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Will Renewed White House Focus on Overseas Beneficial Ownership Loopholes Translate to Domestic Disclosure?

The Biden Administration has accelerated the march to more effective global economic enforcement with the issuance of its National Security Study Memorandum (NSSM), outlining steps to crack down on tax havens and corrupt schemes used to conceal assets and true ownership.  Among the key steps, the NSSM directs acceleration of US efforts to develop a beneficial ownership registry -- calling for proactive disclosure by shell companies of their true owners.  

For years, the practice of holding assets in offshore companies under the names of nominee owners has been used to conceal equitable or beneficial owners, who maintained complete access and control over the offshore assets but could keep them off tax filings or away from the gaze of creditors.  The focus of the NSSM appears to be establishment of international practices requiring foreign tax havens to disclose the beneficial owners of such entities, and is in keeping with decades of FATCA agreements leading to near-global banking transparency.  But as U.S. states -- particularly several states in the U.S. Mountain West region -- emerge as favorite destinations for asset secrecy, the administration's approach appears blind to the mote in its own eye.  

At the same time nations like Cyprus, Ghana and Kenya are finalizing beneficial ownership registries, states like South Dakota, Nevada and Delaware are catapulting the United States to the lead among havens for billionaire deposits, moving it to number two (behind only the Cayman Islands) on the 2020 Tax Justice Network Financial Secrecy Index.  (https://fsi.taxjustice.net/en/introduction/fsi-results).  If the administration maintains the current course of negotiating robust international enforcement while exempting U.S. states from scrutiny, the inevitable result will be an acceleration of the ongoing migration of targeted assets from international havens to the havens right in our own backyard.

The NSSM therefore directs departments and agencies to combat all forms of illicit finance, including through accelerating ongoing efforts to establish a “beneficial ownership” registry, so that illicit actors can’t hide the proceeds of corruption behind anonymous shell companies; limiting the ability of illicit actors to hide behind anonymity to buy residential real estate; and closing loopholes in existing regulatory regimes.

https://www.whitehouse.gov/briefing-room/statements-releases/2021/06/03/fact-sheet-establishing-the-fight-against-corruption-as-a-core-u-s-national-security-interest/

©1994-2021 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.National Law Review, Volume XI, Number 161
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About this Author

Daniel Pascucci, Mintz Levin, Jury Trial Attorney, Class Action Defense Lawyer
Member

Dan concentrates on litigating and arbitrating complex international business disputes. He is a recognized authority on helping companies recover assets fraudulently laundered off-shore and hidden in renowned privacy and tax shelter nations. He is also renowned for successfully defending clients in class action litigation. Companies in many industries seek his representation in false advertising, unfair competition, RICO, and fraud disputes, and he ably uses US-based and international alternative dispute resolution procedures.

Dan is the Managing Member of the firm's San Diego...

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