Beneficial Ownership Information (BOI) Reporting Requirement

Starting January 1, 2024, a significant number of businesses will be required to comply with the Corporate Transparency Act (CTA). The CTA was enacted into law as part of the National Defense Act for Fiscal Year 2021. The CTA requires the disclosure of the beneficial ownership information (otherwise known as “BOI”) of certain entities from people who own or control a company.

It is anticipated that 32.6 million businesses will be required to comply with this reporting requirement. The intent of the BOI reporting requirement is to help US law enforcement combat money laundering, the financing of terrorism and other illicit activity.

The CTA is not a part of the tax code. Instead, it is a part of the Bank Secrecy Act, a set of federal laws that require record-keeping and report filing on certain types of financial transactions. Under the CTA, BOI reports will not be filed with the IRS, but with the Financial Crimes Enforcement Network (FinCEN), another agency of the Department of Treasury.

Below is some preliminary information for you to consider as you approach the implementation period for this new reporting requirement. This information is meant to be general-only and should not be applied to your specific facts and circumstances without consultation with competent legal counsel and/or other retained professional adviser.

What entities are required to comply with the CTA’s BOI reporting requirement?

Entities organized both in the U.S. and outside the U.S. may be subject to the CTA’s reporting requirements. Domestic companies required to report include corporations, limited liability companies (LLCs) or any similar entity created by the filing of a document with a secretary of state or any similar office under the law of a state or Indian tribe.

Domestic entities that are not created by the filing of a document with a secretary of state or similar office are not required to report under the CTA.

Foreign companies required to report under the CTA include corporations, LLCs or any similar entity that is formed under the law of a foreign country and registered to do business in any state or tribal jurisdiction by filing a document with a secretary of state or any similar office.

Are there any exemptions from the filing requirements?

There are 23 categories of exemptions. Included in the exemptions list are publicly traded companies, banks and credit unions, securities brokers/dealers, public accounting firms, tax-exempt entities and certain inactive entities, among others. Please note these are not blanket exemptions and many of these entities are already heavily regulated by the government and thus already disclose their BOI to a government authority.

In addition, certain “large operating entities” are exempt from filing. To qualify for this exemption, the company must:

  1. Employ more than 20 people in the U.S.;
  2. Have reported gross revenue (or sales) of over $5M on the prior year’s tax return; and
  3. Be physically present in the U.S.

Who is a beneficial owner?

Any individual who, directly or indirectly, either:

  • Exercises “substantial control” over a reporting company, or
  • Owns or controls at least 25 percent of the ownership interests of a reporting company

An individual has substantial control of a reporting company if they direct, determine or exercise substantial influence over important decisions of the reporting company. This includes any senior officers of the reporting company, regardless of formal title or if they have no ownership interest in the reporting company.

The detailed CTA regulations define the terms “substantial control” and “ownership interest” further.

When must companies file?

There are different filing timeframes depending on when an entity is registered/formed or if there is a change to the beneficial owner’s information.

  • New entities (created/registered in 2024) — must file within 90 days
  • New entities (created/registered after 12/31/2024) — must file within 30 days
  • Existing entities (created/registered before 1/1/24) — must file by 1/1/25
  • Reporting companies that have changes to previously reported information or discover inaccuracies in previously filed reports — must file within 30 days

What sort of information is required to be reported?

Companies must report the following information: full name of the reporting company, any trade name or doing business as (DBA) name, business address, state or Tribal jurisdiction of formation, and an IRS taxpayer identification number (TIN).

Additionally, information on the beneficial owners of the entity and for newly created entities, the company applicants of the entity is required. This information includes — name, birthdate, address, and unique identifying number and issuing jurisdiction from an acceptable identification document (e.g., a driver’s license or passport) and an image of such document.

Risk of non-compliance

Penalties for willfully not complying with the BOI reporting requirement can result in criminal and civil penalties of $500 per day and up to $10,000 with up to two years of jail time.

For more information or to file your report, please go to https://www.fincen.gov/boi .

UPDATE: Paycheck Protection Program Flexibility Act

President Trump has signed into law the Paycheck Protection Program Flexibility Act. This law will:

  • Relax rules under the Paycheck Protection Program to give borrowers up to 24 weeks instead of 8 weeks to spend the funds;  
  • Give borrowers more flexibility in how the money is spent by reducing the amount of the loan required to be used on payroll expenses from 75% to 60% and still be eligible for loan forgiveness;
  • Extend the minimum loan repayment term from 2 years to 5 years for loans that are not forgiven;  
  • Allow borrowers to defer payroll taxes without penalty and still be eligible for loan forgiveness; and extend the rehiring safe harbor to from June 30, 2020 to December 31, 2020.

We will update this information as we receive formal guidance and updates in the coming weeks.

Stimulus Checks received on behalf of deceased taxpayer

The IRS recently released additional information on their Economic Impact Payment (EIP) Information Center webpage regarding the eligibility of deceased taxpayers. The updated information addresses payments issued to deceased taxpayers declaring their ineligibility of the EIP (Q10) and how to return funds (Q41). Please note IRS FAQs are not legal authority or formal guidance and can change at any time.  In addition, the FAQs do not address how or when enforcement of the repayment will be handled.  Considering the language used within the FAQs, that the payment “should be returned” rather than “must be” or “is required to be returned”, recipients of these payments, on behalf of deceased taxpayers, may want to consider holding off taking immediate action until further authoritative guidance is made available.  We will continue to monitor the updates and information as it is made available. For those clients with specific questions related to their situation, please call the office to speak with one of our tax professionals.

https://www.irs.gov/coronavirus/economic-impact-payment-information-center

Recovery Rebates for Individuals

The IRS has updated guidance related to the rebates under the CARES Act. Payments will be made initially based on a qualifying individual’s most recently filed tax return (2018 or 2019). The payment is an advance on a refundable credit on your 2020 return. Individuals who otherwise do not qualify for the credit based on phase out limits on their 2018 or 2019 return may find that income on their 2020 return results in receiving the rebate when they file in 2021.

Rebates equal $1,200 per qualifying individual plus $500 for each qualifying child (generally children under 17 who qualify for the child tax credit). Phase outs begin when AGI exceeds: $75,000 for individuals; $112,500 for head of household; and $150,000 for joint filers.

Additional information is available at the IRS website including updates for how to change your direct deposit information or payment method.

https://www.irs.gov/newsroom/economic-impact-payments-what-you-need-to-know