Earlier this month, U.S. District Court Judge Amos L. Mazzant preliminarily enjoined the Corporate Transparency Act and its implementing regulations. Texas Top Cop Shop, Inc. v. Garland, 2024 WL 4953814 (Dec. 03, 2024). Two days later the Department of Justice filed an appeal with the Fifth Circuit Court of Appeals on behalf of the Department of Treasury. At about the same time, the FinCEN (a bureau within the Department of Treasury) issued an alert which included the following (emphasis added):
While this litigation is ongoing, FinCEN will comply with the order issued by the U.S. District Court for the Eastern District of Texas for as long as it remains in effect. Therefore, reporting companies are not currently required to file their beneficial ownership information with FinCEN and will not be subject to liability if they fail to do so while the preliminary injunction remains in effect. Nevertheless, reporting companies may continue to voluntarily submit beneficial ownership information reports.
I find it interesting that the FinCEN has decided that it can continue to collect filings given Judge Mazzant's conclusion that the "CTA is likely unconstitutional as outside of Congress's power". If Congress had no power to enact the CTA, what power does the FinCEN have to implement it, even on a voluntary basis. What is the authority of the FinCEN to spend money on an unconstitutional program?In the corporate context, this would be characterized as ultra vires on the part of the FinCEN.
Moreover, FinCEN's continued collection of beneficial ownership reports arguably violates Judge Mazzant's injunction:
Therefore, the CTA, 31 U.S.C. § 5336 is hereby enjoined. Enforcement of the Reporting Rule, 31 C.F.R. 1010.380 is also hereby enjoined, and the compliance deadline is stayed under § 705 of the APA. Neither may be enforced, and reporting companies need not comply with the CTA's January 1, 2025, BOI reporting deadline pending further order of the Court.
If the CTA itself is enjoined, doesn't that mean that it cannot be applied even on a voluntary basis?
