A regulation that would require businesses to file an ownership-interest report under the Corporate Transparency Act hangs in limbo.
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Q: What’s going on with Beneficial Ownership Interest reporting? Is it on, or is it off?
ACE advises: It is off. For now. The 2021 Corporate Transparency Act requires private businesses to file Beneficial Ownership Interest Reports with the Financial Crimes Enforcement Network. These reports facilitate investigation of financial crimes by identifying the individuals with the most to gain by committing them. The reporting deadline was set for Jan. 1, 2025.
Toward the end of 2024 lawyers and accountants let loose a flurry of notifications about the deadline, and with good reason. The penalties for late filing are up to $500 a day.
But there had been ominous rumblings in Alabama and Texas. Earlier in 2024, a federal court in Alabama ruled the Corporate Transparency Act unconstitutional, but did not suspend the reporting requirement, except as to the plaintiffs in that case. On Dec. 4, 2024, the federal district court for the Western District of Texas also declared the CTA unconstitutional and took the additional step of blocking enforcement nationwide.
On Dec. 23, the Fifth Circuit Court of Appeals lifted the nationwide injunction, basing its decision, in part, on its view that the requirement was likely constitutional. On Dec. 26 another panel of Fifth Circuit judges reinstated the injunction to preserve the status quo while it considers the issue of constitutionality. The hearing is set for March 25.
If you have not filed your company’s Beneficial Ownership Interest Report, the nationwide injunction should protect you from penalties. If you have filed, you probably wonder what you have given up. Either way, you might consider the following as we wait for the Fifth Circuit decision.
- The Fifth Circuit is conservative and pro-business. Its first ruling found that there was a strong likelihood that the CTA was constitutional.
- If all of the ownership interests in your company are held by individuals, the information you have reported (name, date of birth, social security number, address, driver’s license or passport number) was already known by the government.
- If your company’s ownership interests are more complex — holding companies, special tax entities, etc. — you will have reported the same information for the related entities, but more of it.
- The rules surrounding BOI reporting restrict access to and protect BOI information.
Carrie Green Yardley, is founder of Yardley Esq. PLLC, vice president of Association of Consulting Executives and a contributing writer at Mainebiz. The firm advises small businesses from start-up through succession. This article is not intended as legal advice. Contact Carrie at carrie@yardleyesq.com