FinCEN published the long-awaited, and much-anticipated, FAQs on the new customer due diligence/beneficial ownership rule, which comes into effect on May 11th. Brett Wolf, writing for Thomson Reuters, included the following in a story titled “U.S. Treasury releases beneficial ownership guidance as rule looms”:
“One noteworthy omission from the FAQ document was guidance on interaction with the so-called legal entity customer representative, the person who ‘walks into the branch to open the account,’ and who is to attest to the accuracy of the beneficial ownership information provided to the bank, said Jim Richards, who recently left his position as the Bank Secrecy Act officer at Wells Fargo. The idea was that the attestation, a signature, would provide prosecutors with ‘someone to go after’ if false ownership information were provided to banks, said Richards, who has founded RegTech Consulting LLC. It remains unclear what the consequences would be, and how banks are required to react, if a legal entity customer representative were to refuse to sign the attestation, he said.
“‘I thought the FAQs would say something about that, because if you look at the preamble to the final rule, there is a reference to the Department of Justice seeing that attestation as a significant part of the form,’ Richards said.”
“He added that the FAQs related to Currency Transaction Reports (CTRs) ‘are a trap for those that fail to consider beneficial owners when aggregating cash transactions for CTR purposes.’”
Take a close look at Questions 32 and 33 – if the bank has knowledge, then it must include beneficial owners in the CTR when they are or appear to be the actual beneficiaries of the cash transactions. This standard – if the bank has knowledge – is a trap for banks that are struggling with aggregating all cash transactions across all delivery channels (branches, ATMs, cash vaults) across multiple accounts. Be cautious! And make sure you are on the same page as your auditors and examiners when it comes to whether you have actual knowledge.
Another interesting answer was to Question 30 – the meaning of the word “equipment” for the so-called “leased equipment” exemption. In what could be an omission or miss by FinCEN is the inclusion of aircraft in the type of equipment that is exempt from beneficial ownership information. This seems to be the opposite of what some of those in Congress that are looking for more transparency with aircraft ownership. See, for example, the Aircraft Ownership Transparency Act of 2017, HR 3544 introduced by Rep Stephen Lynch (D. MA). That bill requires full and clear beneficial ownership information for all FAA registered aircraft.
More to come on beneficial ownership … and expect some chaos as the May 11 implementation date draws near, and the public (and media and Congress) become aware of what banks will be asking for.