereby enhancing the effectiveness of our nation’s financial crime prevention efforts without imposing undue burdens on legitimate businesses.
FinCEN is accepting comments on the new regulations for 60 days, after which we expect the final rule will be codified as-is.
Meanwhile, proponents of the CTA are not taking the loss well and have signaled a possible legal challenge. The good news is that, as we pointed out recently, the CTA explicitly grants regulators the authority to exempt a class of entities (in this case domestic businesses) from the reporting requirements. Here’s the interim rule with additional details:
The CTA also authorizes the Secretary of the Treasury (Secretary) to exempt any other “entity or class of entities” for which the Secretary, with the written concurrence of the Attorney General and the Secretary of Homeland Security, has, by regulation, determined that “requiring beneficial ownership information from the entity or class of entities . . . would not serve the public interest” and “would not be highly useful in national security, intelligence, and law enforcement agency efforts to detect, prevent, or prosecute money laundering, the financing of terrorism, proliferation finance, serious tax fraud, or other crimes.” In addition, section 5318(a)(7) of the BSA provides that the Secretary may make appropriate exemptions from a requirement in the BSA or regulations prescribed under the BSA. Taken together, these provisions authorize the issuance of regulations that may provide additional exemptions from the requirements of the CTA.
It appears FinCEN is on solid footing here so we’re confident that any legal challenges would be unsuccessful.
Finally, as we wrote earlier this week, while these regulations are a massive step forward it’s now time for Congress and the courts to put the CTA to rest for good. The momentum is certainly on Main Street’s side but as we’ve seen time and time again with this ill-conceived law, it’s critical that we keep up the pressure.