BOI FILING UPDATE – REINSTATED DEADLINES!!!!! (updated December 26, 2024)
December 26, 2024
Updates to Beneficial Ownership Information Reporting Deadlines – Beneficial Ownership Information Reporting Requirements Now in Effect, with Deadline Extensions
In light of a December 23, 2024, federal Court of Appeals decision, reporting companies, except as indicated below, are once again required to file beneficial ownership information with FinCEN. However, because the Department of the Treasury recognizes that reporting companies may need additional time to comply given the period when the preliminary injunction had been in effect, we have extended the reporting deadline as follows:
- Reporting companies that were created or registered prior to January 1, 2024 have until January 13, 2025 to file their initial beneficial ownership information reports with FinCEN. (These companies would otherwise have been required to report by January 1, 2025.)
- Reporting companies created or registered in the United States on or after September 4, 2024 that had a filing deadline between December 3, 2024 and December 23, 2024 have until January 13, 2025 to file their initial beneficial ownership information reports with FinCEN.
- Reporting companies created or registered in the United States on or after December 3, 2024 and on or before December 23, 2024 have an additional 21 days from their original filing deadline to file their initial beneficial ownership information reports with FinCEN.
- Reporting companies that qualify for disaster relief may have extended deadlines that fall beyond January 13, 2025. These companies should abide by whichever deadline falls later.
- Reporting companies that are created or registered in the United States on or after January 1, 2025 have 30 days to file their initial beneficial ownership information reports with FinCEN after receiving actual or public notice that their creation or registration is effective.
- As indicated in the alert titled "Notice Regarding National Small Business United v. Yellen, No. 5:22-cv-01448 (N.D. Ala.)", Plaintiffs in National Small Business United v. Yellen, No. 5:22-cv-01448 (N.D. Ala.)-namely, Isaac Winkles, reporting companies for which Isaac Winkles is the beneficial owner or applicant, the National Small Business Association, and members of the National Small Business Association (as of March 1, 2024)-are not currently required to report their beneficial ownership information to FinCEN at this time.
A. FTC Non-Compete Rules. On April 23, 2024, the Federal Trade Commission (FTC) finalized a new ruling prohibiting employers from enforcing noncompete agreements/clauses against workers. The ruling prohibits employers from enforcing existing noncompete agreements/clauses with any workers other than “senior executives.” In the ruling, “senior executives” are defined as workers in “policy-making positions” whose annual earnings exceed $151,164. The ruling allows enforcement of noncompete agreements/clauses between the seller and buyer of a business which necessarily would include individual stock redemption agreements signed by employees that receive stock as a bonus or through purchase. This new rule is currently under appeal, however, you should be mindful of any hires or responsibilities assigned to individuals which might rely on a noncompete agreement/clause. B. Nebraska Department of Labor Minimum Salary. Beginning January 1, 2025, the minimum wage in Nebraska is $13.50 per hour. C. Nebraska Healthy Families and Workplaces Act. The Nebraska Healthy Families and Workplaces Act (NHFWA) applies to businesses with one (1) or more employees, including full-time, part-time, and temporary employees who work in Nebraska for at least 80 hours in a calendar year. NOTE THAT THIS ACT TAKES EFFECT WITH DEADLINES ON OR BEFORE SEPTEMBER/OCT 2025
BOI FILING UPDATE – STAY IS REINSTATED BY THE SAME COURT THAT RELEASED IT ON MONDAY - The Fifth Circuit Court of Appeals issued an order late on December 26, 2024 vacating the stay issued on December 23 and reinstating the nationwide preliminary injunction enjoining enforcement of the CTA and BOI reporting rule and deadlines. Oral arguments have now been scheduled for March 25, 2025. For those of you with entities being created currently, we encourage you to file your BOI report upon creation of the entity to avoid a short deadline if this is reimposed.
A federal district court in Texas has granted a preliminary injunction against the Corporate Transparency Act (CTA) and its associated Beneficial Ownership Information (BOI) Reporting Rule, halting enforcement of the rule and delaying the compliance deadline set for January 1, 2025. Texas Top Cop Shop v. Garland, U.S. District Court for the Eastern District of Texas, No. 4:24-cv-00478. Key Points of the Court’s Ruling: 1. Irreparable Harm to Plaintiffs: The court found that plaintiffs would suffer significant harm if the CTA and BOI Reporting Rule were enforced, as it raised concerns over potential violations of constitutional rights. The court emphasized that preventing constitutional harm is in the public's best interest. 2. Government’s Interest vs. Constitutional Rights: While the government cited the need to combat financial crime and comply with international money laundering standards, the court ruled that these interests did not outweigh the potential constitutional violations. The government's efforts to enforce the rules could not justify infringing on plaintiffs' rights. 3. Nationwide Scope of the Injunction: The court agreed that a nationwide injunction was necessary, as the CTA and BOI Reporting Rule apply to millions of companies across the U.S. and could affect the plaintiffs' members nationwide. The ruling ensures that the relief extends beyond just the plaintiffs to protect all affected entities. 4. Staying the Compliance Deadline: In addition to issuing the injunction, the court stayed the compliance deadline, preventing businesses from being forced to comply with the BOI Reporting Rule while the legal challenges are ongoing. How does this impact corporations and limited liability companies? This ruling temporarily blocks the enforcement of the CTA and its Beneficial Ownership Information (BOI) Reporting Rule, giving the plaintiffs time to pursue their legal challenge. Please note that a final decision has not been made regarding constitutionality at this time – therefore the law is still in place, only the deadline has been delayed until the final case can be decided. If your entity has not filed the BOI at this point in time, the deadline for January 1, 2025 has now been delayed. You may continue to file if you wish, but the current deadline is no longer January 1, 2025. A higher court could overturn this position. Please stay informed about this topic as it proceeds in the courts.
Following is an update of the various federal tax issues, which are subject to federal adjustments, and should be factored into as part of your estate plan: A. The federal estate tax rate is permanently set at 40% per IRS Section 101(c)(1). B. The federal estate tax exemption for this year was increased under the Tax Cuts and Jobs Act (TCJA) to $13,610,000 per person and $27,220,000 per couple and is indexed for inflation through 2025. The exemption levels are set to revert back to $5,000,000 per person though in 2026, so long-term planning may be difficult. C. The long capital gains rates and step-up in basis are retained for now. The long-term capital gains tax rate is 15% for individuals with taxable income between $47,025 and $518,900 and for married couples between $94,050 and $583,750. The rate is 20% for individuals exceeding those levels. D. The annual gift tax exclusion increases to $18,000 per donor to each donee. E. The additional 3.8% Medicare Surtax which is assessed against net investment income for individuals with above an adjusted gross income of $250,000 for couples and $200,000 for singles remains in place. F. Nebraska Inheritance Taxes are paid to the county treasurer at different levels based upon who the heir is: (i) surviving spouses are exempt; (ii) parents, siblings, children and grandchildren pay tax at a rate of 1% on any monies they receive after the first $100,000; (ii) extended relatives like nieces/nephews/cousins pay tax at a rate of 11% for any monies they receive after the first $40,000; and (iv) non-related parties pay tax at a rate of 15% for any monies they receive after the first $25,000. I. In 2021 the House Ways and Means Committee (see House Report No. 117-130) removed the capital gains taxation trigger at death but proposed to revert the estate and gift tax exemption back to roughly $6,000,000 with the tax being imposed at a rate of 40%. The legislation was also designed to shut down Grantor Trusts as estate planning tools to avoid taxation. It also would do away with the benefits of special trusts like defective grantor trusts, dynasty trusts, grantor retained annuity trusts, irrevocable life insurance trusts, etc. The plan also would have removed the step-up in basis families receive on inherited assets exceeding $1,000,000. While this legislation did not pass, it is anticipated that it might be brought back up for discussion.
WHO NEEDS TO REPORT? Your entity may need to report information about beneficial owners if it is a corporation, a limited liability company (LLC), or was otherwise created by filing a document with a secretary of state. This is required by the enactment of the Corporate Transparency Act (CTA), which will be enforced by the Department of Treasury’s Financial Crimes Enforcement Network (FinCEN). More information is available on https://www.fincen.gov . WHAT DO YOU NEED TO REPORT? 1. The entity’s name, physical address, domestic state, and TIN or EIN. 2. The names and additi onal information of each “beneficial owner” of the entity and identifying information. WHEN DO I NEED TO REPORT? If your entity was created or registered prior to January 1, 2024 , you will have until January 1, 2025 to report BOI. If your entity was created or registered on or after January 1, 2024 , you will have 90 days from the dat e of creation for calendar year 2024 to file the BOI report. Beginning January 1, 2025 entities will only have 30 days from the date of creation to file the BOI report. Any updates or corrections to beneficial ownership information that has been previously filed with FinCEN must be submitted within 30 days of the change. WHO IS A BENEFICIAL OWNER? The rule describes a “beneficial owner” as any individual who, directly or indirectly, owns or controls a company, meeting at least one of two criteria: 1. Owning or controlling at least 25% of the ownership interest of the reporting entity; or 2. Exercising substantial control over the reporting organization. *Additional information regarding beneficial owners is avail able at www.fincen.gov/boi . WHAT IF I DO NOT REPORT? F ailure to comply with the CTA with reporting may lead to significant financial penalties - $591 per day civil penalty . HOW DO I COMPLY? Entities must report the required information through FinCEN’s website: https://boiefiling.fincen.gov/fileboir .
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