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27 • 2023

FinCen Deadline Extended for New Companies to Report

We have written several articles on Congress’s passage of the Corporate Transparency Act (“CTA”) early in 2021 and what the CTA means for reporting of beneficial ownership information (“BOI”) for U.S. business entities.[1] In one of the articles, we covered in detail the final rule (“BOI Reporting Rule”) issued on September 30, 2022, by the Financial Crimes Enforcement Network (“FinCEN”) of the U.S. Department of the Treasury laying out the particulars for BOI reporting, including who will have to report, what will have to be reported, and when reports will have to be filed.[2] On September 18, 2023, FinCEN issued Version 1.0 of its Small Entity Compliance Guide, which provides detailed guidance to help small entities comply with the requirements of the BOI Reporting Rule.

With regard to how a company will file a BOI report, the Small Entity Compliance Guide states that filing will have to be done electronically through a secure filing system that is “currently under development and will not be available until January 1, 2024.”[3] FinCEN has not yet given any additional information about the technical aspects of BOI reporting, except to indicate that it intends to “publish instructions and other technical guidance on how to complete the BOI report form,” all of which will, in theory, be available “soon” at FinCEN’s BOI webpage.[4] In the meantime, despite the huge effort and expense involved in completing the information technology products needed to administer the BOI reporting requirements,[5] FinCEN continues to give the impression that it is on track to be ready to accept filings when the BOI Reporting Rule takes effect on January 1, 2024.[6]

On September 27, 2023, FinCEN proposed one change to the timing of BOI reporting.[7] The BOI Reporting Rule currently calls for (1) all companies formed or registered on and after January 1, 2024 to file their initial BOI reports with FinCEN within 30 days of forming or registering the company, and (2) all companies already existing on January 1, 2024 to file their initial BOI reports with FinCEN by January 1, 2025.[8] The one change proposed in FinCEN’s Notice of Proposed Rulemaking would extend the deadline for new companies formed in 2024 (that is, on or after January 1, 2024, but before January 1, 2025) to submit their initial BOI reports from 30 days after formation or registration of the company to 90 days.[9]

We are hopeful, if somewhat skeptical, that FinCEN will actually have its BOI reporting system up and running when reporting is scheduled to begin on January 1, 2024. If so, then we are prepared to file BOI reports on behalf of new companies formed or registered on or after that date within the time required by FinCEN, whether that be 30 days or 90 days if the proposed change to the BOI Reporting Rule is adopted. With regard to companies already existing on January 1, 2024, however, we intend to take more of a wait-and-see approach. Because existing companies will have a full year after January 1, 2024 to file their initial BOI reports, we think it makes more sense to wait until the inevitable kinks in the system at startup get worked out before filing reports on behalf of our existing companies.

[1] See eMinutes, “FinCEN Reporting — Yes It Is Really Happening” (Feb. 23, 2023); “Corporate Anonymity After FinCEN Regulations Implementing the CTA” (Feb. 28, 2022); “Our FinCEN Game Plan” (Feb. 12, 2022); “Who Can Access Information About Real Estate Transactions That Must Be Reported to FinCEN?” (Jan. 8, 2022); “Delaware LLC Remains Best Way for Celebrities to Preserve Anonymity Even After the Corporate Transparency Act” (Jan. 20, 2021).

[2] Once the BOI Reporting Rule takes effect on January 1, 2024, it will be codified at 31 C.F.R. § 1010.380. For now, the BOI Reporting Rule appears at the end of the final rule published in the Federal Register on September 30, 2022. See FinCEN, Beneficial Ownership Information Reporting Requirements, 87 FR 59,498, at 59,591 to 59,596 (Sept. 30, 2022).

[3] FinCEN, Small Entity Compliance Guide v. 1.0, at 43 (Sept. 2023).

[4] Id.; FinCEN, FinCEN Issues Compliance Guide to Help Small Businesses Report Beneficial Ownership Information (Sept. 18, 2023) [“FinCEN Press Release”]. FinCEN’s BOI webpage can be found at https://www.fincen.gov/boi.

[5] See Statement by Himamauli Das before the U.S. House of Reps. Comm. on Fin. Servs., at 13 (Apr. 27, 2023).

[6] See FinCEN Press Release, supra note 4 (“The [BOI reporting] requirements become effective on January 1, 2024, and companies will be able to begin reporting beneficial ownership information to FinCEN at that time.”).

[7] See FinCEN, FinCEN issues a Notice of Proposed Rulemaking to extend the deadline for certain companies to file their beneficial ownership information reports (Sept. 27, 2023); FinCEN, Notice of Proposed Rulemaking, Beneficial Ownership Information Reporting Deadline Extension for Reporting Companies Created or Registered in 2024 (Sept. 28, 2023).

[8] See FinCEN, Small Entity Compliance Guide v. 1.0, at 42.

[9] See FinCEN, Notice of Proposed Rulemaking, supra note 7.