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Key tax impacts from the new leasing standard

• Introduction

Tracking for historical book/tax differences is gone

Substantial modifications/rent concessions, interest on finance leases, interest limitation under section 163(j), other items to consider, beyond federal tax, lessors may have to accelerate income.

As more private businesses begin implementing the new U.S. GAAP standard under ASC 842,  Leases  (“ASC 842” or “the standard”), many are discovering that they no longer have easy access to the data needed to compute the most common book/tax differences. Prior to implementing ASC 842, many taxpayers have general ledger accounts such as “Deferred Rent” or “Prepaid Rent” that allow visibility into identifying and computing major/book tax differences. However, under ASC 842, those accounts are going away and have been replaced by a right-of-use asset and corresponding lease obligation onto their balance sheet for fiscal years beginning on or after Dec. 15, 2021, for private companies. The standard also requires companies to take a fresh look at how they are treating leases for GAAP purposes. Thus, the standard not only removes the accounts that used to be used to track book/tax differences—it may create new ones. Most of the dialogue, articles, CPE courses, etc. have concentrated on the GAAP rules and reporting requirements. Also, most software solutions focus on the GAAP requirements. As a result, some of the tax impacts of the new standard have not been fully considered. The biggest change under the standard for lessees is that lessees are required to recognize an asset and liability for most leases on its balance sheet, which requires completely changing the journal entries used to report and track the lease expense. The standard does not fundamentally change lease accounting from the lessor’s perspective, but there are some changes that require lessors to look to the new GAAP revenue recognition standard under ASC 606, which in certain instances may impact the new revenue recognition rules under the Tax Cuts and Jobs Act (TCJA). Additionally, lessees subject to the IASB standard, IFRS 16, instead of the GAAP standard, must report all leases as finance leases, which may create new book/tax differences on the tax return.

As noted above, the journal entries used to track and record the balance sheet and income statement accounts are changing under the new GAAP and IFRS leasing standards, which will create challenges for continuing to identify and compute the common book/tax differences. To offer a better understanding of what is changing, below are some of the most common book/tax differences and a quick summary of some of the new GAAP requirements for operating leases.

Straight-line rents

One of the most common book/tax differences is for rent deductions. Generally, for operating leases, GAAP requires fixed rent payments to be expensed straight-line over the term of the lease, whereas for federal income tax purposes, generally the rules require taxpayers to deduct rents following the payment schedule for most conventional leases. Under the former GAAP rules for an operating lease, the difference between the actual payments of rent and the straight-line expense were usually recorded in a Deferred Rent or Prepaid Rent account on the balance sheet, which made it relatively easy to identify for tax purposes. The new GAAP standard requires a lessee to record a right-of-use asset and a lease liability for all leases with a lease term greater than 12 months. 1  There is no more Deferred Rent or Prepaid Rent account. Instead, at the commencement of the lease, the lease liability is equal to the present value of the lease payments. 2  The initial right-of-use asset is equal to the lease liability plus any initial direct costs minus any lease incentives received plus any payments made by a lessee to the lessor at or before the lease commencement date. 3  Therefore, if there are no initial direct costs, lease incentives, or prepayments, the right-of-use asset equals the lease liability. The straight-line expense will be recorded in the income statement, the lease liability will be reduced by the difference between the cash payment and the interest expense on the lease liability, and the amortization of the right-of-use asset is the difference between the straight-line expense and the interest. 4 Thus, a typical journal entry will look something like:

For federal income tax purposes, the tax treatment will depend on whether the lease is subject to Section 467 or the general accrual rules under Section 461. In either case, taxpayers usually deduct rent by following the payment schedule for most conventional leases (leases without a separate rent allocation schedule that do not have provisions that alter the benefits and burdens of ownership) without prepayments. 5  Thus, in the above journal entry, tax would deduct when the cash is paid rather than following the straight-line GAAP expense. Many small equipment leases—and some commercial real estate leases—are subject to the general rules under Section 461, which require accrual method taxpayers to deduct rent in the year in which the liability meets the all-events test and economic performance rules. Economic performance for rent is met as the leased property is used,  i.e.  ratably over the period of time the taxpayer is entitled to the use of the property. 6  Therefore, for conventional leases with monthly rent payments, a taxpayer would deduct the rent monthly, while for leases with prepaid rent a taxpayer must spread the deduction ratably over the period of use related to the prepayment. The Section 467 rules override the general federal income tax rules under Section 461 regardless of whether a taxpayer uses the overall cash or accrual method of accounting—and they often apply to commercial real estate leases and large equipment leases. A Section 467 rental agreement is any rental agreement for the use of tangible property with aggregate payments exceeding $250,000, and under which there are either increasing or decreasing rents and/or there is prepaid or deferred rent. Thus, if a lease agreement has fixed, stepped rents that are not based on the consumer price index (CPI), the lease will be subject to Section 467 if the total payments exceed $250,000. Note that the definition of prepaid or deferred rent under Section 467 is not as broad as is commonly used in books and records. Historically (prior to ASC 842), a taxpayer may record in its books and records deferred or prepaid rent for any month in which payments do not match the book deduction. However, to have deferred or prepaid rent under Section 467 for federal income tax purposes, the regulations require that the payment schedule in the lease agreement not match the rental allocation schedule in the lease agreement. For example, Treas. Reg. Sec. 1.467-1(c)(3)(ii) provides that a rental agreement has prepaid rent if the cumulative amount of rent payable as of the close of a calendar year exceeds the cumulative amount of rent allocated as of the close of the succeeding calendar year. Thus, there is only prepaid rent under Section 467 if the prepayment in calendar year 1 exceeds the amount of rent allocated cumulatively through calendar year 2. In computing the rent to be accrued each year under Section 467, rents must be allocated in accordance with the applicable Section 467 rental agreement. 7  In most conventional leases, there is no rent allocation schedule separate from the rent payment schedule in the lease. Therefore, in these situations, the lessee generally recognizes an expense in accordance with the rent payment schedule and there is no prepaid or deferred rent under Section 467. 8 The regulations can be daunting to tackle, as they first make the reader determine if any of the special rules apply, such as the constant rental accrual method (which applies if the IRS determines that the lease is disqualified long-term lease or a disqualified leaseback because the IRS has determined that the principal purpose for providing increasing or decreasing rent is the avoidance of federal income tax) or the proportional rental accrual method (which applies if there is prepaid or deferred rent, as described above, without adequate interest), even though these rules rarely apply to conventional lease terms. Under Treas. Reg. Sec. 1.467-1(c)(2)(ii), if there is a rent allocation schedule that is different from the rent payment schedule, then the parties follow the rent allocation schedule, provided the special rules do not apply. Generally, parties may create leases with a rent allocation schedule that is different than the payment schedule if the parties are executing tax planning. Therefore, for conventional leases with fixed, increasing rents, taxpayers generally would follow the cash payment schedule for federal income tax, but would straight-line the expense for GAAP. Taxpayers face a potentially burdensome tracking issue to reconcile the book/tax differences now that the Deferred Rent and Prepaid Rent general ledger accounts are gone.

Lease incentives

The treatment of lease incentives also has long been a source of book/differences. As noted above, lease incentives are included in the right-of-use asset under the new GAAP standard. Thus, the lease incentive is amortized against the lease expense over the life of the lease. For tax purposes, however, a lease incentive is often taxable to the lessee at the commencement of the lease. Generally, for federal income tax purposes, a lessee has gross income when it receives a lease incentive from the lessor because it has an accession to wealth—unless the facts indicate that the allowance was intended to be spent on real property improvements owned by the landlord. 9  Thus, incentives for moving expenses, payments to the lessee’s former landlord to terminate its prior lease, and certain tenant construction allowances owned by the lessee are gross income to the tenant upfront. The tenant bears the burden of proving it does not have an accession to wealth. 10  Whether the improvements are owned by the tenant or the landlord must be determined using tax principles, which generally rely on the benefits and burdens of ownership. 11  If the tenant owns the asset, the lease incentive is gross income when the lessee has a fixed right to the income and it is determinable with reasonable accuracy, which is generally near the commencement of the lease. 12  The tenant will capitalize the leasehold improvement asset and depreciate for tax purposes when placed in service. However, there are certain safe harbors, such as Section 110, which allow for the lessee to exclude the incentive from income to the extent it is used to construct real property improvements. If the parties intend for the landlord own the improvement upfront, the lease should either specifically reference language from the Section 110 regulations and/or specifically state that the landlord owns the improvements upfront (not just at the end of the lease). Because the landlord owns the improvements, the lessee should not capitalize and depreciate the improvements that are built or purchased with the eligible allowance. It can be difficult to qualify for the safe harbor in Section 110. The requirements include:

• The allowance must be spent on qualified long-term real property
• The lease must be for retail space and run for 15 years or less
• The lease must contain language expressly from the regulation (e.g. the “allowance is for the purpose of constructing or improving qualified long-term real property for use in the lessee’s trade or business at the retail space”)
• The lessee must attach an information statement to the tax return in the year the allowance is received
• The lessor must capitalize and depreciate the improvements. 13

If the Section 110 safe harbor is not met, taxpayers must rely on case law to determine which party has the benefits and burdens of ownership of the improvements. Generally, the IRS will look for specific language in the lease that indicates the landlord intended to own the improvements upfront. Thus, incentives such as tenant allowances are a very common book/tax difference. Under the new GAAP standard, taxpayers also face a potentially burdensome tracking issue to reconcile the incentive book/tax differences now that the incentives are buried in the right-of-use asset.

Lease terminations

Another difference is the treatment of payments made by a lessor to an existing tenant to incentivize the tenant to terminate its lease. For federal income tax purposes, an amount paid to terminate or facilitate the termination of an existing agreement does not facilitate the acquisition or creation of  another  agreement unless the lessor and lessee are renegotiating an existing lease agreement. 14  However, if a lessor pays a lessee to terminate an existing lease agreement, the lessor must capitalize the termination payment and amortize over the term of the old lease. 15 There also may be differences if the tenant makes a payment to a lessor to terminate a lease. If the lessee makes a payment to the lessor to terminate a lease and does not owe any back rent and is not terminating the lease in order to enter into another lease or to buy the property, the payment is generally deductible as rent. 16  However, if the lessee makes a payment for back rent for less than the lessee owes, there may be income that needs to be recognized under Section 108 (income from discharge of indebtedness) or under Section 111 (recovery of tax benefit items). Further, if the lessee is terminating a lease to enter into a new lease or buy the property, then the payment will generally be capitalized and pulled into the new lease or cost of the property. 17

Normally, substantial changes to lease agreements are somewhat unusual on a large scale, however COVID-19 has caused many rental agreements to be modified. These modifications affect both tenants’ and property owners’ GAAP and tax accounting. Common changes can take the form of any of these:

• Reduced rent
• Rent forgiveness,
• Extension of lease,
• Deferral of rent payments (during or after lease terms)
• A combination of these things.

GAAP provides specific guidance on whether to treat changes as rent concessions or rent modification. The allowance to account for these as concessions or modifications is dependent on the evidence of an “enforceable right” to the concession ( i.e ., if the laws in the jurisdiction governing the lease could create a legally enforceable right to a concession). If this enforceable right exists and there are no other terms of the lease that have been changed, the situation can be considered a concession as opposed to a lease modification. The Financial Accounting Standards Board (FASB) staff recently issued a staff Q&A addressing the accounting for lease concessions related to the effects of the COVID-19 pandemic under ASC 842. 18  The FASB staff states that the published guidance on lease modification standards was written with routine lease changes in mind and not for the novel and widespread concessions granted in response to the COVID-19 pandemic. Due to these special circumstances, the staff believes that under both ASC 840 and ASC 842, the entity may elect to treat qualifying lease concessions as if they were based on enforceable rights and obligations and may choose to apply or not to apply modification accounting for the qualifying concession. Two criteria must be met to be considered a qualifying concession. First, the concession must be related to COVID-19. Second, there cannot be a substantial increase in the lessee’s obligation or the lessor’s rights under the contract. For example, the total payments required by the modified contract must be substantially the same as, or less than, the total payments required by the original contract. One of the more common lease concessions is a deferral of rent that changes the timing of the rental payments, but not the amount of these payments. The FASB staff noted there could be multiple approaches to accounting for deferrals under both ASC 842 and ASC 840. One approach is to continue to account for the lease as if no deferral has been provided. A lessee should record a payable and a lessor should record a receivable for rental payment deferred. If these criteria are not met, then under ASC 842, the rent concession is a modification. Both lessee and lessor must first determine if a lease modification should be treated as a new lease or as a continuation of the current lease. An entity accounts for a modification that is not considered a separate contract as a continuation of the existing lease and should reassess the lease classification, analyzing all modified terms and conditions and updating all inputs as of the effective date of modification. There are important tax implications of changes to lease agreements. Treatment of Section 467 and non-Section 467 leases differ. If a change is considered a lease modification under Section 467 it could lead to a change in the remaining lease from being subject to Section 461 to being subject to the rules of Section 467. For example, a substantial modification under Section 467 rental agreement would be considered a new, separate lease from the old agreement. Due to these circumstances, determining what qualifies as a substantial modification is very important, as under a lease modification the categorization of the lease would have to be re-evaluated. A modification is considered substantial only if, based on all the facts and circumstances, the legal rights or obligations that are altered and to the degree to which they are altered are economically substantial. Typically, for Section 467 leases, the fixed rent for a rental period is the amount of the fixed rent allocated to the rental period under the rental agreement. Therefore, the income or expense is recognized in the period that it is allocated. Certain modifications to an existing lease could turn a lease that did not have increasing or decreasing rents—and thus was subject to Section 461—into a Section 467 rental agreement due to the uneven rents caused by the rent deferrals. If rents are significantly prepaid or deferred, the taxpayer may be required to use the proportional method of recognition. Certain modifications could trigger the deferred rent provisions, requiring the use of the proportional method under Section 467 instead. If the leases are not Section 467 leases, then entities must evaluate the recognition rules under Section 451 for income and Section 461 for expense to determine the appropriate timing for recognizing the new payment schedule.

As described above, the treatment of deferred rent, lease incentives and initial direct costs may create new book/tax differences in some circumstances, even though for many leases, there were already differences under the old rules. Another possible new book/tax difference is interest on finance leases. Under the standard, the initial measurement of the right-of-use asset and lease liability is the same for operating and finance leases, while the expense recognition and amortization of the right-of-use asset differ significantly. Finance leases will reflect a front-loaded expense pattern similar to current capital leases. 19  Unlike operating leases, the interest expense on the lease liability and the amortization of the right-of-use asset (generally straight line) will be reflected separately on the income statement. Under the standard (and for IFRS as well), the income statement will include interest expense on the lease. Thus, if any leases were formerly characterized as operating leases for book purposes but are now finance leases for book purposes, the amount of the book/tax differences may change due to the interest computation. This is a particularly notable issue for leases subject to IFRS 16, as all leases are treated as finance leases. As noted below, it is also important to make sure that the book interest on the finance lease is reversed for leases that are true leases for federal income tax purposes.

A common question business owners ask is how the new interest limitation interacts with the leasing rules. Effective for tax years starting in 2018, Section 163(j) limits the deduction for business interest to the sum of these three amounts:

• Business interest income
• Thirty percent of the taxpayer’s adjusted taxable income for the tax year
• The taxpayer’s floor plan financing interest for the tax year

Any interest not deductible because of the Section 163(j) limitation is carried forward indefinitely (with some restrictions for partnerships). The IRS and Treasury issued final regulations under Section 163(j) that includes amounts treated as interest under a Section 467 rental agreement in the definition of interest for purposes of the limitation. 20  Generally, this type of interest arises with leases that have unconventional terms, such as a lease with a rent holiday that exceeds 24 months, or a lease that specifically provides two separate rent schedules: one that allocates rent to each year of the lease and one that provides for a deferred or prepaid payment schedule that is different than the allocation. The book interest computed on leases that are finance leases for GAAP (or IFRS) is not interest for federal income tax purposes if the lease is a true lease for tax. (Remember that for operating leases, GAAP only reports rent expense in the income statement, so there will not be interest expense on operating leases.) However, if the lease is a sale/financing for federal income tax purposes, then the purported rent payments would have to be split between interest and payment on the loan. Whether a lease is a sale/financing for tax rather than a true lease depends on the facts and circumstances and does not automatically match the GAAP (or IFRS) treatment. 21

With the standard, renewed attention should also be placed on the following items, if applicable:

• Lease classification: While GAAP defines leases as either operating or finance, the federal income tax rules define leases as either a true lease (also known as: operating lease) or a sale/financing arrangement (somewhat similar to a finance lease). Federal income tax laws list numerous factors to consider when determining the classification of a lease that should be analyzed.
• Sale/leaseback transactions: There are likely book-to-tax adjustments that exist when this transaction occurs as GAAP and tax treatment generally will differ in whether a sale actually occurs and when the resulting gain/loss on the sale gets recognized.

There are a variety of state and foreign tax impacts, including:

• State apportionment for income taxes: The computation of the property factor may be impacted to the extent that the property factor is computed based on the GAAP basis of property if the right-of-use asset is included in plant, property and equipment. Additionally, certain states include a multiple of rent expense incurred for the year in the property factor.
• Franchise and net worth taxes: The new standard may impact the net worth of a company to the extent the tax is based on GAAP net worth due to the inclusion of the right-of-use asset and the lease liability in the balance sheet.
• Personal property or real estate taxes: In jurisdictions that impose property taxes on personal and real property, businesses will need to determine if the right-of-use asset constitutes property subject to the local property tax.
• Sales and use tax: Determine whether any applicable jurisdiction takes the position that a right-of-use asset is the equivalent of a purchase of such an asset from the lessor, thereby resulting in an immediate sales tax imposition on a purchase transaction.
• Foreign income taxes: To the extent that a company operates in foreign jurisdictions that base their local income tax liability on accounting income, the company will need to evaluate the impact of the new lease standard on foreign income tax expense.
• Transfer pricing: Transfer pricing rules may require that related parties reflect an arm’s-length price regardless of what the treatment is for GAAP purposes.

Under ASC 842, a lessor should allocate the contract consideration to the separate lease and non-lease components in accordance with the transaction price allocation guidance in ASC 606 ,  Revenue from Contracts with Customers . 22 Generally, lessors recognize fixed, increasing rents straight-line over the term of the lease under ASC 842. The federal income tax rules are the same under Section 467 for lessors as for lessees, and therefore there will generally be a book/tax difference due to the difference between the book straight-line and the tax payment schedule. For leases that are not subject to Section 467, the lease income would be subject to Section 451. For accrual basis taxpayers with applicable financial statements (AFS), Section 451(b) generally requires that taxpayers recognize income no later than when it is recognized in their AFS. The final regulations under Treas. Reg. Sec. 1.451-3 illustrate that taxpayers that have an enforceable right to the income accelerated in the AFS under the straight-line method if the contract were cancelled, would have to accelerate the income for federal income tax purposes as well.

These are some of the most common book/tax differences on operating and finance leases and, as illustrated, taxpayers may have issues going forward with identifying the appropriate book/tax differences due the new GAAP reporting requirements. Additionally, as part of the implementation of ASC 842, a taxpayer may discover that it was not appropriately following the federal income tax rules. In that case, the taxpayer must change an impermissible method of accounting for the treatment of any of these items by filing a Form 3115,  Application for Change in Method of Accounting . Certain changes may be eligible under the automatic method change procedures.

For more information, contact:

Principal, Washington National Tax Office Principal, Grant Thornton Advisors LLC

Sharon Kay is a subject matter specialist in Grant Thornton’s Washington National Tax Office with 20 years of tax experience. She primarily advises clients on federal income tax issues such as tangible and intangible asset capitalization and recovery, inventories, income and expense recognition, and certain business credits.

Washington DC, Washington DC

Service Experience

• Strategic federal tax

David Murdock

Principal, Tax Services Grant Thornton Advisors LLC

David has 19 years of experience in taxation with an emphasis in corporate income tax compliance, income tax provision (ASC 740) and Strategic Federal Tax Services, which include R&D Tax Credit, UNICAP (Inventory Capitalization), Cost Segregation/Fixed Asset Solutions, and comprehensive Credit, Methods and Periods palnning.

San Jose, California

• Construction & real estate
• Manufacturing, Transportation & Distribution
• Technology, media & telecommunications
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• Corporate Tax
• Strategic Federal Tax

To learn more visit gt.com/tax

1 Paragraph 842-20-25-1 of ASC 842. 2 Paragraph 842-20-30-1 of ASC 842. 3 Paragraph 842-20-30-5 of ASC 842. 4 Paragraphs 842-20-25-6 through 842-20-35-6 of ASC 842. 5 Treas. Reg. Sec. 1.467-1(d)(2)(iii) and (c)(2)(ii). 6 Treas. Reg. Sec. 1.461-4(d)(3). 7 Treas. Reg. Sec. 1.467-1(d)(2)(iii). 8 Treas. Reg. Sec. 1.467-1(c)(2)(ii).  See also, Stough v. Commissionner , 144 TC 306 (2015) (under Section 467, taxpayers were required in the year of receipt to include as gross income the entire lump-sum payment made pursuant to the terms of the lease because the lease did not specifically allocate fixed rent to any rental period). 9 Section 61;  John B. White, Inc. , 55 TC 729 (1965);  In re The Elder-Beerman Stores Inc. , 97-1 USTC 50,391 (Bankr SD Ohio 1997);  Price , 77 TCM 1928 (1999). 10   Id. 11   Id. 12 Section 451. 13 Treas. Reg. Sec. 1.110-1(b) and (c). 14 Treas. Reg. Sec. 1.263(a)-4(e)(1)(ii) and Treas. Reg. Sec. 1.263(a)-4(d)(6)(iii). 15 Treas. Reg. Sec. 1.263(a)-4(d)(7). 16 Section 162. 17 Letter Ruling 9607016. 18 FASB Staff Q&A – Topic 842 and Topic 840: Accounting for Lease Concessions Related to the Effects of the COVID-19 Pandemic. 19 Paragraph 842-20-25-5 of ASC 842. 20 Treas. Reg. Sec. 1.163(j)-1(b)(22)(i)(J). 21  See , for example, Section 7701(e) and a long list of cases including  Torres , 88 T.C. 702 (1987). 22 Paragraph 842-10-15-38 of ASC 842.

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Assignment of Lease: How It Works and Parties Involved

Jump to section, what is an assignment of lease.

The assignment of lease is a title document that transfers all rights possessed by a lessee or tenant to a property to another party. The assignee takes the assignor’s place in the landlord-tenant relationship.

You can view an example of a lease assignment here .

How Lease Assignment Works

In cases where a tenant wants to or needs to get out of their lease before it expires, lease assignment provides a legal option to assign or transfer rights of the lease to someone else. For instance, if in a commercial lease a business leases a place for 12 months but the business moves or shuts down after 10 months, the person can transfer the lease to someone else through an assignment of the lease. In this case, they will not have to pay rent for the last two months as the new assigned tenant will be responsible for that.

However, before the original tenant can be released of any responsibilities associated with the lease, other requirements need to be satisfied. The landlord needs to consent to the lease transfer through a “License to Assign” document. It is crucial to complete this document before moving on to the assignment of lease as the landlord may refuse to approve the assignment.

Difference Between Assignment of Lease and Subletting

A transfer of the remaining interest in a lease, also known as assignment, is possible when implied rights to assign exist. Some leases do not allow assignment or sharing of possessions or property under a lease. An assignment ensures the complete transfer of the rights to the property from one tenant to another.

The assignor is no longer responsible for rent or utilities and other costs that they might have had under the lease. Here, the assignee becomes the tenant and takes over all responsibilities such as rent. However, unless the assignee is released of all liabilities by the landlord, they remain responsible if the new tenant defaults.

A sublease is a new lease agreement between the tenant (or the sublessor) and a third-party (or the sublessee) for a portion of the lease. The original lease agreement between the landlord and the sublessor (or original tenant) still remains in place. The original tenant still remains responsible for all duties set under the lease.

Here are some key differences between subletting and assigning a lease:

• Under a sublease, the original lease agreement still remains in place.
• The original tenant retains all responsibilities under a sublease agreement.
• A sublease can be for less than all of the property, such as for a room, general area, portion of the leased premises, etc.
• Subleasing can be for a portion of the lease term. For instance, a tenant can sublease the property for a month and then retain it after the third-party completes their month-long sublet.
• Since the sublease agreement is between the tenant and the third-party, rent is often negotiable, based on the term of the sublease and other circumstances.
• The third-party in a sublease agreement does not have a direct relationship with the landlord.
• The subtenant will need to seek consent of both the tenant and the landlord to make any repairs or changes to the property during their sublease.

Here is more on an assignment of lease here .

Parties Involved in Lease Assignment

There are three parties involved in a lease assignment – the landlord or owner of the property, the assignor and the assignee. The original lease agreement is between the landlord and the tenant, or the assignor. The lease agreement outlines the duties and responsibilities of both parties when it comes to renting the property. Now, when the tenant decides to assign the lease to a third-party, the third-party is known as the assignee. The assignee takes on the responsibilities laid under the original lease agreement between the assignor and the landlord. The landlord must consent to the assignment of the lease prior to the assignment.

For example, Jake is renting a commercial property for his business from Paul for two years beginning January 2013 up until January 2015. In January 2014, Jake suffers a financial crisis and has to close down his business to move to a different city. Jake doesn’t want to continue paying rent on the property as he will not be using it for a year left of the lease. Jake’s friend, John would soon be turning his digital business into a brick-and-mortar store. John has been looking for a space to kick start his venture. Jake can assign his space for the rest of the lease term to John through an assignment of lease. Jake will need to seek the approval of his landlord and then begin the assignment process. Here, Jake will be the assignor who transfers all his lease related duties and responsibilities to John, who will be the assignee.

You can read more on lease agreements here .

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Assignment of Lease From Seller to Buyer

In case of a residential property, a landlord can assign his leases to the new buyer of the building. The landlord will assign the right to collect rent to the buyer. This will allow the buyer to collect any and all rent from existing tenants in that property. This assignment can also include the assignment of security deposits, if the parties agree to it. This type of assignment provides protection to the buyer so they can collect rent on the property.

The assignment of a lease from the seller to a buyer also requires that all tenants are made aware of the sale of the property. The buyer-seller should give proper notice to the tenants along with a notice of assignment of lease signed by both the buyer and the seller. Tenants should also be informed about the contact information of the new landlord and the payment methods to be used to pay rent to the new landlord.

You can read more on buyer-seller lease assignments here .

Get Help with an Assignment of Lease

Do you have any questions about a lease assignment and want to speak to an expert? Post a project today on ContractsCounsel and receive bids from real estate lawyers who specialize in lease assignment.

ContractsCounsel is not a law firm, and this post should not be considered and does not contain legal advice. To ensure the information and advice in this post are correct, sufficient, and appropriate for your situation, please consult a licensed attorney. Also, using or accessing ContractsCounsel's site does not create an attorney-client relationship between you and ContractsCounsel.

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Assignment of Lease

Contract to lease land from a church?

I’m planning on leasing land from a church. Putting a gym on the property. And leasing it back to the school.

Ok; first step is that you will need a leasing contract with the church. Ask them to prepare one for you so you would just need an attorney to review the agreement and that should cost less than if you had to be the party to pay a lawyer to draft it from scratch. You need to ensure that the purpose of the lease is clearly stated - that you plan to put a gym on the land so that there are no issues if the church leadership changes. Step 2 - you will need a lease agreement with the school that your leasing it do (hopefully one that is similar to the original one your received from the church). Again, please ensure that all the terms that you discuss and agree to are in the document; including length of time, price and how to resolve disputes if you have one. I hope this is helpful. If you would like me to assist you further, you can contact me on Contracts Counsel and we can discuss a fee for my services. Regards, Donya Ramsay (Gordon)

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The lay of the land

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Andrew Symons examines the CGT implications of assignment and grant of land leases

What is the issue?

The capital gains tax implications of the assignment and grant of land leases can be complex.

What does it mean to me?

Transactions concerning land often involve significant numbers and so correctly assessing the facts of a case is important to avoid potentially costly errors.

What can I take away?

By working through the facts of a case methodically the correct tax analysis should not, in many cases, be unduly difficult to reach. Particular care must be taken in establishing restrictions on or reductions to allowable costs.

Where an individual makes an outright disposal (assignment) of, or grants an interest in, a lease relating to land, they are disposing of a chargeable asset.

Where a lease is granted, this represents a part disposal of the asset from which the grant is made.

The proceeds of disposal, after the deduction of allowable costs, are subject to capital gains tax (CGT), assuming a gain arises. This article focuses on some of the main provisions which apply to such a disposal when calculating the chargeable gain, or loss.

Statutory references are to Schedule 8 of the Taxation of Chargeable Gains Act 1992, unless otherwise specified.

Meaning of ‘lease’

It is important to first consider some definitions. For CGT purposes a lease of land is given an extended definition at paragraph 10(1) as including an underlease, sublease or any tenancy or licence, and any agreement for such and, in the case of land outside the UK, any interest corresponding to a lease as so defined.

Lease duration

Where the duration of a lease does not exceed 50 years it is considered a wasting asset (a ‘short’ lease); a fact which significantly impacts the gain computation, hence its identification is of great importance.

Often, the duration of a lease will simply be its length as determined by the lease agreement. However, it may be treated differently in some circumstances. Reference only to the facts known or ascertainable at the time when the lease was acquired or created need be made.

When determining the length of a lease:

• Where it is terminable by way of notice given by the landlord, it is taken to expire on the date it could first be terminated under such notice;
• Where its terms (or other circumstances) render it unlikely to continue beyond a given date (before its natural expiry), it is taken to expire on that earlier date. This applies in particular where rent is due to substantially increase or some other onerous obligation crystallises and the lease may be terminated by notice given by the tenant;
• Where the tenant can extend the lease unilaterally by notice, it is assumed to be so extended subject to the right of the landlord, by notice, to determine the lease.

Assignment of a long lease (>50 years)

Where the duration of an assigned lease exceeds 50 years, the normal gain computational rules apply. Namely, cost (including enhancement expenditure) is deducted from disposal proceeds to arrive at the chargeable gain, or loss. 

Assignment of a short lease

Where a short lease (determined as at the date of assignment) is disposed there is a restriction on the amount of expenditure which is allowable (the lease being a wasting asset).

A curved line reduction in the allowable cost is made with reference to the depreciation table, containing percentages, in paragraph 1, which also provides the fraction with which to calculate the restriction: (P(1)-P(3)) / P(1).

P(1) represents the percentage for the unexpired lease term at acquisition of the lease and P(3), the percentage derived from the table for the length of unexpired lease at the date of disposal.

Enhancement expenditure is similarly restricted using the fraction: (P(2)-P(3)) / P(2), where P(3) is defined as above and P(2) is the relevant percentage for the length of unexpired lease term at the time of enhancement.

An exception to this treatment includes where a lease is acquired subject to a sublease otherwise than at a rack-rent and the lease’s anticipated value at the time of expiry of the sublease exceeds the allowable expenditure on disposal. Here, the lease is not treated as a wasting asset until the end of the duration of the sublease.

Another exception arises where the property subject to the lease has, during the period of ownership, been used solely or partly for the purpose of a trade, profession or vocation and capital allowances have or could have been claimed in respect of the lease or related enhancement expenditure.

The lease percentages in paragraph 1 are stated in whole years; where the duration of the disposed lease is not a whole number of years, a monthly apportionment should be applied. For this purpose, 14 days or more counts as one month.

Where, at acquisition or enhancement, the lease is not a wasting asset (but it is when sold), P(1) and P(3) are taken to be 100 when wasting each element of cost. See example 2 .

Meaning of ‘premium’

Before discussing the grant of leases, the meaning of premium must be understood. Premium is defined in paragraph 10(2) as including any like sum (other than rent), whether payable to the intermediate or a superior landlord, on or in connection with the granting of a tenancy. It is presumed that such a sum paid represents a premium except in so far as other sufficient consideration can be shown to have been given.

A premium may be paid in cash or in money’s worth.

Other capital sums may be treated as premiums. For example, where the landlord is a freeholder or leaseholder (with more than 50 years to expiry) and a payment is made by their tenant under the terms of the lease for the commutation of rent, as consideration for the surrender of the lease, or as consideration for the variation or waiver of terms of the lease, that sum is often treated as if it were a premium.

The occurrence of such a deemed premium does not require revision of a previous disposal computation; it is considered a separate transaction and hence a further part disposal. There are a number of more specific provisions in this area which are not discussed further here.

A deemed premium may also arise where a lease is granted between connected persons or persons otherwise not acting at arm’s length.

Grant of a long lease

Unsurprisingly, the premium paid on the grant of a lease is taxed after a deduction for allowable costs. 

Being a part disposal, the well known apportionment of costs in s.42 of ‘A/A+B’ is applied, where ‘A’ represents the value of the premium and ‘B’, the value of the reversionary interest, including the right to receive rents under the lease.

A part disposal will still arise even where no premium is paid by the lessee. Where the landlord has incidental expenditure allowable under s.38(1)(c) a capital loss equal thereto arises. See example 1 .

Grant of a short lease from a freehold or long lease

Where a short lease is granted from a freehold or long lease, part of the premium received is assessed to income tax on the landlord (the calculation of which is outside the scope of this article); this must be excluded from the CGT computation (i.e. only the ‘capital’ element of the premium is assessed to CGT, again, after a deduction for allowable costs).

Reflecting a part disposal, the allowable cost is restricted using the now subtly changed s.42 apportionment of a/A+B, where ‘a’ is the capital element of the premium. ‘A’ and ‘B’ retain the definitions as for the grant of a long lease.

Grant of a lease from a short lease

The A/A+B part disposal apportionment does not apply where a sublease is granted out of a short lease. Initially, the full premium (capital and income elements) is included in the computation, from which a proportion of base cost is deducted – a number of restrictions to this cost can apply.

Firstly, a reduction in the allowable expenditure is required where the sublease covers only part of the land subject to the original lease.

Being a part disposal of a wasting asset the allowable cost is restricted using the lease depreciation table, and fraction: (C-D)/P(1) [or (C-D)/P(2) in the case of enhancement expenditure], where ‘C’ is the relevant percentage in respect of the unexpired lease term at the time of grant of the sublease and ‘D’, is the relevant percentage in respect of the unexpired lease term at the time when the sublease expires. The definitions of P(1) and P(2) remain as before.

Before applying ‘(C-D)/P(1)’, allowable cost is reduced for the grantor, where their interest in the asset was itself acquired by way of grant (of a short lease) to the extent that they have received a deduction for the purpose of calculating the profits of a trade, profession or vocation in respect of the income element of the premium previously paid by them.

Additionally, where the actual value of the premium paid on the grant of the sublease is less than that which would have been paid (the ‘notional premium’) had the rent payable under the sublease been the same as that payable on the head-lease then the allowable cost on the grant of the sublease is reduced in the proportion: actual premium/notional premium. This seeks to prevent tax manipulation arising by charging higher rents in lieu of a lower premium, thus avoiding CGT.

Finally, to arrive at the chargeable gain, a deduction is made for the element of the premium which is assessed to income tax. This deduction cannot convert a gain into a loss, or increase a loss.

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• TAX / BUSINESS & INDUSTRY

Tax Considerations for Buying and Selling Property With a Burdensome Lease

• Management Accounting
• Personal Financial Planning
• Tax Planning
• Business Tax

An economic downturn like the current one can cause fixed lease obligations to become burdensome and trigger a significant negative impact on leasing in many markets. Real property and other business assets may have been leased in a sale-leaseback transaction, or the lessee may have simply desired use but not ownership of the asset. Some lease contracts may provide favorable terms to the lessee in the early years, but the terms purposely turn unattractive in later years to ensure that lessees eventually purchase the property.

When a lease becomes burdensome (the obligation exceeds the benefits), a taxpayer may try to terminate it. If the lessee pays a cancellation fee, tax law generally allows a deduction, because no future benefit is created. As an alternative to cancellation, the lessee could buy the property from the lessor. Recent litigation demonstrates that the lessee’s tax treatment of such a purchase is unsettled, though the tax results of lease terminations from the landlord’s perspective are more predictable.

LESSEE PAYMENTS The IRS may allow a lessee to deduct lease cancellation payments if they are not integrated in some way with the acquisition of another property right. In Letter Ruling 9607016 issued in 1996, the IRS said a lease termination payment could not be deducted in the year paid where it was part of an overall plan to acquire and relocate to another site. The IRS held that the lessee’s right to terminate was conditioned on acquiring a new site and starting construction. The IRS noted that in a prior case and ruling, termination payments had been deductible when they were paid to eliminate expenses or relieve a taxpayer from an uneconomic contract and those situations were not integrated with the acquisition of another property right.

When a lessee terminates a lease by buying the leased property, the acquisition of a property right is obviously integrated with the lease termination. Not surprisingly, the IRS will also require capitalization in this situation. Its rationale is that IRC § 167(c)(2) prohibits an allocation of a portion of the cost to the leasehold interest. The Tax Court agrees, but a district court recently allowed a lessee to deduct the portion of the purchase price allocable to a burdensome lease. In what circumstances may a lessee reasonably take the position that the amount paid for property in excess of its value is a deductible lease termination payment?

The Tax Court in Union Carbide Foreign Sales Corp. (115 TC 423 (2000)) considered a situation in which the lessee of a ship had the option to pay $135 million to terminate a burdensome lease or buy the ship for nearly $108 million. The ship’s fair market value without the lease was less than $14 million. The taxpayer exercised the purchase option and deducted nearly $94 million ($108 million − $14 million) as a lease termination expense. The Tax Court did not allow the deduction, with the result that the taxpayer had to recover the entire $108 million over the remaining life of the ship.

The IRS did not contest the taxpayer’s claim that the lease was burdensome. Instead, it argued that the statutory language in section 167(c)(2) prohibits a deduction for the part of the purchase price attributable to the onerous lease. That provision does not allow any of the basis to be allocated to the leasehold if “property is acquired subject to a lease.” The statute does not define “subject to a lease,” but the IRS and Tax Court interpret the phrase to mean subject to a lease prior to acquisition. The taxpayer unsuccessfully argued that the statute refers only to ongoing leases and that because its acquisition of the ship ended the lease, the taxpayer was entitled to the deduction.

However, there is precedent for a deduction in the Sixth Circuit. In Cleveland Allerton Hotel (36 AFTR 862 (6th Cir. 1948)), a tenant paying excessive rent of about $15,000 per year and with 80 years remaining on the lease negotiated an acquisition of the property for an amount that exceeded the fair market value by $241,250. The Sixth Circuit overturned the Tax Court and allowed a deduction while chiding the IRS for elevating form over substance in requiring a taxpayer to capitalize an asset at more than double its fair market value.

In cases cited in this article, the amount paid to terminate the lease and purchase the property far exceeded the property’s fair market value. However, there is no bright line to identify when a lease becomes burdensome or onerous.

ABC BEVERAGE The U.S. District Court for the Western District of Michigan recently followed Cleveland Allerton and allowed a business deduction for the portion of the purchase price attributable to a tenant’s excessive lease ( ABC Beverage Corp. v. U.S. , 102 AFTR2d 2008-5905, 8/27/08; see also “ Tax Matters: Lease Buyout Portion of Purchase Ruled Deductible ,” JofA , Dec. 08, page 94). A subsidiary of ABC acquired a lease with a rent escalator clause and purchase option. The $6.25 million difference between a negotiated minimum price of $9 million and the property’s market value was allowed as a business deduction by the district court.

The IRS again argued that a deduction was not allowable because section 167(c)(2) prohibits an allocation of part of the purchase price to the leasehold interest. But the court, whose decisions are appealable to the Sixth Circuit, said the phrase “subject to a lease” in section 167(c)(2) applies to a third-party purchaser who steps into a reversion in the continuing lease but not to a lessee whose purchase ends the lease.

The district court also went to some lengths to counter the IRS’ contention that the Cleveland Allerton precedent had been nullified by the Supreme Court in Millinery Center Building Corp. (350 U.S. 456, 49 AFTR 171 (1956)). In that case, the Supreme Court affirmed the Second Circuit, denying a taxpayer deduction. In ABC , the IRS contended that Millinery Center established the principle that the cost of buying out a burdensome lease via a property purchase is not deductible. But the district court in ABC said the deduction in Millinery Center was not disallowed because of section 167(c)(2) but because the taxpayer failed to prove the lease was burdensome. Thus, the court in ABC said, the split between the circuits was not resolved, and the Cleveland Allerton precedent allowing a deduction still stands. Other circuits besides the Sixth and the Second have been silent on the issue.

The ABC court granted summary judgment to the taxpayer but then vacated the order to allow trial on the issue of when economic performance occurred. On Dec. 22, 2008, at the end of a three-day trial, a jury found all issues in favor of the taxpayer, including that the property was “delivered or accepted, as evidenced by beneficial ownership in 1997,” the year the deduction was claimed. The government had argued that economic performance did not occur until 1999.

LESSOR-SELLERS Lessors that receive payment from the sale of real property realize capital gains or losses if the property sold qualifies as a capital asset. IRC § 1234A treats any payment received by the lessor to terminate or cancel any lease associated with the property as a sale or exchange of a capital asset. Therefore, when a lessee, as in ABC Beverage, chooses to exercise its option to acquire leased property, the entire transaction results in a capital gain or loss to the lessor.

The legislative history suggests that section 1234A was changed in response to inconsistent treatment by the courts of the disposition of rights and obligations associated with capital assets. In particular, there were many instances where transactions were not regarded as sales or exchanges, and therefore no capital gain or loss could result. Section 1234A states that “gain or loss attributable to the cancellation, lapse, expiration, or other termination of a right or obligation … with respect to property which is (or on acquisition would be) a capital asset in the hands of the taxpayer … shall be treated as gain or loss from the sale of a capital asset.”

The word “property” was substituted in 1997 for “personal property” to correct what Congress viewed as inequitable treatment for similar and related transactions. This change overrode the Supreme Court’s decision in Hort v. Commissioner (313 U.S. 28, 25 AFTR 1207 (1941)) that treated lease termination payments received by lessors as ordinary income. In addition, because both the property sale and the lease termination receive sale or exchange treatment, there is no need for the seller to argue that these events are the same capital transaction, as was the case prior to 1997 (see Gurvey v. U.S. , 57 AFTR2d 86-1062).

It should be noted that section 1234A does not apply to the sale of a right or obligation. For example, if a lessor sold a lease contract to a third party, the proceeds must produce ordinary income to the lessor. To treat it otherwise would allow a seller to easily convert ordinary lease income into a capital gain simply by selling the contract.

When owners hold rental property as trade or business assets, gains or losses from the sale of the real property are section 1231 gains or losses. Payments received from the termination of lease contracts would then fall outside the scope of section 1234A, producing section 1231 gains or losses, as the associated property is not a capital asset as defined in section 1221. Net section 1231 gains, of course, receive capital gain treatment, while net section 1231 losses are ordinary (see “ Best of Both Worlds? ” JofA , March 09, page 64). Whether owners hold real property as trade or business assets versus capital assets is determined by whether substantial services beyond basic property management tasks are performed on behalf of tenants.

THIRD-PARTY BUYERS Should a third party step into the shoes of the lease-holding landlord, payments for the property and accompanying lease contract do not receive separate treatment. As noted earlier, section 167(c)(2) provides that if any property is acquired subject to a lease, no portion of the adjusted basis shall be allocated to the leasehold interest. The entire adjusted basis is used for computing depreciation on the property subject to the lease. Treatment under IRC § 197, Amortization of Goodwill and Certain Other Intangibles , is precluded by section 167(c)(2). Thus, the property’s adjusted basis is recovered via depreciation. Lease payments received would be ordinary income. If the lease contract alone was acquired by a third party in a transaction not including the property itself, section 197(e)(5)(a) disqualifies the lease interest from amortization under section 197.

LOOKING AHEAD Since the tax treatment for lessees who buy property with a burdensome lease is unsettled, CPAs should closely monitor any IRS guidance. Also, future litigation outside the Second and Sixth circuits could be illuminating.

Practice Tips In a period of declining real estate values, CPAs of both lessees and lessors should be alert to the tax planning implications of property acquisition opportunities.

Structuring a property acquisition as two contracts, one for the value of the lease and one for the property, could bypass the Tax Court objection to allowing a deduction in the year of acquisition. However, the IRS could counter with the step-transaction doctrine.

CPAs with Sixth Circuit clients (Michigan, Ohio, Kentucky and Tennessee) can find some court precedent supporting the taking of a deduction for the portion of a lessee’s purchase price attributable to a burdensome lease. However, because of the Millinery Center case, Second Circuit taxpayers (New York, Connecticut and Vermont) may be in a weaker positionto take such a deduction. CPAs may want to evaluate the authorities and make a judgment whether to claim substantial authority for a deduction position or to capitalize the costs.

EXECUTIVE SUMMARY

Larry Maples , DBA, is a professor of accounting at Tennessee State University in Nashville, Tenn. Mark Turner , CPA, DBA, CMA, is an associate professor of accounting at the University of St. Thomas, Houston. Beth Howard , Ph.D., is an assistant professor of accounting at Tennessee Tech University, Cookeville, Tenn. Their e-mail addresses, respectively, are [email protected] ,  [email protected] and  [email protected] .

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Finance Leases, Operating Leases and Hybrids: GAAP and Tax Considerations

Over the past few years, there have been several recent changes in GAAP and tax rules that impact the treatment of leases.  With some of these changes going into effect in 2020, it is an opportune time to review the cumulative effect of these changes.

Caveat – The following discussion is intended to survey only tax and accounting aspects of leases, not the rules that would apply to determine ownership and title under state law, remedies, UCC issues, and the like.  Those rules use tests that are often different from the tax and accounting standards and add additional complexity.

Finance Leases

Finance or capital leases are arrangements that are characterized as transferring ownership of the underlying asset from the lessor to the lessee.  Thus, for accounting purposes, the lessee under a finance lease is treated as owning the underlying asset.  The finance lease itself is typically treated as a debt instrument or other type of liability.

For balance sheet purposes the lessee will include the underlying property as an asset and the deemed principal portion of the total lease payments as a liability.  The interest portions of the lease payments typically are an expense that flows through the lessee’s income statement.  In addition, because the lessee is treated as the owner of the underlying asset, depreciation expense on that asset flows through the income statement as well.

For tax purposes, the same treatment holds.  That is, the lessee is entitled to various tax benefits, such as accelerated depreciation, bonus depreciation and expensing.  After tax law changes in 2017, these benefits include 100% expensing of a wide variety of non-real estate assets, including used assets.  In addition, the interest portion of the lease payments are deductible as interest.  Note that the 2017 tax law changes also created a limit on overall tax deductions for interest, so for some taxpayers this benefit may be illusory.

It should be noted that the GAAP and US tax tests for whether a lease is a finance lease or an operating lease are different, which means that hybrid leases can exist.  The benefits of hybrid leases are discussed below.

Operating Leases

The GAAP treatment of operating leases has changed recently, as discussed below.  While public companies are already subject to these new rules, many private companies are not required to adopt them until 2020.

Prior to this change, the main accounting consequence of an operating lease is that the lessee treated the rental payment as an expense on its income statement (rather than only the imputed interest portion).  Because the characterization of an operating lease is that the lessee is not the economic owner of the underlying asset, there was no balance sheet interaction.

The new GAAP rules change this treatment and require the lessee to list both an asset and a liability on the balance sheet.  Thus, an asset representing the right to use the underlying property is recorded and an offsetting liability for the present value of the payments under the lease.  Over time, payments under the lease reduce both amounts.  While in many cases, the starting value of the asset and the liability will be similar, there will often be differences due to indirect costs of the lease and lease incentives.

The biggest impact of these new rules, however, will often be on the lessee’s debt ratios.  Even in a case where the right-to-use asset and lease liability are equal, an operating lease can increase a lessee’s stand-alone liabilities.  Accordingly, lessees should consider a GAAP carve out for operating leases if this would result in a material change in any ratios that could affect bank covenants and the like.

For tax purposes, like GAAP, the lessee is not treated as owning the underlying property.  Accordingly, tax benefits such as accelerated depreciation, bonus depreciation and expensing are retained by the lessor and may not be taken by the lessee.  The lessee is permitted to deduct the entire amount of the rental payments under the lease.  Moreover, no portion of the lease payment is characterized as interest, so the new limitation on interest deductions will not apply.

Hybrid Leases

Because GAAP and US tax rules on lease classification are different, it is possible that a given instrument could be treated as a finance lease for GAAP and an operating lease for tax, or vice versa.  Sometimes these arrangements (particularly the first variant) are called synthetic leases.  We prefer the term “hybrid” lease, because it can encompass any instance of differing book/tax lease treatment.

In some circumstances, a hybrid lease can resolve lessor/lessee tax inefficiencies.  For example, assume a lessor proposes a finance lease to a lessee.  Assume further that the lessee cannot fully utilize the tax benefits that would arise under such an arrangement.  This could be the case because the lessee has significant NOL carryovers that would moot any new tax benefits, the lessee was subject to the interest expense deduction cap, or the underlying property is not of a type that could generate expensing or accelerated depreciation.

Under this fact pattern, it may be advantageous for the parties to adjust the terms of the proposed lease so that, solely for tax purposes, the lessor is treated as the owner of the underlying property.  This would particularly make sense if the lessor could better utilize any resulting tax benefits and was able to reflect this utilization in the economics of the lease.

Similarly, a hybrid arrangement can be used in the context of an operating lease.  Assume now that the lessor cannot utilize the tax benefits that would otherwise result from an operating lease.  By structuring the lease so that, solely for tax purposes, the lessee is treated as the owner of the underlying asset, a more efficient allocation of tax benefits may occur.

Existing Leases

While it is undoubtedly easier to effectuate a hybrid arrangement during the initial negotiation of a lease, it can also be done after the lease term has commenced.  This can be particularly helpful if, for example, one party’s projections as to its ability to utilize tax benefits changes over time.  Thus, a lessor in a finance lease may determine that, because of tax law changes, economic losses unrelated to the lease, or other reasons, it may become more efficient to shift tax benefits to a lessee.  As with new leases, this involves complicated negotiations, but often the parties will share a unity of purpose that may facilitate matters.

It is also worthwhile evaluating the allocation of tax benefits if the lessor or lessee is contemplating an assignment of the lease.  In that case, the tax attributes of the assignee may mitigate in favor of shifting the tax benefits under the lease to a new party.

Action Items

• new leases – quantify potential tax benefits and evaluate whether lessor or lessee can better utilize them
• existing leases – quantify whether current tax benefits are being utilized as planned and evaluate whether a different party (lessor or lessee) can better utilize them
• lease assignments – evaluate whether tax attributes of assignee indicate that a shift in tax ownership would result in more efficiency

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Business Income Manual

Bim46265 - specific deductions: premiums: assignment of lease.

S61 Income Tax (Trading and Other Income) Act 2005, S63 Corporation Tax Act 2009

Where a taxed lease is assigned (or sold - see PIM1204 ) and the new tenant occupies or uses the land subject to the lease for the purposes of a trade, the new tenant inherits the old tenant’s entitlement to a deduction in respect of the premium.

The facts are the same as the example in BIM46255 , except that B Limited vacates the property after ten years and sells its lease to C Limited. The consideration for the sale is £100,000.

C Limited inherits B Limited’s entitlement to a trading deduction of £8,572 per annum for eleven years (21 less 10) or for such lesser period as C Limited occupies the property for trade purposes. If the rules dealing with the assignment of a lease at undervalue (see PIM1222 ) do not apply, the sum of £100,000 paid by C Limited to B Limited as consideration for the assignment of the lease is a capital payment which is not a premium taxable on B Limited and does not rank as a trading deduction allowable to C Limited.

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• Capital gains tax on property leases
• Technical activities and advice

Assignment of a lease

Assignment of a long lease, assignment of a short lease, grant of a lease, grant of a long lease, grant of a short lease, acca guide to... getting out of a lease.

A property lease is basically a right to use an asset. A lease is a contract by which one party (lessor) gives the use and possession of land and building to another party (lessee) for a specific period of time, usually in return for a specific rent.

This contrasts with a licence, which entitles a person (licensee) to the use of the property, but which is subject to termination at the will of the owner of the property (licensor).

Leases usually run for many years, while licences cover a relatively short period of time (up to two years).

The key point in determining the tax treatment of a lease transaction is to establish whether there is an assignment of a lease or a grant of a lease.

An assignment of a lease is the legal term used for the sale of a lease. On assignment, the owner relinquishes rights over the property.

A grant of a lease is the creation of a new asset. The person who owns the property grants a lease to a tenant for a specific period of time; however, the rights in the property will eventually revert back to the freehold landlord.

The tax treatment on the assignment of a lease depends on whether the taxpayer is selling a long or  short lease.

A long lease is a lease that has more than 50 years to run at the date it was sold; a lease with less than 50 years to run is a short lease.

The capital gains tax (CGT) computation on the assignment of a long lease is quite straightforward; the original cost is deducted from the proceeds and the resulting gain is then subject to CGT (after the annual exemption).

The CGT computation on the assignment of a short lease is slightly more complex.

A lease with a useful life of less than 50 years is called a ‘wasting asset’. As wasting assets depreciate over time, the allowable base cost for CGT purposes is calculated using the lease depreciation tables (Schedule 8 Paragraph 1, TCGA 1992).

The allowable base cost is the original acquisition cost multiplied by the fraction S/P, where: 

• ‘S’ is the percentage from the lease depreciation table for the years of the lease remaining at the date of assignment
• ‘P’ is the percentage from the lease depreciation table for years of the lease remaining at the date of purchase. 

For example:

Sarah purchased a 42-year lease for £100,000 in January 2000. In January 2012, she sells the lease for £150,000.

As 12 years have passed since original acquisition, Sarah is selling a lease with 30 years left to run.

From the proceeds of £150,000, we deduct the allowable base cost (which is the original acquisition cost multiplied by the fraction S/P).

From the lease depreciation table, the relevant percentage for a 42-year lease is 96.593 and for a 30-year lease the relevant percentage is 87.33.

The capital gain is therefore:

Proceeds: £150,000

Allowable cost:

100,000 x 87.33/96.593 (90,410)

Gain: £59,590

A long lease will become a short lease once less than 50 years are remaining.

Louise bought a 60-year lease on 1 January 1990 for £90,000. She sells the lease on 1 January 2010 for £120,000.

As 20 years have passed since original acquisition, Louise is selling a lease with 40 years left to run.

Accordingly, Louise is selling a short lease and we need to refer to the lease depreciation tables.

The percentage for 50 years or more is always 100, and the percentage for a 40-year lease is 95.457.

Proceeds: £120,000

90,000 x 95.457/100 (85,911)

Gain: £34,089

As with the assignment of a lease the tax implication on the grant of a lease depends on the length of the lease granted.

Where a freeholder grants a long lease to a tenant, CGT is calculated by using the part-disposal formula:

The allowable cost is the acquisition cost multiplied by the fraction A/(A+B), where:

• ‘A’ is the gross amount of the premium paid
• ‘B’ is the value of the remainder or the reversionary interest. 

Rose grants a 55-year lease on a freehold property which she purchased in 2000 for £100,000.

She receives a premium of £150,000 from the leaseholder. The value of the freehold reversion is £200,000.

Premium: £150,000 

100,000 x 150,000/(150,000+200,000) (42,857)

Gain: £107,143

The premium received from the grant of a short lease must be split between the amount chargeable to income tax (under property income rule ITTOIA 2005 S 277 (4)) and the amount chargeable to CGT.

The capital element chargeable to CGT is 2 per cent x (N-1) x P, where:

• ‘N’ is the number of years of the lease
• ‘P’ is the premium received. 

The grant of a lease out of a freehold is treated as a part-disposal; accordingly, allowable cost is calculated as the acquisition cost multiplied by the fraction a/(A+B), where:

• ‘A’ is the gross premium paid
• ‘B’ is the reversionary interest
• ‘a’ is the part of the premium that is chargeable to CGT. 

Elizabeth bought a freehold property 20 years ago for £50,000. In 2010, she granted a 40-year lease for a premium of £100,000, the reversionary interest being £200,000.

We first need to split the premium of £100,000 into the amount subject to income tax and the amount subject to CGT:

The capital element is 2% x (40-1) x £100,000 = £78,000.

The amount chargeable to income tax (as property income) is the difference between the premium received and the amount charged to CGT (£100,000-£78,000 = £22,000).

The capital gain is as follows:

Capital element of the premium: £78,000

Less allowable cost:

50,000 x 78,000/(100,000+200,000) (13,000)

Gain: £65,000

The above only looks at tax implications on assigning or granting of a lease; however, there might be legal implications if the taxpayer wishes to get out of a lease agreement before the end of the term.

This guide can be downloaded from the 'Related documents' section on this page.

Related documents

Related links.

TCGA 1992: Schedule 8, Paragraph 1

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• Tax Accounting

ASC Topic 842 changes financial, but not tax, accounting for leases

Editor: Annette B. Smith, CPA

FASB in 2016 issued Accounting Standards Update No. 2016-02, Leases (Topic 842) , which is effective for public companies for fiscal years and interim periods within fiscal years beginning after Dec. 15, 2018 (Dec. 15, 2021, for entities not meeting FASB's definition of a public business entity).

FASB Accounting Standards Codification Topic 842, Leases , significantly affects financial statement accounting for lessees, eliminating the traditional concept of an operating lease and requiring virtually all leases to be presented on the balance sheet. Topic 842 should not significantly affect the financial accounting for lessors, although some lessors may conclude, while considering the impact of Topic 842, that they were improperly accounting for leases.

Topic 842 does not affect how leases are treated for federal income tax purposes. Thus, differences in the treatment of leases for financial accounting and income tax accounting remain, and implementing Topic 842 may highlight improper historical tax accounting methods.

New financial accounting model for lessees and lessors

Before the issuance of Topic 842, lessees disclosed operating leases in the footnotes of financial statements. Topic 842 requires lessees to recognize a right-of-use asset and a lease liability on the balance sheet for virtually all leases (other than short-term leases). The liability is equal to the present value of future lease payments. The right-of-use asset is based on the liability, subject to adjustment (such as for initial direct costs).

For income statement purposes, Topic 842 retains a dual model, requiring leases to be classified as either operating or finance. Operating leases result in straight-line expense, and finance leases result in a front-loaded expense pattern.

Lessors continue to classify leases as operating, direct financing, or sales-type under Topic 842.

Tax accounting for leases

In the course of adopting Topic 842, taxpayers should review their income tax accounting methods for leasing-related items, including lease characterization (i.e., sale, lease, or financing), timing of rental income or expense under Sec. 467, treatment of tenant improvement allowances, and treatment of lease acquisition costs. A tax accounting method change may provide more appropriate or beneficial tax treatment.

Lease characterization : Generally, the tax characterization of a lease does not follow its book characterization. Accordingly, taxpayers should continue to perform a separate lease characterization analysis for tax purposes.

Many taxpayers apply bright-line standards to determine lease classification for book purposes. In contrast, for tax purposes leases are characterized based on all the facts and circumstances existing at the time an agreement is executed. Whether a leasing transaction is a true lease — rather than, for example, a sale/financing arrangement — is determined by whether sufficient benefits and burdens of ownership have passed to the purchaser/lessee.

In a sale/financing arrangement, the lessee is the tax owner of the leased property and depreciates the property under Secs. 167 and 168. Payments under the lease agreement are treated as the repayment of a loan. The lessor is treated as selling the property and recognizes gain equal to the present value of the lease payments less its basis in the leased property and recognizes interest income over the payment term. In a true lease, the lessee does not have an ownership interest in the leased property and treats payments over the lease term as rent expense. The lessor is treated as owning the property and recognizes depreciation expense and rental income over the lease term.

Leases subject to Sec. 467 : Sec. 467 generally applies to lessors and lessees when (1) rental agreements are for the use of tangible property; (2) total rent under the agreement exceeds $250,000; and (3) the rental agreement provides for increasing or decreasing rent, or prepaid or deferred rent, subject to limited exceptions (such as a three-month rent holiday at the beginning of a lease term).

Sec. 467 requires lessors and lessees to account for rental income and expense under one of three methods: constant rental accrual, proportional rental accrual, or Sec. 467 rental agreement accrual. Most Sec. 467 rental agreements are subject to the Sec. 467 rental agreement accrual method, which results in rental income or expense when rent payments are due and payable under the agreement. Thus, rental income and expense are almost never reported on a straight-line basis as they are for book purposes.

Tenant improvement allowances : For book purposes, lessor payments to the lessee for leasehold or tenant improvement allowances reduce the consideration in the contract, effectively decreasing the right-of-use asset. The leasehold or tenant improvement allowance is recognized straight-line over the period that the right-of-use asset is amortized.

In contrast, the most important factor in determining the appropriate federal income tax treatment of a tenant improvement allowance generally is the tax ownership of the resulting leasehold improvements, determined under a benefits-and-burdens-of-ownership analysis.

When a lessor that provides a tenant improvement allowance to a lessee owns the resulting leasehold improvements, the lessee generally does not recognize the allowance as income or have a depreciable interest in the improvements. The lessor may depreciate the assets under Secs. 167 and 168. When the lessee owns the resulting leasehold improvements, the lessee generally recognizes income and has a depreciable interest in the improvements. The lessor generally capitalizes the tenant improvement allowance and amortizes it over the term of the lease.

Sec. 110 provides a limited exclusion from a lessee's gross income for a lessor's payment of a "qualified lessee construction allowance." A qualified lessee construction allowance must relate to a short-term lease of retail space and be used to construct or improve qualified long-term real property used in the retail space.

Lessees following book for tenant improvement allowances may be incorrectly reporting income and expenses from the allowance or may be overstating taxable income.

Lease acquisition costs : Both book and tax require the capitalization of lease acquisition costs. However, Regs. Sec. 1.263(a)-4 provides that certain internal costs (e.g., employee compensation and overhead) and de minimis costs are not required to be capitalized for tax purposes. Accordingly, taxpayers following book treatment may be overcapitalizing costs.

Accounting method changes

Companies that have mischaracterized a lease for income tax purposes may change their methods of accounting using the automatic procedures in Rev. Proc. 2019-43. The change is made with a Sec. 481(a) adjustment and is eligible for audit protection. Taxpayers generally also may make automatic accounting method changes for tenant improvement allowances, Sec. 467 rental agreements, and lease acquisition costs with a Sec. 481(a) adjustment and audit protection.

When adopting Topic 842, taxpayers should be aware that the standard does not change income tax accounting treatment for leases. Accordingly, financial accounting and tax accounting treatment may differ.

Editor Notes

Annette B. Smith , CPA, is a partner with PricewaterhouseCoopers LLP, Washington National Tax Services, in Washington, D.C.

For additional information about these items, contact Ms. Smith at 202-414-1048 or [email protected] .

Unless otherwise noted, contributors are members of or associated with PricewaterhouseCoopers LLP.

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Tax considerations for ground leases

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For investors looking for new opportunities, ground leases are catching on in New York City and beyond. A ground lease occurs when the property owner sells the land to an investor, then leases it back from the investor.

The transaction is documented in a ground lease, a document that usually lasts from 35 to 99 years. Often, during the time that the tenant is leasing the property, he or she may decide to build another structure on it; sometimes that entails razing an existing structure. Once the lease hits its expiration date, the tenant transfers the ownership of the improvements to the property owner.

Many types of property are ground-leased, including vacant land, industrial property, office buildings, multifamily residential properties and hotel properties. In New York City some co-ops are built on property that was ground-leased, allowing the owners to price the co-ops at very competitive prices. The co-op developers save some money by leasing the land, instead of buying it, and are able to pass this along to the residents. They also pass along the cost of paying for the ground lease, however, which contributes to monthly maintenance fees that may exceed those of other types of apartments.

Many property owners like the ground lease because it allows them to derive value from land they may not be using or are underusing.

For instance, some universities that own vacant land or own unused student housing have turned to ground leasing, creating a new revenue stream to fund campus programs and initiatives. Family businesses may opt for ground leases to keep a property in the family, even if they don’t have the funds or the desire to develop it. For some owners, ground leases can generate higher returns on a property than they would get from its appreciation over time.

Although ground leases can offer many advantages to investors, there are also tax considerations. The tenant must pay the property taxes when the property is subject to a ground lease.

It is important to get expert advice from knowledgeable commercial real estate professionals on how to take stock of a property for which the owner is considering ground leasing, what type of deal best meets the needs of the owner, and the level of control the owner will have over any construction on the property, among other issues. The owner will need legal protections in case the tenant does not take care of the property in the agreed-upon manner. Beyond this, the owner will need to develop a marketing strategy for the property that’s to be made available for ground leasing.

For insight,  Crain’s Content Studio  spoke with Jonathan Stein, a director at Goulston & Storrs. Stein provides tax advice for commercial and real estate transactions . Among his clients are real estate investment trusts, developers, institutional and family office investors, closely held enterprises, family businesses, fund sponsors, portfolio companies and lenders.

Stein focuses on complex tax matters involving joint ventures, cross-border and tax-exempt structuring, tax-free exchanges, transfer taxes, leasing and finance matters. He also represents investment fund sponsors and portfolio companies in both taxable and tax-free merger-and-acquisition transactions.

CRAIN’S: How do ground leases work and why are they becoming popular?

STEIN:  A new wave of ground lease investors is seeking to restructure the real estate capital stack by separating the ownership of the land under a commercial building from the building itself. In practice, the way this works is that an investor buys the land from the real estate owner or developer and then leases it back to the seller under a long-term ground lease. Because these ground leases can unlock additional liquidity and lower the cost of capital, they are very attractive for owners and developers.

CRAIN’S: What tax issues arise with a ground lease?

STEIN:  As with all things real estate, there are some important tax considerations at stake. Foremost, the parties must decide whether to treat the sale and leaseback of the land as a “true lease” for tax purposes. If the lease is respected as such, then the seller may have what is known as a “gain on sale.” This gain could be deferred by entering into a like-kind exchange. This is when property used for business or as an investment is exchanged for another similar property that is used for the same purposes.

If the tax cost of a sale is high and a like-kind exchange is not feasible, then it may be possible to treat a long-term lease as financing or a loan instead of a “true lease.” In this scenario, the form of the transaction as a ground lease is ignored for income tax purposes. Instead, the owner of the real estate is treated as if the “purchase price” it received for the land was a loan, and the payments of “rent” are payments of principal and interest on this loan. Whether a given lease can be treated as financing depends on the terms of the lease, and in particular how the option to buy back the land is structured.

CRAIN’S: What about depreciation?

STEIN:  Occasionally sale-leasebacks will include a purchase of the buildings and improvements, as well as the ground. In this circumstance the purchaser-landlord will be able to depreciate the building instead of the seller-tenant. This tax result is subject to negotiation, and seller-tenants are often able to keep the benefits of depreciation on the improvements. Because land is not depreciable, this issue does not arise for a true ground lease.

CRAIN’S: Are there transfer taxes?

STEIN:  This varies based on the jurisdiction. In New York the grant of a ground lease is usually subject to New York state transfer tax, either because the transaction contains a purchase option or because the lease term is longer than 49 years or both. New York City transfer taxes typically do not apply to a new ground lease because “rents” under the city’s Commercial Rent Occupancy tax are excluded from transfer tax. However, assignments of ground leases may be taxable in both New York state and New York City. With proper planning, it may be possible to avoid paying transfer tax twice, once on the sale and once on the leaseback.

CRAIN’S: Are there any other structuring considerations?

STEIN:  Leases should be analyzed to determine whether there is prepaid or deferred rent. If so, special tax accounting rules may apply so that the prepaid or deferred amounts are accrued ratably over the lease term.

Click here for a pdf of this piece

References:

https://assetsamerica.com/ground-lease/ 

https://www.us.jll.com/en/views/unlock-the-value-of-underutilized-land-with-a-ground-lease

https://www.reit.com/news/reit-magazine/september-october-2018/reinventing-ground-lease-concept

https://streeteasy.com/blog/what-is-a-land-lease-building-in-nyc/

https://www.skylineprp.com/resurgence-of-the-ground-lease

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Tax implications of lease renegotiations and improving cashflow.

27 April 2020

By Michael Surry and Melanie List

The current economic downturn is piling on the pressure for many businesses.  Tenants may be seeking to delay or reduce the rent or even to dispose of the lease.  What tax traps should the parties be aware of?  Can a landlord squeeze additional cash flow benefits from its existing lease arrangements?

• There is a relief which removes or reduces the SDLT which would otherwise be payable by the tenant on the re-grant of the new lease (including on a deemed surrender and regrant) but there are conditions for that relief to apply.  In general, it will not be available if the original lease was not subject to SDLT e.g. because it was subject to stamp duty or because the tenant previously claimed a relief which is no longer available.
• The arrangement between the parties could amount to mutual supplies being made for VAT purposes (a “VAT barter”) e.g. a reduction in rent in return for the tenant carrying out some work to the property.  Both parties need to ensure that any VAT barter is recognised and the correct amount of VAT is invoiced, accounted and reclaimed.  Missing a VAT barter could give rise not only to a liability to HMRC for interest and penalties but also to fund the VAT itself if it cannot be recovered from the other party e.g. due to insolvency or because the deed of variation has not been drafted correctly.
• If the original lease was zero-rated, e.g. a lease to a care home operator then a surrender and re-grant of the lease could give rise to a significant VAT liability for the landlord under the capital goods scheme.  Generally, this will only apply to buildings that are less than 10 years old but it can catch landlords who didn't grant the original lease.

If a tenant simply cannot continue the lease then the tenant may seek to surrender or assign the lease.  Again, lots of tax issues could arise but the following should be borne in mind:

• The tenant will not be able to obtain a refund of any SDLT paid on the grant of the lease.  It may be possible to arrange an assignment of the lease which would usually result in a SDLT saving for the incoming tenant.  The outgoing tenant may be able to negotiate a share of that saving.
• In some situations the assignment of a lease is treated as if it was the grant of a new lease to the incoming tenant, who will have to pay SDLT on the rent due under the remainder of the lease.
• An incoming tenant may well be paid a reverse premium by the outgoing tenant to accept the assignment.  The outgoing tenant should note that such a payment is likely to have a more beneficial corporation tax treatment for the incoming tenant than a reverse premium received from the landlord for the grant of a new lease.  Accordingly, the outgoing tenant may be able to share in some of that benefit by reducing the reverse premium.
• If the tenant is not able to recover all of the VAT it incurs then it will likely incur a VAT cost on assigning the lease and paying a reverse premium to the incoming tenant.
• On a surrender, if the property is not opted and the tenant can recover at least some VAT then the tenant would be better repairing the property rather than making a dilapidations payment.  A dilapidations payment to the landlord would have to include the irrecoverable VAT to be incurred by the landlord on repairing the property but the tenant will be able to recover some (or all) of the VAT if it repairs the property.  The opposite considerations will apply where the tenant cannot recover all of the VAT it incurs and the property is opted for VAT by the landlord.

Michael Surry

Melanie List

Senior Associate

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An all-in-one guide to paying federal and state payroll taxes in the U.S.

As you’ve probably learned by now, taxes are an inevitable part of doing business in the United States. While most focus generally lies on federal and state income taxes, there’s also a third aspect—payroll taxes.

What are payroll taxes?

Payroll taxes are taxes on an employee’s gross salary. The revenues from payroll taxes are used to fund public programs; as such, the funds collected go directly to those programs instead of the Internal Revenue Service (IRS).

Even if you’re self-employed with no additional employees, you’re still required to remit payroll taxes on your own salary.

There are 3 categories of federal payroll taxes:

• Social Security . This tax funds the federal retirement program for U.S. citizens. The rate is currently 12.4% of gross wages up to $160,200/year (as of 2023).
• Medicare . This program provides federal insurance for citizens aged 65 and over, as well as younger people with certain disabilities. This tax is currently taken out at 2.9% of gross wages (with no wage maximum). Note that there is an additional 0.9% tax for high-income earners—married taxpayers who make over $250,000 or single taxpayers making over $200,000. There is no employer match for this added tax.
• Federal Unemployment Tax Act (FUTA) . Revenues from this tax go toward federal and state unemployment funds to help workers who have lost their jobs. The rate is 6% of the first $7,000/year of gross wages. However, businesses that pay this tax fully and on time receive a 5.4% credit, which lowers their FUTA tax responsibility to 0.6%.

These taxes are listed on an employee’s pay stub, with the first two shown as FICA (Federal Insurance Contributions Act).

As an employer, you’re responsible for half of the FICA tax amounts for each employee. The remaining half comes from the employees themselves.

If you’re self-employed, however, you’ll need to pay the full 15.3% of FICA taxes due on your salary. FUTA taxes are paid entirely by the employer; there is no employee payment.

How are federal payroll taxes paid?

How your federal payroll taxes are paid depends on the type of tax. Your company withholds FICA taxes (along with their federal income taxes) from your employees’ paychecks. You’ll then transfer these funds, along with your own contributions, via the Electronic Federal Tax Payment System (EFTPS).

Your deposits must be made either on a monthly or semi-weekly schedule—an election you make before each calendar year.

• Monthly payments . A monthly payment must be made by the 15th of the following month.
• Semi-weekly payments . Every other week deposit dates depend on your pay schedule. If your payday falls on a Wednesday, Thursday or Friday, your deposit is due Wednesday of the following week. If you pay on any other day, it’s due the Friday of the following week.

FUTA taxes are handled differently. Your company pays these taxes entirely, so nothing is withheld from employee paychecks. This payment must be deposited quarterly to the EFTPS by the last day of the month after the end of each quarter.

However, if your quarterly total amount is less than $500, you can carry it forward to the next quarter. (This carryover can continue over multiple successive quarters if your total amount stays under this threshold. Once you exceed it, your payment must be made by the next applicable due date.)

Penalties for late payroll tax payments

Failure to remit payroll taxes on time can result in serious consequences. Financial penalty amounts depend on the circumstances:

• 2% penalty assessed if your deposit is 1-5 days late
• 5% penalty assessed if your deposit is 6-15 days late
• 10% penalty assessed if you’re more than 15 days late but before 10 days after the date of your first IRS notice
• 10% penalty assessed if deposits were instead paid directly to the IRS or with your tax return
• 15% penalty assessed if any amount is unpaid more than 10 days after the date of your first IRS notice (or the day you receive a notice requiring immediate payment)

Note that you aren’t the only one affected by late payroll tax payments. Your employees could lose future Social Security, Medicare, or unemployment benefits if those funds aren’t paid. So take care of your obligations—and your employees—by making complete payroll tax payments on time.

Don’t forget reporting requirements

Collection and payment aren’t your only tax responsibilities. You’ll also have to report these amounts (and other information) regularly to the IRS.

For FICA tax (as well as federal income tax), you must complete and file Form 941, Employer’s Quarterly Federal Tax Return . This form is due by the last day of the month following the end of each quarter, although some employers might be considered annual filers.

Note that depending on the type of business you run, you might file an alternate form. For example, a farm uses Form 943 instead of Form 941.

FUTA taxes are reported annually using Form 940, Employer’s Annual Federal Unemployment (FUTA) Tax Return . Each year’s return is due by January 31 of the following year.

And now, a word from the states…

That’s right—payroll taxes aren’t solely the federal government’s domain. States have their own payroll taxes as well. Every state has its own unemployment tax (called SUTA or UI).

This tax rate can vary not only by state but within each state as well. This is because your company’s industry, years in business and unemployment history can all determine the percentage used to calculate the amount due.

There are several other types of non-federal payroll taxes out there. These can cover programs like short- and long-term disability, workers’ compensation, paid medical or family leave and more.

And while we discussed state income tax in a previous article , you should also remember local income taxes. These are sometimes assessed in large urban areas (think New York City, San Francisco, etc.). There are 14 states that allow local governments to collect an income tax.

Finally, the collection, remittance and reporting of state and local-level taxes depend on the governments that levy the taxes. Each entity has its own rules and methods.

Get help from a tax professional

Clearly, the subject of payroll taxes involves plenty of moving parts and covers a wide range of accounting knowledge. A U.S.-based international CPA can draw on expertise in all of these areas when advising you on your unique business setup.

At James Moore , our international tax advisors pride themselves on providing comprehensive accounting, tax and consulting services for multinational companies, individuals and businesses entering the U.S.

Contact us to help you with your foreign tax needs today, and watch your business grow.

Do You Know the Tax Implications of a Lease Option?

Originally published on November 15, 2021

Updated on August 1st, 2024

A lease option is a common arrangement in commercial real estate and can provide benefits to sellers and buyers alike. However, it’s vital to understand whether the IRS sees the arrangement as a true lease or an installment sale of the property—even though the tenant has not yet exercised the purchase option.

With the real estate market booming, it’s important to know how this option could affect your tax situation. Read on to learn more about lease to own tax treatment on these arrangements.

What is a lease option?

A lease option is a contract clause that gives a tenant the option to purchase the property at the end of the term. (It might also be called a rent to own agreement, lease to own agreement, lease purchase, installment sale or other term.) The lease specifies the price, along with additional option fees the tenant must pay to exercise the option.

The benefits of a lease option can be appealing to sellers. You can accomplish the sale of a property while collecting a monthly payment for rent in the interim. Additionally, renters with a stake to buy are more likely to take better care of the building and land. And because it presents an opportunity to those having difficulty buying, it opens your property up to more buyers.

The details of the transaction determine how the lease option should be treated for tax purposes.

Is it truly a lease with option to purchase… or a sale?

Whether a lease is treated as a sale or a lease option depends on circumstances surrounding the transaction. If it’s highly probable the tenant will exercise the option, the IRS will generally characterize it as a sale.

Several factors would support the treatment of the transaction as a lease option. If the following criteria are met, the transaction will not be treated as a sale.

• No portion of the rental payment is specifically designated as interest or otherwise readily recognizable as the equivalent of interest.
• The lease agreement does not require that the tenant make substantial improvements to the property.
• The lease agreement does not call for the crediting of rent payments against the option price or purchase price.
• The rental payments defined in the lease are not significantly higher than the fair market value of rental payments made for a similar lease with no option to purchase.
• The sum of the lease payments and option fees for the lease option does not represent a substantial portion of the fair market value of the leased real estate property.
• The option purchase price is not a bargain price compared to the fair market value of the property. This means the total purchase price cannot be significantly less than the fair market value of the property.
• The lessee does not acquire title upon payment of a stated amount of rents required under the contract. The lessee may only acquire title if they exercise the lease option.

How will this affect my tax situation?

The most significant factor in determining whether you have a rent to own contract is the timing of the transfer of ownership. In a lease option, the ownership transfer takes place when the purchase option is exercised. Payments made prior to the purchase remain rent expense to the tenant and rental income to the lessor. If the option purchase fees paid by the tenant are to be applied against the purchase price upon exercising the option to purchase, they are not recognized for tax until the option is exercised or it expires.

If the lease option does not meet the requirements and instead will be treated as an installment sale, it will be assumed that the ownership transfer took place as soon as the original lease agreement was signed. In this situation, the tax consequences for the lessor and lessee are very different:

• The lessor or seller treats the lease option payments as part of the selling price and records the sale in the year in which the original agreement was entered.
• The seller will not recognize deprecation or other operating expenses as tax deductions.
• The seller is required to recognize a gain on the installment sale for the payments received each year until the full gain is recognized when purchase option is exercised.

The lessee or buyer in this instance treats the lease option payments prior to the exercise of the purchase option as loan payments. The buyer can then begin depreciating the property and deduct interest expense on the loan payments.

It is important to understand the tax consequences of rent to own deals. Proper treatment is required to avoid incorrectly reporting these transactions to the IRS. This could result in the need to amend your prior year tax returns to correct the treatment of the transaction.

Talk to an experienced real estate accountant when you’re purchasing or selling property through a lease option purchase to avoid unnecessary tax surprises.

All content provided in this article is for informational purposes only. Matters discussed in this article are subject to change. For up-to-date information on this subject please contact a James Moore professional. James Moore will not be held responsible for any claim, loss, damage or inconvenience caused as a result of any information within these pages or any information accessed through this site.

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Income tax ramifications of easements

• Agribusiness

Easements can take different forms depending on how the land is used and the duration of the easement. The income tax ramifications of selling an easement are just as varied, too.

Before you accept any payment in exchange for an easement on your land, make sure you have a tax strategy in place. Easements are generally classified as permanent or temporary, and each type is treated differently with respect to tax law.

Tax considerations for permanent easements

Permanent easements are perpetual or don’t have a specified end date. Permanent easements often remove all your rights to the property except for the title itself, so they are treated as property sales for tax purposes. This comes with multiple tax advantages:

• Cost basis: The cost basis of the affected land can offset the sale amount and reduce the income taxes on the deal.
• Tax rates: Generally, permanent easement income is taxed at favorable capital gains tax rates.
• Exchanges : Permanent easement sales (and temporary easements of 30 years or longer) may qualify for like kind exchange treatment.

Tax considerations for temporary easement exchanges

Temporary easements exist for a limited number of years and are treated as rent or lease income, as opposed to a sale. As such, they generally don’t qualify for like kind exchanges.

Other easement sale issues

There are other considerations too, such as how the easement will be used by the buyer. If the land use impacts your farming business or changes the land’s purpose, the easement may be treated differently from a tax perspective or have unique tax implications. If the land becomes unusable for agriculture, the easement would generally be treated as a sale. And if you grant the easement to a qualifying charitable organization, it could trigger a charitable deduction.

If the buyer’s land use causes surface or crop damage and you receive compensation, payments must be reported as ordinary income from farming.

Other considerations outside taxation

Evaluate all the accounting, legal and business implications of a transaction before you make a deal, including non-tax factors. An easement sale could affect your farming practices, future land improvements, cash flow and valuation. It could also influence how future generations use or inherit the property.

How Wipfli can help

Wipfli’s tax specialists can help you navigate complex easement sales. Our tax specialists take a whole company view of the business to help you make smart, long-term decisions. We want your agricultural business to thrive today — and for future generations. Learn more about how we can help .

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Should I Sell My Cell Tower Lease? 6 Things To Consider

Everest Infrastructure Lease Buyout Offers

Why Installment Cell Tower Lease Buyouts Net You Less Money

What is the tax tax when calling cell tower

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About Nick G. Foster

Since founding Airwave Advisors® in 2014, Mr. Foster has added value to over 400 clients ranging from the State of Nevada, City of Beverly Hills, to Habitat For Humanity. Mr. Foster focuses on cell tower lease renewals, buyouts, new lease negotiation, and cell site lease management. Prior to starting Airwave Advisors® Mr. Foster founded and led the Cell Site Services Group within nationwide commercial real estate services leader Cassidy Turley (now known as Cushman & Wakefield).

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tax consequences of assignment of contract

has anyone had any experience, from a tax standpoint, in assigning a contract for profit? in other words, what type of income does irs consider this transaction for person assigning?

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• The Good Cell Tower Attorney
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One of the most common questions we get about lease buyouts is how the sale of the lease will be treated with respect to taxes. It seems like every tower company agent or lease buyout company agent claims to be a tax expert. They all try to point out how their lease buyout is treated as capital gains while suggesting that other companies' lease buyout offers are treated as regular income. They use disclaimers that they aren't allowed to provide tax advice, but then they do so anyway. As a result, many of our clients ask us about how a lease buyout will be treated from a tax standpoint.

Our answer is always the same. We are not qualified to tell you what the taxes are on the income received from the sale of your lease. We can suggest that many of our clients have gone to their tax advisors and had the lease buyout agreement reviewed for an expert opinion. In the majority of cases, our clients' tax advisors treat these lease buyouts as the sale of a permanent land interest and therefore treat the income as a capital gain. However in some instances, our clients' tax advisors have not agreed with this approach and have suggested that the sale of a lease is akin to the prepayment of that lease and is therefore treated as normal income. Since the capital gains tax is currently at 15% and the normal income tax rate is between 10% and 35% (in 2011) depending upon your income, that could mean a sizeable difference in the taxes paid on the sale of the lease.

If you are unaware of your tax bracket, please see this article from Wikipedia on tax brackets .

Our recommendation is to never sign a letter of intent with any lease buyout company or tower company until you have consulted with your tax advisor or CPA about the tax consequences of a sale of a lease. If you don't have a CPA or tax advisor, you should find one. Don't take the lease buyout company's agent's word on what the taxes will be on a lease buyout. They don't know your tax situation and they shouldn't be advising you. The lease buyout firms have had a reputable accounting firm provide memos suggesting why they believe your lease buyout income should be treated as capital gains. These memos are generic and you should not assume that they directly apply to your situation. Furthermore, your tax advisor is the only one who can advise you on whether you are better off holding the lease and selling presently or in a subsequent tax year.

terminology:

Insert some links here.

Sales (assignments) of leases

Assignment is the disposal of an existing lease. The assignment of a lease represents a disposal for capital gains purposes of an interest in property. There is no deemed rental income to calculate on the disposal because the assignment is not the grant of a new lease.

The chargeable gain on assignment of a 'long' lease, that is a lease with at least 50 years to run, is computed as a standard capital gains disposal. This is dealt with further below.

Where the lease has less than 50 years to run at the point at which it is assigned then it will be regarded as a wasting asset. This means that only a proportion of the original expenditure will be an allowable deduction against the disposal value. The amount of the original cost of a short-term lease allowable as a deduction on disposal reduces in accordance with a statutory formula given in TCGA 1992, Sch 8 (also known as a curvilinear

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Tax Director at Crane Dale Tax , Corporate Tax, OMB, Personal Tax

Rob is a cross-tax advisor with a particular focus on property tax planning, and business structure planning for OMB’s. He provides tax advice to other accounting firms, balancing commerciality, ethics, and understanding complexity. His 30+ years of experience start at the Inland Revenue in Hull. After completing his ATT and CTA by 1999 with PKF, he subsequently worked at KPMG and UHY prior to managing the business tax team as a director at Garbutt + Elliott. Rob is now Tax Director at the independent tax consultancy, Crane Dale Tax. He is a regular author for Taxation magazine with many articles and Readers Forum contributions since 2005, and he contributes as a virtual member to the CIOT Property Tax technical committee. Rob works remotely from Vancouver in Canada.

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Anti-Money Laundering Regulations for Residential Real Estate Transfers

A Rule by the Financial Crimes Enforcement Network on 08/29/2024

This document has been published in the Federal Register . Use the PDF linked in the document sidebar for the official electronic format.

• Document Details Published Content - Document Details Agencies Department of the Treasury Financial Crimes Enforcement Network CFR 31 CFR chapter undef Document Citation 89 FR 70258 Document Number 2024-19198 Document Type Rule Pages 70258-70294 (37 pages) Publication Date 08/29/2024 RIN 1506-AB54 Published Content - Document Details
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• Document Dates Published Content - Document Dates Effective Date 12/01/2025 Dates Text Effective December 1, 2025. Published Content - Document Dates

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SUPPLEMENTARY INFORMATION:

I. executive summary, ii. background, a. addressing high-risk transfers of residential real estate, 1. authority to require reports from persons involved in real estate closings and settlements, 2. reporting high-risk transfers of residential real estate, a. benefits of reporting, b. necessity of a permanent nationwide reporting requirement, b. the notice of proposed rulemaking, c. comments received, iii. discussion of final rule, a. overview, b. comments addressing the rule broadly, 1. authority, 2. suggested alternatives to proposed rule, 3. attorneys as potential reporting persons, 4. reasonable reliance standard, 5. penalties, 6. unique identifying numbers, c. section-by-section analysis, 1. 31 cfr 1031.320(a) general, 2. 31 cfr 1031.320(b) reportable transfer, a. residential real property, b. non-financed transfers, c. excepted transfers, d. transferee entities, e. transferee trusts, 3. 31 cfr 1031.320(c) determination of reporting person, a. reporting cascade, b. designation agreements, 4. 31 cfr 1031.320(d) information concerning the reporting person, 5. 31 cfr 1031.320(e) information concerning the transferee, a. general information concerning transferee entities, b. general information concerning transferee trusts, c. beneficial ownership information of transferee entities and trusts, 6. 31 cfr 1031.320(f) information concerning the transferor, 7. 31 cfr 1031.320(g) information concerning the residential real property, 8. 31 cfr 1031.320(h) information concerning payments, 9. 31 cfr 1031.320(i) information concerning hard money, private, and similar loans, 10. 31 cfr 1031.320(j) reasonable reliance, 11. 31 cfr 1031.320(k) filing procedures, 12. 31 cfr 1031.320(l) retention of records, 13. 31 cfr 1031.320(m) exemptions, 14. 31 cfr 1031.320(n) definitions, iv. effective date, v. severability, vi. regulatory analysis, a. assessment of impact, 1. economic considerations, a. broad economic considerations, b. consideration of comments received, i. comments pertaining to burden estimates, ii. comments suggesting additional analysis, 2. baseline and affected parties, a. regulatory baseline, i. residential real estate gtos, ii. boi reporting rule, iii. customer due diligence (cdd) rule, iv. other (form 1099-s), b. baseline of affected parties, i. transferees, legal entities, excepted transferees, ii. reporting entities, c. market baseline, i. reportable transfers, ii. current market characteristics, iii. current market practices, settlement and closing, records search, 3. description of final rule requirements, a. reportable transfers, b. reporting persons, c. required information, 4. expected economic effects, a. costs to entities in the reporting cascade, i. training, ii. reporting, iii. recordkeeping, iv. other costs, b. government costs, 5. economic consideration of policy alternatives, b. eos 12866, 13563, and 14094, c. regulatory flexibility act, certification, d. unfunded mandates reform act, e. paperwork reduction act, f. congressional review act, list of subjects in 31 cfr part 1031, authority and issuance, part 1031—rules for persons involved in real estate closings and settlements, subparts a and b [reserved], subpart c—reports required to be made by persons involved in real estate closings and settlements.

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Department of the Treasury

Financial crimes enforcement network.

• 31 CFR Chapter X
• RIN 1506-AB54

Financial Crimes Enforcement Network (FinCEN), Treasury.

Final rule.

FinCEN is issuing a final rule to require certain persons involved in real estate closings and settlements to submit reports and keep records on certain non-financed transfers of residential real property to specified legal entities and trusts on a nationwide basis. Transfers made directly to an individual are not covered by this rule. This rule describes the circumstances in which a report must be filed, who must file a report, what information must be provided, and when a report is due. These reports are expected to assist the U.S. Department of the Treasury, law enforcement, and national security agencies in addressing illicit finance vulnerabilities in the U.S. residential real estate sector, and to curtail the ability of illicit actors to anonymously launder illicit proceeds through transfers of residential real property, which threatens U.S. economic and national security.

Effective December 1, 2025.

The FinCEN Regulatory Support Section at 1-800-767-2825 or electronically at [email protected] .

Among the persons required by the Bank Secrecy Act (BSA) to maintain anti-money laundering and countering the financing of terrorism (AML/CFT)  [ 1 ] programs are “persons involved in real estate closings and settlements.”  [ 2 ] For many years, FinCEN has exempted such persons from comprehensive regulation under the BSA. However, information received in response to FinCEN's geographic targeting orders relating to non-financed transfers of residential real estate (Residential Real Estate GTOs) has demonstrated the need for increased transparency and further regulation of this sector. Furthermore, the U.S. Department of the Treasury (Treasury) has long recognized the illicit finance risks posed by criminals and corrupt officials who abuse opaque legal entities and trusts to launder ill-gotten gains through transfers of residential real estate. This illicit use of the residential real estate market threatens U.S. economic and national security and can disadvantage individuals and small businesses that seek to compete fairly in the U.S. economy.

Earlier this year, pursuant to the BSA's authority to impose AML regulations on persons involved in real estate closings and settlements, FinCEN proposed a new reporting requirement. Under the proposed rule, certain persons involved in real estate closings and settlements would be required to report on certain transfers that Treasury deems high risk for illicit financial activity—namely, non-financed transfers of residential real property to legal entities and trusts.

FinCEN is now issuing a final rule that adopts the proposed rule with some modifications. The final rule imposes a streamlined suspicious activity report (SAR) filing requirement under which reporting persons, as defined, are required to file a “Real Estate Report” on certain non-financed transfers of residential real property to legal entities and trusts. Transfers to individuals, as well as certain transfers commonly used in estate planning, do not have to be reported. The reporting person for any transfer is one of a small number of persons who play specified roles in the real estate closing and settlement, with the specific individual determined through a cascading approach, unless superseded by an agreement among persons in the reporting cascade. The reporting person is required to identify herself, the legal entity or trust to which the residential real property is transferred, the beneficial owner(s) of that transferee entity or transferee trust, the person(s) transferring the residential real property, and the property being transferred, along with certain transactional information about the transfer.

The final rule adopts a reasonable reliance standard, allowing reporting persons to rely on information obtained from other persons, absent knowledge of facts that would reasonably call into question the reliability of that information. For purposes of reporting beneficial ownership information in particular, a reporting person may reasonably rely on information obtained from a transferee or the transferee's representative if the accuracy of the information is certified in writing to the best of the information provider's own knowledge.

FinCEN has sought to minimize burdens on reporting persons to the extent practicable without diminishing the utility of the Real Estate Report to law enforcement and believes the final rule appropriately balances the collection of information that is highly useful to Treasury, law enforcement, and national security agencies against the burdens associated with collecting that information, particularly on small businesses.

The BSA is intended to combat money laundering, the financing of terrorism, and other illicit financial activity. [ 3 ] The purposes of the BSA include requiring financial institutions to keep records and file reports that “are highly useful in criminal, tax, or regulatory investigations or proceedings” or in the conduct of “intelligence or counterintelligence activities, including analysis, to protect against international terrorism.”  [ 4 ] The Secretary of the Treasury (Secretary) has delegated the authority to implement, administer, and enforce compliance with the BSA and its implementing regulations to the Director of FinCEN. [ 5 ]

The BSA requires “financial institutions” to establish an AML/CFT program, which must include, at a minimum, “(A) the development of internal policies, procedures, and controls; (B) the designation of a compliance officer; (C) an ongoing employee training program; and (D) an independent audit function to test programs.”  [ 6 ] The BSA also authorizes the Secretary to require financial institutions to report any suspicious transaction relevant to a possible violation of law or regulation. [ 7 ] Among the financial institutions subject to these ( print page 70259) requirements are “persons involved in real estate closings and settlements.”  [ 8 ]

In particular, section 5318(g) of the BSA authorizes the Secretary to require financial institutions to report, via SARs, any “suspicious transactions relevant to a possible violation of law or regulation.”  [ 9 ] However, the BSA affords the Secretary flexibility in implementing that requirement, and indeed directs the Secretary to consider “the means by or form in which the Secretary shall receive such reporting,” including the relevant “burdens imposed by such means or form of reporting,” “the efficiency of the means or form,” and the “benefits derived by the means or form of reporting.”  [ 10 ] A provision added to the BSA by section 6202 of the Anti-Money Laundering Act of 2020 (AML Act) further directs FinCEN to “establish streamlined . . . processes to, as appropriate, permit the filing of noncomplex categories of reports of suspicious activity.” In assessing whether streamlined filing is appropriate, FinCEN must determine, among other things, that such reports would “reduce burdens imposed on persons required to report[,]” while at the same time “not diminish[ing] the usefulness of the reporting to Federal law enforcement agencies, national security officials, and the intelligence community in combating financial crime, including the financing of terrorism[.]”  [ 11 ]

Most transfers of residential real estate are associated with a mortgage loan or other financing provided by financial institutions subject to AML/CFT program requirements. As non-financed transfers do not involve such financial institutions, such transfers can be and have been exploited by illicit actors of all varieties, including those that pose domestic threats, such as persons engaged in fraud or organized crime, and foreign threats, such as international drug cartels, human traffickers, and corrupt political or business figures. Non-financed transfers to legal entities and trusts heighten the risk that such transfers will be used for illicit purposes. Numerous public law enforcement actions illustrate this point. [ 12 ] As such, FinCEN believes that the reporting of non-financed transfers to legal entities and trusts will benefit national security by facilitating law enforcement investigations into, and strategic analysis of, the use of residential real estate transfers having these particular characteristics to facilitate money laundering. [ 13 ]

Indeed, since 2016, FinCEN has used a targeted reporting requirement—the Residential Real Estate GTOs—to collect information on a subset of transfers of residential real estate that FinCEN considers to present a high risk for money laundering. [ 14 ] Specifically, the Residential Real Estate GTOs have required certain title insurance companies to file reports and maintain records concerning non-financed ( print page 70260) purchases of residential real estate above a specific price threshold by certain legal entities in select metropolitan areas of the United States. In combination with the numerous public law enforcement actions illustrating the heightened risks posed by non-financed transfers to legal entities and trusts, information obtained from the Residential Real Estate GTOs, as well as other studies conducted by Treasury and FinCEN, FinCEN has confirmed the need for a more permanent regulatory solution that would require consistent reporting of information about certain high-risk real estate transfers.

The Residential Real Estate GTOs have been effective in identifying the risks of non-financed purchases of residential real estate by providing relevant information about such transfers to law enforcement within specified geographic areas. Indeed, FinCEN regularly receives feedback from law enforcement partners that they use the information to generate new investigative leads, identify new and related subjects in ongoing cases, and support prosecution and asset forfeiture efforts. Law enforcement has also made requests to FinCEN to expand the Residential Real Estate GTOs to new geographic areas, which FinCEN has done multiple times, adding both additional metropolitan areas and methods of payment. This has provided law enforcement with additional insight into the risks in both the luxury and non-luxury residential real estate markets.

The Residential Real Estate GTOs have also proven the benefit of having reports identifying high risk residential real estate transfers housed in the same database as other BSA reports, such as traditional SARs and currency transaction reports (CTRs). For example, housing reports filed under the Residential Real Estate GTOs in the same database as other BSA reports enables FinCEN to cross-reference identifying information across reports, and having done so, FinCEN has been able to determine that a substantial proportion of purchases reported under the Residential Real Estate GTOs have been conducted by persons also engaged in other activity that financial institutions have characterized as suspicious. Specifically, FinCEN has found that from 2017 to early 2024, approximately 42 percent of non-financed real estate transfers captured by the Residential Real Estate GTOs were conducted by individuals or legal entities on which a SAR has been filed. In other words, individuals engaging in a type of transaction known to be used to further illicit financial activity—the non-financed purchase of residential real estate through a legal entity—are also engaging in other identified forms of suspicious activities. The ability to connect these activities across reports allows law enforcement to efficiently identify potential illicit actors for investigation and build out current investigations.

The Residential Real Estate GTOs, while effective within the covered geographic areas, do not address the illicit finance risks posed by certain real estate transfers on a nationwide basis—a significant shortcoming. For instance, a study of money laundering through real estate in several countries by Global Financial Integrity, a non-profit that studies illicit financial flows, money laundering, and corruption, found that, of Federal money laundering cases involving real estate between 2016 and 2021, nearly 61 percent involved at least one transfer in a county not covered by the Residential Real Estate GTOs. FinCEN believes that money laundering through real estate is indeed a nationwide problem that jurisdictionally limited reporting requirements are insufficient to address. [ 15 ] Furthermore, the Residential Real Estate GTOs were also intended to be a temporary information collection measure. Thus, FinCEN believes that a more comprehensive and permanent regulatory approach is needed.

On February 16, 2024, FinCEN published a notice of proposed rulemaking (NPRM) proposing a reporting requirement to address the risks related to non-financed transfers of residential real estate to either a legal entity or trust on a nationwide basis. [ 16 ] The proposal targeted the transfers that posed a high risk for illicit finance and was built on lessons learned from the Residential Real Estate GTOs and from public comments received in response to an Advance Notice of Proposed Rulemaking. [ 17 ] Importantly, the NPRM was narrowly focused and did not propose a reporting requirement for most transfers of residential real estate—for example, it excluded purchases that involve a mortgage or other financing from a covered financial institution, as well as any transfer, including all-cash transfers, to an individual.

In the NPRM, FinCEN proposed that certain persons involved in residential real estate closings and settlements file a version of a SAR—referred to as a “Real Estate Report”—focused exclusively on certain transfers of residential real property. The persons subject to this reporting requirement were deemed reporting persons for purposes of the proposed rule. Under the proposed rule, a reporting person would be determined through a “cascading” approach based on the function performed by the person in the real estate closing and settlement. The proposed cascade was designed to minimize burdens on persons involved in real estate closings and settlements, while leaving no reporting gaps and creating no incentives for evasion. [ 18 ] To provide some flexibility in this reporting cascade, FinCEN's proposal included the option to designate (by agreement) a reporting person from among those in the cascade.

As proposed, information to be reported in the Real Estate Report would identify the reporting person, the legal entity or trust (including any legal arrangement similar in structure or function to a trust) to which the residential real property was transferred, the beneficial owners of that transferee entity or transferee trust, the person that transferred the residential real property, and the property being transferred, along with certain transactional information about the transfer. Regarding beneficial ownership information that a reporting person would be required to report, the rule proposed that a reporting person could collect such information directly from a ( print page 70261) transferee or a representative of the transferee, so long as the person certified that the information was correct to the best of their knowledge. On the timing of the reports, the proposed rule stated that the reporting person was required to file the Real Estate Report no later than 30 days after the date of closing.

In response to the NPRM, FinCEN received 621 comments, 164 of which were unique. Submissions came from a broad array of individuals, businesses, and organizations, including trade associations, transparency groups, law enforcement representatives, and other interested groups and individuals.

General support for the rule was expressed by law enforcement officials, transparency groups, certain industry associations, and individuals. For instance, attorneys general of 25 states and territories jointly submitted a comment stating that the proposed regulations would permit Federal, State, and local law enforcement to access information about suspicious real estate transfers more efficiently because that information would all be available from a single source, and that the information would aid them in identifying suspicious residential real estate transfers on a nationwide basis that might otherwise remain undetected. These attorneys general and one industry association applauded FinCEN's choice to use a transaction-specific reporting mechanism rather than imposing an AML/CFT program requirement on persons involved in real estate closings and settlements. One non-profit commenter expressed support for FinCEN's recognition of the wide-ranging impacts that money laundering through real estate can have on tenants, homebuyers, and the affordability and stability of regional housing markets and believed the rule will improve housing access. Two industry associations expressed strong support for the proposed rule, with one commenter expressing the view that it reflected a pragmatic approach. One industry association and an individual commenter stated that a permanent and nationwide rule would provide greater predictability and certainty to industry than Residential Real Estate GTOs.

Other commenters expressed opposition to the proposed rule. Some expressed concern about FinCEN's legal authority to impose a reporting requirement in the manner set forth in the proposed rule. Other commenters argued that the proposed reporting requirement would be ineffective, burdensome, or would require reporting of information that is reported to the government through other avenues. The majority of private sector commenters—primarily small businesses, individuals employed in the real estate industry, and certain trade associations—asserted that the proposed reporting requirements are too broad and complex and would be burdensome to implement. They further assert that this would result in increased costs for businesses and, ultimately, consumers, potentially delaying closings and causing consumers to decline to seek their services. Many of these commenters expressed concerns that the proposed regulations, if finalized without significant change, would impose numerous and costly reporting and recordkeeping requirements on small businesses. Some commenters suggested the proposed rule would put large businesses at a competitive disadvantage while others suggested the same about small businesses. These commenters also suggested that the proposed regulation would create privacy and security concerns with respect to personally identifiable information. A number of these commenters suggested that FinCEN either not issue a final regulation or adopt a narrower approach, requiring reporting of less information on fewer transfers. Several commenters suggested that attorneys that fulfill any of the functional roles set out in the reporting cascade should not be required to report, primarily due to concerns about attorney-client privilege and confidentiality requirements.

Furthermore, many commenters suggested a range of modifications to the proposed regulations to: enhance clarity; reduce the potential burdens to industry; include or exclude certain professions from reporting requirements; refine the impact to certain segments of the industry; and enhance the usefulness of the resulting reports. Several commenters also asked hypothetical questions that sought clarification on the application of the proposed rule to certain situations.

FinCEN carefully reviewed and considered each comment submitted, and a more detailed discussion of comments appears in Section III. FinCEN believes that the regulatory requirements set out in this final rule reflect the appropriate balance between ensuring that reports filed under the rule have a high degree of usefulness to law enforcement and minimizing the compliance burden incurred by businesses, including small businesses. As detailed in Section III, FinCEN has made several amendments to the proposed rule that are responsive to commenters and that may also reduce certain anticipated burdens.

FinCEN is issuing a final rule that generally adopts the framework set out in the proposed rule but makes certain modifications and clarifications that are responsive to comments. The final rule imposes a reporting requirement on “reporting persons” that are involved in certain kinds of transfers of residential real property. In response to comments, the rule adopts a reasonable reliance standard, allowing reporting persons to, in general, reasonably rely on information obtained from other persons. FinCEN has also made other amendments in the final rule that are intended to clarify and simplify the reporting requirements, such as clarifying the definition of residential real property. Additionally, the rule excludes several additional transfers from needing to be reported, including one designed to exempt certain transfers commonly executed for estate and tax planning purposes. FinCEN also limited the requirement to retain certain records. We discuss these and other specific issues, comments, modifications, and clarifications in this section, beginning with issues that cut across the entire rule and continuing with a section-by-section analysis of changes and clarifications to the regulatory text, including sections for which FinCEN received no feedback from commenters.

FinCEN notes that it will consider issuing frequently asked questions (FAQs) and other guidance, as appropriate, to further clarify the application of the rule to specific circumstances. FinCEN also intends to continue to engage with stakeholders, for example through public outreach events, to assist with ensuring that the rule's requirements are understood by affected members of the public, including small businesses.

FinCEN received several comments that cut across various provisions of the rule or were otherwise broadly applicable. The subjects addressed by these comments include: FinCEN's authority to issue the rule; alternatives to the reporting and recordkeeping requirements; attorneys as reporting persons; the extent to which a reporting person can rely on information received from other persons; penalties for noncompliance; and the collection of unique identifying numbers. FinCEN ( print page 70262) has carefully considered these comments and addresses them below.

Proposed Rule. The NPRM set out the legal authority that authorized the agency's issuance of the rule. Specifically, the NPRM cited the BSA provisions set forth at 31 U.S.C. 5312(a)(2) , which defines a financial institution to include “persons involved in real estate closings and settlements,” and at 31 U.S.C. 5318(g) , authorizing FinCEN to impose a requirement on financial institutions to report suspicious activity reports, and to establish streamlined processes regarding the filing of such reports.

Comments Received. Several commenters questioned the legal authority underpinning the rule and the BSA reporting regime more generally, with one commenter stating that “the Constitutionality of this regime is not an entirely closed question.” These commenters argued that the rule potentially infringes on certain constitutional rights and that it is inconsistent with certain statutes and Executive Orders (EOs), citing primarily to Gramm-Leach-Bliley Act (GLBA) and E.O. 12866 . With regard to GLBA, one commenter stated that “[t]he [r]ule proposed by FinCEN directly clashes with the legal guideposts and requirements of the GLBA.”

Final Rule. FinCEN is issuing this final rule pursuant to its BSA authority to require “financial institutions” to report “suspicious transactions” under 31 U.S.C. 5318(g)(1) ; the rule falls squarely within the scope of this authority. As discussed in the NPRM and in Section II.A.1 of this final rule, “persons involved in real estate closings and settlements” are a type of “financial institution” under the BSA. [ 19 ] As such, FinCEN has clear statutory authority to require “persons involved in real estate closings and settlements” to file reports on suspicious activity, [ 20 ] and courts have long affirmed the constitutionality of, such reporting requirements. [ 21 ] Furthermore, a more recent amendment to the BSA at 31 U.S.C. 5318(g)(5)(D) provides FinCEN with additional flexibility to tailor the form of the SAR reporting requirement. Consistent with that authority, FinCEN is instituting a streamlined SAR filing requirement to require specified “persons involved in real estate closings and settlements” to report certain real estate transactions that FinCEN views as high-risk for illicit finance.

With regard to the comment concerning the relationship between the final rule and GLBA, FinCEN notes that information in reports filed under the BSA, which will include any information in a Real Estate Report, is exempt from the requirements of GLBA. [ 22 ] Finally, FinCEN notes that significant comments relating to applicable E.O. are addressed in the regulatory impact analysis in this final rule.

Proposed Rule. The NPRM proposed that certain persons involved in the closing and settlement of real estate report and keep records about certain non-financed transfers of residential real estate to certain legal entities and trusts.

Comments Received. Commenters suggested several alternatives to the proposed reporting and recordkeeping requirement. One commenter suggested expanding the Internal Revenue Service (IRS) Form 1099-S to include the collection of buyer-side information in addition to the seller-side information already collected. Some commenters suggested that, rather than requiring reporting by real estate professionals, FinCEN should require reporting from county clerk offices when they accept a deed for a reportable transfer or directly from transferees before a reportable transfer. Finally, other commenters urged FinCEN to fund alternative databases or purchase access to electronic records at each county clerk's office and monitor filed deeds.

Final Rule. The final rule retains the fundamental framework of the proposed rule. FinCEN believes that the alternatives suggested by commenters are either technically or legally unworkable and would likely not result in the reporting of information that is equally useful to law enforcement. First, the IRS Form 1099-S is filed annually, making it significantly less useful to law enforcement and, as discussed in the NPRM, [ 23 ] is not readily available for FinCEN or broader law enforcement uses due to confidentiality protections around federal taxpayer information. Second, FinCEN believes that county clerks' offices and individuals do not typically play a role in the kinds of transfers that would require reporting. Therefore, these individuals would not likely be in a position to interact with both the transferor(s) and the transferee(s), and thus, may not have ready access to reportable information. Regarding the suggested alternative of collecting reportable information directly from transferees instead of through reporting persons, FinCEN believes that buyers and sellers would be less willing to share personal information with each other than with a real estate professional fulfilling a function described in this rule's reporting cascade. Third, simply monitoring deeds at the county clerk level would likely not produce the information, including beneficial ownership and payment information, that FinCEN believes is important to law enforcement in combating illicit actors' abuse of opaque legal structures in the residential real estate market. Further, funding alternative databases would similarly not result in this information being made available to law enforcement, as private service providers would be unable to gather the same variety of highly relevant information, and any information they did provide would not be consolidated in a database with other BSA reports. The consolidation of Real Estate Reports with other BSA reports—including, but not limited to, traditional SARs, CTRs, Reports of Cash Payments Over $10,000 Received in a Trade or Business (Forms 8300), and Reports of Foreign Bank and Financial Accounts—is important for law enforcement purposes, as doing so will allow law enforcement to efficiently cross-reference information across the various BSA reports.

Proposed Rule. Under the proposed rule, attorneys could potentially be subject to a reporting requirement if they perform any of the real estate closing and settlement functions described in the reporting cascade. The proposed rule did not differentiate between attorneys and non-attorneys when they perform the same functions involving transfers of residential real property.

Comments Received. A number of commenters addressed the inclusion of attorneys in the reporting cascade. In general, legal associations opposed the inclusion of attorneys performing certain closing and settlement functions in the cascade as reporting persons, while others, in particular transparency organizations, supported the inclusion of attorneys as reporting persons. Commenters opposed to inclusion of attorneys generally argued that an attorney could not act as a reporting ( print page 70263) person without either breaching the attorney's professional ethical obligations to maintain client confidentiality or violating attorney-client privilege. Some commentors also suggested that FinCEN lacks legal authority to regulate attorneys under the BSA.

Final Rule. FinCEN declines to amend the reporting cascade to exclude attorneys from the requirement to report.

First, FinCEN does not believe that attorneys would violate their professional ethical obligations by filing a Real Estate Report. Although commenters noted that the ABA Model Rules on Professional Conduct generally require attorneys to keep client information confidential regardless of whether it is subject to the attorney-client privilege, Rule 1.6(b)(6) of the Model Rules states that “[a] lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary . . . to comply with other law or a court order.” The annotations to the Model Rules further elaborate that “[t]he required-by-law exception may be triggered by statutes, administrative agency regulations, or court rules.” FinCEN believes that the Real Estate Report falls squarely within the required-by-law exception described in Rule 1.6(b)(6).

Second, FinCEN believes that the information required in the Real Estate Report ( e.g., client identity and fee information) is of a type not generally protected by the attorney-client privilege, and accordingly FinCEN is not persuaded that attorneys should be categorically excluded from the reporting cascade on that basis. [ 24 ] Moreover, even if there were an unusual circumstance in which some information required to be reported in the Real Estate Report might arguably be subject to the attorney-client privilege, an attorney in such an unusual situation need not assume a reporting obligation, as that attorney might allow other parties in the reporting cascade to file the Real Estate Report through a designation agreement or, in certain circumstances, might decline to perform the function that triggers the obligation. It is therefore unlikely that any attorney would necessarily be required to disclose privileged information. Nonetheless, FinCEN expects to issue guidance that will address the rare circumstance in which an attorney is concerned about the disclosure of potentially privileged information, which will provide further information on the mechanism for asserting the attorney-client privilege and appropriately filing the relevant Real Estate Report.

Similarly, FinCEN is not persuaded by commentors who argued that FinCEN lacks the authority to regulate attorneys under the BSA, claiming that the BSA does not clearly evince an intention to regulate attorneys. The BSA expressly authorizes regulation of “persons involved in real estate closings and settlements,” and it is common for such persons to be attorneys. Congress thus made clear its intention to authorize regulation of functions commonly performed by attorneys, and it would be anomalous to regulate those functions only when performed by non-attorneys. FinCEN also notes that attorneys are not exempt from submitting reporting forms to FinCEN in other contexts in which they are not explicitly identified by statute, such as with FinCEN Form 8300, which must be submitted by any “[a]ny person . . . engaged in a trade or business.” All courts of appeals that have considered the question have concluded that Form 8300 reporting requirements do not per se violate the attorney-client privilege and that attorneys must file such a form absent certain narrow exceptions. [ 25 ]

Proposed Rule. Proposed 31 CFR 1031.320(e)(3) provided that the reporting person may collect beneficial ownership information for the transferee entity or transferee trust directly from a transferee or a representative of the transferee, so long as the person certifies in writing that the information is correct to the best of their knowledge. However, the proposed rule did not state whether and to what extent a reporting person could rely on information provided by other persons in the context of other required information ( i.e., other than beneficial ownership information) required under the rule or to make any determination necessary to comply with the rule.

Comments Received. Several commenters asked for clarification of this provision, suggesting that the burden to industry would be significant if reporting persons were required to verify the accuracy of each piece of reportable information provided by a transferee or another party, with one commenter questioning whether true verification is possible. Several commenters also expressed liability concerns, including that reporting persons could be penalized if a third party provides information that turns out to be incorrect.

To resolve these concerns, commenters suggested that reporting persons should be able to rely on information provided by the transferee or that the transferee should certify the accuracy of required information beyond beneficial ownership information. One industry group took the reliance standard a step further, suggesting that the reporting person be able to rely on the representations of the transferee for purposes of determining whether the transferee is an exempt entity or trust. One transparency group suggested that the final rule require that reporting persons perform a “clear error” or “best efforts” check to ensure they are not reporting obviously fraudulent information.

Some commenters suggested that, where a transferee is unwilling to provide complete or accurate information, reporting persons should be allowed to file incomplete forms, with some arguing that “good faith attempts” to file reports that are ultimately incomplete should not be penalized. Another argued that the reporting person should be able to simply file the information provided without any responsibility for its accuracy or completeness. However, one transparency group argued that reporting persons should not be allowed to file incomplete forms and that the final rule should clarify that, where a reporting person cannot gather complete information from a transferee, then the reporting person should decline to take part in the real estate transfer. Other commenters similarly questioned whether a reporting person can continue to facilitate a transfer if the transferee refuses to cooperate in providing reportable information. Additionally, one industry group requested that the final rule impose a clear duty on other persons described in the reporting cascade to share information reportable under the proposed rule.

Final Rule. In 31 CFR 1031.320(j) , the final rule adopts a reasonable reliance standard that allows reporting persons to reasonably rely on information provided by other persons. As a result, the reporting person generally may rely on information provided by any other person for purposes of reporting information or to make a determination necessary to comply with the final rule, but only if the reporting person does not have knowledge of facts that would ( print page 70264) reasonably call into question the reliability of the information. This reasonable reliance standard is consistent with that used by certain financial institutions subject to customer due diligence requirements. [ 26 ]

This reasonable reliance standard is slightly more limited when a reporting person is reporting beneficial ownership information of transferee entities or transferee trusts. As expressed in the proposed rule, and as adopted in the final rule, when a reporting person is collecting the beneficial ownership information of transferee entities and transferee trusts. In those situations, the reasonable reliance standard applies only to information provided by the transferee or the transferee's representative and only if the person providing the information certifies the accuracy of the information in writing to the best of their knowledge.

FinCEN recognizes the necessity of permitting reliance on information supplied to the reporting person, considering the time and effort it would take for the reporting person to verify each piece of information independently. FinCEN believes that the reasonable reliance standard is significantly less burdensome than an alternative full verification standard, while still ensuring that obviously false or fraudulent information would not be reported.

As an example, FinCEN expects that the reporting person would be able to reasonably rely on the accuracy of a person's address provided orally or in writing, without reviewing government-issued documentation such as a drivers' license, provided the reporting person does not have reason to question the information provided ( e.g., if the information provided were to contain a numerically unlikely ZIP code or the person providing it makes comments bringing into question the reliability of the address or has provided other unreliable information).

As an additional example, in the context of ascertaining whether particular transfers are “non-financed transfers,”  [ 27 ] a reporting person may rely on the information provided by the relevant lender extending credit secured by the underlying residential real property as to whether the lender has an obligation to maintain an AML program and an obligation to report suspicious transactions under 31 CFR Chapter X , provided the reporting person does not have reason to question the lender's information ( e.g., if the lender were to represent that he (as a natural person) is subject to AML obligations).

In response to the comment requesting that FinCEN permit the filing of an incomplete report, FinCEN declines to add language to the regulation to provide for that option. FinCEN believes that allowing for the submission of incomplete reports could make it easier for transferees to avoid reporting requirements while simultaneously also making it difficult for FinCEN to ensure compliance with the rule. It could also greatly reduce the reports' utility to law enforcement. FinCEN believes the adoption of the reasonable reliance standard addresses many of the concerns expressed about access to reportable information.

Finally, FinCEN does not adopt the suggestion that a legal duty be imposed on other persons in the reporting cascade to share reportable information with the reporting person. FinCEN believes that the reasonable reliance standard will make the sharing of information easier and therefore will decrease potential friction among the persons described in the reporting cascade. Further, FinCEN believes that reporting persons are unlikely to perform the function described in the reporting cascade until they have either obtained the required information or are reasonably certain that they will be able to obtain it soon after the date of closing. If information cannot be obtained from a person in the reporting cascade, the reporting person would reach out directly to a relevant party to the transfer ( e.g., the transferee) to gather the missing information.

FinCEN notes that there is no exception from reporting under the final rule should a transferee fail to cooperate in providing information about a reportable transfer. The final rule does not authorize the filing of incomplete reports, and a reporting person who fails to report the required information about a reportable transfer could be subject to penalties. However, FinCEN will consider issuing additional public guidance to assist the financial institutions subject to these regulations in complying with their reporting obligations.

Proposed Rule. The proposed rule did not include a specific reference to potential penalties for noncompliance, as those penalties are already set forth in the provisions of the BSA that discuss criminal and civil penalties for violating a BSA requirement.

Comments Received. Several commenters sought clarification about penalties for noncompliance, with one commenter noting that the proposed rule did not explicitly address potential penalties for failing to file a report or for filing an inaccurate report.

Final Rule. Consistent with the NPRM, FinCEN believes that it is unnecessary to list potential penalties in the regulatory text because the applicable penalties are already set forth by statute. Negligent violations of the final rule could result in a civil penalty of, as of the publication of the final rule, not more than $1,394 for each violation, and an additional civil money penalty of up to $108,489 for a pattern of negligent activity. [ 28 ] Willful violations of the final rule could result in a term of imprisonment of not more than five years or a criminal fine of not more than $250,000, or both. [ 29 ] Such violations also could result in a civil penalty of, as of the publication of the final rule, not more than the greater of the amount involved in the transaction (not to exceed $278,937) or $69,733. [ 30 ] This penalty structure generally applies to any violation of a BSA requirement. [ 31 ] FinCEN intends to conduct outreach to potential reporting persons on the need to comply with the final rule's requirements.

Proposed Rule. Proposed 31 CFR 1031.320(e) set forth requirements for the reporting person to report a unique identifying number of the transferee entity or transferee trust, the beneficial owners of the transferee entity or trust, the individuals signing documents on behalf of the transferee entity or trust, and the trustee of a transferee trust. FinCEN proposed that the specific form of unique identifying number required would be a taxpayer identification number (TIN) issued by the IRS, such as a Social Security Number or Employer Identification Number. However, the proposed rule provided that, when no IRS TIN had been issued, the proposed rule required the reporting of a foreign tax identification number or other form of foreign identification number, such as a passport number or entity registration number issued by a foreign government.

Comments Received. One commenter argued against the collection of TINs as a unique identifying number, citing to the reporting requirements of the Beneficial Ownership Information ( print page 70265) Reporting Rule (BOI Reporting Rule). [ 32 ] In the NPRM for the BOI Reporting Rule, [ 33 ] which was issued pursuant to the Corporate Transparency Act (CTA), [ 34 ] FinCEN initially proposed the voluntary reporting of TINs by a reporting company of its beneficial owners but eliminated this optional reporting in the final rule. The final BOI Reporting Rule does, however, require that reporting companies report their own TINs. [ 35 ]

Final Rule. In the final rule, FinCEN adopts the proposed requirement to collect the unique identifying numbers of entities and individuals, including their TINs, but clarifies that, for legal entities, a unique identifying number is required only if such number has been issued to that entity. The proposed rule contained a similar provision for transferee trusts, which the final rule adopts. In the trust context, no unique identifying number would need to be reported if a unique identifying number has not been issued to the trust. For instance, there may be a situation in which a transferee trust has not been issued an IRS TIN, nor has it been issued any of the foreign identifying numbers set out in the rule. With the clarifying edit to the unique identifying numbers required for legal entities, the rule makes clearer that a unique identifying number would similarly not be required to be reported in such a situation. FinCEN notes that the final rule does not extend this language to the TINs of individuals, as FinCEN expects that individuals will have been issued one of the unique identifying numbers required by the regulations.

While FinCEN continues to acknowledge that IRS TINs are subject to heightened privacy concerns and that the collection of such information could entail cybersecurity and operational risks, several factors weighed heavily in its decision to retain this requirement. TINs are commonly required on other BSA reports, including, for example, Forms 8300, which FinCEN notes are commonly filed by the real estate industry. Furthermore, TINs are frequently necessary to identify the same actors, particularly those with similar names or those using aliases, across different BSA reports and investigations. FinCEN believes that nearly all reporting persons—primarily businesses performing functions typically conducted by settlement companies, including many that already file reports containing TINs with the government—will have preexisting data security systems and programs to protect information such as TINs, particularly since such information is often collected in the course of financed transfers of residential real estate.

FinCEN did not receive any comments to the general paragraph of the proposed rule found in proposed 31 CFR 1031.320(a) , which provided a framework for the rule. That paragraph has been adopted in the final rule without substantial change. The technical changes that have been made include the renumbering of paragraph references, the addition of a reference to a new paragraph discussing the concept of reasonable reliance, and certain clarifying changes, such as the addition of language clarifying that reports required under this section and any other information that would reveal that a reportable transfer has been reported are not confidential.

The proposed rule defined a reportable transfer as a non-financed transfer of any ownership interest in residential real property to a transferee entity or transferee trust, with certain exceptions. These proposed exceptions, found in 31 CFR 1031.320(b) , reflected FinCEN's intent to capture only higher risk transfers. The proposed rule provided that transfers would be reportable irrespective of the value of the property or the dollar value of the transaction; there was no proposed dollar threshold for a reportable transfer. The proposed rule also provided that transfers would only be reportable if a reporting person is involved in the transfer and if the transferee is either a legal entity or trust. Transfers between individuals would not be reportable.

Proposed Rule. Proposed 31 CFR 1031.320(b) defined “residential real property” to include real property located in the United States containing a structure designed principally for occupancy by one to four families; vacant or unimproved land located in the United States zoned, or for which a permit has been issued, for the construction of a structure designed principally for occupancy by one to four families; and shares in a cooperative housing corporation.

Comments Received. Several commenters argued that reporting persons would not have ready access to the zoning or permitting information necessary to determine whether vacant or unimproved land is reportable under the rule. Commenters noted that reporting persons do not routinely determine zoning information and that accurate zoning information may take several weeks to obtain. Examination of permits, they argued further, would take similar time and effort. Some commenters also noted that purchases of unimproved or vacant land are often for lower dollar amounts and therefore present a lower risk for money laundering. Two other commenters suggested that the determination of whether a property is “residential real property” as defined under the rule should turn on whether the real estate sales contract or purchase and sale agreement describes the property as being residential.

Furthermore, two commenters suggested that the proposed definition of residential real property lacked clarity, with one focusing on the treatment of mixed-use property and the other requesting that the definition provide clearer criteria, taking into account the treatment of residential real estate under tax law, zoning processes, and mortgage agreements, with examples provided. Another commenter suggested that FinCEN provide a non-exhaustive list of possible transfers intended to be subject to reporting requirements and that the list specifically include any transfer of ownership and any creation of an equitable interest, whether in whole or in part, directly or indirectly, in the property. One commenter requested clarity as to whether a transfer of residential real property as defined under the rule includes assignment contracts.

Final Rule. The definition of residential real property in paragraph 31 CFR 1031.320(b) , as adopted in the final ( print page 70266) rule, contains several modifications and clarifications of the language in the proposed rule. This definition continues to include vacant or unimproved land, as FinCEN does not agree with the comment suggesting that transfers of such property inherently pose a lower risk for money laundering.

The revised definition addresses the difficulty raised by commenters in determining whether vacant or unimproved land is zoned or permitted for residential use by focusing on whether the transferee intends to build on the property a structure designed principally for occupancy by one to four families. Furthermore, the new provision added to the rule concerning reasonable reliance permits the reporting person to reasonably rely on information provided by the transferee to determine such intent. To address comments that requested clarity on whether mixed-use property qualifies as residential real property, the definition of residential real property also clarifies that separate residential units within a building, such as individually owned condominium units, as well as entire buildings designed for occupancy by one to four families, are included.

Taking into account the above changes, the definition of residential real property is now: (1) real property located in the United States containing a structure designed principally for occupancy by one to four families; (2) land located in the United States on which the transferee intends to build a structure designed principally for occupancy by one to four families; (3) a unit designed principally for occupancy by one to four families within a structure on land located in the United States; or (4) any shares in a cooperative housing corporation for which the underlying property is located in the United States. Given the ability for a reporting person to reasonably rely on information obtained from other persons, FinCEN declines to adopt the other suggestions made by some of the commenters to facilitate the determination of whether the property is residential in nature. FinCEN further notes that the definition is meant to include property such as single-family houses, townhouses, condominiums, and cooperatives, including condominiums and cooperatives in large buildings containing many such units, as well as entire apartment buildings designed for one to four families. Furthermore, transfers of such properties may be reportable even if the property is mixed use, such as a single-family residence that is located above a commercial enterprise.

FinCEN also notes that the rule is not designed to require reporting of the transfer of contractual obligations other than those demonstrated by a deed or, in the case of a cooperative housing corporation, through stock, shares, membership, certificate, or other contractual agreement evidencing ownership. Therefore, the transfer of an interest in an assignment contract would not be reportable. Assignment contracts typically involve a wholesaler contracting with homeowners to buy residential real property and then assigning their rights in the contract to a person interested in owning the property as an investment. The eventual purchase of the property by the assignee investor may be reportable under this rule because a transfer of an ownership interest demonstrated by a deed has occurred, but the initial signing of the contract between the assignor and the original homeowner would not be reportable.

Proposed Rule. Proposed 31 CFR 1031.320(b)(1) defined the term “reportable transfer” to only include transfers that do not involve an extension of credit to all transferees that is both secured by the transferred residential real property and extended by a financial institution that has both an obligation to maintain an AML program and an obligation to report suspicious transactions under 31 CFR Chapter X . As explained in the NPRM, FinCEN considers such transfers to be “non-financed” for purposes of this rule.

Comments Received. One industry organization noted that the proposal would result in reporting when an individual transfers property subject to qualified financing to a trust, because the qualified financing is in the name of the transferor rather than the transferee trust. Another commenter similarly requested clarity as to whether the reporting of non-financed transfers applies only with respect to qualified financing held by the transferee, as opposed to qualified financing held by the transferor.

Two transparency organizations requested that FinCEN clarify whether partially financed transfers are reportable. These commenters cited as examples a situation in which some or all of the source of funds originate from entities or beneficial owners that have not undergone AML checks from a covered financial institution or where qualified credit is extended to some, but not all, beneficial owners of transferees. Finally, one commenter requested clarity as to how the reporting person would determine if the transfer is non-financed.

Final Rule. The substance of the definition of a “non-financed transfer” is adopted as proposed, but FinCEN has elected to move the definitions paragraph of the rule to 31 CFR 1031.320(n)(5) . FinCEN declines to adopt the commenter's suggestion to include a specific carveout in the definition to account for transfers where the qualified financing is extended to the grantor or settlor of a trust, rather than to the trust itself—an issue raised in the comments. This situation is addressed, however, in the new exception for certain transfers to trusts for no consideration, discussed in depth in Section III.C.2.c.

In regards to requests for clarity about whether partially financed transfers meet the definition of a non-financed transfer, FinCEN notes that partially financed transfers involving one transferee (for example, in which the transferee entity or transferee trust puts down a 50 percent down payment but obtains a mortgage to finance the rest of the transfer) would not be reported. However, the definition of a non-financed transfer would result in reporting of transfers in which there are multiple transferee entities or transferee trusts receiving the property and financing is secured by some, but not all, of the transferees.

As to the comment questioning how reporting persons would determine whether a transfer is non-financed, it has been FinCEN's experience with the Residential Real Estate GTOs that persons required to report have readily determined whether a given financial institution extending financing has such AML program obligations by asking the financial institution directly. The reporting person can reasonably rely on the representations made by the financial institution.

Proposed Rule. Proposed 31 CFR 1031.320(b)(2) provided exceptions for transfers that are: the result of a grant, transfer, or revocation of an easement; the result of the death of an owner; incident to divorce or dissolution of marriage; to a bankruptcy estate; to individuals; or for which there is no reporting person.

Comments Received. Support for the proposed exceptions came from an industry group that applauded the decision to except transfers made to individuals. Other commenters did not oppose the proposed regulation and instead suggested modifications or clarifications that built on the proposed ( print page 70267) exceptions. Numerous commenters also proposed additional exceptions.

However, FinCEN received several comments suggesting that FinCEN clarify or otherwise amend certain other exceptions, including those proposed for death, divorce, and bankruptcy. Two legal associations proposed that FinCEN clarify the exception for transfers that are the result of a death to ensure that the exception applies even if a transfer is not executed pursuant to a will or where the decedent is not technically the owner of the property at death because the property is owned by a revocable trust set up by the decedent. One legal association suggested that FinCEN expand the proposed exceptions for divorce, death, or bankruptcy to include transfers to certain specific types of trusts. One State bar association suggested that the rule build on the exceptions for death and divorce by excepting any transfers made in connection with a court-supervised legal settlement. A transparency organization recommended limiting the exceptions to transfers made to family members or heirs pursuant to divorce, probate proceedings, or a will, expressing concern that transfers resulting from death or divorce would remain at risk for money laundering.

Multiple commenters requested additional exceptions. Several commenters focused on exceptions for transfers to trusts used for estate or tax planning purposes. A State bar association requested the exclusion of transfers for estate planning purposes that involve no monetary consideration. One commenter suggested excepting gifts between family members, whether being transferred into a trust or legal entity, and in particular suggested excluding transfers to revocable trusts in which the trustee confirms by affidavit that the trustee or the settlor is the same person as the primary beneficiary. Similarly, another State bar association suggested that FinCEN except any intrafamily transfers and transfers into certain trusts created for estate or tax planning purposes, including revocable trusts, irrevocable trusts, irrevocable life insurance trusts, grantor trusts, purpose trusts, qualified personal residence trusts, pooled trusts, special needs and supplemental trusts, creditor protection trusts, various charitable trusts, certain State business trusts, and certain State business associations.

Some commenters suggested exceptions built around the relationship between the transferor and the transferee in the context of estate planning. Two such commenters requested that the final rule exclude any transfer where the transferor is the settlor of a transferee trust, because beneficial ownership of the property would remain the same. A State bar association suggested excluding transfers that include the creation of a self-settled revocable or irrevocable trust, wherein the grantor(s)/settlors(s) of the trust have created it for the benefit of the grantor(s) or members of their family, arguing that such trusts for the purposes of estate planning are low risk for money laundering, and therefore of little interest to FinCEN, and that their exclusion would reduce the number of reports required from reporting persons. In a similar vein, a State land title association suggested the exclusion of living trusts with the same name as the property owner, citing the example of an individual purchasing property in a non-financed transfer and then subsequently transferring the property to a trust for estate planning purposes. A trust and estate-focused legal association similarly suggested the exclusion of transfers to trusts in which at least one of the beneficial owners is the same as the transferor or in which the transfer is for the benefit of the family of the transferor. One legal association asked that exceptions be made for transfers in which there is no change in beneficial ownership of the property and two other commenters similarly requested that FinCEN exclude any transfers where the transferor is the managing or sole member of a transferee entity or is the settlor of a transferee trust. The legal association also suggested an exception when the ownership interest in the property remains within a family.

Two commenters suggested the exclusion of sequential transfers involving a trust. One described these sequential transfers as occurring when an individual purchases residential real property in their own name with a mortgage and subsequently transfers the property to a trust, or when an individual seeks to refinance property held in a trust by transferring title of the property from the trust to the individual, refinancing in the name of the individual, and then transferring title of the property back to the trust. Another commenter stated that properties held in revocable trusts for estate planning are often only removed from the trust for refinancing or taking on additional debt and therefore have oversight from those processing mortgage loans. Such transfers, argued the commenters, are low risk and would result in unnecessary and redundant reporting.

Some commenters suggested excepting transfers where the transferee or transferor is a qualified intermediary for the purposes of 26 U.S.C. 1031 (1031 Exchange), also known as a like-kind exchange. A national trade association for 1031 Exchange practitioners suggested adding an exception that would mirror the exception found in the BOI Reporting Rule for reporting of individuals acting as nominee, intermediary, custodian, or agent on behalf of another individual. [ 36 ] Three title insurance associations and two State bar associations urged FinCEN to include an exception for corrective conveyances, one commenter requested exclusion of transfers involving additional insured endorsements, another commenter suggested that FinCEN explicitly exclude foreclosures and evictions, and several commenters suggested that the final rule focus only on foreign transferees.

FinCEN also received a range of comments related to whether a dollar threshold should be included, below which reporting would not be required. In general, commenters representing transparency organizations supported the lack of a threshold in the proposed rule, with one commenter arguing that any threshold would provide a clear path for evasion. Other commenters—mostly real estate associations, businesses, or professionals—advocated for the inclusion of a threshold to reduce the number of reports that would need to be filed and avoid the reporting of transfers perceived as low risk for money laundering. One commenter suggested implementing a $1 threshold, others suggested $1,000, one suggested $10,000, and another suggested adopting the same threshold as FinCEN's Residential Real Estate GTOs.

Final Rule. In the final rule, FinCEN is adopting the exceptions proposed in 31 CFR 1031.320(b)(2) and adding several additional exceptions.

First, in response to comments asking FinCEN to clarify the scope of the exception for transfers resulting from death, FinCEN has adopted language, set forth at 31 CFR 1031.320(b)(2)(ii) , to clarify that the exception includes all transfers resulting from death, whether pursuant to the terms of a will or a trust, by operation of law, or by contractual provision. In the context of transfers resulting from death, transfers resulting by operation of law include, without limitation, transfers resulting from intestate succession, surviving joint owners, and transfer-on-death deeds, and transfers resulting from contractual provisions include, without limitation, transfers resulting from beneficiary designations. With respect to inclusion ( print page 70268) of transfers required under the terms of a trust, by operation of law, or by contractual agreements, FinCEN believes such transfers are akin to transfers required by a will, as they result from the death of the grantor or settlor or individual who currently owns the residential real property. As described in the NPRM, the exception was meant to include transfers governed by preexisting legal documents, such as wills, or that generally involve the court system. FinCEN believes that the adopted language will clarify the intended scope of the exception, which is meant to exclude only low-risk transfers of residential real property involving transfers that are required by legal or judicial processes at the time of the decedent's death.

Second, the rule adds an exception for any transfer supervised by a court in the United States at 31 CFR 1031.320(b)(2)(v) . This exception builds on a commenter's suggestion to expand the list of exceptions to include transfers made in connection with a court-supervised legal settlement, but is focused on transfers required by a court instead of simply supervised by a court, which narrows the opportunity for such transfers to be abused by illicit actors. FinCEN believes that, like probate and divorce, transfers required as a result of judicial determination in the United States are generally publicly documented and subject to oversight and therefore are subject to a lower risk for money laundering.

Third, while FinCEN did not receive comments on the scope of the exception for transfers incident to divorce or the dissolution of marriage, FinCEN believes it is appropriate to clarify in the regulation that the exception also applies to the dissolution of civil unions and has done so at 31 CFR 1031.320(b)(2)(iii) . Civil unions are similar to marriages with regard to property issues in form and function and are terminated in a similar manner—generally with the involvement of courts.

Fourth, in response to the comments requesting exceptions for estate planning techniques and for sequential transfers to trusts, an exception is added at 31 CFR 1031.320(b)(2)(vi) for transfers of residential real property to a trust where the transfer meets the following criteria: (1) the transfer is for no consideration; (2) the transferor of the property is an individual (either alone or with the individual's spouse); and (3) the settlor or grantor of the trust is that same transferor individual, that individual's spouse, or both of them. FinCEN expects that this addition will except many common transfers made for estate planning purposes described by commenters, including transfers described in the exception where the grantor or settlor's family are beneficiaries of the trust, as well as sequential transfers to trusts, such as where the qualified financing is extended to the grantor or settlor rather than to the trust itself and the grantor or settlor then is transferring the secured residential real property for no consideration to the trust.

FinCEN intended to scope this exception in a manner that was responsive to comments but that would not create an overly broad exception that would be open to significant abuse. To be sure, illicit actors are known to use estate planning techniques to obscure the ownership of residential real estate, and all non-financed transfers of residential real estate not subject to this rule are subject to less oversight from financial institutions than financed transfers and are therefore inherently more vulnerable to money laundering. However, transfers in which an individual who currently owns residential real property is funding their own trust with that property are believed to be a lower risk for money laundering because the true owner of the property is not obscured when the property is transferred. Given this limitation on the exception and how common it is for an individual to place residential real property into a trust, whether revocable or irrevocable, for estate planning purposes, FinCEN believes it is appropriate to except such transfers at this time. Additionally, the expanded exception benefits from relying on information readily available to the reporting person, as the reporting person will know the identity of the transferor and can ascertain, such as through a trust certificate, whether the transferor is the grantor or settlor of the trust.

FinCEN does not agree with some commenters that the exception should be broader by excepting transfers where beneficial ownership does not change or where the transfer is an intrafamily one. An exception for such transfers would be difficult for the reporting person to administer, as it would require a review of the dispositive terms of the trust instrument, and it would be difficult for the reporting person to assess the reliability of information provided to them about beneficial ownership or family relationships. FinCEN also does not agree that all such transfers are automatically low risk for money laundering, especially when consideration is involved. Overall, the adopted exception offers a low-risk, bright line that should be easy to understand and implement, lowering the burden on both industry and the parties to the transfer, when compared with the proposed rule.

FinCEN also does not believe that this same logic can be extended to justify excepting transfers of property by an individual to a legal entity owned or controlled by such individual, as some commenters suggested. In the exception described above concerning no consideration transfers to trusts, the exception applies when the transferor of residential real property is also the grantor or settlor of the trust—the identity of the grantor or settlor of the trust is a fact tied to the creation of the trust, is revealed on the face of the trust instrument, and generally cannot be changed. Although the trustee and beneficiaries of the trust may change over time, the identification of the settlor or grantor of the trust generally allows FinCEN to identify the source of the property being contributed to the trust, a factor that is critical to the identification and prevention of money laundering. That same identification and persistent connection with the transferor does not exist in the context of transfers of residential real property to a legal entity, where it is common for various owners of interests in the entity to each contribute assets to it.

Finally, the final rule adopts an exception, at 31 CFR 1031.320(b)(2)(vii) , for transfers made to qualified intermediaries for purposes of effecting 1031 Exchanges. Such exchanges are commonly conducted to defer the realization of gain or loss, and, thus, the payment of any related taxes, for Federal income tax purposes. [ 37 ] This exception is limited to transfers made to the qualified intermediary; transfers from a qualified intermediary to the person conducting the exchange (the exchanger) remain potentially reportable if the exchanger is a legal entity or trust. When taking ownership of property in a 1031 Exchange, the qualified intermediary is acting on behalf of the exchanger for the limited purpose of effecting the exchange. In addition, the qualified intermediary may hold the property for only a limited ( print page 70269) period of time before it jeopardizes the transaction's ability to qualify as a valid 1031 Exchange. Accordingly, FinCEN has determined that requiring the reporting of transfers made to a qualified intermediary would likely result in information that is of lower value to law enforcement. FinCEN considered whether to resolve commenter concerns around qualified intermediaries by relying, as one commenter suggested, on the rule's definition of transferee entity, which adopts by reference the exception found in 31 CFR 1010.380(d)(3)(ii) for the reporting of individuals who are acting as a nominee, intermediary, custodian, or agent. Without noting whether such exception for nominees, intermediaries, custodians, or agents would appropriately apply in the context of qualified intermediaries, FinCEN believes that allowing the broader exception for 1031 Exchanges in this rule more clearly resolves commenter concerns.

The final rule does not adopt the suggestions to exclude corrective conveyances and additional insured endorsements, as FinCEN believes such exceptions are not necessary. Corrective conveyances are used to correct title flaws, such as misspelled names, and are not used to create a new ownership interest in a property. As such, corrective conveyances do not involve a transfer of residential real property and are therefore not reportable. Similarly, additional insured endorsements are used to extend coverage of title insurance to an additional party identified by the policyholder and do not meet the rule's definition of a reportable transfer of residential real property.

The final rule also does not adopt the suggestion to exclude foreclosure sales, although FinCEN notes that foreclosure court proceedings wherein a lender obtains a judgment to foreclose on property would be excluded under the exception for transfers required by a court in the United States. Outside of such court-supervised foreclosure proceedings, FinCEN does not agree that potential reporting persons involved in sales of foreclosed property should be treated differently from other transfers, as such sales, where the property is sold to a third party, do not necessarily present a lower risk for money laundering.

FinCEN also declines to implement the suggestion that the final rule collect information only on foreign transferee entities and trusts. Law enforcement investigations and FinCEN's experience with the Residential Real Estate GTOs have repeatedly confirmed that non-financed transfers of residential real estate to both foreign and domestic legal entities and trusts are high risk for money laundering.

Furthermore, the rule does not adopt suggestions to include a dollar threshold for reporting. Low value non-financed transfers to legal entities and trusts, including gratuitous ones for no consideration, can present illicit finance risks and are therefore of interest to law enforcement. Although the Residential Real Estate GTOs have had an evolving dollar threshold over the course of the program, ranging from over $1 million to the current threshold of $300,000, FinCEN's experience with administering the program and discussions with law enforcement shows that money laundering through real estate occurs at all price points. FinCEN believes that incorporation of a dollar threshold could move illicit activity into the lower priced market, which would be counter to the aims of the rule. [ 38 ] Rather than specifically exclude all such transfers from being reported, the final rule includes additional exceptions, discussed here and in Section III.C.2.c, that FinCEN believes will focus the reporting requirement on higher-risk low-value transfers.

Proposed Rule. Proposed 31 CFR 1031.320(j)(10) provided that a “transferee entity” is any person other than a transferee trust or an individual and set out the exceptions from this definition for certain entities, including certain highly regulated entities and government authorities. The definition of transferee entity was meant to include, for example, a corporation, partnership, estate, association, or limited liability company. Among the exceptions FinCEN proposed was an exception for any legal entity whose ownership interests are controlled or wholly owned, directly or indirectly, by an exempt entity.

Comments Received. Some commenters supported the proposed rule's inclusion of transferee entities as defined in the proposed rule, with one transparency organization highlighting that pooled investment vehicles (PIVs) and non-profits are largely exempt from beneficial ownership information reporting requirements under the CTA, which increases their risks for money laundering.

Final Rule. In 31 CFR 1031.320(n)(10) , the final rule adopts the proposed definition of “transferee entity” with technical edits to two specific exceptions from that definition. First, in 31 CFR 1031.320(n)(10)(O) , FinCEN removed the unnecessary inclusion of the acronym “(SEC)” because the Securities and Exchange Commission is referred to only once in 31 CFR 1031.320 . Second, FinCEN removed the term “ownership interests” from 31 CFR 1031.320(n)(10)(P) , so that the regulation now excludes from the definition of a transferee entity a “legal entity controlled or wholly owned, directly or indirectly, by [an excepted legal entity].” FinCEN made this amendment to avoid potential confusion because the term “ownership interests” is specifically defined in the regulations at 31 CFR 1031.320(n)(6) and employed only in relation to residential real property.

Proposed Rule. Proposed 31 CFR 1031.320(j)(11) defined “transferee trust” as any legal arrangement created when a person (generally known as a grantor or settlor) places assets under the control of a trustee for the benefit of one or more persons (each generally known as a beneficiary) or for a specified purpose, as well as any legal arrangement similar in structure or function to the above, whether formed under the laws of the United States or a foreign jurisdiction. The NPRM proposed several exceptions for certain types of trusts that FinCEN views as highly regulated—for instance, trusts that are securities reporting issuers and trusts that have a trustee that is a securities reporting issuer. Accordingly, such trusts were not covered by the proposed rule. Similarly, the proposed rule excluded statutory trusts from the definition of a transferee trust but, instead, proposed to capture statutory trusts within the definition of a transferee entity.

Comments Received. Several commenters supported the general inclusion of trusts within the scope of the rule and provided examples of money laundering through real estate transfers to trusts. One transparency organization highlighted that trusts are not required to directly report beneficial ownership information under the CTA and are therefore a higher risk for money laundering. However, other commenters were not supportive of the inclusion of trusts, arguing that trusts are: complicated arrangements for which the paperwork would not be easily understood by reporting persons; used for probate avoidance; and inherently low risk. ( print page 70270)

Several commenters suggested excluding living trusts. Three commenters suggested excluding transfers to irrevocable living trusts, arguing either that such trusts are low risk for money laundering or that such reporting is redundant with information received by the IRS. Some focused on revocable trusts, particularly those used for estate planning, arguing that they are subject to a lower risk of money laundering and that requiring reporting on such trusts would be burdensome given how commonly they are used.

Other commenters suggested the exclusion of specialized types of trusts. Two suggested excluding transfers to a qualified personal residence trust and another suggested excluding transfers to an intentionally defective grantor trust, charitable remainder trust, any qualified terminal interest property trust benefitting the contributing homeowner, testamentary trust, third-party common law discretionary trust, a discretionary support trust, or a trust for the support of an incapacitated beneficiary, including supplemental or special needs trusts, arguing that these transfers generally do not involve property purchased in cash within the last year and are low risk for money laundering.

Final Rule. In the final rule, FinCEN retains the requirement to report transfers to transferee trusts and, in 31 CFR 1031.320(n)(11) , adopts the definition of “transferee trust” as proposed with one technical edit to make certain language consistent across similar provisions in the rule. As discussed in Section II.A.2, FinCEN continues to believe that non-financed residential real estate transfers to certain trusts present a high risk for money laundering. FinCEN also believes that the potential difficulties described by commenters, such as the need to review complex trust documents to determine whether a trust is reportable, will be minimized by the addition of new exceptions and by the reasonable reliance standard adopted in the final rule which is discussed in Section III.B.4.

FinCEN considered comments suggesting that it adopt additional exceptions from the definition of a transferee trust for specific types of trusts. In particular, comments suggested exceptions for all living trusts, all revocable trusts, or all irrevocable trusts, as well as more specialized types of trusts such as qualified personal residence trusts or defective grantor trusts. FinCEN believes that the suggested exceptions would be overly broad and, as such, would exclude from reporting certain transfers that pose a high risk for illicit finance. However, depending on the particular facts and circumstances of a trust arrangement, some of the aforementioned trusts may be covered under the more tailored exception for “no consideration transfers” to trusts described in Section III.C.2.c. We also note that certain trusts, such as testamentary trusts, are not captured by the reporting requirement, as such trusts are created by wills and therefore fall within the exception for transfers occurring as a result of death.

Proposed 31 CFR 1031.320(c) set forth a cascading reporting hierarchy to determine which person providing real estate closing and settlement services in the United States must file a report for a given reportable transfer. As an alternative, the persons described in the reporting cascade could enter into an agreement to designate a reporting person.

Proposed Rule. Through the proposed reporting cascade, a real estate professional would be a reporting person required to file a report and keep records for a given transfer if the person performs a function described in the reporting cascade and no other person performs a function described higher in the reporting cascade. For example, if no person is involved in the transfer as described in the first tier of potential reporting persons, the reporting obligation would fall to the person involved in the transfer as described in the second tier of potential reporting persons, if any, and so on. The reporting cascade includes only persons engaged as a business in the provision of real estate closing and settlement services within the United States. The proposed reporting cascade was as follows: (1) the person listed as the closing or settlement agent on the closing or settlement statement for the transfer; (2) the person that prepares the closing or settlement statement for the transfer; (3) the person that files with the recordation office the deed or other instrument that transfers ownership of the residential real property; (4) the person that underwrites an owner's title insurance policy for the transferee with respect to the transferred residential real property, such as a title insurance company; (5) the person that disburses in any form, including from an escrow account, trust account, or lawyers' trust account, the greatest amount of funds in connection with the residential real property transfer; (6) the person that provides an evaluation of the status of the title; and finally (7) the person that prepares the deed or, if no deed is involved, any other legal instrument that transfers ownership of the residential real property.

Comments Received. Some commenters, including real estate agent associations and transparency organizations, supported the use of a reporting cascade, believing it to be functional and useful in preventing arbitrage, while one commenter specifically opposed it, arguing that the cascading approach would be burdensome. One industry group asked that FinCEN exclude banks and other financial institutions subject to AML/CFT program requirements as reporting persons, arguing that such financial institutions are already subject to a higher standard of BSA compliance. Some commenters variously opposed the inclusion of settlement and closing agents, title agents, or escrow agents as reporting persons because they felt it threatened their status as neutral third parties with limited responsibilities when facilitating a transfer of residential real property. Other commenters expressed concern that certain professionals in the reporting cascade would be ill-equipped to report.

Associations representing real estate agents agreed with the absence in the cascade of functions typically associated with real estate agents, while two escrow industry commenters proposed including real estate agents as reporting persons. One commenter suggested adding appraisers as reporting persons, arguing that required inclusion of appraisers would help to identify potential market distortion by illicit actors and that appraisers are otherwise well-equipped to be reporting persons. That commenter also suggested that FinCEN require appraisals be included in every non-financed transfer. One industry association urged FinCEN to exempt small businesses from reporting altogether. One commenter asked for a clear exclusion for homeowners associations, arguing that their burden would be high. A transparency organization and an industry commenter suggested that FinCEN explicitly prohibit transferees, transferors, and their owners from being reporting persons.

Some commenters argued that certain functions described in the proposed reporting cascade should be moved further up in the cascade to ensure parties with what they viewed as the best access to information are the first-line reporters. One commenter suggested that 31 CFR 1031.320(c)(1)(iii) be modified to include the person who prepares a stock certificate or a ( print page 70271) proprietary lease to better cover potential reporting persons closing transfers of cooperative units, and another requested clarity as to who files deeds with the recording office.

Two commenters noted that the reporting cascade may result in more than one reporting person in split settlements, in which the buyer and seller use separate settlement agents. One of those commenters also suggested that certain scenarios could result in the identification of multiple reporting persons, such as when transfers are closed by independent escrow companies but also involve title insurance or when an attorney performs the document preparation, document signing, and disbursement of funds in a transfer that also involves title insurance. Finally, one commenter noted that, in some locations, it is possible for title insurance to be issued several months after closing.

Final Rule. FinCEN adopts the reporting cascade largely as proposed. The reporting cascade is designed to efficiently capture both sale and non-sale transfers, and FinCEN notes that the real estate industry already uses a similar reporting cascade to comply with requirements associated with IRS Form 1099-S. [ 39 ]

As set forth at 31 CFR 101.320(c)(3) , FinCEN adopts the suggestion made by one commenter to exclude from the definition of a reporting person financial institutions with an obligation to maintain an AML program. Where a financial institution would have otherwise been a reporting person, the reporting obligation falls to the next available person described in the reporting cascade. The intent of this rulemaking is to address money laundering vulnerabilities in the U.S. real estate market, recognizing that most persons involved in real estate closings and settlements are not subject to AML program requirements. FinCEN considered imposing comprehensive AML obligations on such unregulated persons, but ultimately decided, as reflected in the final rule, to impose the narrower obligation of a streamlined SAR filing requirement. Financial institutions that already have an obligation to maintain AML programs, however, generally already have a SAR filing requirement that is more expansive than the streamlined reporting requirement adopted by this final rule. Therefore, FinCEN believes that it would not be appropriate at this time to add a streamlined reporting requirement to the existing obligations of a financial institution with an obligation to maintain an AML program. FinCEN also believes that the removal of financial institutions from the cascade of reporting persons will generally result in real estate reports simply being filed by others in the reporting cascade, not in those reports remaining unfiled.

FinCEN is not persuaded by commenters suggesting that other types of professionals should be added to or excluded from the cascade. Excluding categories of real estate professionals that execute functions listed in the reporting cascade based on their professional title or business size would result in a significant reporting loophole that illicit actors would exploit. FinCEN believes it is also unnecessary for the effectiveness of the reporting cascade to include additional functions, such as the provision of appraisal services or services that real estate agents typically provide to buyers and sellers. FinCEN believes that the reporting cascade, as adopted, will effectively capture high risk non-financed transfers of residential real estate and any additional functions would unnecessarily increase the complexity of the rule. Furthermore, real estate agents and appraisers usually perform their primary functions in advance of the actual closing or settlement and therefore generally do not perform a central role in the actual closing or settlement process, unlike real estate professionals performing the functions described in the reporting cascade. FinCEN believes that focusing the reporting cascade on functions more central to the actual closing or settlement is necessary to ensure the reporting person has adequate access to reportable information. Regarding homeowners associations, FinCEN believes that is not necessary to explicitly exempt them the definition of a reporting person because they do not traditionally play the roles enumerated in the reporting cascade.

FinCEN is also not persuaded by commenters' suggestion that the reporting obligation would affect or decrease the neutral position of settlement agents and escrow agents. These real estate professionals are “neutral” in that they have similar obligations to both the transferee and transferor and are therefore seen as an independent party acting only to facilitate the transfer, as opposed to a party acting primarily to advance the interests of just one of the parties to the transfer. The reporting obligation does not upset the balance between service to the transferee and transferor. It merely requires the professional to report additional information about the transfer.

FinCEN confirms that transferees, transferors, and their beneficial owners cannot be reporting persons unless they are engaged within the United States as a business in the provision of a real estate closing and settlement service listed in the reporting cascade, but declines to explicitly prohibit transferees, transferors, and their beneficial owners from being reporting persons when they do play these roles, as it would create an exploitable loophole in the reporting cascade, if such persons were the only real estate professionals involved in the transfer.

The final rule adopts clarifications proposed by commenters with respect to cooperatives. For cooperatives, the stock certificate is akin to a deed prepared for other types of residential real estate, and therefore FinCEN believes that it is appropriate to include these types of functions in the reporting cascade. However, FinCEN declines to modify the language for the person that files with the recordation office the deed or other instrument that transfers ownership of the residential real property, as requested by one commenter. FinCEN believes the proposed language clearly captures a person engaged as a business in the provision of real estate closing and settlement services that files the deed with the recordation officer. It would not include the individual clerk at the office who accepts the deed or other instrument.

In regard to concerns raised by a commenter about split settlements, the definition of “closing or settlement statement” found in 31 CFR 1031.320(n)(2) is modified in the final rule to make clarify that the closing or settlement statement is limited to the statement prepared for the transferee only. FinCEN does not agree that the other situations described by the commenter would result in multiple reporting persons being identified, given the inherent nature of the reporting cascade wherein the reporting responsibility flows down the cascade depending on the presence of a person performing each listed function.

The final rule does not adopt any changes to account specifically for title insurance purchased a significant period of time after a transfer of property. In those situations, FinCEN expects that the underwriting of title insurance would not be part of the closing or settlement process, and therefore another person in the reporting cascade would file the report. However, in the rare situation where there is no other person in the reporting ( print page 70272) cascade participating in the closing or settlement of a reportable transfer, the underwriter of title insurance may ultimately be required to file the report when the insurance is eventually purchased.

Proposed Rule. Proposed 31 CFR 1031.320(c)(3) set forth the option for persons in the reporting cascade to enter into an agreement deciding which person should be the reporting person with respect to the reportable transfer. For example, if a real estate professional involved in the transfer provides certain settlement services in the settlement process, as described in the first tier of the reporting cascade, that person may enter into a written designation agreement with a title insurance company underwriting the transfer as described in the second tier of the reporting cascade, through which the two parties agree that the title insurance company would be the designated reporting person with respect to that transfer. The person who would otherwise be the reporting person must be a party to the agreement; however, it is not necessary that all persons involved in the transfer who are described in the reporting cascade be parties to the agreement. The agreement must be in writing and contain specified information, with a separate agreement required for each reportable transfer.

Comments Received. Two business associations requested that the rule allow for what they described as “blanket” designation agreements. Such agreements would allow two or more persons described in the reporting cascade to designate a potential reporting person for a set period of time or a set number of transfers. For example, a commenter put forward the example of a title insurance company and a settlement company entering into an agreement wherein, for any transfer in which they are both involved, the title insurance company would be the designated reporting person. One of these commenters stated that blanket designation agreements would bring a type of certainty that is required for them to benefit from the costs savings provided by designation agreements. A third business association argued that designation agreements will not be effective, resulting in settlement companies being the primary reporting person. A fourth business association asked whether a third-party vendor could be a designated reporting person.

Final Rule. In the final rule, FinCEN adopts the allowance for designation agreements in 31 CFR 1031.320(c)(4) as proposed. Although FinCEN sees the potential benefits of blanket designation agreements, such agreements would undermine FinCEN's ability to enforce the rule, particularly when a Real Estate Report is not filed as required, and accordingly the final rule does not permit a blanket designation agreement in lieu of a separate designation agreement for each relevant transfer. A single transfer could be subject to multiple, potentially overlapping, blanket designation agreements between different parties. In such a situation, it would be difficult for FinCEN to determine which person had ultimate responsibility for filing the report, and even the persons described in the reporting cascade may not know who had filing responsibility. By comparison, a separate designation agreement for each transfer, describing the specific details of the transfer, makes that determination straightforward. The designation agreement is designed to provide an optional alternative to the reporting cascade that can be effectively and efficiently implemented by reporting persons if they choose. However, nothing in the final rule prohibits persons in the reporting cascade from having an understanding, in writing or otherwise, as to how they generally intend to comply with the rule, provided that they continue to effect designation agreements for applicable transfers.

The final rule also does not allow for third-party vendors who are not described in the reporting cascade to be designated as a reporting person, as such vendors are not financial institutions that can be regulated by FinCEN; a reporting person could outsource the preparation of the form to a third-party vendor, but the ultimate responsibility for the completion and filing of the report would lie with the reporting person.

Proposed Rule. Proposed 31 CFR 1031.320(d) set forth a requirement that reporting persons must report their full legal name and the category into which they fall in the reporting cascade, as well as the street address of their principal place of business in the United States.

Comments Received. FinCEN did not receive any comments on reportable information concerning the reporting person.

Final Rule. FinCEN is adopting 31 CFR 1031.320(d) as proposed.

Proposed Rule. Proposed 31 CFR 1031.320(e)(1) set forth a requirement for the reporting of the name, address, and unique identifying number of a transferee entity, as well as similar identifying information for the beneficial owners of the transferee entity and the persons signing documents on behalf of the transferee entity.

Comments Received. One organization requested that the final rule collect legal entity identifiers (LEIs) for transferee entities. As described by the commenter, the LEI was developed by the International Organization for Standards and is “the only global standard for legal entity identification.”

Final Rule. In the final rule, FinCEN adopts 31 CFR 1031.320(e)(1) as proposed. It does not incorporate the suggestion to require reporting of LEIs. For purpose of this reporting requirement, FinCEN believes that a TIN is preferable, as it is broadly utilized by law enforcement and may be easily connected to other BSA documents.

Proposed Rule. Proposed 31 CFR 1031.320(e)(2) set forth a requirement to report certain information about transferee trusts, including the name of the trust, the date the trust instrument was executed, the address of the place of administration, a unique identifying number, and whether the trust is revocable. Proposed 31 CFR 1031.320(e)(2) also required the reporting of information about each trustee that is an entity, including full legal name, trade name, current address, the name and address of the trust officer, and a unique identifying number. Furthermore, proposed 31 CFR 1031.320(e)(2) required the reporting of identifying information about the trust's beneficial owners and the individuals signing documents on behalf of the trust.

Comments Received. Two industry organizations and two other commenters associated with the title insurance industry argued that information reportable for trusts should align with that on trust certificates issued under State law. As described by one industry organization, “[u]nder the Uniform Trust Act promulgated by the Uniform Law Commission and enacted in 35 states, a trustee is authorized to issue a certification of trust containing much of the information sought under ( print page 70273) this proposed rule.” Another commenter requested that the beneficial ownership information collected under this rule align more closely with that collected under the BOI Reporting Rule. One other commenter, a non-profit organization, requested that the final rule collect legal entity identifiers (LEIs) for transferee trusts, for the reason discussed in Section III.C.5.a above with respect to legal entities.

Final Rule. In the final rule, FinCEN adopts 31 CFR 1031.320(e)(2) largely as proposed. FinCEN is persuaded by the recommendation to align information collected about trust transferees more closely with what is available on trust certificates. While they vary by state, trust certificates generally contain much of a trust's basic identifying information, such as the name of the trust, the date the trust was entered into, the name and address of the trustee, and whether the trust is revocable. The final rule eliminates the proposal to report information identifying the trust officer or the address that is the trust's place of administration, as this information is not commonly found on trust certificates and FinCEN believes other information collected will be sufficient to support law enforcement investigations. However, reporting persons are still required to report some information that may not be available on trust certificates, such as the identifying information for the trustee, as this is basic information necessary to conclusively identify the trust and to effectively conduct investigations into illicit activity. FinCEN believes this information will be readily collected by reporting persons; for example, because trustees generally manage the assets of the trust, the trustee will likely be directly involved in the transfer of residential real property to the trust.

The final rule does not adopt the suggestion to completely align the collection of beneficial ownership information with that collected under the BOI Reporting Rule. While the two rules do align in the collection of the beneficial owner's name, date of birth, and address, they differ in two key respects: first, regarding the unique identifying number, the real estate rule relies largely on TINs instead of passport numbers; and second, the real estate rule collects citizenship information, while the BOI Reporting Rule does not. As discussed in Section III.B.6, TINs are a key piece of identifying information for purposes of the database that would hold Real Estate Reports, and other BSA reports typically require TINs for this reason. Furthermore, FinCEN believes that the collection of citizenship information is necessary in this context to better analyze the volume of illicit funds entering the United States via entities or trusts beneficially owned by non-U.S. persons and is a key element for ensuring that the implementation of this rule will enhance and protect U.S. national security. FinCEN notes that such citizenship information, along with TINs, are reported on traditional SARs. Finally, the rule does not incorporate the suggestion to require reporting of LEIs, for the reasons discussed in Section III.C.2.d with respect to information collected for transferee entities.

Proposed Rule. Proposed 31 CFR 1031.320(e) set forth requirements to report certain beneficial ownership information with respect to transferee entities and transferee trusts. Proposed 31 CFR 1031.320(j)(1)(i) largely defined beneficial owners of transferee entities through a reference to regulations in the BOI Reporting Rule, specifically 31 CFR 1010.380(d) . Similarly, proposed 31 CFR 1031.320(j)(1)(ii) established a definition for the beneficial owners of transferee trusts by leveraging concepts from the BOI Reporting Rule. For both transferee entities and transferee trusts, the proposed regulation set forth that the determination of beneficial ownership would be as of the date of closing. The proposed rule did not require reporting persons to determine whether an individual was a beneficial owner, allowing them instead to use a certification form described in 31 CFR 1031.320(e)(3) to collect beneficial ownership information directly from a transferee trust or a person representing a trust in the reportable transfer, as discussed further in Section III.B.4.

Comments Received. Three commenters expressed support for the collection of beneficial ownership information on the Real Estate Report, with one transparency organization specifically supporting the proposed rule's adoption of definitions from the BOI Reporting Rule. This commenter noted that the proposal would minimize confusion, promote consistency, and maximize the ability to cross-reference data. Multiple commenters, however, argued that the collection of beneficial ownership information under the proposed rule is unnecessary due to the collection of similar information under the BOI Reporting Rule. Some of these commenters also argued that, if beneficial ownership information is collected, it should be limited to the reporting of a FinCEN Identifier, which is an identification number that reporting entities and their beneficial owners may use to report beneficial ownership information under the BOI Reporting Rule. An industry group representing trust and estate lawyers argued that the definition of a beneficial owner of a transferee trust should be limited to trustees, rather than also including grantors/settlors and beneficiaries.

One commenter requested that the final rule retain the exception from beneficial ownership information reporting found in 31 CFR 1010.380(d)(3)(ii) for nominees, intermediaries, custodians, and agents, while two other commenters requested that the rule should except reporting where a beneficial owner is a minor.

Final Rule. The final rule retains the requirement to provide beneficial ownership information in the report, as proposed, with one technical edit to correct a cross reference. FinCEN agrees that the Real Estate Report will contain some information that is also reported under the BOI Reporting Rule. However, because these two distinct reports would be filed on different facets of a single legal entity's activities, FinCEN believes it is appropriate for some of the same information to be reported on both forms. As FinCEN explained in the NPRM, the beneficial ownership information report (BOIR) and the report required by this rule serve different purposes.

The information reported on a BOIR informs FinCEN about the reporting companies that have been formed or registered in the United States, while Real Estate Reports will inform FinCEN about the legal entities, some of which may be “reporting companies” within the meaning of the BOI Reporting Rule, that have participated in reportable real estate transfers that Treasury believes to be at high risk for money laundering. Real Estate Reports, by including beneficial ownership information and real estate transfer information in a single report, will enable law enforcement to investigate potential criminal activity in a timely and efficient manner, and will allow Treasury and law enforcement to connect money laundering through real estate with other types of illicit activities and to conduct broad money laundering trend analyses. BOIRs are kept secure but are intended to be made available not only to government agencies but to financial institutions for certain compliance purposes. Real Estate Reports will be subject to all of the protections and limitations on access and use that already apply to SARs. ( print page 70274)

The need for two different types of report, of course, does not mean that FinCEN is not concerned about eliminating unnecessary duplication of effort. FinCEN appreciates the suggestion that reporting persons be allowed to submit FinCEN Identifiers in lieu of collecting and submitting beneficial ownership information for legal entities that are considered reporting companies under the BOI Reporting Rule. However, FinCEN has identified a number of legal and operational limitations that would prevent FinCEN from accepting FinCEN identifiers outside of the CTA context. [ 40 ] For instance, information provided to FinCEN under the CTA, including the information provided in order to obtain FinCEN identifiers, is housed in an information technology system kept separate from other Bank Secrecy Act reports. The CTA imposes strict limits on access to that system, and those statutory limits are reflected in implementing regulations and the relevant Privacy Act System of Records Notice. [ 41 ] There is no reason to think that persons entitled to access to CTA information will routinely also be entitled to access to SARs and other BSA reports, or vice versa. Thus, at this time, allowing FinCEN identifiers to be reported in lieu of the underlying information would limit the usefulness of Real Estate Reports to law enforcement. As discussed in Section II.A.2 in the context of cross-referencing data from Residential Real Estate GTOs with SARs, the ability to link non-financed transfers of residential real property with other BSA reports is of significant value to law enforcement. Thus, FinCEN has not adopted this suggestion in the final rule.

With regard to the comments suggesting a more limited definition of a beneficial owner, FinCEN does not adopt the suggestion that beneficial owners of trusts be limited to trustees. The final rule instead adopts the approach in the proposed rule, which set forth several positions in a transferee trust that FinCEN considers to be occupied by the beneficial owners of the trust, including: the trustee; an individual other than a trustee with the authority to dispose of transferee trust assets; a beneficiary that is the sole permissible recipient of income and principal from the transferee trust or that has the right to demand a distribution of, or withdraw, substantially all of the assets from the transferee trust; a grantor or settlor who has the right to revoke the transferee trust or otherwise withdraw the assets of the transferee trust; and the beneficial owner(s) of any legal entity that holds at least one of these positions. The persons holding these positions have clear ownership or control over trust assets and therefore should be reported as beneficial owners of the trust.

For legal entities, 31 CFR 1031.320(n)(1)(i) continues to reference 31 CFR 1010.380(d) and therefore the final rule incorporates exceptions from the definition of beneficial owner of a reporting company; these exceptions include nominees, intermediaries, custodians, and agents, as well as minor children (when certain other information is reported). For transferee trusts, the definition of beneficial owner in 31 CFR 1031.320(n)(1)(ii) does not contain exceptions mirroring those found in the definition of a beneficial owner of a transferee entity. FinCEN considered adding an exception for minor children as suggested by commenters but believes at this time that such an exception is not appropriate for trusts. Trusts, unlike legal entities, are largely designed to transfer assets to family members such as minor children, and therefore the reporting of minor children will accurately reflect the nature of the trust and, in aggregate, will allow FinCEN to more accurately determine the risks related to trusts. FinCEN notes, however, that the definition of beneficial owner is unlikely to result in significant reporting of minor children, as minor children would fall into only one category of beneficial owner—as the beneficiary of the transferee trust, and only when the minor child is the beneficiary who is the sole permissible recipient of income and principal from the transferee trust.

Proposed Rule. Proposed 31 CFR 1031.320(f) required the reporting person to report information relevant to identifying the transferor, such as the transferor's name, address, and identifying number. If the transferor is a trust, similar information would be reported identifying the trustee.

Comments Received. One think tank supported the collection of information on transferors, while three industry organizations opposed it, arguing that such information is unnecessary for law enforcement and is redundant with other information available to law enforcement through public land records, BOI reports filed under the CTA, or IRS Form 1099-S.

Final Rule. In the final rule, FinCEN adopts 31 CFR 1031.320(f) as proposed. Information identifying the transferor is necessary to identify certain money laundering typologies, such as where the transferor and transferee are related parties mispricing the real estate in order to transfer value from one to the other. There is therefore a significant benefit to having the transferor's information on the same report as the transferee's information. The transferor's information is basic information about the transferor and does not include information that may be more difficult to gather, such as beneficial ownership information. There is a significant value in adding transferor information in the same report as transferee information and in the same database as information from other BSA reports. FinCEN has addressed the suggestion that similar information is available through reports filed under the BOI Reporting Rule or IRS Form 1099-S in Section III.B.2.

Proposed Rule. Proposed 1031.320(g) required the reporting person to report the street address, if any, and the legal description (such as the section, lot, and block) of each residential real property that is the subject of a reportable transfer.

Comments Received. FinCEN did not receive any comments related to the reporting of information concerning residential real property.

Final Rule. FinCEN adopts 31 CFR 1031.320(g) with technical edits that are meant to lay out the requirements more clearly, and a modification to the text to require the reporting of the date of closing. The NPRM requested comments as to whether the proposed information reported regarding the description of the transferred residential real property was sufficient. Although FinCEN received no comments regarding the reporting of date of closing, FinCEN has subsequently determined that such information is necessary for it to confirm whether reporting persons are complying with the final rule. The term “date of closing” was defined in the NPRM (and is adopted in the final rule) to mean the date on which the transferee entity or transferee trust receives an ownership interest in the residential real property. As proposed in the NPRM and adopted in the final rule, reporting persons have to ascertain the date of closing to make key determinations, such as the filing ( print page 70275) deadline, discussed in Section III.C.11, and whether an individual is a beneficial owner, discussed in Section III.C.5.c. Because the date of closing is information that a reporting person must obtain to comply with the final rule and, relatedly, is information FinCEN also must receive to enforce compliance with the rule, the reporting of such information is a logical outgrowth of the NPRM. The parties to the transfer will know the date of closing and be able to report that date easily on the Real Estate Report.

Proposed Rule. Proposed 31 CFR 1031.320(h) set forth a requirement that reporting persons report detailed information about the consideration, if any, paid in relation to any reportable transfer. This would include total consideration paid for the property, the amount of each separate payment made by or on behalf of the transferee entity or transferee trust, the method of such payment, the name of and account number with the financial institution originating the payment, and the name of the payor.

Comments Received. Several commenters argued that reporting persons would not have ready access to the proposed information to be collected about payments. An industry group, for example, stated that state-level “good funds” laws limit settlement agents to accepting fully and irrevocably settled and collected funds, meaning typically wire payments and cashier's checks, which would not contain information such as the originator's full account number. A business clarified that, for wire payments, a settlement company would only see: the date on which the wire transfer was received; the amount of the wire transfer; the name on the originator's account; the routing number for the sending bank; the name of the bank used by the beneficiary; the beneficiary's account number; the beneficiary's name and address; and wire information providing a reference number relevant to escrow. Some commenters also argued that the originating financial institution would be unlikely to provide the relevant information; that the person holding the originating account, such as an escrow company or attorney, would similarly be unlikely to provide the relevant information; or that transferees may refuse to provide information, believing the reporting of account numbers would put them at risk.

To remedy these issues, commenters argued that payment information should instead be limited to either the total consideration or to the information readily available on wire instructions or a check. Some commenters suggested eliminating the reporting of payment information entirely, questioning the usefulness of reporting such information given that covered financial institutions are likely involved in the processing of such payments and that the reporting person may be separately required to report payment information on a Form 8300, and also raising concerns about the potential increased risk of fraud if detailed account information is required to be reported.

Final Rule. In the final rule, FinCEN adopts 31 CFR 1031.320(h) largely as proposed, with edits to clarify the reporting of the total consideration paid. FinCEN acknowledges that the information required may be beyond what is normally available to the reporting person, but nevertheless believes that the information can be readily collected from the transferee. FinCEN expects that the adoption of the reasonable reliance standard in this rule will help relieve concerns articulated by commenters about the burden of verifying payment information or their ability to collect such information. FinCEN also notes that filers of IRS Form 1099-S must report the account numbers of transferors and therefore believes these to be accessible to reporting persons, many of whom file such forms.

FinCEN appreciates commenters' concerns about potential risks associated with collecting and retaining detailed payment information in relation to reportable transfers and believes that the removal of the requirement to retain Real Estate Reports, in which personal information would be aggregated, for five years, as discussed in Section III.C.12, will help mitigate this risk.

Proposed Rule. Proposed 31 CFR 1031.320(i) set forth the requirement that reporting persons report whether the transfer involved an extension of credit from any institution or individual that does not have AML program obligations.

Comments Received. FinCEN did not receive any comments about the reporting of information concerning hard money, private, and similar loans.

Final Rule. In the final rule, FinCEN adopts 31 CFR 1031.320(i) as proposed. FinCEN believes this information will be valuable to understanding the risks presented by private lenders. FinCEN notes that, as discussed in Section III.C.2.b covering the definition of a non-financed transfer, reporting persons may rely on information from the lender as to whether the lender has an AML program obligation.

The final rule adopts a reasonable reliance standard, set forth in 31 CFR 1031.320(j) , that generally allows reporting persons, whether when reporting information required by the final rule or when necessary to make a determination to comply with the rule, to reasonably rely on information provided by other persons. This change from the proposed rule is explained in detail in Section III.B.4.

Proposed Rule. Proposed 31 CFR 1031.320(k) set forth a requirement that reporting persons file a Real Estate Report with FinCEN no later than 30 calendar days after the date of a given closing.

Comments Received. One transparency organization supported the 30-day filing period, arguing that 30 days is both reasonable and necessary to ensure that current and useful information is available to law enforcement soon after a reportable transfer takes place. Two other commenters, however, argued that a 30-day window would be too short a timeframe in which to gather the required information and that it would be burdensome to monitor differing filing dates for each reportable transfer. As an alternative, these commenters proposed an annual filing deadline, akin to IRS Form 1099-S, with another suggesting that a quarterly filing deadline would also be an improvement.

Final Rule. In the final rule, FinCEN adopts, in 31 CFR 1031.320(k)(3) , a reporting deadline of the final day of the following month after which a closing took place, or 30 days after the date of the closing, whichever is later. FinCEN believes that this approach will reduce date tracking burdens for industry and may further reduce the logistical burden of compliance by providing a longer period of time in which to gather the reportable information, while still providing timely information to law enforcement. FinCEN recognizes that Real Estate Reports are unique when compared with other BSA reports and therefore necessitate a unique reporting deadline. Real Estate Reports require more information than forms such as a CTR or Form 8300—both required to be filed within 15 days of a transaction— ( print page 70276) and the information may need to be gathered from a variety of sources, and not just from the single individual conducting the transaction. Relatedly, traditional SARs, which must be filed within 30 days after suspicious activity is detected, also frequently rely on information known to the filer and, critically, are filed by financial institutions required to have AML programs. FinCEN believes the final filing date will benefit both reporting persons and law enforcement by ensuring reporting persons have sufficient time to gather information, resulting in more complete and accurate reports.

FinCEN believes that a filing period longer than adopted here would adversely impact the utility of the reports for law enforcement and that the extended filing period adopted in this final rule strikes the appropriate balance between accommodating commenters' concerns and ensuring timely reporting of transfers, particularly given other modifications and clarifications in this rule. In particular, FinCEN believes that the adoption of the reasonable reliance standard will significantly reduce the time needed to file the form compared to verifying the accuracy of each piece of information. FinCEN therefore declines to adopt the longer quarterly or annual suggested filing periods.

The final rule deletes as unnecessary the reference in proposed 31 CFR 1031.320(k) to the collection and maintenance of supporting documentation. In contrast with a traditional SAR requirement, the requirement to file a Real Estate Report does not require the reporting person to maintain records documenting the reasons for filing, and therefore there is no need to consider such documentation to have been deemed filed with the Real Estate Report, or to reference such documentation when discussing what a reporting person should file.

Proposed Rule. Proposed 31 CFR 1031.320(l) set forth a requirement that reporting persons maintain a copy of any Real Estate Report filed and a copy of any beneficial ownership certification form provided to them for five years. It also proposed that all parties to any designation agreement maintain a copy of the agreement for five years.

Comments Received. Several commenters stated that retaining records for five years represents an ongoing data storage cost and increases concerns about data security. Two commenters expressed concern that collecting and retaining the information that reporting persons would need to FinCEN to report would run counter to the principles that underly certain State laws that the comments stated were designed to protect data privacy. One commenter argued that there were Fourth Amendment implications for the records retention requirement, which they viewed as requiring businesses to maintain records and produce them to law enforcement on demand. However, a transparency organization supported the proposed five-year recordkeeping requirement, noting also that FinCEN would need access to the designation agreement to determine who had responsibility for filing the report in a particular transfer.

Final Rule. The final rule retains the requirement that certain records be kept for five years but limits the requirement to a copy of any beneficial ownership certification form that was provided to the reporting person, as well as a copy of any designation agreement. As amended, the rule does not require reporting persons to retain a copy of a Real Estate Report that was submitted to FinCEN. FinCEN believes that eliminating the requirement to retain a Real Estate Report may reduce concerns related to data security and to costs associated with the retention of records. FinCEN also notes, more generally, that the BSA reporting framework has long been held to be consistent with the Fourth Amendment of the U.S. Constitution. [ 42 ]

While FinCEN considered eliminating the record retention requirement in its entirety, it believes that it is necessary to the enforceability of the rule that reporting persons retain copies of documents that will not be filed with FinCEN—namely, a copy of any beneficial ownership information certification form and any designation agreement to which a reporting person is a party. Furthermore, FinCEN has retained the requirement in the proposed rule that all parties to a designation agreement—not just the reporting person—must retain a copy of such designation agreement, also to ensure enforceability of the rule. As previously stated, records that are required to be retained must be maintained for a period of five years.

Proposed Rule. Proposed 31 CFR 1031.320(m)(1) exempted reporting persons, and any director, officer, employee, or agent of such persons, and Federal, State, local or Tribal government authorities, from the confidentiality provision in 31 U.S.C. 5318(g)(2) that prohibits the disclosure to any person involved in a suspicious transaction that the transaction has been reported or any information that would otherwise reveal that the transaction has been reported.

Proposed 31 CFR 1031.320(m)(2) confirmed that the exemption from the requirement to establish an AML program, in accordance with 31 CFR 1010.205(b)(1)(v) , would continue to apply to those businesses that may be reporting persons under the final rule. It also stated that no such exemption applies for a financial institution that is otherwise required to establish an anti-money laundering program, as provided in 31 CFR 1010.205(c) .

Comments Received. FinCEN received one comment by 25 Attorneys General that supported the exemption of Federal, State, local, or Tribal government authorities from the confidentiality provision. Additionally, one industry association supported the proposed rule's exemption for reporting persons from establishing an AML program.

Final Rule. In the final rule, FinCEN adopts 31 CFR 1031.320(m) largely as proposed, with one minor deletion for consistency. As in the NPRM, FinCEN recognizes that the confidentiality provision in 31 U.S.C. 5318(g)(2) applying to financial institutions that file SARs is not feasible with the Real Estate Report, as reporting persons needs to collect information directly from the subjects of the Report, thus revealing its existence. Moreover, all parties to a non-financed residential real estate transfer subject to this rule would already be aware that a report would be filed, given such filing is non-discretionary, rendering confidentiality unnecessary. The final rule maintains the exemption from the requirement for reporting persons to establish an AML program. However, given the change discussed earlier explicitly excluding financial institutions with AML program obligations from the definition of a reporting person, the sentence referring to such financial institutions has been deleted.

Proposed Rule. The proposed rule set forth several definitions in 31 CFR 1031.320(j) for key concepts, such as “transferee entity,” “transferee trust,” and the beneficial owners of these aforementioned entities.

Comments Received. FinCEN received comments related to the definition of “Beneficial owner,” discussed above in Section III.C.5.c; “Residential real property,” discussed above in Section ( print page 70277) III.C.2.a; “Transferee entity,” discussed above in Section III.C.2.d; and “Transferee trust,” discussed above in Section III.C.2.e. FinCEN did not receive comments on other proposed definitions.

Final Rule. For clarity, in the final rule, FinCEN moves the paragraph containing definitions to the end of the regulations, so that they appear at 31 CFR 1031.320(n) . In addition to modifications and clarifications discussed in the sections referenced above, the rule adopts the following modifications:

• The definition of “closing or settlement statement” is limited to the statement prepared for the transferee, as discussed in Section III.C.3.a;
• The rule adds a definition for “Non-financed transfer” for clarity, as discussed in Section III.C.2.b;
• The rule is meant to be applied nationwide, and therefore the definition of “Recordation office” is modified to make clear that the recordation office may be located in a territory or possession of the United States, and is not limited to State, local, or Tribal offices for the recording of reportable transfers as a matter of public record. As a result, a person may be a reporting person if they file a deed or other instrument that transfers ownership of the residential real property with a recordation office located in any state, local jurisdiction, territory of possession of the United States, or Tribe;
• For clarity, the term “Residential real property” is removed from the list of definitions found in 31 CFR 1031.320(n) and is instead defined in 31 CFR 1031.320(b) .

The remaining definitions are adopted as proposed.

Proposed Rule. The NPRM proposed that the final rule would be effective one year after the final rule is published in the Federal Register .

Comments Received. Several industry commenters agreed that a one-year delayed effective date is necessary to implement the requirements, with some indicating that one year, at a minimum, would be feasible. One commenter suggested that the final rule be implemented in phases to allow industry time to adapt to the regulation.

Final Rule. The final rule provides for an effective date of December 1, 2025, at which point reporting persons will be required to comply with all of the rule's requirements, chief among them the requirement to file Real Estate Reports with FinCEN. FinCEN believes that this effective date, which delays the effective date by slightly more than the one-year that industry commenters generally supported at a minimum, will provide additional opportunity for potential reporting persons to understand the requirements of the rule and put appropriate compliance measures into place. Furthermore, this effective date will provide FinCEN with the additional time necessary to issue the Real Estate Report, including the completion of any process required by the Paperwork Reduction Act (PRA).

However, FinCEN declines to adopt a phased approach to implementation of the rule, such as by initially limiting the reporting obligation to persons performing a limited number of functions described in the reporting cascade or phasing-in the rule geographically. FinCEN believes a phased approach would likely create unneeded complexity for industry, as industry would need to adapt processes and procedures multiple times over the implementation period. A phased implementation would also undermine the effectiveness of the rule for an extended period of time. The rule is intended to provide comprehensive reporting for a subset of high-risk residential real estate transfers; phased implementation may enable avoidance of reporting requirements by illicit actors, replicating some of the issues FinCEN has encountered under the Residential Real Estate GTOs.

If any of the provisions of this rule, or the application thereof to any person or circumstance, is held to be invalid, such invalidity shall not affect other provisions or application of such provisions to other persons or circumstances that can be given effect without the invalid provision or application.

Indeed, the provisions of this rule can function sensibly if any specific provision or application is invalidated, enjoined or stayed. For example, if a court were to hold as invalid the application of the rule with respect to any category of potential reporting persons, FinCEN would preserve the reporting cascade approach for all other persons that perform the functions set out in the cascade. In such an instance, the provisions of the rule should remain in effect, as those provisions could function sensibly with respect to other potential reporting persons. Likewise, if a court were to hold invalid the application of the rule to any category of residential real property, as defined, the other categories should still remain covered. Because these categories operate independently from each other, the remainder of the rule's provisions could continue to function sensibly: a reportable transfer would continue to be a non-financed transfer of any ownership interest in the remaining categories of residential real property when transferred to a transferee entity or transferee trust. Similarly, with respect to transferee entities and transferee trusts, if a court were to enjoin FinCEN from enforcing the rule's reporting requirements as applied to, for example, transferee trusts, the reporting of transfers to transferee entities should continue because the two types of transferees are separate and distinct from one another. Thus, even if the transferee trust provisions were severed from the rule, the remaining portions of the rule could still function sensibly. In sum, in the event that any of the provisions of this rule, or the application thereof to any person or circumstance, is held to be invalid, FinCEN has crafted this rule with the intention to preserve its provisions to the fullest extent possible and any adverse holding should not affect other provisions.

This regulatory impact analysis (RIA) evaluates the anticipated effects of the final rule in terms of its expected costs and benefits to affected parties, among other economic considerations, as required by EOs 12866, 13563, and 14094. This RIA also affirms FinCEN's original assessments of the potential economic impact on small entities pursuant to the Regulatory Flexibility Act (RFA) and presents the expected reporting and recordkeeping burdens under the Paperwork Reduction Act of 1995 (PRA). Furthermore, it sets out the analysis required under the Unfunded Mandates Reform Act of 1995 (UMRA).

As discussed in greater detail below, the rule is expected to promote national security objectives and enhance compliance with international standards by improving law enforcement's ability to identify the natural persons associated with transfers of residential real property conducted in the U.S. residential real estate sector, and thereby diminish the ability of corrupt and other illicit actors to launder their proceeds through real estate purchases in the United States. More specifically, the collection of the transfer-specific SARs—Real Estate Reports—in a repository that is readily accessible to law enforcement and that contains other BSA reports is expected to increase the efficiency with which resources can be utilized to identify such natural persons, or beneficial owners, when they have conducted non-financed purchases of residential real ( print page 70278) property using legal entities or trusts, and to cross-reference those beneficial owners and their legal entity or trust against other reported financial activities in the system.

This RIA first describes the economic analysis FinCEN undertook to inform its expectations of the rule's impact and burden. That is followed by certain pieces of additional and, in some cases, more specifically tailored analysis as required by EOs 12866, 13563, and 14094, the RFA, the UMRA, and the PRA, respectively. Responses to public comments related to the RIA—regarding specific findings, assumptions, or expectations, or with respect to the analysis in its entirety—can be found in Sections VI.A.1.b and VI.C and have been previewed and cross-referenced throughout the RIA.

This final rule has been determined to be a “significant regulatory action” under Section 3(f) of E.O. 12866 as amended by 14094. The following assessment indicates that the rule may also be considered significant under Section 3(f)(1), as the rule is expected to have an annual effect on the economy of $200 million or more. [ 43 ] Consistent with certain identified best practices in regulatory analysis, the economic analysis conducted in this section begins with a review of FinCEN's broad economic considerations, [ 44 ] identifying the relevant market failures (or fundamental economic problems) that demonstrate the need or otherwise animate the impetus for the policy intervention. [ 45 ] Next, the analysis turns to details of the current regulatory requirements and the background of market practices against which the rule will introduce changes (including incremental costs) and establishes FinCEN's estimates of the number of entities and residential real property transfers it anticipates to be affected in a given year. [ 46 ] The analysis then briefly reviews the final rule with a focus on the specifically relevant elements of the definitions and requirements that most directly inform how FinCEN contemplates compliance would be operationalized. [ 47 ] Next, the analysis proceeds to outline the estimated costs to the respective affected parties that would be associated with such operationalization. [ 48 ] Finally, the analysis concludes with a brief discussion of the regulatory alternatives FinCEN considered in the NPRM, including a discussion of the public comments received in response. [ 49 ] Throughout the analysis, FinCEN has attempted to incorporate public comments received in response to the NPRM where most relevant. Certain broad commentary themes that are pertinent to the RIA as a whole are addressed specifically in Sections VI.A.1.b and VI.C below, while the remainder are integrated into the general discussion throughout the rest of the analysis.

As FinCEN articulated in the RIA of the NPRM, two problematic phenomena animate this rulemaking. [ 50 ] The first is the use of the United States' residential real estate market to facilitate money laundering and illicit activity. The second, and related, phenomenon is the difficulty of determining who beneficially owns legal entities or trusts that may engage in non-financed transfers of residential real estate, either because this data is not available to law enforcement or access is not sufficiently centralized to be meaningfully usable for purposes of market level risk-monitoring or swift investigation and prosecution. The second phenomenon contributes to the first, making money laundering and illicit activity through residential real property more difficult to detect and prosecute, and thus can reduce the appropriate disciplinary and deterrent effects of law enforcement. FinCEN therefore expects that the reporting of non-financed residential real estate transfers required by this rule would generate benefits by mitigating those two phenomena. In other words, FinCEN expects that benefits would flow from the rule's ability to make law enforcement investigations of illicit activity and money laundering through residential real estate less costly and more effective, and it would thereby generate value by reducing the social costs associated with related illicit activity to the extent that it is more effectively disciplined or deterred.

In completing the analysis to accompany the final rule, FinCEN took all submitted public comments to the NPRM into consideration. While the NPRM received over six hundred comment letters, fewer than 25 percent of those comments presented non-duplicate content and a smaller fraction still provided comment specifically with respect to the NPRM RIA. The proportion of comment letters with non-duplicate content represents highly geographically concentrated and geographically unique feedback, which may therefore limit the generalizability of those responses regarding baseline and burden-related elements to other regions of the country and other local real estate markets that do not face the same general housing market trends or state-specific legal constraints. Where FinCEN has declined to revise its original analysis in response to certain comments, an attempt has been made to provide greater clarification of the reasons underlying FinCEN's original methodological choices and expectations.

Numerous comment letters spoke to the anticipated burden of the rule, though there was substantial variation in parties' expectations about which participant in a reportable transfer would ultimately bear the financial costs. Some commenters expressed concern that, if required to serve as the reporting person, they would not be able to absorb the related costs. The majority of these commenters, however, did not offer any explanation for why they would therefore not opt to designate to another cascade member, though presumably the assumption may have been that no other cascade member might be willing to agree. This assumption may or may not be consistent with countervailing incentives other cascade members face in facilitating reportable transfers. Other commenters suggested that certain reporting persons might be forced to absorb a large proportion of the rule's costs due simply to their considerable market share in their particular industry. Additionally, a substantial fraction of those who commented on the burden of the rule signaled their expectation that to some degree the financial costs would ultimately be passed along to the transferee, the transferee's tenants, or to all housing market clients served by that potential reporting person.

For purposes of the economic analysis, FinCEN notes that there may be a meaningful distinction between the concept of being burdened, or affected, by the rule and bearing the cost of the ( print page 70279) rule. A party may be the primary affected business in terms of needing to undertake the most new burden or incremental, novel activity to comply with the rule, but to the extent that that work is compensated, that party, for purposes of the RIA is not considered to also bear the cost of the rule. The comments FinCEN received in response to the NPRM suggest that there may be considerable variation across states in the distinction between where businesses may be primary affected businesses only and where businesses may be both those primarily affected and those that bear the majority of the rule's costs.

Separately, FinCEN notes that while the vast majority of comment letters spoke to at least one element of burden as a concern, very few provided competing estimates or alternative methods to quantify the expected burden of the proposed rule in its entirety. Many commenters, in fact, took FinCEN estimates as given when making their own arguments, suggesting that at least on some level, they found the estimates reasonably credible. In cases where commenters most strongly disagreed with the magnitude of FinCEN estimates (suggesting that FinCEN vastly underestimated the burden of the rule), it is unclear whether the same differences would persist in light of the clarifications and modifications to the proposed rule that have been made in the process of finalization. Given the divergence between what some commenters originally interpreted the rule to require of them and what the final rule would entail, a number of those concerns—including concerns related to the expected verification of information that are addressed by the reasonable reliance standard adopted in the final rule—may now be less pressing.

The primary revision that FinCEN has made to the RIA in response to commenters is with respect to wage estimates for the industry categories represented in the reporting cascade. In addition to updating wages to incorporate the BLS's most recent annual figures, FinCEN also elected to incorporate the 90th percentile wage values instead of the national average index values used in the NPRM RIA. This more conservative approach is meant to address certain commenter concerns that FinCEN's expected costs might underestimate the market wage rates reporting persons would need to pay, particularly because more reporting might occur in geographic areas where skilled labor commands higher compensation. Adopting this more conservative, higher wage rate approach does not reflect any change in FinCEN's expectations about the underlying burden of compliance with the rule.

A few comment letters suggested that FinCEN's analysis may have benefited from additional research activities, robustness tables, or analyses of distributional effects. While in principle FinCEN does not object to more, and more empirically robust, quantitative analysis of any of its policies, it is nevertheless unpersuaded that the analyses requested would have changed the conclusions those additional analytical activities would have informed. In none of the enumerated requests for additional analysis did the commenter convincingly substantiate how the findings of their requested items might have actionably changed the contours of the final policy without impairing its expected efficacy.

To assess the anticipated regulatory impact of the rule, FinCEN took several factors about the current state of the residential real estate market into consideration. This is consistent with established best practices and certain requirements  [ 51 ] that the expected economic effects of a rule be measured against the status quo as a primary counterfactual. Among other factors, FinCEN's economic analysis of regulatory impact considered the rule in the context of existing regulatory requirements, relevant distinctive features of groups likely to be affected by the rule, and pertinent elements of current residential real estate market characteristics and common practices. Each of these elements, including additional details and clarifications responsive to comments received, is discussed in its respective subsection below.

While there are no specific Federal rules that would directly and fully duplicate, overlap, or conflict with the rule, there are nevertheless components of the rule that mirror, or are otherwise consistent with, reporting and procedural requirements of existing FinCEN rules and orders, as well as those of other agencies. To the extent that a person would have previous compliance experience with these elements of the regulatory baseline, FinCEN expects that some costs associated with the rule would be lower because the incremental changes in behavior from current practices would be smaller. FinCEN reviews the most proximate components from these existing rules and orders in greater detail below.

Under the Residential Real Estate GTOs, covered title insurance companies are required to report: “(i) The dollar amount of the transaction; (ii) the type of transaction; (iii) information identifying a party to the transaction, such as name, address, date of birth, and tax identification number; (iv) the role of a party in the transaction ( i.e., originator or beneficiary); and (v) the name, address, and contact information for the domestic financial institution or nonfinancial trade or business.” 

As discussed above, FinCEN recognizes that the Residential Real Estate GTOs collect beneficial ownership information for certain non-financed purchases of residential real property by legal entities that meet or exceed certain dollar thresholds in select geographic areas. However, the Residential Real Estate GTOs are narrow in that they are temporary, location-specific, and limited in the transactions they cover. The rule is wider in scope of coverage and will collect additional useful and actionable information previously not available through the Residential Real Estate GTOs. As such, the nationwide reporting framework for certain residential real estate transfers will replace the current Residential Real Estate GTOs.

Some evidence suggests that, despite the restriction of reporting persons under the existing Residential Real Estate GTOs to title insurance companies only, certain additional categories of real estate professionals may already be familiar—and have experience—with gathering the currently required information. For example, FinCEN observes that in some markets presently covered by the Residential Real Estate GTOs, realtors and escrow agents often assist title insurance companies with their reporting obligations despite not being subject to any formal reporting requirements themselves. Some may even have multiple years' worth of guidance and informational support by the regional or national trade association of which they are a member in how best to facilitate and enable compliance with existing FinCEN requirements. For instance, in 2021, the National Association of Realtors advised that while “[r]eal estate professionals do ( print page 70280) not have any affirmative duties under the Residential Real Estate GTOs,” such entities should nevertheless expect that “a title insurance company may request information from real estate professionals to help maintain its compliance with the Residential Real Estate GTOs. Real estate professionals are encouraged to cooperate and provide information in their possession.”  [ 52 ] Thus, the historical Residential Real Estate GTOs' attempt to limit the definition of reporting persons to title insurance companies does not seem to have completely forestalled the imposition of time, cost, and training burdens on other real estate transfer-related businesses. As such, the cascading reporting approach might not mark a complete departure from current practices and the related burdens of Residential Real Estate GTO requirements, as they may already in some ways be functionally applicable to multiple prospective reporting persons in the rule's reporting cascade.

Furthermore, following the enactment of the CTA, beneficial ownership information of certain legal entities is required to be submitted to FinCEN. However, as set out in the NPRM preamble and also discussed above, [ 53 ] the information needed to ascertain money laundering risk in the residential real estate sector differs in key aspects from what is collected under the CTA, and, accordingly, the information collected under this rule differs from that collected under the CTA.

For example, FinCEN believes that a critical part of the rule is that it will alert law enforcement to the fact that a residential real estate transfer fitting within a known money laundering typology has taken place. While beneficial ownership information collected under the CTA may be available, that information concerns the ownership composition of a given entity at a given point in time. As such reporting does not dynamically extend to include information on the market transactions of the beneficially owned legal entity, it would not alert law enforcement officials focused on reducing money laundering that any real estate transfer has been conducted, which includes those particularly vulnerable to money laundering such as non-financed transfers of residential property.

Furthermore, the scope of entities that are the focus of the real estate rule is broader than the CTA, as certain types of entities, including most trusts, are not required to report under the CTA. Because non-excepted trusts under the residential real estate rule generally do not have an obligation to report beneficial ownership under the CTA, their incremental burden of compliance with the Real Estate Report requirements may be moderately higher insofar as the activities of collecting, presenting, or certifying beneficial ownership information are less likely to have already been performed for other purposes.

The CDD Rule's  [ 54 ] beneficial ownership requirement addressed a regulatory gap that enabled persons looking to hide ill-gotten proceeds to potentially access the financial system anonymously. Among other things, it required covered financial institutions to identify and verify the identity of beneficial owners of legal entity customers, subject to certain exceptions and exemptions; beneficial ownership and identification therefore became a component of AML requirements.

Financial institutions subject to the CDD Rule are required to collect some beneficial ownership information from legal entities that establish new accounts. However, this rule covers non-financed transfers of residential real estate that do not involve financial institutions covered by the CDD Rule. The rule would also collect additional information relevant to the real estate transfers that is currently not collected under the CDD Rule.

In the course of current residential real estate transfers, some parties that might be deemed “transferors” under the rule already prepare and report portions of the requisite information to other regulators. For example, the IRS collects taxpayer information through Form 1099-S on seller-side proceeds from reportable real estate transfers for a broader scope of reportable real estate transfers than this rule. [ 55 ] This information, however, is generally unavailable for one of the primary purposes of this rule, as there are significant statutory limitations on the ability of the IRS to share such information with Federal law enforcement or other Federal agencies. In addition to these statutory limitations on IRS disclosure of taxpayer information, details about the buyer's beneficial ownership (the focus of this rule) largely fall outside the scope of transaction information reported on the Form 1099-S.

However, IRS Form 1099-S is nonetheless relevant to the rule's regulatory baseline, given the process by which the Form 1099-S may be prepared and submitted to the IRS. Similar to the Real Estate Report, the person responsible for filing the IRS Form 1099-S can either be determined through a cascade of the various parties who may be involved in the closing or settlement process, or, alternatively, certain categories of the involved parties may enter into a written agreement at or before closing to designate who must file Form 1099-S for the transaction. The agreement must identify the designated person responsible for filing the form, but it is not necessary that all parties to the transaction, or that more than one party even, enter into the agreement. The agreement must: (1) identify by name and address the person designated as responsible for filing; (2) include the names and addresses of each person entering into the agreement; (3) be signed and dated by all persons entering into the agreement; (4) include the names and addresses of the transferor and transferee; and (5) include the address and any other information necessary to identify the property. The rule's designation agreement requires, and is limited to, the same five components that may be included in a designation agreement accompanying Form 1099-S. Therefore, the exercise of designation, as well as the collection of information and signatures that it involves, may already occur in connection with certain transfers of residential real property and in these cases be leveraged at minimal additional expense. ( print page 70281)

According to a recent study  [ 56 ] that analyzed Ztrax data  [ 57 ] covering 2,777 U.S. counties and over 39 million residential housing market transactions from 2015 to 2019, the proportion of average county-month non-financed residential real estate transactions involving purchases by legal entities was approximately 11 percent during the five-year period analyzed. When the sample is divided into counties that, by 2019, were under Residential Real Estate GTOs versus those that were never under Residential Real Estate GTOs, the proportions of average county-month non-financed sales to total purchases are approximately 13.6 percent and 11.2 percent, respectively.

Legal entities that own U.S. residential real estate vary by size and complexity of beneficial ownership structure, and by some measures, have increased market participation over time. [ 58 ] FinCEN analysis of the Department of Housing and Urban Development and Census Bureau's Rental Housing Finance Survey (RHFS) data for 2018 found that micro investors or small business landlords who owned 1-2 units owned 66 percent of all single family and multifamily structures with 2-4 units. Conversely, investors in the residential rental market who owned at least 1,000 properties owned only 2 percent of single-family homes and multi-family structures.

FinCEN did not receive any comments, studies, or data that meaningfully conflict with these estimates or the manner in which they informed the NPRM RIA's initial estimates of the number of reportable transfers per year.

The final rule requires the reporting of certain non-finance transfers of residential real property to transferee trusts. [ 59 ] Residential real property purchases by transferee trusts have not generally been reported under the Residential Real Estate GTOs and the entities themselves are typically  [ 60 ] not subject to beneficial ownership reporting requirements under the CTA. Therefore, FinCEN expects that trusts would be more homogenously newly affected by the rule than legal entities, discussed above, as a cohort of affected parties.

Establishing a baseline population of potentially affected transferee trusts based on the existing population of legal trusts is challenging for several reasons. These reasons include the general lack of comprehensive and aggregated data on the number, [ 61 ] value, usage, and holdings of trusts formed in the United States, which in turn is a result of heterogeneous registration and reporting requirements, including instances where neither requirement currently exists. Because domestic trusts are created and administered under State law, and states have broad authority in how they choose to regulate trusts, there is variation in both the proportion of potential transferee trusts that are currently required to register as trusts in their respective states as well as the amount of information a given trust is required to report to its state about the nature of its assets or its structural complexity. Thus, limited comparable information may be available at a nationwide level besides what is reported for Federal tax purposes, and what is available is unlikely to represent the full population of potentially affected parties that would meet the definition of transferee trust if undertaking the non-financed transfer of residential real property.

International heterogeneity in registration and reporting requirements for foreign trusts creates similar difficulties in assessing the population of potentially affected parties that are not originally registered in the United States. Further complicating this assessment is the exogeneity and unpredictability of changes to foreign tax and other financial policies, which studies in other, related contexts have shown, generally affect foreign demand for real estate. [ 62 ]

While it is difficult to know exactly how many existing trusts there are, and within that population how many own residential real property (as a potential indicator of what proportion of new trusts might eventually be used to own residential real property), there is nevertheless a consistency in the limited existing empirical evidence that would support a conjecture that proportionally few of the expected reportable transfers would be likely to involve a transferee trust. A recent study of U.S. single-property residential purchases that occurred between 2015 and 2019 identified a trust as the buyer in 3.3 percent of observed transactions. [ 63 ] FinCEN also conducted additional analysis of publicly available data that might help to quantify the proportion of trust ownership in residential real estate and more clearly account for non-sale transfers for no consideration. Based on the RHFS, identifiable trusts accounted for approximately 2.5 percent of rental housing ownership and approximately 8.2 percent of non-natural person ownership of rental housing. [ 64 ]

To the extent that trusts' current residential real property holdings are linear in the number of housing units and current holdings is a reliable proxy for future purchasing activity, FinCEN does not expect the proportion of reportable transfers involving a transferee trust to exceed 5 percent of potentially affected transfers. No further refinements to this upper-bound-like estimate, based on the number of existing trusts that may be affected, would be feasible without a number of additional assumptions about market behavior that FinCEN declines to impose in the absence of better/more data.

While the majority of public comments pertaining to trusts suggested that the number of affected trusts would be substantially higher than the original RIA had anticipated, FinCEN is not revising or updating its baseline ( print page 70282) estimates at this stage because the final rule has adopted certain broad exceptions that materially limit the reporting of transfers to trusts.

Exceptions to the general definitions of transferee entities and transferee trusts apply to certain highly regulated entities and trusts that are subject to AML/CFT program requirements or to other significant regulatory reporting requirements.

For example, PIVs that are investment companies and registered with the SEC under section 8 of the Investment Company Act of 1940 are excepted, while unregistered PIVs engaging in reportable transfers are not. Unregistered PIVs are instead required to provide the reporting person with specified information, particularly including the required information regarding their beneficial owners. FinCEN analysis of costs below continues to assume that any such unregistered PIV stood up for a reportable transfer would generally have, or have low-cost access to, the information necessary for filing Real Estate Reports. FinCEN expects that a PIV that is not registered with the SEC—which can have at maximum four investors whose ownership percent is or exceeds 25 percent (the threshold for the ownership prong of the beneficial ownership test for entities)—would likely either (1) be an extension of that large investor, or (2) have a general partner who actively solicited known large investors. In either case, the unregistered PIV is likely to have most of the beneficial ownership information that would be required to complete the Real Estate Report and access to the beneficial owner(s) to request the additional components of required information not already at hand. FinCEN did not receive any comments indicating that these expectations are unreasonable and thus continues to operate under these assumptions with respect to baseline costs.

Operating companies subject to the Securities Exchange Act of 1934's current and periodic reporting requirements, including certain special purpose acquisition companies (SPACs) and issuers of penny-stock, are also excepted transferees under this rule. FinCEN notes that the percent ownership threshold for beneficial ownership for SEC regulatory purposes is considerably lower than as defined in the CTA and related Exchange Act beneficial ownership-related disclosure obligations usually apply to more control persons at such a registered operating company. [ 65 ] Additionally, disclosures about the acquisition of real estate, including material non-financed purchases of residential property, are already required in certain periodic reports filed with the SEC. [ 66 ] Therefore, an incremental informational benefit from not excepting SEC-registered operating companies as transferees for the purposes of this rule's reporting requirements may either not exist or, at best, be very low while the costs to operating companies of reporting and compliance with an additional Federal regulatory agency are expected to be comparatively high.

Some commenters expressed concern that it might be difficult or burdensome for reporting persons to determine if a transfer might be exempt from reporting on the basis of the transfer being made to an excepted transferee. However, the final rule adopts a reasonable reliance standard, and therefore the reporting person may reasonably rely on information provided by others as described in Section III.B.2.4, including with respect to whether the transferee is exempt. Furthermore, should a reporting person nevertheless want to verify the excepted status of a transferee, FinCEN notes that the status of transferees as excepted pursuant to being registered with the SEC should be easily verifiable by a name search in the agency's Electronic Data Gathering, Analysis, and Retrieval (EDGAR) system, which can be queried using open access, publicly available search tools.

Because the reporting cascade is ordered by function performed, or service provided, rather than by defined occupations or categories of service providers, [ 67 ] attribution of work to the capacity in which a person is primarily employed is necessarily imprecise. To account for the need to map from services provided to entities providing such services as a prerequisite to estimating the number of potentially affected parties, FinCEN acknowledges, but abstracts from, the common observation that title agents and settlement agents are “often the same entity that performs two separate functions in a real estate transaction,” and that “the terms title agent and settlement agent are often used interchangeably.”  [ 68 ] For purposes of the remaining RIA, FinCEN groups potential reporting persons by features of their primary occupation and treats them as functionally distinct members of the cascade, acknowledging that this is done more for analytical clarity than as a rigid expectation about the capacity in which an individual is employed to service a given transfer. In total, FinCEN estimates there may be up to approximately 172,753 reporting persons and 642,508 employees of those persons that could be affected by the rule. Of this total, the distribution of potential reporting persons as identified by primary occupation  [ 69 ] is: settlement agents (3.6 percent of potential reporting persons, 9.8 percent of the potentially affected labor force), title insurance companies (0.5 percent, 6.6 percent), real estate escrow agencies (10.9 percent, 10.5 percent), attorneys  [ 70 ] (9.3 percent, 16.7 percent), and other real estate professionals  [ 71 ] (75.5 percent, 56.4 percent). For purposes of cost estimates throughout the remaining analysis, FinCEN computed the ( print page 70283) following fully loaded  [ 72 ] average  [ 73 ] hourly wages  [ 74 ] by the respective primary occupation categories: settlement agents, $79.35; title insurers, $106.49; real estate escrow agencies, $81.74; attorneys, $153.48; and other real estate professionals, $81.74. For reference, these wages estimates represent the following updates from the NPRM RIA:

Table 1—Wage Estimate Revisions From NPRM to Final Rule RIA

Primary business categories Fully loaded hourly wage (NPRM) Fully loaded hourly wage (final) Title Abstract and Settlement Offices $70.33 $79.35 Direct Title Insurance Carriers 84.15 106.49 Other Activities Related to Real Estate 70.46 81.74 Offices of Lawyers 88.89 153.48 Offices of Real Estate Agents and Brokers 70.46 81.74

The scope of residential real estate transfers that would be affected by the rule is jointly defined by the (1) the nature of the property transferred, (2) the financed nature of the transfer, and (3) the legal organization of the party to whom the property is transferred. For purposes of identification, the defining attribute for the nature of the property is that it is principally designed, or intended to become, the residence of one to four families, including cooperatives and vacant or unimproved land. Additionally, the property must be located in the United States as defined in the BSA implementing regulations.

Reportable transfers exclude all those in which the transferees receive an extension of credit from a financial institution subject to AML/CFT program and SAR Reporting requirements that is secured by the residential real property being transferred. Reportable transfers also exclude transfers associated with an easement, death, divorce, or bankruptcy or that are otherwise supervised by a court in the United States, as well as certain no consideration transfers to trusts, certain transfers related to 1031 Exchanges, and any transfer for which there is no reporting person.

On the basis of available data, studies, and qualitative evidence, subject to certain qualifying caveats about limitations in data availability, and in the absence of large, unforeseeable shocks to the U.S. residential housing market, FinCEN's NPRM analysis estimated that the number of reportable transfers would be between approximately 800,000 and 850,000 annually. FinCEN received a number of comment letters suggesting that this estimate is too low. However, because most arguments of this nature were made on the basis of an understanding that the rule would include several kinds of transfers that have since been explicitly excepted in the final rule, FinCEN is not increasing its estimates.

FinCEN took certain potentially informative aspects of the current market for residential real property into consideration when forming its expectations about the anticipated economic impact of the rule. Among other things, FinCEN considered trends in the observable rate of turnover in the stock of existing homes. Additionally, FinCEN reviewed recent studies and data from the academic literature estimating housing supply elasticities on previously developed versus newly developed land.

FinCEN also considered recent survey results of the residential real estate holdings of high-net-worth individuals and the proportion of survey respondents who self-reported the intent to purchase additional residential real estate in the coming year. Further, FinCEN reviewed studies of trends in the financing and certain distributional characteristics of shared equity housing, which includes co-operatives that will be affected by the rule.

FinCEN assessed the role of various persons in the real estate settlement and closing process to determine a quantifiable estimate of each profession or industry's overall participation in that process. Accordingly, FinCEN conducted research based on publicly available sources to assess the general participation rate of the different types of reporting persons in the rule's reporting cascade. As part of its analysis, FinCEN noted a recent blog post citing data from the American Land Title Association (ALTA) that 80 percent of homeowners purchase title insurance when buying a home. [ 75 ]

To better understand the distribution of the other types of persons providing residential real property transfer services to the transfers that are affected by the rule, FinCEN utilized county deed database records to approximate a randomly selected and representative sample of residential real estate transfers across the United States. FinCEN made efforts to collect deed data that reflected a representative, nation-wide sample, both in terms of the number and geographic dispersion of deeds, but acknowledges selection was nevertheless constrained in part by the feasibility to search by deed type, among other factors. FinCEN invited public feedback on the extent to which the same analysis would yield substantively different results if performed over a larger sample (with either more geographic locations, more ( print page 70284) observations per location, or both), but did not receive any responsive data or the results of analysis based on such data.

The final analysis included 100 deeds, of which 97 involved at least one of the following potential reporting persons: (i) Title Abstract and Settlement Offices, (ii) Direct Title Insurance Carriers, or (iii) Offices of Lawyers. A candidate reporting person was deemed to be involved with the creation of the deed if either (i) a company or firm performing one of these functions was included on the deed or (ii) an individual performing or employed by a company or firm performing one of these functions was included on the deed. FinCEN assessed the distribution of alternative entities identified on the remaining deeds, categorizing by reporting person type. Based on this qualitative analysis, FinCEN tentatively anticipates that approximately three percent of reportable transfers might have a reporting person or reporting cascade that begins with someone other than a settlement agent, title insurer, or attorney.

Currently, law enforcement searches a variety of State and commercial databases (that may or may not include beneficial ownership information), individual county record offices, and/or use subpoena authority to trace the suspected use of criminal proceeds in the non-financed transfer of residential real estate. Even after a significant investment of resources, the identities of the beneficial owners may not be readily ascertainable. This fragmented and limited approach can slow down and decrease the overall efficacy of investigations into money laundering through real estate. This was one reason that FinCEN introduced the Residential Real Estate GTOs, which law enforcement has reported have significantly expanded their ability to investigate this money laundering typology. At the same time, the Residential Real Estate GTOs have certain restrictions that limited its usefulness nationwide. This rule builds on and is intended to replace the Residential Real Estate GTO framework and creates reporting and recordkeeping requirements for specific residential real estate transfers nationwide.

The final rule requires certain persons involved in real estate closings and settlements to submit reports and keep records on identified non-financed transfers of residential real property to specified legal entities and trusts on a nationwide basis. The rule does not require transfers to be reported if the transfer is financed, meaning that the transfer involves an extension of credit to all transferees that is secured by the transferred residential real property and is extended by a financial institution that has both an obligation to maintain an AML program and an obligation to report suspicious transactions under this chapter. It also does not require reporting of: (i) a grant, transfer, or revocation of an easement; (ii) a transfer resulting from the death of an owner of residential real property; (iii) a transfer incident to divorce or dissolution of a marriage or civil union; (iv) a transfer to a bankruptcy estate; (v) a transfer supervised by a court in the United States; (vi) a transfer for no consideration made by an individual, either alone or with the individual's spouse, to a trust of which that individual, that individual's spouse, or both of them, are the settlor(s) or grantor(s); (vii) a transfer to a qualified intermediary for purposes of a 1031 Exchange; or (viii) a transfer that does not involve a reporting person. A report would also not need to be filed if the transferee is an exempt legal entity or trust, which are generally highly-regulated.

The final rule requires a reporting person, as determined by either the reporting cascade or as pursuant to a designation agreement, to complete and electronically file a Real Estate Report. The reporting person may generally obtain, and reasonably rely upon, information needed to complete the Real Estate Report from any other person. This reasonable reliance standard is more limited for purposes of obtaining the transferee's beneficial ownership information. In those situations, the reasonable reliance standard applies only to information provided by the transferee or the transferee's representative and only if the person providing the information certifies the accuracy of the information in writing to the best of their knowledge. The reporting person must file the report by the final day of the following month after which a closing took place, or 30 days after the date of the closing, whichever is later.

The final rule requires the reporting person to report to FinCEN certain information about a reportable transfer of residential real property. This includes information on the reporting person, the transferee and its beneficial owners, the transferor, the property being transferred, and certain payment information. The collected information will be maintained by FinCEN in an existing database accessible to authorized users. Some commenters' remarks suggest that certain expectations of the rule's potential effects may flow from a misunderstanding about who may access Real Estate Report data once filed and how it may be used. FinCEN is therefore reiterating that both access and use of Real Estate Report data will be subject to the same restrictions as other BSA reports, including traditional SARs.

This section describes the main, quantifiable economic effects FinCEN anticipates the various affected parties identified above may experience. Because the primary expected value of the rule is in the extent to which it is able to address or ameliorate the economic problems discussed under the RIA's broad economic considerations, which (while substantial) is generally inestimable, no attempt is made to quantify the net benefit of the rule. Instead, the remainder of this section focuses primarily on the estimates of reasonably anticipated, calculable costs to affected parties. While FinCEN continues to principally anticipate aggregate cost estimates between approximately $267.3 million and $476.2 million in the first compliance year and current dollar value of the aggregate costs in subsequent years between approximately $245.0 million and $453.9 million annually, it has provided revised estimates throughout the remaining analysis, responsive to public comments, that reflect more conservative expectations about the cost of labor. Under these assumptions, the anticipated costs of the rule would be between approximately $428.4 and $690.4 million (midpoint $559.4 million) in the first compliance year and between approximately $401.2 and $663.2 million (midpoint $532.2 million) (current dollar value) in subsequent years. These quantified costs are a pro forma accounting cost estimate only and are not expected to represent either the full economic costs of the rule nor the net cost of the rule as measured against the components of expected benefits that may become quantifiable. As previously stated, the ability to successfully detect, prosecute, and deter crimes—or other illicit activities that rely on money laundering to be ( print page 70285) profitable—is not readily translatable to dollar figures. [ 76 ] However, it might be inferred that a tacit expectation underlying this rulemaking is that the rule will generate intangible benefits worth over $500 million per year. [ 77 ]

To estimate expected training costs, FinCEN adopted a parsimonious model similar, in certain respects, to the methodology used by FinCEN when publishing the RIA for the 2016 CDD Rule (CDD Rule RIA). Taking into consideration, however, that, unlike covered financial institutions under the CDD Rule, only one group of affected reporting persons has direct pre-existing experience with other FinCEN reporting and compliance requirements, the estimates of anticipated training time here are revised upward from the CDD Rule RIA to 75 minutes for initial training and 30 minutes for annual refresher training. FinCEN's method of estimation assumes that an employee who has received initial training once will then subsequently take the annual refresher training each following year. This assumption contemplates that more than half of the original training would not be firm-specific and remains useful to the employee regardless of whether they remain with their initial employer or change jobs within the same industry. As in the CDD Rule RIA high estimate model, FinCEN estimates that two-thirds of untrained employees receive the initial (lengthier) training each year. However, because the initial training is assumed to provide transferrable human capital in this setting, turnover is not relevant to the assignment to initial training in periods following Year 1. Thus, in the revised model, FinCEN calculated annual training costs as the combination of the expected costs of providing two-thirds of the previously untrained workforce per industry with initial (lengthier) training and all previously trained employees with the refresher (shorter) training. Time costs are proxied by an industry-specific fully loaded wage rate at the 90th percentile per industry.

Table 2—Training Costs

Estimated per person training costs		Initial training		Refresher (year 2+)
Primary business categories	Fully loaded hourly wage	Time (hours)	Total	Time (hours)	Total (unadjusted)
Title Abstract and Settlement Offices	$79.35	1.25	$99.18	0.5	$39.67
Direct Title Insurance Carriers	106.49	1.25	133.11	0.5	53.24
Other Activities Related to Real Estate	81.74	1.25	102.17	0.5	40.87
Offices of Lawyers	153.84	1.25	192.30	0.5	76.92
Offices of Real Estate Agents and Brokers	81.74	1.25	102.17	0.5	40.87

To model industry-specific hiring inflows in periods following Year 1, FinCEN converted the Bureau of Labor Statistics (BLS) projected 10-year cumulative employment growth rates for 2022-2032 for the NAICS code mostly closely associated with a given industry available. Additionally, inflation data from the Federal Reserve Bank of St. Louis was utilized to estimate annual wage growth given the opportunity cost of training is assumed to be equivalent to the wage of employees. Utilizing these inputs, and summing costs across all industries expected to be affected, FinCEN estimates that the aggregate initial year training costs would be approximately $51.0 million dollars and the undiscounted aggregate training costs in each of the subsequent years would range between approximately $23.2 and $31.5 million.

FinCEN notes that fewer than five percent of unique comments received made specific reference to the training costs that the rule would necessitate and fewer still provided comments pertaining to the RIA estimates of training costs. While one commenter suggested that the uniformity of the rule would reduce the burden of preparing training materials relative to the current variety of Residential Real Estate GTO thresholds and applications, the majority of training cost-related comments simply noted that training costs would impose a burden and might separately lead to higher labor costs if new personnel require compensation for additional reporting compliance related subject-matter expertise. There were, however, some commenters who expressed a belief that the amount of time needed for—and frequency of—training needed to adequately prepare staff for compliance would be higher. While FinCEN is declining to responsively adjust its estimates of training-related time costs for reasons, among others, that are further discussed below, FinCEN is responsive to certain other commenters who expressed a perceived value to having a greater range of potential burden estimates to compare: had FinCEN adopted the suggested alternative training time costs, the aggregate annual training burden would have been either $81.5 million in year 1  [ 78 ] or $101.9 million  [ 79 ] in year 1, or between $63.5 and $130.8 million in a given year. [ 80 ]

In its NPRM analysis, FinCEN recognized that the rule would impose certain costs on businesses positioned to provide services to non-financed transfers of residential real property even in the absence of direct participation in a specific reportable transfer, including the costs of preparing informational material and training personnel about the proposed rule generally as well as certain firm-specific policies and procedures related to reporting, complying, and documenting compliance. Because this training burden was applied uniformly across all potentially affected occupational categories represented in the reporting cascade, which is already a conservative assumption given that some cascade tiers are, in practice, more likely to become the reporting person than others, FinCEN considered time burden ( print page 70286) values (75 minutes for initial, 30 minutes for refresher) that would average across the expected variation in training by occupational category a reasonable approach. Furthermore, these training costs, as estimated in the NPRM, pertain only to those contemplated activities identified (developing general understanding of the rule and firm-specific compliance policies and procedures) and were not intended to reflect additional reporting-technology and form-specific training costs. Costs of training that are specific to the Real Estate Report will be separately estimated as a function of the RIA in the NPRM for the Real Estate Report; therefore, it would not have been appropriate to have included those training costs in the current final rule estimates as that would result in accounting for the same expense twice.

The total costs associated with reporting a given reportable transfer will likely vary with the specific facts and circumstances of the transfer. For instance, the cost of the time needed to prepare and file a report could differ depending on which party in the cascade is the reporting person, because parties receive different compensating wages. The costs associated with the time to determine who is the reporting person will also vary by the number of potential parties who may assume the role and thus might be parties to a designation agreement. Additionally, the time required to prepare a report will likely vary with the complexity of the beneficial ownership of the transferee and, for example, the level of the transferee entity's preexisting familiarity with the concepts of beneficial ownership information as defined for FinCEN purposes.

FinCEN continues to estimate an average per-party cost to determine the reporting person of 30 (15) minutes for the party that assumes the role if a designation agreement is (not) required and 15 minutes each for all non-reporting parties (assuming each tier in the cascade corresponds to one reporting person). Therefore, the range of potential time costs associated with determining the reporting person is expected to be between 15 to 90 minutes. Recently, FinCEN received updated information from parties currently reporting under the Residential Real Estate GTOs indicating that the previously estimated time cost of 20 minutes for that reporting requirement was less than half the average time expended per report in practice. Based on this feedback, the filing time burden FinCEN anticipates for the rule accordingly incorporates a 45-minute estimate for the collection and reporting of the subset of Real Estate Report required information that is similar to information in reports filed under the Residential Real Estate GTOs, although FinCEN recognizes that certain transfers may require significantly more time. Mindful of these outliers, FinCEN estimates an average 2 hour per reportable transfer time cost to collect and review transferee and transfer-specific reportable information and related documents, and an average 30 minute additional time cost to reporting.

Table 3—Reporting Costs

Estimated per transaction reporting costs		Non-reporting party		Reporting party
Primary business categories	Fully loaded hourly wage	Designation		Designation-related		Designation-independent
		Time (hours)	Total	Time (hours)	Total	Time (hours)	Total
Title Abstract and Settlement Offices	$79.35	0.25	$19.84	0.25	$19.84	2.75	$218.21
Direct Title Insurance Carriers	106.49	0.25	26.62	0.25	26.62	2.75	292.85
Other Activities Related to Real Estate	81.74	0.25	20.43	0.25	20.43	2.75	224.78
Offices of Lawyers	153.84	0.25	38.46	0.25	38.46	2.75	423.07
Offices of Real Estate Agents and Brokers	81.74	0.25	20.43	0.25	20.43	2.75	224.78

Based on the range of expected reportable transfers and the wages associated with different persons in the potential reporting cascade, FinCEN anticipates that the rule's reporting costs may be between approximately $174.6 million and $466.5 million.

In its original NPRM analysis, FinCEN stated an expectation that reporting persons would generally be able to rely on technology previously purchased and already deployed in the ordinary course of business (namely, computers and access to the internet) to comply with the proposed reporting requirements, and therefore no line item of incremental expected IT costs was ascribed to reporting. Certain commenters expressed that this expectation would be unrealistic because their current business practices rely on software for tracking and internal controls processes, for example, that would need to be updated in light of the rule's reporting requirements. However, FinCEN did not receive any comments that would enable it to quantify the expected burden associated with these software upgrades that commenters described. In the absence of readily generalizable cost estimates, it is therefore not feasible to update reporting costs responsively, though FinCEN acknowledges that, as a consequence, its aggregate burden estimates can, at best, function as a lower-bound expectation of the total costs of the rule.

FinCEN continues to expect that the rule would impose recordkeeping requirements on reporting persons as well as, in certain cases, members of a given reportable transfer's cascade that are not the reporting person. The primary variation in expected recordkeeping costs would flow from the conditions under which the reporting person has assumed their role. Additional variation in costs may result from differences in the dollar value assigned to the reporting person's time costs as a function of their primary occupation.

If the reporting person assumes that role as a function of their position in the reporting cascade, this would imply that no meaningfully distinct person involved in the transfer provided the preceding service(s). In this case, the reporting person's recordkeeping requirements would be limited to the retention of compliance documents ( i.e., a copy of the transferee's certification of beneficial ownership information) for a period of five years in a manner that preserves ready availability for inspection as authorized by law. Recordkeeping costs would therefore include those associated with creating and/or collecting the necessary documents, storing the records in an accessible format, and securely disposing of the records after the required retention period has elapsed. FinCEN anticipates that over the full recordkeeping lifecycle, each reportable ( print page 70287) transfer would, on average, require one hour of the reporting person's time, as well as a record processing and maintenance cost of ten cents. Because FinCEN expects that records will primarily be produced and recorded electronically and estimates its own processing and maintenance costs at ten cents per record, it has applied the same expected cost per reportable transfer to reporting persons. In aggregate, this would result in recordkeeping costs between approximately $63.6 million and $130.8 million associated with one year's reportable transfers.

Table 4—Estimated Recordkeeping Costs

Estimated per transaction recordkeeping costs		Non-reporting party		Reporting party
Primary business categories	Fully loaded hourly wage	Designation-related		Designation-related		Designation-independent
		Time (minutes)	Total *	Time (minutes)	Total *	Time (hours)	Total * (unadjusted)
Title Abstract and Settlement Offices	$79.35	5	$6.71	5	$6.71	1	$79.45
Direct Title Insurance Carriers	106.49	5	8.97	5	8.97	1	106.59
Other Activities Related to Real Estate	81.74	5	6.91	5	6.91	1	81.84
Offices of Lawyers	153.84	5	12.92	5	12.92	1	153.94
Offices of Real Estate Agents and Brokers	81.74	5	6.91	5	6.91	1	81.84
* Total Recordkeeping cost estimates include both labor (wages) and technology costs ($0.10).

If the reporting person has instead assumed that role as the result of a designation agreement, the rule would impose additional recordkeeping requirements on both the reporting person and at least one other member of the reporting cascade. This is because the existence of a designation agreement implies the existence of one or more distinct alternative parties to the reportable transfer that provided a preceding service or services as described in the cascade. While the final rule only stipulates that “all parties to a designation agreement” would also be anticipated to incur recordkeeping costs, FinCEN expects the minimum number of additional parties required to retain a readily accessible copy of the designation agreement for a five-year period would, in practice, depend on the number of alternative reporting parties servicing the transfer in a capacity that precedes the designated reporting person in the cascade, as it would otherwise be difficult to demonstrate the prerequisite sequence of conditions were met to establish the “but for” of the requirement. Conservatively assuming that each service in the cascade is provided by a separate party, this would impose an incremental recordkeeping cost on at least two parties per transfer and at most five. Because FinCEN estimates of reporting costs already assign the costs of preparing a designation agreement to the reporting person (when a transfer includes a designation agreement), the incremental recordkeeping costs it estimates here pertain solely to the electronic dissemination, signing, and storage of the agreement. This is assigned an average time cost of five minutes per signing party to read and sign the designation agreement, as well as a ten-cent record processing and maintenance cost per transfer. Thus, designation agreement-specific recordkeeping costs are expected to include a time cost of 10-50 minutes (assuming one party signing per tier of the cascade) and $0.20-$0.50 per reportable transfer that involves a designation. This corresponds to expected annual aggregate costs ranging from approximately $10.9 million to $36.1 million. FinCEN notes that it assumes that rational parties to a reportable transfer would not enter into a designation agreement if the expected cost of doing so, including compliance with the recordkeeping requirements, were not elsewhere compensated in the form of efficiency gains or other offsetting cost savings associated with other components of compliance with the rule, such as training or reporting costs. As such, the estimates provided here should only be taken to reflect a pro forma accounting cost.

Several commenters expressed concern that in addition to the technological costs associated with new or upgraded software, they would face certain non-monetary costs in the form of increased technology and cybersecurity related risk. Because FinCEN is not requiring reporting persons to retain copies of filed Real Estate Reports, it is not clear how the incremental data that would be retained ( i.e., a copy of the beneficial ownership information certification and, if one exists, a copy of the designation agreement) could be meaningfully distinguished from other records a reporting person might retain in connection with the same reportable transfer for purposes of estimating a standalone burden of increased risk.

To implement the rule, FinCEN expects to incur certain operating costs that would include approximately $8.5 million in the first year and approximately $7 million each year thereafter. These estimates include anticipated novel expenses related to technological implementation, [ 81 ] stakeholder outreach and informational support, compliance monitoring, and potential enforcement activities, as well as certain incremental increases to pre-existing administrative and logistical expenses.

While such operating costs are not typically considered part of the general economic cost of a rule, FinCEN acknowledges that this treatment implicitly assumes that resources commensurate with the novel operating costs exist. If this assumption does not hold, then operating costs associated with a rule may impose certain economic costs on the public in the form of opportunity costs from the agency's forgone alternative activities and those activities' attendant benefits. Putting that into the context of this rule, and benchmarking against FinCEN's actual appropriated budget for fiscal year 2023 ($190.2 million), [ 82 ] the corresponding opportunity cost would resemble forgoing approximately 4.5 percent of current activities annually.

In the NPRM, FinCEN analyzed the expected impact of three policy alternatives to the proposed rule and invited public comment regarding the ( print page 70288) viability and preferability of these alternatives.

First, instead of the designation option included in the proposed rule, FinCEN could have required the reporting person to be determined strictly by the reporting cascade, leaving it to the parties to a covered transfer to determine which service provider would meet the highest tier of the cascade and consequently be required to report without any option to select whichever party in the reporting cascade is best-positioned to file the report. FinCEN expects that rational parties would prefer to assign the reporting obligation to the party who can complete the report most cost-effectively. An alternative reporting structure that does not allow the parties to designate a reporting person responsible for the report would therefore be less cost-effective than the approach proposed in the NPRM, unless the reporting cascade would always assign the reporting requirement to the party with the lowest associated compliance costs. Because FinCEN expects that parties to the covered transfer may be better situated to determine which party can complete the required report in the most cost-effective manner, FinCEN declined to propose a standalone reporting cascade. FinCEN did not receive any comments indicating that it was mistaken in its assumptions, nor did it receive any comments indicating a preference for the designation option to be removed.

As a second alternative, FinCEN could have proposed to impose the full traditional SAR filing obligations and AML/CFT program requirements on the various real estate professionals included in the proposed reporting cascade instead of the narrower requirement that only one participant party would be required to file a Real Estate Report. While imposing full AML/CFT program requirements on all real estate professionals would have almost certainly served to mitigate the illicit finance risks in the residential real estate sector, FinCEN considered that the costs accompanying this alternative would be commensurately more significant and would likely disproportionately burden small businesses. Such weighting of costs towards smaller entities was expected to increase transaction costs associated with residential real property transfers both directly via program-related operational costs and indirectly via the potential anticompetitive effects of program costs and was therefore considered a less viable alternative than the streamlined reporting obligation proposed. FinCEN did not receive any comments indicating that it was mistaken in its expectations about the economic impact of this alternative or its lesser desirability.

Finally, as a third alternative, FinCEN could have required the reporting person to certify the transferee's beneficial ownership information instead of allowing them to rely upon the transferee entity or trust to certify to the reporting person that the beneficial ownership information they have provided is accurate to the best of their knowledge. FinCEN anticipated that this alternative would likely be accompanied by a number of increased costs, including a potential need for longer, more detailed compliance training; lengthier time necessary to collect and review documents supporting the reported transferee beneficial ownership information required; and increased recordkeeping costs. FinCEN also considered that there might also be costs associated with transfers that would not occur if, for example, a reporting person was unwilling or unable to certify the transferee's information. Furthermore, FinCEN was concerned about the potential anticompetitive effects that might arise if certain reporting persons are better positioned to absorb the risks associated with certifying transferee beneficial ownership information, as it was foreseeable that smaller businesses could be at a disadvantage. FinCEN did not receive any comments indicating that it was mistaken in its expectations about the economic impact of this alternative or comments from potentially affected transferees that they would prefer the reporting person to provide certification instead.

E.O. 12866 and its amendments direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, and public health and safety effects; distributive impacts; and equity). [ 83 ] E.O. 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. E.O. 13563 also recognizes that some benefits are difficult to quantify and provides that, where appropriate and permitted by law, agencies may consider and discuss qualitatively values that are difficult or impossible to quantify. [ 84 ]

Because annual residential real estate transaction volume can vary significantly from year to year and is sensitive to a host of macroeconomic factors (some of which cannot easily be modeled with reasonable accuracy), estimates that rely on average values of current data projected over extended periods of time into the future may be of limited informational value. Nevertheless, FinCEN has prepared certain annualized cost estimates as recommended in OMB circular A-4. [ 85 ] Using the midpoint of the estimated range of expected costs in year one of compliance  [ 86 ] and in subsequent years, [ 87 ] FinCEN estimates that the net present value of costs associated with a five-year time horizon is $2.21 billion ($2.46 billion) using a 7 precent (3 percent) discount rate, respectively. This equates to annualized costs of $538.4 million ($538.0 million) using the same discount rates.

This rule has been designated a “significant regulatory action;” accordingly, it has been reviewed by the Office of Management and Budget (OMB).

When an agency issues a rulemaking proposal, the RFA  [ 88 ] requires the agency either to provide an initial regulatory flexibility analysis (IRFA) with a proposed rule or to certify that the proposed rule would not have a significant economic impact on a substantial number of small entities. In its NPRM, FinCEN asserted that, although the rule might apply to a substantial number of small entities, [ 89 ] it ( print page 70289) was not expected to have a significant economic impact on a substantial number of them. [ 90 ] The preliminary basis for this expectation, at that stage, included FinCEN's attempts to minimize the burden on reporting persons by streamlining the reporting requirements and providing for an option to designate the reporting obligation. Accordingly, FinCEN certified that the proposed rule would not have a significant economic impact on a substantial number of small entities. [ 91 ]

Having considered the various possible outcomes for small entities under the reporting requirements at the proposal stage  [ 92 ] and having taken the public comments received in response to the NPRM into consideration, FinCEN continues to believe that the rule will not have a significant economic impact on a substantial number of small entities, [ 93 ] and therefore that certification remains appropriate and a Final Regulatory Flexibility Analysis (FRFA) is not required. Changes made from the NPRM to the final rule reinforce this conclusion. The final rule contains additional exceptions for low-risk transfers and otherwise clarifies the scope of transactions to which the rule will apply, and also adopts a reasonable reliance standard with respect to information provided to reporting persons. As a result, FinCEN expects that the final rule will result in a more narrowly scoped burden in general than the proposed rule that was certified at the NPRM stage. [ 94 ] FinCEN expects that small entities affected by the final rule would experience a proportionate share of this reduction in burden when compared to the proposed rule, resulting in a more limited burden for small entities under the final rule when compared to the proposed rule, noting again that the proposed rule was itself certified as not having a significant economic impact on a substantial number of small entities.

Nevertheless, while further steps to accommodate or discuss small entity concerns may not be a strict requirement, FinCEN is mindful of the small-business-oriented views and concerns voiced during the public comment period and has not precluded taking additional steps, as feasible, to facilitate implementation of the final rule in a manner that minimizes the perceived or realized competitive disadvantages a small business or other affected small entity may face. This includes, but may not be limited to, targeted outreach and production of training materials such as FAQs or a Small Entity Compliance Guide, in addition to the more broadly available support services as previously discussed in Section III.A and Section VI.A.iv.b.

Having considered the various possible outcomes for small entities under the reporting requirements at the proposal stage and having taken the public comments received in response to the NPRM into consideration for the final rule, FinCEN continues to certify that the rule will not have a significant economic impact on a substantial number of small entities.

Section 202 of the UMRA  [ 95 ] requires that an agency prepare a statement before promulgating a rule that may result in expenditure by state, local, and Tribal governments, or the private sector, in the aggregate, of $184 million or more in any one year. [ 96 ] Section 202 of the UMRA also requires an agency to identify and consider a reasonable number of regulatory alternatives before promulgating a rule. FinCEN believes that the preceding assessment of impact  [ 97 ] satisfies the UMRA's analytical requirements.

The new information collection requirements contained in this rule ( 31 CFR 1031.320 ) have been approved by OMB in accordance with the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et seq., under control number 1506-0080. The PRA imposes certain requirements on Federal agencies in connection with their conducting or sponsoring any collection of information as defined by the PRA. Under the PRA, an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid OMB control number. The rule includes three information collection requirements: Real Estate Reports, which will be submitted to FinCEN, and, depending on the circumstances of the transfer, a designation agreement and/or a certification form for beneficial ownership information, neither of which will be submitted to FinCEN but which must be retained for five years.

Reporting and Recordkeeping Requirements: The provisions in this rule pertaining to the collection of information can be found in paragraph (a) of 31 CFR 1031.320 . The information required to be reported by the rule will be used by the U.S. Government to monitor and investigate money laundering in the U.S. residential real estate sector. The information required to be maintained will be used by Federal agencies to verify compliance by reporting persons with the provisions of the rule. The collection of information is mandatory.

OMB Control Number: 1506-0080

Frequency: As required

Description of Affected Public: Residential Real Estate Settlement Agents, Title Insurance Carriers, Escrow Service Providers, Other Real Estate Professionals

Estimated Number of Responses: 850,000  [ 98 ]

Estimated Total Annual Reporting and Recordkeeping Burden: 4,604,167 burden hours  [ 99 ]

Estimated Total Annual Reporting and Recordkeeping Cost: $630,976,662.47  [ 100 ]

OMB's Office of Information and Regulatory Affairs has designated this rule as meeting the criteria under 5 U.S.C. 804(2) for purposes of Subtitle E of the Small Business Regulatory Enforcement and Fairness Act of 1996 (also known as the Congressional Review Act or CRA). [ 101 ] Under the CRA, such rules generally may take effect no earlier than 60 days after the rule is published in the Federal Register . [ 102 ]

• Administrative practice and procedure
• Authority delegations (Government agencies)
• Banks and banking
• Buildings and facilities
• Business and industry
• Condominiums
• Cooperatives
• Citizenship and naturalization
• Electronic filing
• Fair housing
• Federal home loan banks
• Federal savings associations
• Federal-States relations
• Foreign investments in US
• Foreign persons
• Foundations
• Holding companies
• Home improvement
• Indian—law
• Indians—tribal government
• Insurance companies
• Investment advisers
• Investment companies
• Investigations
• Legal services
• Law enforcement
• Low and moderate income housing
• Money laundering
• Mortgage insurances
• Real property acquisition
• Record retention
• Reporting and recordkeeping requirements
• Small businesses
• Trusts and trustees
• US territories

For the reasons set forth in the preamble, chapter X of title 31 of the Code of Federal Regulations is amended by adding part 1031 to read as follows:

Authority: 12 U.S.C. 1829b , 1951-1959 ; 31 U.S.C. 5311-5314 , 5316-5336 ; title III, sec. 314 Pub. L. 107-56 , 115 Stat. 307; sec. 701 Pub. L. 114-74 , 129 Stat. 599; sec. 6403, Pub. L. 116-283 , 134 Stat. 3388.

(a) General. A reportable transfer as defined in paragraph (b) of this section shall be reported to FinCEN by the reporting person identified in paragraph (c) of this section. The report shall include the information described in paragraphs (d) through (i) of this section. The reporting person may reasonably rely on information collected from others under the conditions described in paragraph (j). The report required by this section shall be filed in the form and manner, and at the time, specified in paragraph (k) of this section. Records shall be retained as specified in paragraph (l) of this section. Reports required under this section and any other information that would reveal that a reportable transfer has been reported are not confidential as specified in paragraph (m) of this section. Terms not defined in this section are defined in 31 CFR 1010.100 .

(b) Reportable transfer. (1) Except as set forth in paragraph (b)(2) of this section, a reportable transfer is a non-financed transfer to a transferee entity or transferee trust of an ownership interest in residential real property. For the purposes of this section, residential real property means:

(i) Real property located in the United States containing a structure designed principally for occupancy by one to four families;

(ii) Land located in the United States on which the transferee intends to build a structure designed principally for occupancy by one to four families;

(iii) A unit designed principally for occupancy by one to four families within a structure on land located in the United States; or

(iv) Shares in a cooperative housing corporation for which the underlying property is located in the United States.

(2) A reportable transfer does not include a:

(i) Grant, transfer, or revocation of an easement;

(ii) Transfer resulting from the death of an individual, whether pursuant to the terms of a decedent's will or the terms of a trust, the operation of law, or by contractual provision;

(iii) Transfer incident to divorce or dissolution of a marriage or civil union;

(iv) Transfer to a bankruptcy estate;

(v) Transfer supervised by a court in the United States;

(vi) Transfer for no consideration made by an individual, either alone or with the individual's spouse, to a trust of which that individual, that individual's spouse, or both of them, are the settlor(s) or grantor(s);

(vii) Transfer to a qualified intermediary for purposes of 26 CFR 1.1031(k)-1 ; or

(viii) Transfer for which there is no reporting person.

(c) Determination of reporting person. (1) Except as set forth in paragraphs (c)(2), (3) and (4) of this section, the reporting person for a reportable transfer is the person engaged within the United States as a business in the provision of real estate closing and settlement services that is:

(i) The person listed as the closing or settlement agent on the closing or settlement statement for the transfer;

(ii) If no person described in paragraph (c)(1)(i) of this section is involved in the transfer, then the person that prepares the closing or settlement statement for the transfer;

(iii) If no person described in paragraph (c)(1)(i) or (ii) of this section is involved in the transfer, then the person that files with the recordation office the deed or other instrument that transfers ownership of the residential real property;

(iv) If no person described in paragraphs (c)(1)(i) through (iii) of this section is involved in the transfer, then the person that underwrites an owner's title insurance policy for the transferee with respect to the transferred residential real property, such as a title insurance company;

(v) If no person described in paragraphs (c)(1)(i) through (iv) of this section is involved in the transfer, then the person that disburses in any form, including from an escrow account, trust account, or lawyers' trust account, the greatest amount of funds in connection with the residential real property transfer;

(vi) If no person described in paragraphs (c)(1)(i) through (v) of this section is involved in the transfer, then the person that provides an evaluation of the status of the title; or ( print page 70291)

(vii) If no person described in paragraphs (c)(1)(i) through (vi) of this section is involved in the transfer, then the person that prepares the deed or, if no deed is involved, any other legal instrument that transfers ownership of the residential real property, including, with respect to shares in a cooperative housing corporation, the person who prepares the stock certificate.

(2) Employees, agents, and partners. If an employee, agent, or partner acting within the scope of such individual's employment, agency, or partnership would be the reporting person as determined in paragraph (c)(1) of this section, then the individual's employer, principal, or partnership is deemed to be the reporting person.

(3) Financial institutions. A financial institution that has an obligation to maintain an anti-money laundering program under this chapter is not a reporting person for purposes of this section.

(4) Designation agreement. (i) The reporting person described in paragraph (c)(1) of this section may enter into an agreement with any other person described in paragraph (c)(1) of this section to designate such other person as the reporting person with respect to the reportable transfer. The person designated by such agreement shall be treated as the reporting person with respect to the transfer. If reporting persons decide to use designation agreements, a separate agreement is required for each reportable transfer.

(ii) A designation agreement shall be in writing, and shall include:

(A) The date of the agreement;

(B) The name and address of the transferor;

(C) The name and address of the transferee entity or transferee trust;

(D) Information described in in paragraph (g) identifying transferred residential real property;

(E) The name and address of the person designated through the agreement as the reporting person with respect to the transfer; and

(F) The name and address of all other parties to the agreement.

(d) Information concerning the reporting person. The reporting person shall report:

(1) The full legal name of the reporting person;

(2) The category of reporting person, as determined in paragraph (c) of this section; and

(3) The street address that is the reporting person's principal place of business in the United States.

(e) Information concerning the transferee —(1) Transferee entities. For each transferee entity involved in a reportable transfer, the reporting person shall report:

(i) The following information for the transferee entity:

(A) Full legal name;

(B) Trade name or “doing business as” name, if any;

(C) Complete current address consisting of:

( 1 ) The street address that is the transferee entity's principal place of business; and

( 2 ) If such principal place of business is not in the United States, the street address of the primary location in the United States where the transferee entity conducts business, if any; and

(D) Unique identifying number, if any, consisting of:

( 1 ) The Internal Revenue Service Taxpayer Identification Number (IRS TIN) of the transferee entity;

( 2 ) If the transferee entity has not been issued an IRS TIN, a tax identification number for the transferee entity that was issued by a foreign jurisdiction and the name of such jurisdiction; or

( 3 ) If the transferee entity has not been issued an IRS TIN or a foreign tax identification number, an entity registration number issued by a foreign jurisdiction and the name of such jurisdiction;

(ii) The following information for each beneficial owner of the transferee entity:

(B) Date of birth;

(C) Complete current residential street address;

(D) Citizenship; and

(E) Unique identifying number consisting of:

( 1 ) An IRS TIN; or

( 2 ) Where an IRS TIN has not been issued:

( i ) A tax identification number issued by a foreign jurisdiction and the name of such jurisdiction; or

( ii ) The unique identifying number and the issuing jurisdiction from a non-expired passport issued by a foreign government; and

(iii) The following information for each signing individual, if any:

(D) Unique identifying number consisting of:

( ii ) The unique identifying number and the issuing jurisdiction from a non-expired passport issued by a foreign government to the individual;

(E) Description of the capacity in which the individual is authorized to act as the signing individual; and

(F) If the signing individual is acting in that capacity as an employee, agent, or partner, the name of the individual's employer, principal, or partnership.

(2) Transferee trusts. For each transferee trust in a reportable transfer, the reporting person shall report:

(i) The following information for the transferee trust:

(A) Full legal name, such as the full title of the agreement establishing the transferee trust;

(B) Date the trust instrument was executed;

(C) Unique identifying number, if any, consisting of:

( 1 ) IRS TIN; or

( 2 ) Where an IRS TIN has not been issued, a tax identification number issued by a foreign jurisdiction and the name of such jurisdiction; and

(D) Whether the transferee trust is revocable;

(ii) The following information for each trustee that is a legal entity:

( 1 ) The street address that is the trustee's principal place of business; and

( 2 ) If such principal place of business is not in the United States, the street address of the primary location in the United States where the trustee conducts business, if any; and

( 1 ) The IRS TIN of the trustee;

( 2 ) In the case that a trustee has not been issued an IRS TIN, a tax identification number issued by a foreign jurisdiction and the name of such jurisdiction; or

( 3 ) In the case that a trustee has not been issued an IRS TIN or a foreign tax identification number, an entity registration number issued by a foreign jurisdiction and the name of such jurisdiction;

(E) For purposes of this section, an individual trustee of the transferee trust is considered to be a beneficial owner of the trust. As such, information on individual trustees must be reported in accordance with the requirements set forth in paragraph (e)(2)(iii) of this section;

(iii) The following information for each beneficial owner of the transferee trust:

(A) Full legal name; ( print page 70292)

(D) Citizenship;

(F) The category of beneficial owner, as determined in paragraph (j)(1)(ii) of this section; and

(iv) The following information for each signing individual, if any:

(f) Information concerning the transferor. For each transferor involved in a reportable transfer, the reporting person shall report:

(1) The following information for a transferor who is an individual:

(i) Full legal name;

(ii) Date of birth;

(iii) Complete current residential street address; and

(iv) Unique identifying number consisting of:

(A) An IRS TIN; or

(B) Where an IRS TIN has not been issued:

( 1 ) A tax identification number issued by a foreign jurisdiction and the name of such jurisdiction; or

( 2 ) The unique identifying number and the issuing jurisdiction from a non-expired passport issued by a foreign government to the individual;

(2) The following information for a transferor that is a legal entity:

(ii) Trade name or “doing business as” name, if any;

(iii) Complete current address consisting of:

(A) The street address that is the legal entity's principal place of business; and

(B) If the principal place of business is not in the United States, the street address of the primary location in the United States where the legal entity conducts business, if any; and

(iv) Unique identifying number, if any, consisting of:

(A) An IRS TIN;

(B) In the case that the legal entity has not been issued an IRS TIN, a tax identification number issued by a foreign jurisdiction and the name of such jurisdiction; or

(C) In the case that the legal entity has not been issued an IRS TIN or a foreign tax identification number, an entity registration number issued by a foreign jurisdiction and the name of such jurisdiction; and

(3) The following information for a transferor that is a trust:

(i) Full legal name, such as the full title of the agreement establishing the trust;

(ii) Date the trust instrument was executed;

(iii) Unique identifying number, if any, consisting of:

(A) IRS TIN; or

(B) Where an IRS TIN has not been issued, a tax identification number issued by a foreign jurisdiction and the name of such jurisdiction;

(iv) For each individual who is a trustee of the trust:

(B) Current residential street address; and

(C) Unique identifying number consisting of:

(v) For each legal entity that is a trustee of the trust:

( 1 ) The street address that is the legal entity's principal place of business; and

( 2 ) If the principal place of business is not in the United States, the street address of the primary location in the United States where the legal entity conducts business, if any; and

( 1 ) An IRS TIN;

( 2 ) In the case that the legal entity has not been issued an IRS TIN, a tax identification number issued by a foreign jurisdiction and the name of such jurisdiction; or

( 3 ) In the case that the legal entity has not been issued an IRS TIN or a foreign tax identification number, an entity registration number issued by a foreign jurisdiction and the name of such jurisdiction.

(g) Information concerning the residential real property. For each residential real property that is the subject of the reportable transfer, the reporting person shall report:

(1) The street address, if any;

(2) The legal description, such as the section, lot, and block; and

(3) The date of closing.

(h) Information concerning payments. (1) The reporting person shall report the following information concerning each payment, other than a payment disbursed from an escrow or trust account held by a transferee entity or transferee trust, that is made by or on behalf of the transferee entity or transferee trust regarding a reportable transfer:

(i) The amount of the payment;

(ii) The method by which the payment was made;

(iii) If the payment was paid from an account held at a financial institution, the name of the financial institution and the account number; and

(iv) The name of the payor on any wire, check, or other type of payment if the payor is not the transferee entity or transferee trust.

(2) The reporting person shall report the total consideration paid or to be paid by the transferee entity or transferee trust regarding the reportable transfer, as well as the total consideration paid by or to be paid by all transferees regarding the reportable transfer.

(i) Information concerning hard money, private, and other similar loans. The reporting person shall report whether the reportable transfer involved credit extended by a person that is not a financial institution with an obligation to maintain an anti-money laundering program and an obligation to report suspicious transactions under this chapter.

(j) Reasonable reliance —(1) General. Except as described in paragraph (j)(2) of this section, the reporting person may rely upon information provided by other persons, absent knowledge of facts that would reasonably call into question the ( print page 70293) reliability of the information provided to the reporting person.

(2) Certification when reporting beneficial ownership information. For purposes of reporting information described in paragraphs (e)(1)(ii) and (e)(2)(iii) of this section, the reporting person may rely upon information provided by the transferee or a person representing the transferee in the reportable transfer, absent knowledge of facts that would reasonably call into question the reliability of the information provided to the reporting person, if the person providing the information certifies the accuracy of the information in writing to the best of the person's knowledge.

(k) Filing procedures —(1) What to file. A reportable transfer shall be reported by completing a Real Estate Report.

(2) Where to file. The Real Estate Report shall be filed electronically with FinCEN, as indicated in the instructions to the report.

(3) When to file. A reporting person is required to file a Real Estate Report by the later of either:

(i) the final day of the month following the month in which the date of closing occurred; or

(ii) 30 calendar days after the date of closing.

(l) Retention of records. A reporting person shall maintain a copy of any certification described in paragraph (j)(2) of this section. In addition, all parties to a designation agreement described in paragraph (c)(4) of this section shall maintain a copy of such designation agreement.

(m) Exemptions —(1) Confidentiality. Reporting persons, and any director, officer, employee, or agent of such persons, and Federal, State, local, or Tribal government authorities, are exempt from the confidentiality provision in 31 U.S.C. 5318(g)(2) that prohibits the disclosure to any person involved in a suspicious transaction that the transaction has been reported or any information that otherwise would reveal that the transaction has been reported.

(2) Anti-money laundering program. A reporting person under this section is exempt from the requirement to establish an anti-money laundering program, in accordance with 31 CFR 1010.205(b)(1)(v) .

(n) Definitions. For purposes of this section, the following terms have the following meanings.

(1) Beneficial owner —(i) Beneficial owners of transferee entities. (A) The beneficial owners of a transferee entity are the individuals who would be the beneficial owners of the transferee entity on the date of closing if the transferee entity were a reporting company under 31 CFR 1010.380(d) on the date of closing.

(B) The beneficial owners of a transferee entity that is established as a non-profit corporation or similar entity, regardless of jurisdiction of formation, are limited to individuals who exercise substantial control over the entity, as defined in 31 CFR 1010.380(d)(1) on the date of closing.

(ii) Beneficial owners of transferee trusts. The beneficial owners of a transferee trust are the individuals who fall into one or more of the following categories on the date of closing:

(A) A trustee of the transferee trust.

(B) An individual other than a trustee with the authority to dispose of transferee trust assets.

(C) A beneficiary who is the sole permissible recipient of income and principal from the transferee trust or who has the right to demand a distribution of, or withdraw, substantially all of the assets from the transferee trust.

(D) A grantor or settlor who has the right to revoke the transferee trust or otherwise withdraw the assets of the transferee trust.

(E) A beneficial owner of any legal entity that holds at least one of the positions in the transferee trust described in paragraphs (n)(1)(ii)(A) through (D) of this section, except when the legal entity meets the criteria set forth in paragraphs (n)(10)(ii)(A) through (P) of this section. Beneficial ownership of any such legal entity is determined under 31 CFR 1010.380(d) , utilizing the criteria for beneficial owners of a reporting company.

(F) A beneficial owner of any trust that holds at least one of the positions in the transferee trust described in paragraphs (n)(1)(ii)(A) through (D) of this section, except when the trust meets the criteria set forth in paragraphs (n)(11)(ii)(A) through (D). Beneficial ownership of any such trust is determined under this paragraph (n)(1)(ii), utilizing the criteria for beneficial owners of a transferee trust.

(2) Closing or settlement agent. The term “closing or settlement agent” means any person, whether or not acting as an agent for a title agent or company, a licensed attorney, real estate broker, or real estate salesperson, who for another and with or without a commission, fee, or other valuable consideration and with or without the intention or expectation of receiving a commission, fee, or other valuable consideration, directly or indirectly, provides closing or settlement services incident to the transfer of residential real property.

(3) Closing or settlement statement. The term “closing or settlement statement” means the statement of receipts and disbursements prepared for the transferee for a transfer of residential real property.

(4) Date of closing. The term “date of closing” means the date on which the transferee entity or transferee trust receives an ownership interest in residential real property.

(5) Non-financed transfer. The term “non-financed transfer” means a transfer that does not involve an extension of credit to all transferees that is:

(i) Secured by the transferred residential real property; and

(ii) Extended by a financial institution that has both an obligation to maintain an anti-money laundering program and an obligation to report suspicious transactions under this chapter.

(6) Ownership interest. The term “ownership interest” means the rights held in residential real property that are demonstrated:

(i) Through a deed, for a reportable transfer described in paragraph (b)(1)(i), (ii), or (iii) of this section; or

(ii) Through stock, shares, membership, certificate, or other contractual agreement evidencing ownership, for a reportable transfer described in paragraph (b)(1)(iv) of this section.

(7) Recordation office. The term “recordation office” means any State, local, Territory and Insular Possession, or Tribal office for the recording of reportable transfers as a matter of public record.

(8) Signing individual. The term “signing individual” means each individual who signed documents on behalf of the transferee as part of the reportable transfer. However, it does not include any individual who signed documents as part of their employment with a financial institution that has both an obligation to maintain an anti-money laundering program and an obligation to report suspicious transactions under this chapter.

(9) Statutory trust. The term “statutory trust” means any trust created or authorized under the Uniform Statutory Trust Entity Act or as enacted by a State. For the purposes of this subpart, statutory trusts are transferee entities.

(10) Transferee entity. (i) Except as set forth in paragraph (n)(10)(ii) of this section, the term “transferee entity” means any person other than a transferee trust or an individual.

(ii) A transferee entity does not include:

(A) A securities reporting issuer defined in 31 CFR 1010.380(c)(2)(i) ; ( print page 70294)

(B) A governmental authority defined in 31 CFR 1010.380(c)(2)(ii) ;

(C) A bank defined in 31 CFR 1010.380(c)(2)(iii) ;

(D) A credit union defined in 31 CFR 1010.380(c)(2)(iv) ;

(E) A depository institution holding company defined in 31 CFR 1010.380(c)(2)(v) ;

(F) A money service business defined in 31 CFR 1010.380(c)(2)(vi) ;

(G) A broker or dealer in securities defined in 31 CFR 1010.380(c)(2)(vii) ;

(H) A securities exchange or clearing agency defined in 31 CFR 1010.380(c)(2)(viii) ;

(I) Any other Exchange Act registered entity defined in 31 CFR 1010.380(c)(2)(ix) ;

(J) An insurance company defined in 31 CFR 1010.380(c)(2)(xii) ;

(K) A State-licensed insurance producer defined in 31 CFR 1010.380(c)(2)(xiii) ;

(L) A Commodity Exchange Act registered entity defined in 31 CFR 1010.380(c)(2)(xiv) ;

(M) A public utility defined in 31 CFR 1010.380(c)(2)(xvi) ;

(N) A financial market utility defined in 31 CFR 1010.380(c)(2)(xvii) ;

(O) An investment company as defined in section 3(a) of the Investment Company Act of 1940 ( 15 U.S.C. 80a-3(a) ) that is registered with the Securities and Exchange Commission under section 8 of the Investment Company Act ( 15 U.S.C. 80a-8 ); and

(P) Any legal entity controlled or wholly owned, directly or indirectly, by an entity described in paragraphs (n)(10)(ii)(A) through (O) of this section.

(11) Transferee trust. (i) Except as set forth in paragraph (n)(11)(ii) of this section, the term “transferee trust” means any legal arrangement created when a person (generally known as a grantor or settlor) places assets under the control of a trustee for the benefit of one or more persons (each generally known as a beneficiary) or for a specified purpose, as well as any legal arrangement similar in structure or function to the above, whether formed under the laws of the United States or a foreign jurisdiction. A trust is deemed to be a transferee trust regardless of whether residential real property is titled in the name of the trust itself or in the name of the trustee in the trustee's capacity as the trustee of the trust.

(ii) A transferee trust does not include:

(A) A trust that is a securities reporting issuer defined in 31 CFR 1010.380(c)(2)(i) ;

(B) A trust in which the trustee is a securities reporting issuer defined in 31 CFR 1010.380(c)(2)(i) ;

(C) A statutory trust; or

(D) An entity wholly owned by a trust described in paragraphs (n)(11)(ii)(A) through (C) of this section.

Andrea M. Gacki,

Director, Financial Crimes Enforcement Network.

1.  Section 6101 of the AML Act, codified at 31 U.S.C. 5318(h) , amended the BSA's requirement that financial institutions implement AML programs to also combat terrorist financing. This rule refers to “AML/CFT program” in reference to the current obligation contained in the BSA.

2.   31 U.S.C. 5312(a)(2)(U) .

3.   See 31 U.S.C. 5311 . Section 6003(1) of the Anti-Money Laundering Act of 2020 defines the BSA as section 21 of the Federal Deposit Insurance Act ( 12 U.S.C. 1829b ), Chapter 2 of Title I of Public Law 91-508 ( 12 U.S.C. 1951 et seq. ), and 31 U.S.C. chapter 53 , subchapter II. AML Act, Public Law 116-283 , Division F, section 6003(1) (Jan. 1, 2021). Under this definition, the BSA is codified at 12 U.S.C. 1829b and 1951-1960 , and 31 U.S.C. 5311-5314 and 5316-5336 , including notes thereto. Its implementing regulations are found at 31 CFR Chapter X .

4.   31 U.S.C. 5311(1) .

5.  Treasury Order 180-01, Paragraph 3(a) (Jan. 14, 2020), available at https://home.treasury.gov/​about/​general-information/​orders-and-directives/​treasury-order-180-01 .

6.   31 U.S.C. 5318(h)(1)(A)-(D) .

7.   31 U.S.C. 5318(g) .

8.   31 U.S.C. 5312(a)(2)(U) .

9.   31 U.S.C. 5318(g)(1)(A) .

10.   31 U.S.C. 5318(g)(5)(B)(i)-(iii) .

11.   See AML Act, section 6202 ( codified at 31 U.S.C. 5318(g)(D)(i)(1) ). Section 6102(c) of the AML Act also amended 31 U.S.C. 5318(a)(2) to give the Secretary the authority to “require a class of domestic financial institutions or nonfinancial trades or businesses to maintain appropriate procedures, including the collection and reporting of certain information as the Secretary of the Treasury may prescribe by regulation, to . . . guard against money laundering, the financing of terrorism, or other forms of illicit finance.” FinCEN believes this authority also provides an additional basis for the reporting requirement adopted in this final rule.

12.  As the Financial Action Task Force (FATF) noted in July 2022, “[d]isparities with rules surrounding legal structures across countries means property can often be acquired abroad by shell companies or trusts based in secrecy jurisdictions, exacerbating the risk of money laundering.” International bodies, such as the FATF have found that “[s]uccessful AML/CFT supervision of the real estate sector must contend with the obfuscation of true ownership provided by legal entities or arrangements[.]” FATF, “Guidance for a Risk Based Approach: Real Estate Sector” (July 2022), p. 17, available at https://www.fatf-gafi.org/​content/​dam/​fatf-gafi/​guidance/​RBA-Real-Estate-Sector.pdf.coredownload.pdf ; see, e.g., U.S. v. Delgado, 653 F.3d 729 (8th Cir. 2011) (drug trafficking, money laundering); U.S. v. Fernandez, 559 F.3d 303 (5th Cir. 2009) (drug trafficking, money laundering); Complaint for Forfeiture, U.S. v. All the Lot or Parcel of Land Located at 19 Duck Pond Lane Southampton, New York 11968, Case No. 1:23-cv-01545 (S.D.N.Y. Feb. 24, 2023) (sanctions evasion); Indictment and Forfeiture, U.S. v. Maikel Jose Moreno Perez, Case No. 1:23-cr-20035-RNS (S.D. Fla. Jan. 26, 2023) (bribery, money laundering, conspiracy); Motion for Preliminary Order of Forfeiture and Preliminary Order of Forfeiture, U.S. v. Colon, Case No. 1:17-cr-47-SB (D. Del. Nov. 18, 2022) (drug trafficking, money laundering); U.S. v. Andrii Derkach, 1:2022-cr-00432 (E.D.N.Y. Sept. 26, 2022) (sanctions evasion, money laundering, bank fraud); Doc. No. 10 at p. 1, U.S. vs. Ralph Steinmann and Luis Fernando Vuiz, 1:2022-cr-20306 (S.D. Fla. July 12, 2022) (bribery, money laundering); U.S. v. Jimenez, Case No. 1:18-cr-00879, 2022 U.S. Dist. LEXIS 77685, 2022 WL 1261738 (S.D.N.Y. Apr. 28, 2022) (false claim fraud, wire fraud, money laundering, identity theft); Complaint for Forfeiture, U.S. v. Real Property Located in Potomac, Maryland, Commonly Known as 9908 Bentcross Drive, Potomac, MD 20854, 8:2020-cv-02071 (D. Md. July 15, 2020) (public corruption, money laundering); Final Order of Forfeiture, U.S. v. Raul Torres, Case No. 1:19-cr-390 (N.D. Ohio Mar. 30, 2020) (operating an animal fighting venture, operating an unlicensed money services business, money laundering); U.S. v. Bradley, Case No. 3:15-cr-00037-2, 2019 U.S. Dist. LEXIS 141157, 2019 WL 3934684 (M.D. Tenn. Aug. 20, 2019) (drug trafficking, money laundering); Indictment, U.S. v. Patrick Ifediba, et al., Case No. 2:18-cr-00103-RDP-JEO, Doc. 1 (N.D. Ala. Mar. 29, 2018) (health care fraud); Redacted Indictment, U.S. v. Paul Manafort, Case 1:18-cr-00083-TSE (E.D. Va. Feb. 26, 2018) (money laundering, acting as an unregistered foreign agent); U.S. v. Miller, 295 F. Supp. 3d 690 (E.D. Va. 2018) (wire fraud); U.S. v. Coffman, 859 F. Supp. 2d 871 (E.D. Ky. 2012) (mail, wire, and securities fraud); U.S. v. 10.10 Acres Located on Squires Rd., 386 F. Supp. 2d 613 (M.D.N.C. 2005) (drug trafficking); Atty. Griev. Comm'n of Md. v. Blair, 188 A.3d 1009 (Md. Ct. App. 2018) (money laundering drug trafficking proceeds); State v. Harris, 861 A.2d 165 (NJ Super. Ct. App. Div. 2004) (money laundering, theft); U.S. Department of Justice, Press Release, “Associate of Sanctioned Oligarch Indicted for Sanctions Evasion and Money Laundering: Fugitive Vladimir Vorontchenko Aided in Concealing Luxury Real Estate Owned by Viktor Vekselberg” (Feb. 7, 2023), available at https://www.justice.gov/​usao-sdny/​pr/​associate-sanctioned-oligarch-indicted-sanctions-evasion-and-money-laundering ; U.S. Department of Justice, Press Release, United States Reaches Settlement to Recover More Than $700 Million in Assets Allegedly Traceable to Corruption Involving Malaysian Sovereign Wealth Fund (Oct. 30, 2019), available at https://www.justice.gov/​opa/​pr/​united-states-reaches-settlement-recover-more-700-million-assets-allegedly-traceable ; U.S. Department of Justice, Press Release, “Acting Manhattan U.S. Attorney Announces $5.9 Million Settlement of Civil Money Laundering And Forfeiture Claims Against Real Estate Corporations Alleged to Have Laundered Proceeds of Russian Tax Fraud” (May 12, 2017), available at https://www.justice.gov/​usao-sdny/​pr/​acting-manhattan-us-attorney-announces-59-million-settlement-civil-money-laundering-and .

13.  As explained in the notice of proposed rulemaking (NPRM) issued on February 16, 2024, while other investigative methods and databases may be available to law enforcement seeking information concerning persons involved in non-financed transfers of residential real property, the information obtained through such investigative methods or the databases themselves are often incomplete, unreliable, and diffuse, resulting in misalignment between those methods or sources and the potential risks posed by the transfers. For example, the non-uniformity of the title transfer processes across states and the fact that the recording of title information is largely done at the local level complicates and hinders investigative efforts. To presently verify how many non-financed purchases of residential real property a known illicit actor has made, law enforcement may have to issue subpoenas and travel to multiple jurisdictions—assuming that they are known—to obtain the relevant information. Law enforcement is also likely to experience difficulty in finding beneficial ownership information for legal entities or trusts not registered in the United States which have engaged in non-financed transfers of residential real estate. Furthermore, existing commercial databases do not collect much of the information that is the focus of this rule, such as that involving funds transfers. In these respects, a search of Real Estate Reports would be a far more efficient and complete mechanism. See FinCEN, NPRM, “Anti-Money Laundering Regulations for Residential Real Estate Transfers,” 89 FR 12424 , 12430 (Feb. 16, 2024).

14.   See 31 U.S.C. 5326 ; 31 CFR 1010.370 ; Treasury Order 180-01 (Jan. 14, 2020), available at https://home.treasury.gov/​about/​general-information/​orders-and-directives/​treasury-order-180-01 . In general, a GTO is an order administered by FinCEN which, for a finite period of time, imposes additional recordkeeping or reporting requirements on domestic financial institutions or other businesses in a given geographic area, based on a finding that the additional requirements are necessary to carry out the purposes of, or to prevent evasion of, the BSA. The statutory maximum duration of a GTO is 180 days, though it may be renewed.

15.  Global Financial Integrity, “Acres of Money Laundering: Why U.S. Real Estate is a Kleptocrat's Dream” (Aug. 2021), p. 26, available at https://gfintegrity.org/​report/​acres-of-money-laundering-why-u-s-real-estate-is-a-kleptocrats-dream/​ . According to its website, Global Financial Integrity is “a Washington, DC-based think tank focused on illicit financial flows, corruption, illicit trade and money laundering.” See Global Financial Integrity, “About,” available at https://gfintegrity.org/​about/​ .

16.   See supra note 13.

17.   See FinCEN, Advance Notice of Proposed Rulemaking, “Anti-Money Laundering Regulations for Real Estate Transactions,” 86 FR 69589 (Dec. 8, 2021).

18.  Through the proposed reporting cascade hierarchy, a real estate professional would be a reporting person required to file a report and keep records for a given transfer if the person performs a function described in the cascade and no other person performs a function described higher in the cascade. For example, if no person is involved in the transfer as described in the first tier of potential reporting persons, the reporting obligation would fall to the person involved in the transfer as described in the second tier of potential reporting persons, if any, and so on. The reporting cascade includes only persons engaged as a business in the provision of real estate closing and settlement services within the United States.

19.   31 U.S.C. 5312(a)(2)(U) ; see FinCEN, NPRM, “Anti-Money Laundering Regulations for Residential Real Estate Transfers,” 89 FR 12424 , 12427 (Feb. 16, 2024).

20.   See 31 U.S.C. 5318(g) .

21.   See California Bankers Ass'n v. Shultz, 416 U.S. 21 (1974); U.S. v. Miller, 425 U.S. 435 (1976).

22.   15 U.S.C. 6802(e)(5) .

23.   See FinCEN NPRM, “Anti-Money Laundering Regulations for Residential Real Estate Transfers,” 89 FR 12424 , 12447-12448 (Feb. 16, 2024).

24.   See, e.g., In re Grand Jury Subpoenas, 906 F.2d 1485, 1488 (10th Cir. 1990) (collecting cases).

25.   See; U.S. v. Sindel, 53 F.3d 874, 876 (8th Cir. 1995); U.S. v. Blackman, 72 F.3d 1418, 1424-25 (9th Cir. 1995); U.S. v. Ritchie, 15 F.3d 592, 602 (6th Cir. 1994); U.S. v. Leventhal, 961 F.2d 936, 940 (11th Cir. 1992); U.S. v. Goldberger & Dubin, P.C., 935 F.2d 501, 505 (2d Cir. 1991); In re Grand Jury Subpoenas, 906 F.2d 1485, 1492 (10th Cir. 1990).

26.   31 CFR 1010.230(b)(2) .

27.  Discussed below in Section III.C.2.b.

28.   31 U.S.C. 5321 .

29.   31 U.S.C. 5322 .

30.   31 U.S.C. 5321 ; 31 CFR 1010.821 .

31.   See FinCEN, “Financial Crimes Enforcement Network (FinCEN) Statement on Enforcement of the Bank Secrecy Act” (Aug. 18, 2020), available at https://www.fincen.gov/​sites/​default/​files/​shared/​FinCENEnforcementStatement_​FINAL508.pdf .

32.  The BOI Reporting Rule implements the CTA's reporting provisions. In recognition of the fact that illicit actors frequently use corporate structures to obfuscate their identities and launder ill-gotten gains, the BOI Reporting Rule requires certain legal entities to file reports with FinCEN that identify their beneficial owners. See FinCEN, “Beneficial Ownership Information Reporting Requirements,” 87 FR 59498 (Sept. 30, 2022). Access by authorized recipients to beneficial ownership information collected under the CTA are governed by other FinCEN regulations. See FinCEN, “Beneficial Ownership Information Access and Safeguards,” 88 FR 88732 (Dec. 22, 2023).

33.   See FinCEN, NPRM, “Beneficial Ownership Information Reporting Requirements,” 86 FR 69920 (Dec. 8, 2021).

34.  The CTA is Title LXIV of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021, Public Law 116-283 (Jan. 1, 2021) (the NDAA). Division F of the NDAA is the Anti-Money Laundering Act of 2020, which includes the CTA. Section 6403 of the CTA, among other things, amends the Bank Secrecy Act (BSA) by adding a new section 5336, Beneficial Ownership Information Reporting Requirements, to subchapter II of chapter 53 of title 31, United States Code.

35.   See 31 CFR 1010.380(b)(1)(i) .

36.   31 CFR 1010.380(d)(3)(ii) .

37.  In a 1031 Exchange, real property held for productive use in a trade or business or held for investment is exchanged for other business or investment property that is the same type or kind; as a result, the person conducting the exchange is not required to realize taxable gain or loss as part of the exchange. To avoid the exchange being disqualified, a qualified intermediary may be used to ensure that the exchanger avoids taking premature control of the proceeds from the sale of the relinquished property or, in a reverse 1031 Exchange in which the replacement property is identified and purchased before the original property is relinquished, ownership of the replacement property.

38.  The current Residential Real Estate GTO threshold is $300,000 for all covered jurisdictions, except for in the City and County of Baltimore, where the threshold is $50,000.

39.   See 29 CFR 1.6045-4 (Information reporting on real estate transactions with dates of closing on or after January 1, 1991).

40.   See FinCEN, “Beneficial Ownership Information Access and Safeguards,” 88 FR 88732 (Dec. 22, 2023).

41.  FinCEN, “Notice of a New System of Records,” 88 FR 62889 (Sept. 13, 2023).

42.   U.S. v. Miller, 425 U.S. 435 (1976).

43.   E.O. 12866 , 58 FR 51735 (Oct. 4, 1993), section 3(f)(1); E.O. 14094 , 88 FR 21879 (Apr. 11, 2023), section 1(b).

44.   See Section VI.A.1.

45.  Broadly, the anticipated economic value of a rule can be measured by the extent to which it might reasonably be expected to resolve or mitigate the economic problems identified by such review.

46.   See Section VI.A.2.

47.   See Section VI.A.3.

48.   See Section VI.A.4.

49.   See Section VI.A.5.

50.   See FinCEN, NPRM, “Anti-Money Laundering Regulations for Residential Real Estate Transfers,” 89 FR 12424 (Feb. 16, 2024).

51.  Office of Management and Budget, Circular A-4 (Nov. 9, 2023), available at https://www.whitehouse.gov/​wp-content/​uploads/​2023/​11/​CircularA-4.pdf .

52.   See National Association of Realtors, “Anti-Money Laundering Voluntary Guidelines for Real Estate Professionals” (Feb. 16, 2021), p. 3, available at https://www.narfocus.com/​billdatabase/​clientfiles/​172/​4/​1695.pdf .

53.   See Section III.C.5.c.

54.  FinCEN, “Customer Due Diligence Requirements for Financial Institutions,” 81 FR 29398 (May 11, 2016).

55.  Reportable real estate for purposes of IRS Form 1099-S includes, for example, commercial and industrial buildings (without a residential component) and non-contingent interests in standing timber, which are not covered under the rule.

56.   See Matthew Collin, Florian Hollenbach, and David Szakonyi, “The impact of beneficial ownership transparency on illicit purchases of U.S. property,” Brookings Global Working Paper #170, (Mar. 2022), p. 14, available at https://www.brookings.edu/​wp-content/​uploads/​2022/​03/​Illicit-purchases-of-US-property.pdf .

57.  Zillow, Transaction and Assessment Database (ZTRAX), available at https://www.zillow.com/​research/​ztrax/​ .

58.   See Redfin, “Investors Bought 26% of the Country's Most Affordable Homes in the Fourth Quarter—the Highest Share on Record,” (Feb. 14, 2024), available at https://www.redfin.com/​news/​investor-home-purchases-q4-2023/​ .

59.   See Section III.C.2.e.

60.  FinCEN notes that while most trusts are not reporting companies under the BOI Reporting Rule, a reporting company would be required to report a beneficial owner that owned or controlled the reporting company through a trust.

61.  FinCEN notes that while the U.S. Census Bureau does produce annual statistics on the population of certain trusts (NAICS 525—Funds, Trusts, and Other Financial Vehicles), such trusts are unlikely to be affected by the rule and thus their population size is not informative for this analysis.

62.   See, e.g., Cristian Badrinza and Tarun Ramadorai, “Home away from home? Foreign demand and London House prices,” Journal of Financial Economics 130 (3) (2018), pp. 532-555, available at https://www.sciencedirect.com/​science/​article/​abs/​pii/​S0304405X18301867?​via%3Dihub ; see also Caitlan S. Gorback and Benjamin J. Keys, “Global Capital and Local Assets: House Prices, Quantities, and Elasticities,” Technical Report, National Bureau of Economic Research (2020), available at https://www.nber.org/​papers/​w27370 .

63.   See Matthew Collin, Florian Hollenbach, and David Szakonyi, “The impact of beneficial ownership transparency on illicit purchases of U.S. property,” Brookings Global Working Paper #170, (Mar. 2022), p. 14, available at https://www.brookings.edu/​wp-content/​uploads/​2022/​03/​Illicit-purchases-of-US-property.pdf .

64.   See U.S. Census Bureau, Rental Housing Finance Survey (2021), available at https://www.census.gov/​data-tools/​demo/​rhfs/​#/​?s_​year=​2018&​s_​type=​1&​s_​tableName=​TABLE2 .

65.   See U.S. Securities and Exchange Commission, “Officers, Directors, and 10% Shareholders,” available at https://www.sec.gov/​education/​smallbusiness/​goingpublic/​officersanddirectors .

66.   See, e.g., U.S. Securities and Exchange Commission, Instructions to Item 2.01 on Form 8-K; see also 17 CFR 210.3-14 .

67.   See supra Section III.C.3.a for a description of the reporting cascade; see also proposed 31 CFR 1031.320(c)(1) .

68.   See Nam D. Pham, “The Economic Contributions of the Land Title Industry to the U.S. Economy,” ndp Consulting (Nov. 2012), p. 6, available at https://papers.ssrn.com/​sol3/​papers.cfm?​abstract_​id=​2921931 . This study was included as an appendix to a 2012 American Land Title Association comment letter submitted to the Consumer Financial Protection Bureau (CFPB) on the Real Estate Settlement Procedures Act (RESPA).

69.  FinCEN notes that the capacity in which a reporting person facilitates a residential real property transfer may not always be in the capacity of their primary occupation. However, as analysis here relies on the U.S. Census Bureau's annual Statistics of U.S. Business Survey, which is organized by NAICS code, the following nominal primary occupations (NAICS codes) are used for grouping and counting purposes: Title Abstract and Settlement Offices (541191), Direct Title Insurance Carriers (524127), Other Activities Related to Real Estate (531390), Offices of Lawyers (541110), and Offices of Real Estate Agents and Brokers (531210). As noted in note 73, these NAICS codes are not the basis for hourly wage rate information used in this paragraph.

70.  The estimate of affected attorneys is calculated as ten percent of the total SUSB population of Offices of Lawyers. This estimate is based on the average from FinCEN analysis of U.S. legal bar association membership, performed primarily at the State level, identifying the proportion of (state) bar members that are members of the organization's (state's) real estate bar association. FinCEN considers this proxy more likely to overestimate than underestimate the number of potentially affected attorneys because, while not all members of a real estate bar association actively facilitate real estate transfers each year, it was considered less likely that an attorney would, in a given year, facilitate real estate transfers in a way that would make them a candidate reporting person for purposes of the proposed rule when such an attorney had not previously indicated an interest in real estate specific practice (by electing to join a real estate bar).

71.  NAICS Code 531210 (Offices of Real Estate Agents and Brokers).

72.  Fully loaded wages are scaled by a benefits factor. The ratio between benefits and wages for private industry workers is (hourly benefits (11.86))/(hourly wages (28.37)) = 0.42, as of December 2023. The benefit factor is 1 plus the benefit/wages ratio, or 1.42. See U.S. Bureau of Labor Statistics, “ Employer Costs for Employee Compensation Historical Listing,” available at https://www.bls.gov/​web/​ecec/​ececqrtn.pdf . The private industry workers series data for December 2023 is available at https://www.bls.gov/​web/​ecec/​ececqrtn.pdf .

73.  Because available wage estimates are not available for each SUSB category at the 6-digit NAICS level, FinCEN has estimated average wages over the collection of occupational subcategories likely to be affected for each corresponding category at the next most granular NAICS-level available.

74.  Wage estimates presented here, and used throughout the subsequent analysis, reflect two forms of updating from the NPRM: (1) wage data has been updated to reflect the BLS publication of the May 2023 National Occupational Employment and Wage Estimates in April 2024, (2) responsive to public comments that the previous wage estimates (based on national mean wages) might contribute to an underestimate of time cost burdens, FinCEN is electing to conservatively adopt 90th-percentile values of occupational wages in place of mean hourly wage.

75.   See American Land Title Association, Home Closing 101, “Why 20% of Homeowners May Not Sleep Tonight,” (June 3, 2020),available at https://www.homeclosing101.org/​why-20-percent-of-homeowners-may-not-sleep-tonight/​ .

76.   See FinCEN, NPRM, “Anti-Money Laundering Regulations for Residential Real Estate Transfers,” 89 FR 12424 , 12446-12447 (Feb. 16, 2024).

77.  Based on the observation that the midpoint values of first year ($559.4 million), subsequent year ($532.2 million), and the midpoint of the midpoint values between first and subsequent years ($545.8 million) are all approximately $500 million. See also infra Section VI.B for a discussion of annualized cost.

78.  Based on a comment that the initial training should be 120 minutes (2 hours).

79.  Based on a comment that the initial training should be double what FinCEN estimated (150 minutes, or 2.5 hours).

80.  Based on a comment that training would take 60 minutes (1 hour) per transfer, where FinCEN applies the lowest wage rate to the lower bound estimate of total annual reportable transfers to obtain the lower bound and applies the highest wage rate to the upper bound estimate of total annual reportable transfers to obtain the upper bound.

81.  Technological implementation for a new reporting form contemplates expenses related to development, operations, and maintenance of system infrastructure, including design, deployment, and support, such as a help desk. It includes an anticipated processing cost of $0.10 per submitted Real Estate Report.

82.  FinCEN, “Congressional Budget Justification and Annual Performance Plan and Report FY 2024” (2023), available at https://home.treasury.gov/​system/​files/​266/​15.-FinCEN-FY-2024-CJ.pdf .

83.   E.O. 14094 sets the threshold that triggers regulatory impact analytical requirements at $200 million in expected annual burden.

84.   E.O. 13563 , 76 FR 3821 (Jan. 21, 2011), § 1(c) (“Where appropriate and permitted by law, each agency may consider (and discuss qualitatively) values that are difficult or impossible to quantify, including equity . . . and distributive impacts.”)

85.   See Office of Management and Budget, “Circular A-4—Subject: Regulatory Analysis,” (Sept. 17, 2003), available at https://obamawhitehouse.archives.gov/​omb/​circulars_​a004_​a-4/​ .

86.  The midpoint value of estimated first year costs is $559.4 million; see supra note 76.

87.  The midpoint value of estimated subsequent year costs is $532.2 million; see supra note 76.

88.   5 U.S.C. 601 et seq.

89.   See FinCEN, NPRM, “Anti-Money Laundering Regulations for Residential Real Estate Transfers,” 89 FR 12424 , 12458 (Feb. 16, 2024) (finding that “an upper bound of potentially affected small entities includes approximately 160,800 firms (by the following primary business classifications: approximately 6,300 Title and Settlement Agents, 800 Direct Title Insurance Carriers, 18,000 persons performing Other Activities Related to Real Estate, 15,700 Offices of Lawyers, and 120,000 Offices of Real Estate Agents and Brokers),” though “the point estimates differ non-trivially by how `small' is operationally defined, and do not do so unidirectionally across methodologies and data sources”).

90.   Id. at 12452.

91.   See U.S. Small Business Administration, “How to Comply with the Regulatory Flexibility Act,” p.44, n.144 (Aug. 2017), available at https://advocacy.sba.gov/​wp-content/​uploads/​2019/​07/​How-to-Comply-with-the-RFA-WEB.pdf (stating that “The Office of Advocacy believes that, given the emphasis in the law on public notice, the certification should also appear in the final rule even though there may have already been a certification in the proposed rule. Doing so will help demonstrate the continued validity of the certification after receipt of public comments”).

92.  When certifying at the NPRM stage, FinCEN discussed the basis on which its expectations were formed by considering the spectrum of potential burdens and costs a small business might incur as a result of the rule. This included considering the outcomes on businesses that would either incur no change in burden, a partial increase in burden, or the full increase in burden contemplated by the rule. In this analysis, FinCEN estimated that the incremental burden of complying with the rule would equate to an approximately 0%, 0.2%, or 0.5% increase in the average annual payroll expense of one employee, respectively, and was therefore unlikely to be significant.

93.   See supra note 91.

94.  While FinCEN has raised its estimate of the maximum anticipated cost per transaction (from $363.17 to $628.39 for reporting persons and from an aggregate of $103.43 to $116.84 for the maximally inclusive number of non-reporting persons per transfer), the number of transactions to which the burden would apply (and could thereby become a transfer a small business would be required to report should it not enter into a designation agreement) is reduced.

95.   See 2 U.S.C. 1532(a) .

96.  The U.S. Bureau of Economic Analysis reported the annual value of the gross domestic product (GDP) deflator in 1995 (the year in which UMRA was enacted) as 66.939; and in 2023 as 123.273. See U.S. Bureau of Economic Analysis, “Table 1.1.9. Implicit Price Deflators for Gross Domestic Product” (accessed June 5, 2024). Thus, the inflation adjusted estimate for $100 million is 123.273 divided by 66.939 and then multiplied by 100, or $184.157 million.

97.   See generally Section VI.A.

98.  This estimate represents the upper bound estimate of reportable transfers per year as described in greater detail above in Section VI.A.2.

99.  This estimate includes the upper bound estimates of the time burden of compliance, as described in greater detail above, with the reporting and recordkeeping requirements. See Section VI.A.4.ii and Section VI.A.4.iii.

100.  This estimate includes the upper bound estimates of the wage and technology costs of compliance, as described in greater detail above, with the reporting and recordkeeping requirements. See Section VI.A.4.ii and Section VI.A.4.iii.

101.   5 U.S.C. 804(2) et seq.

102.   5 U.S.C. 801(a)(3) .

[ FR Doc. 2024-19198 Filed 8-28-24; 8:45 am]

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