Corporate Governance and Compliance – What’s the Difference?

The Corporate Transparency Act (CTA) was enacted on January 1, 2024. The authors of the CTA decreed a mandate that requires all qualifying business entities to submit beneficial ownership information (BOI) reports to the Department of Treasury’s Financial Crimes Enforcement Network (FinCEN).

Two months later, on March 1, 2024, a US District Judge in Alabama ruled on a case brought before the court by the National Small Business Association (NSBA), an organization representing over 65,000 small business entities across the United States. The judge ruled that the CTA is “unconstitutional” and that lawmakers overstepped their bounds.

What is the purpose of the Corporate Transparency Act?

The CTA is part of a broader government effort to crack down on white-collar crime. US federal agencies and financial institutions annually identify unlawful transferrences of capital through money laundering or corporate sponsorship of international terrorism — actions that, in the government’s opinion, undermine national security.

As a result, the CTA gives FinCEN greater authority and oversight of suspected culprits of these crimes. Qualifying business entities must provide detailed BOI reports to FinCEN, which will store those records in secure databases and use them to monitor suspicious financial activities.

What were the details of the Alabama case?

The NSBA challenged the legal authority of the CTA and took the government to court seeking a summary judgment. Federal District Judge Liles C. Burke in Alabama issued a 53-page opinion about the case, which a Forbes contributing writer dissects in detail.

At the heart of the lawsuit is the fact that legal entities in the United States register with individual states where they choose to operate. The incorporation of those entities is a matter for the states to decide, along with the ability to prosecute those businesses for suspected financial crimes.

The NSBA argued that the CTA gives the federal government’s national security and foreign affairs matters the right to interfere with how individual states regulate businesses. Additionally, they argued that limited liability corporations (LLCs) may engage in interstate commerce, but not all entities pursue these opportunities.

The CTA requires all entities — even those that never cross state jurisdictions — to abide by the federal government’s mandate. Judge Burke ruled these grounds warranted an unconstitutional ruling of the CTA, though the federal government launched an appeal to the Eleventh Circuit.

Who is a beneficial owner under the CTA?

Within the CTA is specific language that defines a beneficial owner. According to the CTA, a beneficial owner is anyone who — directly or indirectly — maintains a 25% ownership interest in a corporate entity. Additionally, a beneficial owner is anyone who — again, directly or indirectly — maintains substantial control over business operations through voting rights.

Shareholders who fit the profile of a beneficial owner must provide their personal information — name, address, and a government-issued identification number — to the entity management department. That data is then processed and submitted to FinCEN as a BOI report.

Are some entities exempt from BOI reporting requirements?

The CTA allows authorities to gather beneficial ownership information from thousands of legal entities. However, FinCEN has detailed 23 types of legal entities that are exempt from the BOI reporting requirements.

Most exemptions revolve around the financial sector in the form of banks, credit unions, venture capital firms, depository institutions, or money services businesses. Government authorities, public utilities, and securities exchanges are also exempt from reporting BOI data to FinCEN.

What does the Alabama case ruling mean for BOI reporting?

So, what does the NSBA case against the Treasury Department mean for the future of BOI reporting requirements? There are two key takeaways from the case.

Firstly, Judge Burke clearly stated in his ruling that the injunction against the CTA only applies to businesses enrolled in the NSBA before March 1, 2024. Businesses that are registered members of the NSBA have a temporary pause on compliance with the CTA while the case is under appeal at the Eleventh Circuit.

For most businesses, the ruling has no impact whatsoever. FinCEN requires BOI reports from entities registered on or after January 1, 2024, within 90 days of receiving their articles of incorporation. Any entities registered before January 1, 2024, have until January 1, 2025, to submit their BOI reports to FinCEN.

How to prepare your BOI reports for FinCEN

While many entities still have several months to submit their BOI reports to remain in compliance with the CTA, it’s best to start gathering that information now. It’s much more effective for your entity management team to have all the information they need well in advance of the deadline to avoid last-minute scrambles and gaps in required data.

Intuitive entity management software can assist your legal and compliance departments with these tasks. Platforms like MinuteBox include pre-built templates and guided widgets that help your teams build detailed reports. The technology saves valuable working time and makes the process of gathering, filing, and securing entity management data quick and painless.

Additionally, you can use the platform’s Corporate Transparency Register to comply with all obligations under the CTA. Here, you can build detailed shareholder ledgers and create a comprehensive list of all beneficial owners with significant controlling interest in the company.

Once the data is in the platform, you can easily create detailed minute book records of all beneficial owners. Since the information is stored in your platform, filing and submitting the BOI reports to FinCEN is a breeze.

Prepare your legal entity for the next step of beneficial ownership reporting. Join the MinuteBox revolution today, and stay ahead of the game while maintaining compliance.

The Canadian government tabled a motion in the House of Commons on April 18, 2023, to begin deliberations on Bill C-42. The proposed legislation seeks to amend the Canada Businesses Corporations Act (CBCA) and other Acts that would improve transparency regarding individuals with significant control (ISCs) of Canadian entities governed by the CBCA.

Bill C-42 has undergone two votes in the House of Commons and will be presented to a committee for further consideration. Among the data that will be submitted to the committee is a Charter Statement issued by the Minister of Justice. The Charter Statement identifies rights and freedoms under the Canadian Charter of Rights that will be engaged by Bill C-42, and it also provides a detailed explanation of why those rights and freedoms will be engaged.

What does Bill C-42 propose?

Bill C-42 authorizes that regulators have authority to acquire certain taxpayer information and present that data to the Department of Industry. The data acquisition is intended solely to verify and validate that certain private corporations, governed by the CBCA, are living up to their responsibilities of corporate beneficial ownership registrations.

The specific contents of the legislation state that taxpayer information refers to shareholdings of individuals with significant control (ISCs) in a private corporate entity. ISCs are identified using corporate ownership structures that are reported to the Canada Revenue Agency.

How does Bill C-42 change shareholder reporting?

As proposed by Bill C-42, certain information in an ISC shareholder registry would be made public to promote greater corporate transparency and accountability. Specifically, Bill C-42 proposes changes, not limited to but including the following:

• The names, addresses for service or residential addresses, and share ownerships of ISCs be made publicly available
• Increasing information reported within an ISC Register, including an individual’s residential address, address for service and citizenship;
• Requirements that corporations submit ISC registers to Corporations Canada on an annual basis, when changes in control occur, and as stated by the laws

Additionally, Bill C-42 proposes modifying the penalties for non-compliance with the laws. If passed as tabled, Bill C-42 would enforce fines up to $200,000 and/or 6 months of criminal imprisonment for ISCs who fail to remain in compliance.

Who qualifies as an ISC?

An ISC is a shareholder with a significant controlling interest in a corporate entity. In most situations, an ISC is a shareholder with at least 25% of the voting rights for all issued corporate shares. In other cases, an ISC is anyone whose influence could exert a controlling influence over executive decisions issued by the corporation.

Canadian regulators have enacted multiple pieces of legislation at the federal and provincial levels in recent months to enforce greater ISC transparency and accountability. The purpose of each piece of legislation is to be part of a nationwide effort to crack down on white collar crimes, specifically fraud and malfeasance, that prove costly to innocent Canadian citizens.

In Ontario, for example, amendments to the Ontario Business Corporations Act (OBCA) were passed that require corporations to create ISC registers that are submitted to provincial regulators on an annual basis. In Quebec, provincial Bill 78 proposes similar legislation for ISC reporting. However, under Quebec law, ISCs are also classified as any shareholders who can elect, appoint, or remove corporate directors and executives from their positions.

Use entity management software to create ISC registers

Platforms like entity management software are one of the best resources for maintaining accurate ISC registers. These solutions have built-in shareholder register templates that simplify how your legal and compliance officers build ISC registers. The templates feature modules that help your team include any required shareholder information for individuals who fit the ISC profile.

Once you’re on the platform, access the Capital Section feature to input all authorized information about shareholders and corporate transactions in the open fields. This is where you can document names, addresses (residential and commercial), dates of birth, and jurisdictions where your ISCs operate.
All these features will help your corporate entity remain in compliance with the laws, including the new proposals in Bill C-42, should it pass final reading at the House of Commons. You can also use entity management software like MinuteBox to build a detailed compliance program, creating more organizational structure and accountability to protect your corporate entity from the significant risks and penalties of non-compliance.

Influencing change in law firms can be a challenging task, particularly when it comes to the adoption of new technology. In this blog post, we will explore the role of paraprofessionals and legal professionals in driving change and ensuring successful adoption of new technology. Key points include training, the “train the trainer” approach, and involving key stakeholders in the decision-making process.

• Training is key to successful adoption of new technology
• “Train the trainer” approach involves key people within the firm learning new technology and training others
• Involving key stakeholders, such as partners, in the decision-making process can ensure support for new technology

Influencing change in a law firm can be a challenging task, particularly when it comes to the adoption of new technology. However, the role of paraprofessionals and legal professionals in driving change and ensuring successful adoption of new technology is crucial.

One strategy for influencing change is training. As Karen Anderson, Corporate Services Manager at Blakes, Cassels & Graydon LLP, explains, “the process of getting there was democratic and it mainly involved paralegals from all of our offices because the firm had an understanding that these are the folks that are using this technology going forward.”

Watch the full interview, Influencing Change in Law Firms: The Role of Paraprofessionals and Legal Professionals

Another strategy is the “train the trainer” approach, where key people within the firm learn new technology and train others. Karen explains, “key people in our firm that are learning a lot of the stuff and then training other people within the group. And it really just keeps evolving, but the driver is the paralegal use it, and lawyers can enjoy read-only access to all of these records. As can the clients.”

It is also important to involve key stakeholders, such as partners in the decision-making process. As Karen Tuschak, former National Director at Dentons and now onwner at Spider Silk Solutions, explains, “One of the things that we did at Dentons was the paralegals were definitely the drivers of the new technology and what we wanted. But we did have a partner committee as well, just so there was support at that upper level.” By involving key stakeholders in the decision-making process, it ensures that they are aware of the benefits of new technology and can support its adoption.

Involving paraprofessionals in the process of change is also a great way of getting buy-in and support from the legal team, as they are the ones that will be using the technology on a daily basis. Furthermore, having them involved in the training and the decision making process, they can be the drivers of the new technology and they can provide insight and feedback to the vendor to improve the product and make it more useful for the legal team.

In conclusion, training, the “train the trainer” approach, and involving key stakeholders in the decision-making process are crucial for influencing change and ensuring successful adoption of new technology in law firms. By involving paraprofessionals in the process, legal teams can benefit from the adoption of new technology and can provide feedback to vendors to improve the product.