As of January 1, 2024, the Corporate Transparency Act requires that all entities subject to the Act must file a Beneficial Ownership Information Report with the Financial Crimes Enforcement Network (FinCEN). Affected entities include all domestic businesses created by registering with a state including corporations, LLCs, limited partnerships, and limited liability partnerships (LLPs) to name a few. Foreign businesses that file with any state are also subject to the CTA.
What is Meant by “Beneficial Ownership?”
A “beneficial owner” under the BOI Rule is defined as any individual who, directly or indirectly, either exercises substantial control over a reporting company or owns or controls at least 25% of the ownership interests of a reporting company.
“Substantial Control” over a reporting company includes an individual who serves as a senior officer of the reporting company … has authority over the appointment or removal of any senior officer or a majority or dominant minority of the board of directors (or similar body) … directs, determines, or has substantial influence over important decisions made by the reporting company … or has any other form of substantial control over the reporting company.
With regard to ownership, the BOI Rule includes a detailed definition of “ownership interest.” The definition of “ownership interest” is broad, including both equity and other types of interests, including capital and profits interests, convertible instruments, warrants or rights, or other options or privileges to acquire equity capital, or other interests. Equity, stock, or similar instruments are included without regard to whether any such instrument is transferable, is classified as stock or anything similar, or confers voting power or voting rights.
The “ownership interest” definition includes a catch-all provision for “any other instrument, contract, arrangement, understanding, relationship, or other mechanism used to establish ownership.” FinCEN intends this to ensure that any individual or entity that establishes an ownership interest in a reporting company through a contractual or other relationship not described is subject to the beneficial owner reporting requirements. FinCEN declined to exempt convertible instruments, including those not immediately convertible.
The BOI Rule also states how an individual may own or control an ownership interest of a reporting company, including through joint ownership with one or more other persons of an undivided interest in such ownership or through control of such ownership interest owned by another individual.
Finally, the BOI Rule clarifies that an individual’s ownership in an entity is determined at the present, on a fully diluted basis, based on the individual’s share of the capital and profit interests in the entity or based on the individual’s share of the voting power or value of ownership interests in the entity.
FinCEN recognizes that partnership waterfalls, Simple Agreements for Future Equity, and other structures may complicate the calculation of the percentage of ownership interests, and the BOI Rule clarifies the manner of calculating ownership interests, and the timing of such calculations.
Should you have any questions or concerns about how the Corporate Transparency Act applies to your business, please reach out to Derek Saunders, Keith Strahan, or Richard Armstrong of our firm, shown here: https://lfbrown.law/our-team