New FinCEN Rule for Beneficial Ownership

Background

Financial crimes like money laundering, terrorist financing, and fraud pose significant threats to the global economy and security. To combat these illicit activities, regulatory agencies, such as the Financial Crimes Enforcement Network (FinCEN) in the United States, continually refine and update their rules and regulations. One of the most recent developments in this regard is the implementation of a new rule to identify beneficial owners, which aims to enhance transparency and accountability in the financial sector. In this article, we will explore this new FinCEN rule, its objectives, requirements, and implications.

What Is FinCEN?

Before delving into the new rule, it's essential to understand what FinCEN is and its role in combating financial crimes. FinCEN is a bureau of the United States Department of the Treasury, established in 1990 to enforce the Bank Secrecy Act (BSA). Its primary mission is to safeguard the financial system from money laundering and other illicit financial activities by collecting and analyzing financial transaction data. FinCEN also plays a crucial role in implementing anti-money laundering (AML) and counter-terrorist financing (CTF) regulations.

The Need for Beneficial Ownership Identification

To effectively combat financial crimes, it is essential to identify the individuals or entities that ultimately control and benefit from legal entities involved in financial transactions. These individuals or entities are referred to as beneficial owners. Identifying beneficial owners is crucial because it helps prevent criminals from using shell companies and other legal entities to hide their illicit activities. The lack of transparency regarding beneficial ownership has long been exploited by criminals to launder money and finance terrorism.

Key Objectives of the New Rule

The new FinCEN rule for beneficial ownership identification, which came into effect in May 2021, has several key objectives:

1. Enhance Transparency: The rule aims to increase transparency in the financial system by requiring covered entities to disclose information about beneficial owners. This disclosure will help authorities track and investigate suspicious financial transactions more effectively.

2. Facilitate Law Enforcement: By providing law enforcement agencies with access to beneficial ownership information, the rule assists in investigations related to financial crimes, money laundering, and terrorist financing.

3. Deter Illicit Activities: The rule is designed to discourage criminals from using anonymous legal entities to engage in illicit financial activities, as they can no longer rely on hiding their true ownership.

4. Align with International Standards: The United States is committed to meeting international AML and CTF standards set by organizations like the Financial Action Task Force (FATF). The new rule brings the U.S. closer to international best practices in beneficial ownership identification.

Key Requirements of the New Rule

To achieve its objectives, the new FinCEN rule imposes specific requirements on covered entities, which include:

1. Reporting Beneficial Ownership Information: Covered entities must report information about beneficial owners, including their full legal names, dates of birth, addresses, and a unique identification number (such as a Social Security Number or passport number).

2. Record Keeping: Covered entities are required to maintain records of the reported beneficial ownership information for a period of five years.

3. Verification and Updates: Entities must verify the accuracy of the beneficial ownership information obtained and update it promptly if any changes occur.

4. Access to Law Enforcement: Law enforcement agencies have access to this information, helping them investigate potential financial crimes.

Implications and Challenges

The implementation of the new FinCEN rule for beneficial ownership identification has several implications:

1. Increased Compliance Costs: Covered entities must invest in technology and processes to comply with the new rule, which may lead to increased operational costs.

2. Privacy Concerns: Some individuals and entities may have concerns about the privacy and security of their personal information provided for beneficial ownership disclosure.

3. Enhanced AML and CTF Efforts: The new rule strengthens the government's ability to combat money laundering and terrorist financing activities, contributing to national security.

4. Global Impact: Given the interconnectedness of the global financial system, the new rule's impact extends beyond U.S. borders. It may encourage other countries to adopt similar measures to enhance their AML and CTF efforts.

So What Do You Need To Do?

If you are the owner, member, or beneficial owner (based on the IRS definition) of any business including LLC, C-Corp, S-Corp, or Sole Proprietor if you have filed paperwork with any Secretary of State, you will need to file this beneficial owner paperowrk with FinCen. Talk to your business attorneys or CPAs to help make sure you file the appropriate paperwork by the coming deadlines.