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PaperclipPerfector  8mo ago (text post)   28128 thread views

Culture War Roundup for the week of September 11, 2023

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This rule could only plausibly apply to the ultra wealthy. Non-ultra-wealthy people don't own nominee shell companies.

The rule does not impact just conventional "shell" companies, by its plain text: the definition of 'substantial control' is broad enough to plausibly cover a lot of managers and administrators in small businesses. It might not get enforced that way immediately, and maybe (if not plausibly) even without a ton of middle management getting voluntarily identified to the federal government, but it's definitely nowhere near as clear as you're claiming.

Unfortunately, that "senior officer" is category is far less restrictive than it sounds from the name:

The term “senior officer” means any individual holding the position or exercising the authority of a president, chief financial officer, general counsel, chief executive officer, chief operating officer, or any other officer, regardless of official title, who performs a similar function.

And the rule makes clear that this is intentional:

The final rule adopts the proposed 31 CFR 1010.380(d)(4)(iii) with minor clarifications to minimize the potential confusion noted by commenters. The CTA makes clear that individuals who benefit from this exception must be acting “solely as an employee” and derive control or economic benefits “solely from the[ir] employment status.”

And :

FinCEN notes that the title of the officer ultimately is not dispositive, as the definition of “senior officer” and other indicators of substantial control make clear. Rather, the underlying question is whether the individual is exercising the authority or performing the functions of a senior officer, or otherwise has authority indicative of substantial control.

This is not something limited to just the ultra-wealthy or clear shell corporations; there are absolutely a number of small businesses where the capabilities attached to these titles in larger corporations instead are devolved to individual employees (some, like accountants and chief marketing staff, not even full-time!). There's a fair argument that FinCen won't enforce the rule this way, but it's ironed out in the rule.

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