Corporate Transparency Act
The new federal Corporate Transparency Act (CTA) requires most corporations, LLCs and even some other businesses to disclose information about their owners and control persons by filing a Beneficial Ownership Information (BOI) report by Jan 1, 2025. Civil and even criminal penalties for failure to do so are significant. Though the law, itself, does not state this, the Financial Crimes Enforcement Network (FinCEN) of the Treasury Department says that it can even apply to trusts that people are either trustees or beneficiaries of. This could even include National Firearms Act (NFA) trusts that people often use to register their guns under.
CTA is a new law that makes properly maintaining business entities all the more important, including through the holding of annual shareholders’, member’s and directors’ meetings with minutes being kept. Do not think you are exempt just because you have a small business or do not do regular transactions through it. If a business has been filed through a secretary of state or has filed other forms or reports with other state agencies, and someone owns 25% or more, or is a manager with significant decision-making authority, this report must be filed, including personal information and scanned ID. Inform yourself on the specifics of this and talk to an attorney. More information and the forms for mandatory e-filing can be found at: https://boiefiling.fincen.gov/ and https://www.fincen.gov/boi.
Failure to file, failure to update when required, failure to provide complete information or providing false information, whether willful or accidental, comes with potential penalties. Much like dealing with the IRS, if deemed a non-criminal issue, the company and its beneficial owners and controllers are subject to five hundred dollars ($500.00) per day for each day the violation continues. If deemed criminal, the possible penalties are two (2) years in federal prison and/or ten thousand dollars ($10,000.00) in fines. In each case, that is the possible penalty for each violation. 31 U.S.C. § 5336(h)(3)(A) and (B).
Legal Services for Business
- Employee Handbook review, revision and creation
- Business defense against wrongful termination, discrimination and labor law violation complaints, having successfully defended companies in administrative claims in 27 states, in addition to a nationwide federal Department of Labor action and many federal EEOC cases
- International contracts
- Creation of employee and independent contractor agreements
- Articles of Incorporation for corporations and Articles of Organization for LLCs created, reviewed and amended
- Creation, review and revision of Bylaws for corporations, and Operating Agreements for LLCs
- LLP partnership agreements created, negotiated and revised
- All necessary services for creation, proper organization and management of IRC 501(c) non-profit corporations. My experience has included religious, veterans’, corrections and sex trafficking rescue non-profit organizations
- Creation, review and amendment of Buy/Sell Agreements between shareholders and Management Agreements by and among LLC members
- Contract writing, review, negotiation and amendment
- Negotiations of business transactions
- Negotiations involving issues with government entities and regulatory agencies
- Real estate purchase and sale
- Commercial and residential lease negotiations, drafting, revision and dispute resolution
Law enforcement agency policy and procedure development as well as representation of officers in administrative matters
Personal Legal Issues
Financial Surveillance
Financial Surveillance – Is your bank spying on you?
In response to a series of questions, I recently had a bank manager admit to me that all banks in the US have, for some time, been acting as agents for the federal government in reporting cash withdrawals by their customers. This happens with amounts well below the “more than $10,000” threshold for withdrawing cash which requires them to submit IRS Form 8300. Many people will realize that upon taking out even two or three thousand dollars the teller casually asked something like, “Are you going to do anything fun with this money?” They are trained to do this to obtain information against you. Apparently, that is part of a federal requirement for banks to solicit this information from all people. Then the banks put it into a report that goes to one or more federal agencies. He also admitted that if you exert your rights as a citizen to not answer the bank’s question(s), your refusal will be put in a report and submitted as well. When I asked him on what basis he, his bank and all other financial institutions were acting as covert agents for the federal government, engaging in fishing expeditions to obtain possibly incriminating evidence against everyone with no probable cause or even reasonable suspicion, he said, “Well, we are all insured by the FDIC.” He said this practice was designed by the federal government to reduce fraud. When I stated that banks knew the vast majority of their customers were not engaged in fraud or had no other reason to think they were, his response was that when people deposit money it is not really theirs anymore. When I explained the law to him on that very issue of the fungibility of money and the rights of depositors, he ceased to answer any more questions.
Further to this covert and possibly unlawful and unconstitutional program and behavior by banks, credit unions and other financial institutions, this report from the U.S. House of Representatives Committee on the Judiciary and the Select Subcommittee on the Weaponization of the Federal Government, titled FINANCIAL SURVEILLANCE IN THE UNITED STATES: HOW THE FEDERAL GOVERNMENT WEAPONIZED THE BANK SECRECY ACT TO SPY ON AMERICANS, was released on December 6, 2024, just one day ago as I write this. Know your rights, but also know that the assertion of your rights may very well end up in a report to the federal government.
Real Estate
Most personal real estate matters people deal with in their lives are not only quite common, but should be fairly simple and easy. However, failing to be well-advised of the law, rights and obligations of all parties, can have unexpected consequences. In many cases the involvement of a licensed real estate agent and brokerage can help ensure a smooth process, especially with residential home sales and purchases. However, keep in mind that real estate agents are not typically attorneys and there are limits to their knowledge and ability to represent you. I have experience in all these matters, to include:
- Residential lease negotiations, drafting and revision
- Tenant and Landlord dispute resolution
- Residential real estate and home purchases and sales, document review and negotiations
- Representation on issues with your own real estate agent. Buyers and sellers, both, can encounter problems with a real estate agent not adequately representing them, not disclosing required information, violating their duty and agreement or behaving unethically. This has become all the more complex with Colorado’s new law on agents’ fees.
HOAs
Abuses of rights and power by HOAs (home owners’ associations) seem to be in the news almost every day. HOAs were originally well-intended. They were created to limit behavior of neighbors that was annoying, prohibit paint or landscaping (or lack thereof) that was visually unsavory or harmed the appearance of the neighborhood, or control any activities that brought property values down. Today, however, they seem to have become repositories for area residents who assume positions of power and control, then sometimes apply that power in oppressive and irrational of ways. Sometimes, just having a legal expert review the HOA covenants and your situation is sufficient for you to understand your rights and obligations, and the rights and limitations of the HOA. Often, HOAs will threaten action they lack the legal authority for. I have experience representing homeowners confronting onerous and often baseless HOA efforts to enforce rules against them. In addition to other successes, this resulted in the dissolution of one HOA. Knowing the law, the covenants, your rights and the limitations of the HOA is critical in dealing with any complaints you receive.
Wills
With forms for wills, trusts, living wills, end of life directives and other estate documents now being available on the internet, many people are choosing to save money on attorneys. For a small amount, they download and fill out the form, have it witnessed and notarized and believe they, their family members and other beneficiaries are ensured of the rights and assets they desired upon their passing. It is important to realize, however, that these are general forms only. They are not thorough legal documents created for your particular circumstances, that of your family and others, or your desires upon your death or even in a life-threatening medical condition. Attorneys customize wills and all other estate documents for the individual client which offers the best chance that your desires will be respected and complied with. Even if you choose to use a standard legal form, it is best to have a qualified attorney review the completed document and make any modifications necessary to ensure it satisfies your desires and comports with the law.
Second Amendment Legal Guidance
I provide the following 2A legal services:
- Create National Firearms Act Trusts
- Assist in filling out and submitting ATF Forms
- Provide legal guidance for NFA Title III items
- Represent clients confronting legal issues surrounding their ownership, possession, or use of firearms
Know the law and your rights:
Federally, and in every state, the laws on citizen rights and restrictions on firearms are constantly changing and evolving. Certainly, the Second Amendment is among a short list of highly divisive topics that seem to draw tremendous attention in political and legal arenas today. Whether you are a gun owner, or may one day become one, having access to information on the law (federal, state and local) with regard to ownership, registration, “bearing” or carrying a firearm, either open or concealed, having one in a vehicle and even storage is crucial to avoiding civil and criminal penalties.
Colorado laws have changed recently in several ways. I provide my clients with current information on the law, alert them to changes in the law, and assist in filling out such forms as those required by ATF for different requirements and applying for a Colorado CCW. Even a slight mistake on such forms can result in a delay of months in securing the approval you seek or an outright denial.
There are many excellent websites that provide some of the information every citizen should have, but seldom all of it. They are not designed to educate you on your rights and legal obligations in your particular circumstances. Every gun owner wants to ensure proper and safe use of that firearm. But even being in full compliance with the law as written does not always protect you from liability. That requires the assessment of your life circumstances by an experienced attorney with expert knowledge of firearms. I have been a civilian contract military firearms instructor, including for the Special Forces, many SWAT teams across the country, bodyguards and even bounty hunters. I have also provided the necessary firearms training for civilians to obtain concealed carry permits. There are countless issues that have arisen with gun owners that advice from an attorney could have mitigated (or avoided), and that necessitated the more extensive involvement of a lawyer after the fact.
One of the most important aspects is proper and legal transference of ownership, use and access of firearms by others. In recent years, the use of gun trusts has become popular to avoid the background check and registration process required in many states.
No ATF forms required for a Colorado CCW. Requirements are posted by the Sheriff’s office for each individual county. Background checks are performed by the CBI.
Firearms Trusts:
These are revocable and irrevocable management trusts created to hold the title of firearms, certain “special” types of guns, and certain accessories such as suppressors – Class III items. Sometimes these trusts are also called NFA Trusts because they are designed to apply to weapons covered by the National Firearms Act (NFA) and the Gun Control Act of 1968. When first devised, gun trusts were generally considered to be a panacea for avoiding ever-restrictive gun laws in different states, including Colorado. However, in light of Colorado’s most recent law changes, having and properly utilizing a gun trust can be more complicated than many realize. Thus, you are dealing with both Colorado law and ever-changing and more restrictive ATF regulations, some of which are being challenged in court. The rule you want to follow, however, is to avoid becoming a test case for any law or regulation. It is not simply a matter of creating and signing a trust document, listing your guns and the people you want to have access to, and the use of, them. Be sure to educate yourself on the law and consult with a knowledgeable attorney.
The new federal Corporate Transparency Act (CTA) requires most corporations, LLCs and even some other businesses to disclose information about their owners and control persons by filing a Beneficial Ownership Information (BOI) report by Jan 1, 2025. Civil and even criminal penalties for failure to do so are significant. Though the law, itself, does not state this, the Financial Crimes Enforcement Network (FinCEN) of the Treasury Department says that it can even apply to trusts that people are either trustees or beneficiaries of. This could even include National Firearms Act (NFA) trusts that people often use to register their guns under.
The FinCEN information and guide specifically states that trusts are included and are – or can be – mandatory reporters. This is the very type of federal government and regulatory expansion of power that the US Supreme Court has declared unconstitutional and unlawful in recent years. In Loper Bright Enterprises v. Raimondo (2024) and West Virginia v. EPA (2022), the US Supreme Court took unprecedented steps to limit the ability of regulatory agencies from creating or expanding regulations that were not specifically passed into federal law by Congress. As no mention of trusts was made in the Act, itself, the Treasury Department and FinCEN cannot expand their authority or the scope of the Act to include trusts. That does not mean they will not do so and pursue anyone who exists as a trustee or beneficiary of a trust for sanctions.
For people who have created NFA trusts (National Firearms Act) trusts for their firearms in order to avoid state gun control and registration laws that require the registration of each person to have possession or use of a firearm, this could have a significant effect. The safe harbor for all trusts is to simply file the BOIR if a trust meets other criteria, like being created or filed with any state agency. No one ever wants to be a test case in the federal courts.
Firearms Safety and Liability Protection:
The more expert training you obtain and can verify, coupled with a proven record of regular practice, the safer you and others will be, and the better able to make appropriate decisions regarding the use of a firearm in life-threatening situations. This is all important for the safety of others, yourself and your own protection from potential civil liability and criminal culpability.
Maintain records of the serial numbers of all firearms you own, together with descriptions, photos and video. This can be crucial for police and your insurance carrier in the event of theft or loss due to disaster such as a hurricane or fire. Report any loss to both entities immediately.