Author: Alexis Long

Effective January 1, 2024, U.S. and foreign entities doing business in the U.S. may be required to disclose information regarding their beneficial owners to the U.S. Department of Treasury’s Financial Crimes Enforcement Network (FinCEN). This requirement is being implemented under the beneficial ownership information (BOI) reporting provisions of the Corporate Transparency Act (CTA) passed by Congress in 2021.

 

Who is Impacted?

Companies are required to report BOI information only when they meet the definition of a “reporting company” and do not qualify for an exemption. A domestic reporting company would generally include a corporation, limited liability company (LLC), and companies created by filing documents with a secretary of state, such as a limited liability partnership, business trust, and other limited partnerships. The term “foreign reporting company” generally includes entities formed under the law of a foreign country that are registered to do business in any U.S. state.

Reporting companies created or registered to do business in the U.S. after January 1, 2024, must file an initial report disclosing the identities and information regarding their beneficial owners within 30 days of creation or registration (FinCEN has recently proposed extending this deadline to 90 days). A beneficial owner is broadly defined as any individual who, directly or indirectly, either exercises substantial control over a reporting company or owns or controls at least 25% of the ownership interests of a reporting company. Reporting companies are required to file a BOI report electronically through a secure filing system, FinCEN’s BOI E-Filing System, which began accepting reports on January 1, 2024.

Reporting companies created or registered to do business in the U.S. prior to January 1, 2024, are required to file an initial report by January 1, 2025. Once the initial report is filed, an updated BOI report must be filed within 30 days of a change. The failure to make required BOI filings may result in both civil (monetary) and criminal penalties.

 

Who is Exempt?

There are 23 specific types of entities that are exempt from the new BOI reporting requirement.  Most exemptions apply to entities that are already subject to substantial federal reporting requirements, such as some public companies, banks, securities brokers and dealers, insurance companies, registered investment companies and advisors, and pooled investment companies.

An exemption is also available for a “large operating company,” generally defined as a company with more than 20 full-time employees, a physical office within the U.S., and more than USD 5 million in gross receipts or sales from U.S. sources (as shown on a filed federal income tax or information return).

 

Practical Challenges

Every company doing business in the U.S. will need to determine whether it is subject to BOI reporting or whether an exemption applies. Because many of the exemptions depend on an entity’s legal status under various statutes (e.g., the Securities Exchange Act, the Investment Company Act), coordination and confirmation with counsel may be necessary. Further, companies that are eligible for exemption will need to implement processes to continuously assess eligibility for the exemption.

Companies that are subject to BOI reporting will need to implement processes to identify its beneficial owners and gather the information necessary to file the required BOI report. For some entities, operating agreements, subscription agreements, and similar documents may need to be reviewed to take into account the new BOI disclosure obligations. Further, because the definition of beneficial owners includes not only shareholders but senior officers and important decision-makers within the reporting company, processes to identify changes in leadership or key management will need to be considered to comply with BOI reporting obligations going forward.

 

Next Steps

The new BOI reporting requirements are mandated under Title 31 of the U.S. Code. The new rules include the legal requirements of who must file, exemptions from filing, and the information to be reported. Because the information to be reported on this form arises from determinations that are primarily legal in nature, companies should begin working with their counsel to proactively assess their filing obligations under the new BOI reporting rules.

Contact us if you have questions.

The IRS recently announced various 2024 inflation-adjusted federal tax amounts that affect individual taxpayers. Most of the federal income tax rate bracket thresholds are about 5.4% higher than for 2023. That means that you can generally have about 5.4% more income next year without owing more to the federal government.

Standard deduction

Here are the inflation-adjusted standard deduction numbers for 2024 for those who don’t itemize: $14,600 if you’re single or use married filing separate status (up from $13,850 in 2023). $29,200 if you’re married and file jointly (up from $27,700). $21,900 if you’re a head of household (up from $20,800). Older taxpayers and those who are blind are entitled to additional standard deduction allowances. In 2024 for those age 65 or older or blind, the amounts will be: $1,550 for a married taxpayer (up from $1,500 in 2023) and $1,950 for a single filer or head of household (up from $1,850 for 2023). For an individual who can be claimed as a dependent on another taxpayer’s return, the 2024 standard deduction will be the greater of: 1) $1,300 (up from $1,250 for 2023) or 2) $450 (up from $400 for 2023) plus the individual’s earned income, not to exceed $14,600 (up from $13,850 for 2023).

Ordinary income and short-term capital gains

Here are the 2024 inflation-adjusted bracket thresholds for ordinary income and net short-term capital gains: 10% tax bracket: $0 to $11,600 for singles, $0 to $23,200 for married joint filers, $0 to $16,550 for heads of household; Beginning of 12% bracket: $11,601 for singles, $23,201 for married joint filers, $16,551 for heads of household; Beginning of 22% bracket: $47,151 for singles, $94,301 for married joint filers, $63,101 for heads of household; Beginning of 24% bracket: $100,526 for singles, $201,051 for married joint filers, $100,501 for heads of household; Beginning of 32% bracket: $191,951 for singles, $383,901 for married joint filers, $191,951 for heads of household; Beginning of 35% bracket: $243,726 for singles, $487,451 for married joint filers and $243,701 for heads of household; and Beginning of 37% bracket: $609,351 for singles, $731,201 for married joint filers and $609,351 for heads of household.

Long-term capital gains and dividends

Here are the 2024 inflation-adjusted bracket thresholds for net long-term capital gains and qualified dividends: 0% tax bracket: $0 to $47,025 for singles, $0 to $94,050 for married joint filers, and $0 to $63,000 for heads of household; Beginning of 15% bracket: $47,026 for singles, $94,051 for married joint filers, and $63,001 for heads of household; and Beginning of 20% bracket: $518,901 for singles, $583,751 for married joint filers and $551,351 for heads of household.

Gift and estate tax

The annual exclusion for gifts made in 2024 will be $18,000 (up from $17,000 for 2023). That means you can give away up to $18,000 to as many individuals as you wish without incurring gift tax or using up any of your unified federal gift and estate tax exemption. In 2024, the unified federal gift and estate tax exemption will be $13,610,000 (up from $12,920,000 for 2023). For gifts made in 2024, the annual exclusion for gifts to a noncitizen spouse will be $185,000 (up from $175,000 in 2023).

Conclusion

This article only covers some of the inflation-adjusted tax amounts. There are others that may potentially apply, including: alternative minimum tax parameters, kiddie tax amounts, limits on the refundable amount of the Child Tax Credit, limits on the adoption credit, IRA contribution amounts, contributions to your company’s retirement plan and health savings account amounts. Various other inflation-adjusted amounts may affect your tax situation if you own an interest in a sole proprietorship or a pass-through business. Contact us with questions. © 2023

If you have a tax-saving flexible spending account (FSA) with your employer to help pay for health or dependent care expenses, there’s an important date coming up. You may have to use the money in the account by year-end or you’ll lose it (unless your employer has a grace period). As the end of 2023 gets closer, here are some rules and reminders to keep in mind.

Health FSA

A pre-tax contribution of $3,050 to a health FSA is permitted in 2023. This amount will be increasing to $3,200 in 2024. You save taxes in these accounts because you use pre-tax dollars to pay for medical expenses that might not be deductible. For example, expenses won’t be deductible if you don’t itemize deductions on your tax return. Even if you do itemize, medical expenses must exceed a certain percentage of your adjusted gross income in order to be deductible. Additionally, the amounts that you contribute to a health FSA aren’t subject to FICA taxes. Your employer’s plan should have a list of qualifying items and any documentation from a medical provider that may be needed to get reimbursed for these expenses.

FSAs generally have a “use-it-or-lose-it” rule, which means you must incur qualifying medical expenditures by the last day of the plan year (December 31 for a calendar year plan) — unless the plan allows an optional grace period. A grace period can’t extend beyond the 15th day of the third month following the close of the plan year (March 15 for a calendar year plan).

What if you don’t spend the money before the last day allowed? You forfeit it. Take a look at your year-to-date expenditures now. It will show you what you still need to spend.

What are some ways to use up the money? Before year end (or the extended date, if permitted), schedule certain elective medical procedures, visit the dentist or buy new eyeglasses.

Dependent care FSA

Some employers also allow employees to set aside funds on a pre-tax basis in dependent care FSAs. A $5,000 maximum annual contribution is permitted ($2,500 for a married couple filing separately). FSAs are for: A child who qualifies as your dependent and who is under age 13, or A dependent or spouse who is physically or mentally incapable of self-care and who has the same principal place of abode as you for more than half of the tax year.

Like health FSAs, dependent care FSAs are subject to a use-it-or-lose-it rule, but the grace period relief may apply. Therefore, it’s a good time to review your expenses to date. Other rules and exceptions may apply. Your HR department can answer any questions about your specific plan.

Contact us with any questions you have about the tax implications. © 2023

The IRS has announced a delay in releasing the $600 Form 1099-K reporting threshold for third-party settlement organizations. Calendar year 2023 will now be considered a transition year and third parties (including payment apps and online marketplaces) won’t be required to report transactions unless a taxpayer receives more than $20,000 and has more than 200 transactions in 2023.

In addition to delaying the release of the new form until 2024, the IRS said it plans to boost the reporting threshold to $5,000. It decided on the delay after an outcry from taxpayers, tax advisors, and payment processors complaining that releasing the new form in 2023 would lead to confusion and disruption.

Doing business with marijuana-related businesses: Handle with care

As an increasing number of states legalize marijuana for medical or recreational use — or both — the marijuana business is booming. For community banks, lending to or accepting deposits from marijuana-related businesses (MRBs) represents a lucrative opportunity, but it can also be risky. Marijuana continues to be classified as a controlled substance under federal law, so banks that do business with MRBs may risk being charged with aiding and abetting a federal crime.

The U.S. Department of Justice and the Financial Crimes Enforcement Network have issued guidelines that offer some comfort to banks. For example, the guidance states that banks won’t be prosecuted if they conduct thorough due diligence on MRBs, monitor them for money-laundering activities, and comply with certain other requirements. However, many banks will understandably be wary of doing business with MRBs until federal legislation is enacted that normalizes relations between state-licensed MRBs and financial institutions. Stay tuned.

New interagency guidance on managing third-party risk

The Federal Deposit Insurance Corporation, the Office of the Comptroller of the Currency, and the Federal Reserve have finalized their “Interagency Guidance on Third-Party Relationships: Risk Management,” which was proposed in 2021. The new guidance promotes consistency in the agencies’ supervisory approach to third-party risk management. (Previously, each agency had its own guidance.)

The guidance maps out the third-party risk management life cycle — planning, due diligence and third-party selection, contract negotiation, ongoing monitoring, and termination — and describes risk management principles applicable to each stage. The guidance also clarifies that a bank’s risk management program should focus on critical activities, while noting that not all third-party relationships are equally critical or present the same level of risk to a bank’s operations.

Watch out for “digital redlining”

Various federal laws and regulations protect consumers from unfair and discriminatory practices by banks. They include the Equal Credit Opportunity Act, the Fair Housing Act, and the Dodd-Frank Act, which authorizes the Consumer Financial Protection Bureau to prosecute “unfair, deceptive, or abusive acts or practices.”

Federal banking regulators are particularly concerned about redlining. This is a form of illegal disparate treatment whereby a lender provides “unequal access to credit, or unequal terms of credit, because of the race, color, national origin, or other prohibited characteristic(s) of the residents of the area” in which the credit seeker lives or the mortgaged residential property is located. A bank may expose itself to allegations of “digital redlining” if, for example, it offers more favorable credit terms for products offered through certain channels — such as websites or social media platforms — that are less likely to be used by minorities. Banks should review their marketing materials and online activities with this in mind.

© 2023

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Community banks, by their very nature, tend to have higher concentrations of commercial real estate (CRE) loans than larger institutions. Any concentration in certain types of loans, borrowers or collateral exposes banks to heightened risks, so your bank needs to be proactive in managing CRE concentration risk. This is particularly critical today, because a confluence of recent trends has elevated CRE risks for many banks.

CRE trends

The following three key trends are affecting community banks’ CRE risks and will likely continue to do so in the foreseeable future:

1. Remote work. In the wake of the COVID-19 pandemic, many businesses have shifted to fully remote or hybrid work arrangements (for instance, two days per week in the office, three days remote). As a result, many office building tenants are reducing their office space or electing not to renew their leases. This can make it difficult for commercial property owners to repay loans and potentially decreases collateral values.
2. Rising interest rates. Higher interest rates expose banks to maturity/refinance risks. As fixed-rate CRE loans mature over the next year or two, some borrowers may struggle to make payments when faced with significantly higher interest rates — in some cases double the rates they had previously locked in.
3. Inflation. The costs of operating commercial buildings have increased dramatically in the last few years. Borrowers are faced with increasing costs for labor, insurance, utilities, maintenance, taxes, and other items, which affect their income and, therefore, their ability to repay loans.

In light of these trends, it’s more important than ever for banks to shore up their risk management programs for CRE concentrations, particularly in the office sector.

Risk management strategies

In assessing a bank’s risk management program, it’s helpful to consult the federal banking agencies’ 2015 joint Statement on Prudent Risk Management for Commercial Real Estate Lending. Among other things, the statement urges banks with high CRE concentrations to:

• Establish adequate and appropriate loan policies, underwriting standards, credit risk management practices, concentration limits, lending strategies, and capital adequacy strategies,
• Conduct global cash flow analyses based on reasonable assumptions regarding rental rates, sales projections, and operating expenses,
• Stress test their CRE loan portfolios,
• Assess the ongoing ability of borrowers and projects to service debt, and
• Implement procedures for monitoring volatility in the CRE industry and reviewing appraisal reports.

Valuable guidance can also be found in the agencies’ Supervision and Regulation (SR) Letter 07-1, Interagency Guidance on Concentrations in Commercial Real Estate. That guidance outlines the key elements of a robust risk management framework, including: 1) a strong management information system to identify, measure, monitor and manage CRE concentration risk; 2) market analysis, which allows banks to determine whether their CRE lending strategy and policies continue to be appropriate based on changes in market conditions; and 3) clear and measurable credit underwriting standards that facilitate evaluation of all relevant credit factors. Other elements discussed in the letter include board and management oversight, portfolio management, portfolio stress testing, sensitivity analysis, and the credit risk review function.

Risky business

CRE lending has become riskier in recent years. You can manage this risk, however, if your bank monitors its CRE portfolio, keeps abreast of changing market conditions, and implements sound risk management practices.

© 2023

Contact us with questions.