The U.S. Treasury Department renewed again for six months an anti-money laundering regulation requiring title insurance companies to disclose identities of individuals in shell companies buying residential real estate in 12 cities.

And at least one prominent international trade and investment attorney says the days of using LLCs for anonymous real estate transactions in the United States could be numbered.

The Financial Crimes Enforcement Network, FinCEN, announced Nov. 8 the renewal of its Geographic Targeting Orders. The purchase threshold remains a relatively low $300,000 in the covered metropolitan areas, which include the five boroughs of New York City and counties in and around Miami; Boston; Chicago; Dallas-Fort Worth; Honolulu; Las Vegas; Los Angeles; San Antonio; San Diego; San Francisco; and Seattle. The order is effective starting Nov. 12 and ending May 9, 2020. 

But the renewal order now exempts publicly traded companies from the requirement that previously were included. The Treasury Department said public company filings allow authorities to glean more information about business operations and ownership.

"Reissuing the GTOs will further assist in tracking illicit funds and other criminal or illicit activity, as well as inform FinCEN's future regulatory efforts in this sector," the announcement said.

The targeting orders were first issued in July 2016, and reissued in February and August 2017, November 2018 and May 2019 to combat money laundering in high-end real estate. The subsequent orders significantly expanded on the first one, which only targeted New York and Miami at a much higher threshold of $3 million for homes in New York County and $1 million or more for homes in Miami-Dade.

Penalties for covered businesses and officers, directors, employees and agents for violating the law, which is under the Bank Secrecy Act, can include civil or criminal penalties.

Aside from the exemption for public companies, the renewed order is mostly identical to the May 2019 GTO, which covered major metropolitan areas in nine states, lowered the threshold to $300,000, and included virtual currency as a targeted payment method, according to the department.  

Title companies are required to report covered transactions to FinCEN by filing a Currency Transaction Report, said a spokeswoman for the department. Financial institutions that make mortgage loans, including mortgage brokers, are required to file Suspicious Activity Reports if they suspect illegal activity. The GTOs were designed to address the "all-cash" segment of the market, she said.

Michael Gershberg, a partner in the international trade and investment practice at Fried, Frank, Harris, Shriver & Jacobson, said, "It has been almost three years that these orders have been in place but extended to other geographic areas. One thing that is notable is that FinCEN finds these orders to be useful either in deterring use of real estate transactions for money laundering or for collecting information FinCEN can use in other enforcement activities or other parts of the U.S. government can use in enforcement activities. They have made general statements to that effect that they have found information to be useful concerning real estate transactions." 

Gershberg said there are proposals in Congress that would expand the requirement nationally, requiring companies to disclose ownership information either to banks or directly to the states. 

"We advise clients that at some point in the future LLCs domiciled in the U.S. should be prepared for potential disclosure obligations about beneficial owners," he said.

According to a 2018 draft study by the Federal Reserve Bank of New York, Yale University and the University of Miami, all-cash real estate transactions by corporations fell about 70% after the rule was enacted in 2016, "indicating the share of anonymity-seeking investors using LLCs as 'shell corporations'" with "subsequent declines in luxury house prices in counties targeted by the policy relative to non targeted counties." 

Before the rule was enacted in 2016, all-cash purchases by anonymous companies were about 10% of the dollar volume of transactions but fell to 2.5% of the volume in affected counties afterward.

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