United States Corporate Transparency Act (CTA)
With the commencement of the new year, the recently implemented Corporate Transparency Act (CTA) is now in full force. In recent years, many so-called “tax haven” countries, to avoid black- or grey-listing by the US Treasury Department, have had to increase their beneficial ownership transparency. The CTA brings the US more in line with these and other countries that require significant beneficial reporting requirements, including regarding key personnel with control over reporting entities. This post covers some of the most frequent questions that we have received regarding the CTA and its beneficial ownership information (BOI) reporting requirements.
CTA的实际受益人报告要求是否属于新规定？
This beneficial ownership information reporting requirement is not entirely new. Those of you who engage in international business transactions, especially investment or other M&A activities, have heard of CFIUS (the Committee on Foreign Investment in the US), even if you do not know how to pronounce the acronym (SIFF-ee-us). Since 2018, CFIUS has required a review of certain types of control transactions relating to US entities.
We have assisted clients in conducting CFIUS reviews and engaging with the CFIUS committee. Each CFIUS-reviewed transaction requires a disclosure of beneficial ownership information. However, not all transactions require CFIUS review. In that regard, the CTA requirements are significantly different because each US entity, regardless of ownership, must now disclose its beneficial ownership information.
BOI报告是州级要求还是联邦要求？
《反恐法》是一部联邦法律，其申报计划由美国财政部下属机构金融犯罪执法网络（FinCEN）负责运营。该联邦法律具有全国性效力，并优先于与之冲突的州法律。
Federal corporate law in the US does not change frequently because business entities are creations of state law (see here). Individual states implement their own requirements (see here), create new types of legal entities, and largely govern matters relating to business entities formed in or operating in their jurisdiction. This type of federal overlay is unusual (see here), but it is limited to financial reporting purposes to assist FinCEN with its mission of safeguarding the financial system from the illicit use of funds, including money laundering and threats to US national security.
何谓报告公司？
所有美国实体均为必须遵守《反洗钱法》要求的报告公司。该报告要求设有23项豁免条款，但其中多数豁免适用于需遵守更严格报告要求的实体，例如证券报告发行人、金融机构、保险公司及投资基金。
哪些内容需要向美国金融犯罪执法网络（FinCEN）报告？
受益所有权信息需要申报，同时需申报对实体具有实质控制权的个人和实体。在未来的博客文章中，我们将更详细地讨论这些个人和实体的类别。
根据《企业透明度法案》，2024年和2025年的关键截止日期有哪些？
2024年1月1日前成立的实体，其首次报告提交期限可延至2025年1月1日。 2024年1月1日起成立的实体，须在州注册生效后90天内提交首次报告。2025年1月1日起成立的实体，须在州注册生效后30天内提交首次报告。
这些BOI要求是否会延长设立美国实体所需的时间？
此项要求不会延长在美国设立实体所需的时间，通常根据注册所在州的不同，该过程可在数天或数小时内完成。
谁可以访问这些实际受益人信息？
该实际受益人信息不会公开披露。州级和联邦执法机构可获取该信息，金融机构在获得申报公司同意后亦可使用该信息。所有信息将存储于安全、非公开的数据库中。
CTA的BOI要求对中国企业意味着什么？
The US continues to be a popular destination for foreign capital investment. Chinese investors are no exception. NikkeiAsia reported that capital flight from China reached a seven-year high in 2023. This net outflow was the result of reduced investment from outside China, as well as wealthy Chinese moving assets from China or not repatriating profits back to China. Nikkei Asia indicated that Chinese companies are also establishing more operations in foreign countries as global supply chains continue to rebound from COVID-19 shock.
We have seen an increase in two areas particularly. First, we are receiving more inquiries from Chinese businesspeople who are interested in setting up US entities to avoid repatriating profits back to China. And second, we have seen an increase in the number of Chinese companies that are looking to gain a greater foothold for their brands outside of China, taking more control of their value chain.
Chinese nationals seeking to set up US entities will be required to provide their beneficial ownership information to FinCEN, like everyone else. FinCEN indicates that it will permit certain foreign officials who submit a request through a US federal government agency to obtain beneficial ownership information for law enforcement purposes. However, given China’s expansive definition of law enforcement and national security, FinCEN will likely not be sharing that information with the Chinese government. We will keep an eye on this issue in particular as the implementation and enforcement rolls out for the CTA.
结论
Because the Corporate Transparency Act’s requirements are now fully implemented, all individuals and entities are on notice regarding the reporting of beneficial ownership and certain control relationships. This is not an entirely new requirement, but it is far-reaching beyond certain prior CFIUS reporting requirements.
Existing reporting entities will enjoy a grace period in 2024, but new reporting entities will be immediately subject to these requirements, starting with a 90-day window in 2024, which decreases to a 30-day window in 2025. These requirements should not significantly increase the time or expense of establishing an entity in the US.
Fortunately for Chinese nationals and others who live under more heavy-handed government oversight, the BOI data will be held in a secure US government database and shared under very limited circumstances. That is good news for Chinese nationals seeking to invest in the US, as long as the US can keep that database secure. We will continue to monitor significant news surrounding the CTA’s rollout this year.
