CTA Regulations Will Change the Way Private Companies Organize

The 2020 Corporate Transparency Act, adopted by Congress over President Trump's veto late in December 2020, will dramatically change the way private companies are organized.

The law requires nearly all private companies to file a report with FinCEN, the U.S. Treasury Department's Financial Crime Enforcement Network, that contains identifying information about every "beneficial owner" of the business (defined as each person who either "exercises substantial control" over the business or who owns more than 25% of the entity's beneficial interest.)

The law exempts several categories of private business from the report filing requirement, including:

1. Public companies (defined as issuers of a class of securities under section 12 of the Securities Exchange Act of 1934 or issuers that are required to file information under section 15(d) of that Act).

2. Any entity that employs more than 20 full-time employees in the United States, filed a federal tax return for the previous year with more than $5 million in gross receipts or sales (includes subsidiaries and operating affiliates), and operates from a physical US office.

3. Shelf companies (defined as any entity that is in existence for over one year, not engaged in "active business," and not directly or indirectly owned by a non-US person).

4. Certain charitable trusts and charitable split-interest trusts, Internal Revenue Code Section 501(c) charitable organizations and certain related entities.

5. Any pooled investment vehicle that is operated or advised by a bank, registered broker-dealer, registered investment company, or registered investment adviser, among others.

Writing in the New York Law Journal attorneys Joshua A. Levine and Daniel S. Levien note that the statute does not define the term "substantial control" and that the meaning of that phrase could be defined in several ways.

How the Treasury Department's upcoming regulations define "substantial control" will have a significant impact on deal structures and will require practitioners to take into account the law's reporting requirements.

The Treasury Department has not yet issued a notice of proposed rule making for its regulations that implement the Corporate Transparency Act, but some expect that notice to be published in the coming month, with a view toward adopting regulations before the December 31, 2021 statutory deadline.

Update: On September 29, 2022, FinCEN issues its Final Rule on beneficial ownership reporting, setting January 1, 2024 as the implementation date.