How Community Property Laws Impact Beneficial Ownership for Spouses

Article Highlights:

• Background of the Corporate Transparency Act Reporting Requirement

• Beneficial Ownership

• Community Property Laws and Beneficial Ownership

• Spouses and Beneficial Ownership Reporting

• Implications for Reporting Companies

• Exceptions and Considerations

• Conclusions

• Filing Deadlines

Background - The Corporate Transparency Act (CTA) was enacted as part of a broader effort to combat money laundering, terrorism financing, and other illicit financial activities. Passed by the U.S. Congress in 2021, the CTA mandates that certain business entities disclose information about their beneficial owners to the Financial Crimes Enforcement Network (FinCEN), a bureau of the U.S. Department of the Treasury. This legislation aims to enhance corporate transparency by identifying individuals who exercise substantial control over a company or own a significant percentage of its equity interests.

Under the CTA, corporations, limited liability companies (LLCs), and similar entities are required to report detailed information about their beneficial owners, including full legal names, addresses, and identification numbers. The reporting requirements are designed to create a comprehensive database that law enforcement and regulatory agencies can use to prevent and investigate financial crimes.

In the realm of financial regulations and corporate transparency, the concept of beneficial ownership plays a crucial role. The Financial Crimes Enforcement Network (FinCEN) has provided guidance on various aspects of beneficial ownership, including the implications of community property laws on the determination of beneficial owners. One of the key questions addressed in FinCEN's Q&A D.18 is whether a spouse of a beneficial owner is also considered a beneficial owner in a community property state.

Community Property States and Beneficial Ownership

Community property laws are a set of regulations in certain U.S. states that dictate how property acquired during a marriage is owned. In these states, most property acquired by either spouse during the marriage is considered jointly owned by both spouses. This legal framework can significantly impact the determination of beneficial ownership in reporting companies.

According to FinCEN's guidance, whether a spouse is considered a beneficial owner in a community property state depends on the specific consequences of applying the applicable state law. If, under community property law, both spouses are deemed to own or control at least 25 percent of the ownership interests of a reporting company, then both spouses should be reported to FinCEN as beneficial owners unless an exception applies.

Implications for Reporting Companies

For reporting companies, understanding the nuances of community property laws is essential to ensure compliance with FinCEN's reporting requirements. Companies must assess the ownership structure and determine whether community property laws affect the ownership interests of spouses. This assessment involves examining the specific state laws and how they apply to the ownership of the company.

If both spouses are considered beneficial owners due to community property laws, the reporting company must include both individuals in their reports to FinCEN. This requirement ensures transparency and helps prevent the misuse of corporate structures for illicit activities.

Exceptions and Considerations

While community property laws can lead to both spouses being considered beneficial owners, there are exceptions. FinCEN's guidance outlines specific scenarios where individuals may qualify for exceptions from being reported as beneficial owners. Companies should carefully review these exceptions to determine if they apply to their situation.

Conclusions - Determining beneficial ownership in community property states requires a thorough understanding of both state laws and FinCEN reporting requirements. For spouses in these states, the implications of community property laws can lead to both being considered beneficial owners, necessitating careful reporting by companies. When in doubt the safe harbor approach would be to include the spouse as a beneficial owner.

Where it is determined the spouse is a beneficial owner and an initial report has already been filed with FinCEN, the report can be updated on the FinCEN website.

Filing Deadlines - The Corporate Transparency Act sets clear deadlines for entities to comply with its reporting requirements.

• Entities in existence or registered to do business before January 1, 2024, have until January 1, 2025, to file their initial beneficial ownership information report.

• Entities created or registered during 2024, must file their initial beneficial ownership information report within 90 days of receiving notice of their creation or registration.

• Entities created or registered after 2024, face a more immediate deadline. These new entities must file their initial beneficial ownership information report within 30 days of receiving notice of their creation or registration.

If you have questions or need assistance, please contact this office. There are substantial penalties for not meeting this reporting requirement.