By Cameron Stark, VF Law
The Corporate Transparency Act is a major new federal law that imposes strict reporting requirements on nearly all business entities in the US, including community associations. This new law is significant, as it will impact every community association and every individual homeowner who serves on an association’s board of directors. Compliance with this new law is mandatory, and failure to comply can lead to severe penalties, which include fines of up to $500 per day and/or imprisonment of up to 2 years.
Congress passed this law to enhance transparency in business structures in an effort to combat money laundering and other financial crimes. The law is enforced by the Financial Crimes Enforcement Network (called “FinCEN”), an office within the U.S. Department of Treasury. The law requires existing associations to file a report called a Beneficial Ownership Information (“BOI”) report by December 31, 2024. After the initial report is filed, community associations have an obligation to file amended reports within designated timeframes.
A beneficial owner is defined as an individual who directly or indirectly exercises “substantial control” over the business entity. Under this standard, every board member of an association is likely to be considered a beneficial owner who must provide their personal information to FinCEN as part of the BOI report. Depending upon the individual circumstances of an association, additional individuals may be classified as beneficial owners and required to report their personal information. Professionals who provide ‘arms-length’ services to community associations, including attorneys and accountants, are not generally considered beneficial owners as they do not exercise “substantial control” over the community association.
Beneficial owners must provide sensitive personal information to FinCEN, which includes, but is not limited to, their full legal names, address, and driver’s license or passport information. It is important for associations and beneficial owners to consider the security risks related to this sensitive information. For example, if one board member volunteers to collect all of this information from the other board members and complete the reporting, how is this information being collected and stored? Management companies and law firms will need to consider the same question in order to protect this information. It is important to note that the individual completing the reporting must provide their personal information as well.
The best solution to this problem may be to use an independent, third-party entity to collect and report beneficial owners’ sensitive personal information. Third-party entities that specialize in this type of reporting may also be able to efficiently update the reports as needed, as the CTA requires an amended report every time a beneficial owner’s information changes. This means an amended report is required to be filed within 30 days of certain changes, including whenever a new board member is elected, a board member resigns, when or if their personal information changes, or after an error in a previous report has been discovered. It is imperative for associations to maintain accurate and up-to-date records in order to fulfill these reporting requirements.
Community associations must familiarize themselves with the specific requirements of the CTA and take the requirements seriously. Any beneficial owner who refuses or otherwise fails to comply with reporting requirements puts themselves and the association at significant legal risk. Associations should review their governing documents with their attorney and consider amending provisions related to the qualifications of directors. We recommend working with your attorney to consider adding provisions that automatically disqualify any director who refuses to comply from serving on the board in order to protect the association.
Cameron Stark is an attorney with VF Law, representing community associations in various matters. VF Law is a full-service, multi-state firm, providing trusted legal guidance to community associations for over 35 years.
