Considering conflicting rulings, businesses remain understandably confused about whether to file their mandated Beneficial Ownership Reports with FinCen. As of this writing, the answer remains that businesses may file but are not (yet) required to do so.
On January 23, 2025, the United States Supreme Court, by a 2-1 vote, stayed a nationwide injunction from a Texas judge (Texas Top Cop Shop, Inc. v. McHenry)[1] while the case proceeds for expedited reviewed by the US Circuit Court for the Fifth Circuit. However, another order from a different Texas judge (Smith v. U.S. Department of the Treasury) remains in place. As a result, companies are not required to file beneficial ownership information with FinCEN and face no liability for non-compliance while the Smith order is active.
The application for the stay was granted by Justice Alito, with Justice Gorsuch concurring. Justice Jackson issued a notable dissent arguing that the stay was not warranted as the government failed to demonstrate "sufficient exigency". Justice Jackson highlighted that the government's decision to delay implementation of the law for nearly 4 years undermined its exigency argument. Regardless, the BOI filing remains permissive in nature for now at least.
Our team at TALG will continue to monitor the litigation as the proceeds before the 5th Circuit.
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