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tion return filed in the previous year. FinCEN clarified a company which has not yet filed a return for the previous year by its reporting deadline should use the return filed for the immediate preceding year. FinCEN points to the use of “in the previous year” instead of “ for the previous year” in providing this clarification.
• S Corporations: S-corps which meet the definition of “reporting company” must report their BOI to FinCEN.
• Non-Traditional Filing: Entities not formed by filing documentation with a secretary of state or similar office are not reporting companies. FinCEN further clarified this in the context of homeowners’ associations (HOAs)— if an HOA was not formed by filing documentation with a secretary of state or similar office, it is not a reporting company. However, if an HOA was created by filing documentation with a secretary of state or similar office, it may be a reporting company if it does not otherwise qualify for an exemption.
• Trust-Controlled Reporting Company: An individual is a benefi- cial owner if they exercise substantial control over the reporting company or own or control at least 25% of the reporting company’s ownership inter- ests, irrespective of whether the control or ownership is direct or indirect (e.g., through a trust). However, FinCEN noted facts and circumstances will determine whether particular trustees, beneficiaries, grantors, settlors, and other individuals with roles in a trust are beneficial owners and provided examples to guide analyses.
If a reporting company’s ownership interests are owned or controlled by a trust that has a corporate trustee,5 the corpo- rate trustee’s individual beneficial owners will be considered beneficial owners of the reporting company if they indirectly own or control at least 25% of the owner- ship interests of the reporting company. However, the reporting company may report the name of the corporate trustee in lieu of the individual beneficial owner’s information if certain conditions are met.
Deadlines
Despite pending litigation and devel- oping guidance from FinCEN, reporting companies should note and adhere to the following deadlines:
• January 1, 2025: Reporting compa- nies which existed prior to January 1, 2024 must report their BOI by January 1, 2025.
• 90 Days After Formation: Reporting companies formed on or after January 1, 2024, but before January 1, 2025, must report their BOI within 90 days of receiving actual or public notice of creation or effective registration.
• 30 Days after Formation: Reporting companies formed on after January 1, 2025 must report their BOI within 30 days of receiving actual or public notice of creation or effective registration.
• 30 Days after Certain Changes:
Reporting companies must report certain changes to their previously reported BOI within 30 days of such change.6
Brooks is an Associate at KMK Law in the Business Representation & Transactions Group. She earned her J.D. from the University of Louisville Brandeis School of Law and her B.S. in Accountancy from the University of Louisville.
1 Nat’l Small Bus. United v.Yellen, No. 5:22-cv-1448-LCB, 2024 U.S. Dist. LEXIS 36205, at *1 (N.D.Ala. Mar. 1, 2024).
2 https://www.fincen.gov/boi-faqs.
3 “Reporting companies” are entities subject to the reporting requirements of the CTA.
4 31 CFR § 1010.380(c)(2)(xxi).
5 A trustee that is a legal entity rather than an individual. 6 31 CFR § 1010.380(a)(2) (2023).
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