Can a trust qualify for an exemption?
There are 23 exemptions and all should be examined before determining if a trust created or registered by the filing of a document with a Secretary of State or similar office is exempt. Among the exemptions that might apply to trusts include the following:
Large operating company.
Any entity that: (A) employs more than 20 full time employees in the US, (B) has an operating presence at a physical office within the US, and (C) filed a Federal income tax or information return in the US for the previous year demonstrating more than $5 million in gross receipts or sales from US sources.
Bank.
Any bank, as defined in: (A) Sec. 3 of the Federal Deposit Insurance Act, (B) Sec. 2(a) of the Investment Company Act of 1940, or (C) Sec. 202(a) of the Investment Advisers Act of 1940.
Tax-exempt entity.
Any entity that is described in Sec. 501(c) of the IRS Code and exempt under Sec. 501(a). Also, a trust is described in paragraph (1) or (2) of Sec. 4947(a) of the Internal Revenue Code.
Subsidiary of certain exempt entities.
Any entity whose ownership interests are controlled or wholly owned, directly or indirectly, by one or more of 18 of the 23 entities that are exempt.
Inactive entity.
Any entity that: (A) was in existence on or before January 1, 2020, (B) is not engaged in active business, (C) is not owned by a foreign person, (D) has not experienced any change in ownership in the last 12 months, (E) has not sent or received any funds in an amount greater than $1,000 in the last 12 months, and (F) does not otherwise hold any kind or type of assets.
Who are the beneficial owners of reporting companies owned or controlled by a trust?
Many trusts own or control, in whole or in part, reporting companies. The personal information of those reporting company’s individual beneficial owners must be reported to FinCEN. (The trust itself is not a beneficial owner. A beneficial owner is an individual.)
A beneficial owner of a reporting company is defined as any individual who, directly or indirectly, either exercises substantial control over the reporting company or owns or controls at least 25 percent of the ownership interests of the reporting company. Individuals with substantial control include senior officers, individuals with the authority to appoint or remove senior officers or a majority of the governing body, and individuals with significant influence over important decisions made by the reporting company.
Can a trustee exercise substantial control over a reporting company?
A trustee of a trust may exercise substantial control over a reporting company. The rule implementing the CTA’s reporting requirement states as follows:
“An individual may directly or indirectly, including as a trustee of a trust or similar arrangement, exercise substantial control over a reporting company through:
- Board representation;
- Ownership or control of a majority of the voting power or voting rights of the reporting company;
- Rights associated with any financing arrangement or interest in a company;
- Control over one or more intermediary entities that separately or collectively exercise substantial control over a reporting company;
- Arrangements or financial or business relationships, whether formal or informal, with other individuals or entities acting as nominees; or
- any other contract, arrangement, understanding, relationship, or otherwise.”
Can an individual hold ownership interests in a reporting company through a trust?
An individual owning at least 25% of the ownership interests of a reporting company is a beneficial owner. Regarding whether an individual may hold ownership interests in a reporting company through a trust, the rule states:
“An individual may directly or indirectly own or control an ownership interest of a reporting company through any contract, arrangement, understanding, relationship, or otherwise, including:
With regard to a trust or similar arrangement that holds such ownership interest:
- As a trustee of the trust or other individual (if any) with the authority to dispose of trust assets;
- As a beneficiary who:
- Is the sole permissible recipient of income and principal from the trust; or
- Has the right to demand a distribution of or withdraw substantially all of the assets from the trust; or
- As a grantor or settlor who has the right to revoke the trust or otherwise withdraw the assets of the trust.
Are there exceptions to the definition of beneficial owner?
There are five exceptions to the definition of beneficial owner. These are individuals who would otherwise be a beneficial owner but because they qualify for an exception, they will not be reported as a beneficial owner. And those exceptions are for:
- A minor child however, the reporting company has to provide the required personal information of a parent or legal guardian to qualify for this exception,
- An individual acting as a nominee, intermediary, custodian, or agent on behalf of another individual,
- An individual whose only interest in the reporting company is a future interest through a right of inheritance,
- an employee of the reporting company, acting solely as an employee, provided, however, that the individual is not a senior officer, and
- a creditor of the reporting company.
What information has to be reported about a beneficial owner?
If an individual trustee, trust protector, beneficiary, grantor, settlor, or other individual meets the definition of a beneficial owner, the following information must be reported to FinCEN:
- their full legal name
- their date of birth
- their residential street address and
- a unique identifying number and the issuing jurisdiction from one of the following non-expired documents:
- a US passport
- an identification document issued by a state, local, or tribal government for the purpose of identifying the individual
- a driver’s license
- or if the individual doesn’t have any of those documents, but does have a foreign passport, the foreign passport can be used.
An image of the document from which the unique identifying number was obtained also must be provided to FinCEN.
What should trusts do to comply with the CTA?
In the case of every trust, it must be determined if the trust is a reporting company. If so, the trust must file its initial BOI report by January 1, 2025, if it was created (if domestic) or registered to do business (if foreign) before January 1, 2024. Trusts that are reporting companies that are created or registered for the first time in the US during 2024 must file within 90 calendar days of first receiving actual or public notice of their creation or registration. That deadline drops to 30 calendar days for reporting companies created or registering for the first time in 2025 and beyond. Trusts that are reporting companies also have to file updated BOI reports within 30 calendar days of a change in the information the reporting company reported about the reporting company or its beneficial owners.
What should beneficial owners of reporting companies do?
The individuals who are the beneficial owners of a trust that is a reporting company, and the individuals who are the beneficial owners of a reporting company owned or controlled by a trust, will have to provide their personal information to FinCEN. This can be done by directly providing their information to the reporting company, which the reporting company outlines in its BOI report or the individuals may obtain a FinCEN identifier. Individuals with a FinCEN identifier provide their personal information directly to FinCEN in their application for the FinCEN identifier. They are given a 12 digit number, which they can give to the reporting company, which the reporting company then sets forth in its BOI report.
FinCEN must be updated within 30 calendar days of a change in the information reported about a beneficial owner. A beneficial owner with a FinCEN identifier must file an updated application with FinCEN. Where the beneficial owner’s information is outlined in the BOI report, the reporting company must file an updated BOI report.
What should a trust or individual do if they are uncertain about their obligations?
Although the rule provides some guidance regarding trusts and the CTA, it is a complex issue and there is still some uncertainty. Reporting companies owned by multiple trusts or trusts with multiple individuals with varying degrees of control can raise particularly difficult issues for those responsible for CTA compliance. It is advisable to keep abreast of any further guidance provided by FinCEN and may be advisable to obtain legal advice to determine the compliance obligations of the trust and the individuals who may be beneficial owners of a reporting company.
Learn more
For more information on beneficial ownership information reporting under the Corporate Transparency Act, see our Corporate Transparency Act resources page or contact us.
Learn how the CT Corporation Beneficial Ownership platform will help you confidently file your beneficial ownership reports.
