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New Corporate Transparency Act beneficial ownership information FAQs clarify reporting requirements, database access

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The landscape of Corporate Transparency Act beneficial ownership information reporting continues to evolve, and accountants and others who advise their small business clients need to stay ahead of the curve. 

FinCEN’s April 18, 2024, update to the BOI FAQs offers crucial insights from the Treasury Department’s Financial Crimes Enforcement Network, impacting everything from homeowner association filing requirements to clarifying that S corporations are considered “corporations” for reporting company purposes and the timeline for accessing the BOI database.

The new FAQs reiterate the potential consequences of neglecting BOI reporting obligations. Civil penalties — which are annually adjusted for inflation — can reach up to $591 per day, while criminal penalties include imprisonment and hefty fines.

What about the NSBA ruling?

Yes, for the time being BOI reporting is suspended for the 60,000 or so National Small Business Association members. In case you missed it, the NSBA won a summary judgment in March of 2024, preventing the Corporate Transparency Act’s BOI reporting requirements from being enforced upon its roughly 60,000 members while the ruling goes through the appeals process. 

However, FinCEN has said it will continue implementing the Corporate Transparency Act and BOI requirements as required by Congress while complying with the court order. Even after the NSBA ruling, roughly 33 million entities currently fall under FinCEN’s purview, in addition to the 5 million new entities expected to be added in 2024 and each year through 2034. Many legal experts believe that the government will prevail in the courts and the constitutionality of the CTA will be upheld.

HOAs on notice: Reporting likely required

While the answer to the question, “Are homeowners associations considered reporting companies and required to file BOI reports?” is still “It depends,” the April 18 update has helped clarify the path to yes or no. 

According to the update, most HOAs incorporated or created by filing a document with a secretary of state or similar office may fall under the definition of “reporting companies” and, therefore, must report BOI information. 

Exemptions are limited and specific. According to the new FAQ, only unincorporated HOAs or those designated as social welfare organizations under IRC 501(c)(4) may be exempt.

With the Jan. 1, 2025 deadline for pre-2024 associations looming, it’s time for action. Homeowners associations formed in 2024 must take particular note since, unlike their pre-2024 colleagues, they only have 90 days from their formation date to file. 

To avoid year-end congestion and stress, many advisors are encouraging their pre-2024 business clients to file their initial BOI reports early, ideally in the next few months.

S corps aren’t exempt based on structure type

Under this update, the FAQs clarify that any S corporation that qualifies as a reporting company — and is not otherwise exempt from reporting — must comply with BOI reporting requirements. The S corp pass-through structure for tax purposes does not affect reporting obligations or make it a “tax-exempt entity” under FinCEN BOI reporting regulations.

Entities losing their exempt status in 2024 get a glimpse of relief

The new FAQs include some breathing room for certain companies that lose their exempt status between now and Jan. 1, 2025. 

Companies created before Jan. 1, 2024, that lose their exempt status during 2024 have an extended deadline to file their initial BOI report: Jan. 1, 2025, or 30 calendar days after losing their exempt status, whichever is later.

The FAQs provide this example: If an existing reporting company ceases to be exempt on Feb. 1, 2024, it will have until Jan. 1, 2025, to file its initial BOI report. If it ceases to be exempt on Dec. 15, 2024, it will have until Jan. 14, 2025, to file its initial BOI report.

BOI database: Who gets access and when?

The wait for accessing the BOI database continues for some stakeholders. FinCEN plans a phased approach throughout 2024 and into 2025. Here’s a breakdown of the expected phases and who is expected to get access:

  • Phase 1: Spring 2024. A “handful” of federal agency users kick-start access since Phase 1 is a pilot program.
  • Phase 2: Summer 2024. Treasury offices and other federal agencies involved in law enforcement and national security who already have memoranda of understanding for access to Bank Secrecy Act information are allowed in.
  • Phase 3: Fall 2024. The net widens to additional federal agencies engaged in law enforcement, national security, and intelligence activities, as well as state, local and tribal law enforcement partners.
  • Phase 4: Winter 2024. Intermediary federal agencies involved in processing foreign government requests get access.
  • Spring 2025. Financial institutions get access, subject to customer due diligence requirements under applicable law.

Currently, no other governmental entity, organization, business or individual has access to the BOI database, despite our being almost four months into populating the database.

A word on the IRS and BOI access

While not mentioned in the new FAQs — or elsewhere — as part of the U.S. Treasury Department, it’s not unlikely that the IRS could be granted access to BOI information, especially during criminal investigations. 

Expect additional guidance from the Treasury regarding under what circumstances and to what extent FinCEN would grant the IRS access to BOI information.

New FAQs provide some clarity, but expect more guidance

While the new FAQs answer some important questions, many lingering concerns remain. One ongoing issue the new FAQs don’t address is the critical need to educate the tens of millions of entities obligated to report under the Corporate Transparency Act. 

As to the NSBA and other cases challenging the constitutionality of the CTA, many experts believe one of two outcomes will occur: The courts will ultimately find the CTA constitutional, or Congress will amend the law to eliminate the issues that could lead to a finding that it is unconstitutional.

As we carefully watch the journey these cases take through the court system, we can expect continuing FinCEN guidance through the balance of the year and beyond.

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EV makers win 2-year extension to qualify for tax credits

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The Biden administration gave carmakers a partial reprieve in finalizing electric-vehicle tax credit rules intended to loosen China’s grip on battery materials crucial to the car industry’s future.

Starting in 2025, plug-in cars containing critical minerals from businesses controlled by U.S. geopolitical foes, including China, will be ineligible for up to $7,500 tax credits, the Treasury Department said Friday. Automakers will get an extra two years, however, to shore up sourcing of graphite and other materials considered difficult to trace to their origin.

The rules put finishing touches on President Joe Biden’s push to develop an alternative to China’s preeminent EV and battery supply chains. The administration is imposing stringent sourcing requirements for raw materials and components in order for electric cars to qualify for the tax credits that are a powerful draw for consumers otherwise put off by still-high prices.

“These actions provide a strong signal to automakers that we want to see EVs built here in America with components and critical minerals sourced from the U.S. and our allies and partners,” White House Climate adviser John Podesta said.

The two-year exemption speaks to the challenges automakers have had reducing their reliance on Chinese suppliers of materials such as graphite. The mineral used in battery anodes emerged as a geopolitical flashpoint last year when Beijing placed restrictions on exports, sparking fears of global shortages.

The Biden administration’s rules don’t allow tax breaks for vehicles with batteries containing critical minerals from foreign entities of concern, a term referring to businesses controlled by US geopolitical foes such as China, North Korea, Russia and Iran. Those requirements take effect in 2025, as proposed.

But Biden has given auto and battery manufacturers some flexibility on this front, too. In December, the administration decided to allow materials from foreign subsidiaries of privately owned Chinese companies in non-FEOC countries — such as Australia or Indonesia — to count toward tax credit eligibility. This drew criticism from Western miners and policymakers who want Biden to more aggressively cut China out of the supply chain.

Automakers will now have until 2027 to curb the use of certain difficult-to-trace materials from FEOCs, provided that they submit plans to comply after the two-year transition and it’s approved by the government, the Treasury Department said.

“FEOC exemptions for any battery materials should be temporary,” said Abigail Hunter, the executive director of the Center for Critical Minerals Strategy at SAFE, a Washington think tank. “We need a clear exit strategy, lest we continue our dependencies on adversaries and further undermine the competitiveness of U.S. and allied critical minerals projects.”

The rules release concludes two years of work on requirements that already have reduced the number of EVs eligible for tax credits. About 20 models qualify today, compared to as many as 70 previously. Treasury Department officials said Friday they expect the number of qualifying vehicles to continue to fluctuate as companies adjust their supply chains.

Automakers including Tesla Inc., General Motors Co. and Toyota Motor Corp. have lobbied for additional flexibility to meet requirements. A lobby group representing automakers based outside the US praised the additional two years provided for the difficult-to-trace materials.

“It will take time for the global production and sourcing of graphite and other critical minerals needed to produce EVs to match the strict standards required by automakers,” Autos Drive America President Jennifer Safavian said in a statement.

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Oregon senator Ron Wyden demands refunds for TurboTax customers over glitch

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Senate Finance Committee Chairman Ron Wyden, D-Oregon, demanded in a letter that Intuit give a refund to Oregonians who, due to a software glitch in the company’s TurboTax tax prep software, were steered toward taking the standard deduction when they would have paid less tax if they’d itemized. The senator said the company had known of this glitch in early April, but didn’t acknowledge it until shortly before the filing deadline.

The glitch, according to the Oregonian, affected about 12,000 people, some of whom reported having to pay hundreds more in tax dollars than they needed to. They were generally using the desktop version of the software, versus the online version.

“Fixing this error will require identifying all affected Oregonians, notifying them, and ensuring they can be made whole,” said the senator. “In part because of TurboTax’s various guarantees and market share, Oregonians who overpaid due to TurboTax’s error likely assumed the software opted them into claiming state standard deduction to minimize their taxes. That assumption was wrong. And because the vast majority of taxpayers understandably dread filing season and avoid thinking about taxes after it ends, many of those affected will not learn on their own that they overpaid. Intuit must act to inform them and help them get the full tax refunds they are entitled to receive.”

The TurboTax logo on a laptop computer in an arranged photograph in Hastings-on-Hudson, New York, U.S., on Friday Sept. 3, 2021. Photographer: Tiffany Hagler-Geard/Bloomberg

Tiffany Hagler-Geard/Bloomberg

An Intuit spokesperson said the company is currently working to resolve the issue, referencing their tax return lifetime guarantee.

“As part of our tax return lifetime guarantee, we are committed to the accuracy of TurboTax tax filers’ tax returns to ensure they receive the maximum refund possible. We are quickly working to resolve an issue impacting a small number of customers and actively engaging with those filers impacted to ensure their returns are correct and that they receive the maximum refund they are owed,” said the spokesperson.

The senator has also asked Intuit for an explanation of how this glitch happened in the first place, as well as an approximate timeline for the steps it took once it became aware of it. He has also asked for a count of precisely how many people were affected, as well as Intuit’s plans for both addressing this problem and what the company will do to prevent it in the future.

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On the move: RSM names a client experience leader

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RSM US named its first enterprise client experience leader; the Financial Accounting Foundation is looking for nominees for its Financial Accounting Standards Advisory Council; RKL named a new office managing partner; REDW appointed three new vice presidents; and other firm and personnel news from across the accounting profession.

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