Whiplash Alert: Appeals Court Reinstates Injunction Against Small Business Compliance on CTA BOI

Consider it a Christmas miracle: the Fifth Circuit Court of Appeals reversed its decision on lifting an injunction against compliance on the Corporate Transparency Act Beneficial Ownership Information (CTA BOI) law for 32 million small businesses. The court restored this injunction ahead of the January 13 deadline. 

The court’s latest decision reinstates the nationwide injunction, blocking the burdensome beneficial ownership information (BOI) reporting requirements for small businesses while the court fully considers the government’s appeal. It also nullifies a previous Fifth Circuit order that allowed the government to begin enforcing the CTA and BOI reporting requirements again.  

“The court’s reinstatement of the nationwide injunction is a welcome sigh of relief for small businesses,” said Rob Smith, Senior Attorney of NFIB’s Small Business Legal Center. “Since being told earlier this week that they must urgently submit their BOI reports, our nation’s small businesses have experienced enormous chaos and confusion. Thankfully, the court’s latest decision recognizes that the CTA and BOI reporting requirements pose serious constitutional questions. It also provides Main Streets across the country with a reprieve from this harmful mandate while our lawsuit proceeds.”

After the past days of back and forth appeals court decisions, a chiropractic visit is in order for many of us. As RedState reported on Wednesday: 

The Corporate Transparency Act (CTA) was signed into law by then-President Trump on January 1, 2021, neatly buried in the National Defense Authorization Act (NDAA) to conceal its harms. This law requires any entity that has filed as a business with their secretaries of state (LLC, S and C corps) to register a beneficial ownership information (BOI) report with the Financial Crimes Enforcement Network (FinCEN).

Did we say that the registration deadline was originally set for January 1, 2025? Yet another burden placed on the back of American small businesses who are already struggling to survive in Biden's America. 

The law took effect last Jan. 1. It requires corporations or limited liability companies of fewer than 20 employees and $5 million or less in revenue to disclose details about their beneficial owners to the Treasury Department’s Financial Crimes Enforcement Network (FinCEN). Failure to comply can result in up to two years in prison and a $10,000 fine.

The National Federation of Independent Business (NFIB) filed a lawsuit through the U.S. District Court for the Eastern District of Texas. Texas Top Cop Shop, Inc., et al. v. Garland, et al. sought to block enforcement of the CTA BOI law on the grounds that this law is unconstitutional, a clear invasion of privacy, and usurious. On December 3, the court granted this preliminary injunction. The Biden-Harris administration took 10 days to decide they would appeal this decision. On December 13 they filed, and on December 23, the Fifth Circuit Court of Appeals ruled to overturn the injunction. Because of the confusion and the crunch of the holidays, FinCEN decided they would generously <insert *sarcasm* emoji> extend the filing deadline to January 13. 

The Center for Individual Rights and other policy institutes like the Buckeye Institute filed an emergency petition on this lump of coal ruling, requesting the injunction be restored. They additionally requested the court for an expedited decision by January 6. 

On Thursday, The Buckeye Institute filed its second amicus brief in Texas Top Cop Shop v. Garland, calling on the U.S. Court of Appeals for the Fifth Circuit to grant an emergency petition for rehearing en banc (by the full court) and reinstate a preliminary nationwide injunction on the Orwellian Corporate Transparency Act—a federal surveillance program of small businesses.

Upon filing the initial amicus brief, Robert Alt, president and chief executive officer of The Buckeye Institute, who is also counsel of record on both briefs, said, “As most of us look forward to spending time with friends and families over the holidays, the Biden administration has shouted bah humbug and asked the courts to allow it to enforce a law enabling the unconstitutional federal surveillance of small businesses.”

On December 20, The Buckeye Institute filed its first amicus brief in this crucial case to stop the Corporate Transparency Act from going into effect, forcing approximately 32 million small businesses to register the names, addresses, dates of birth, and copies of an unexpired passport or driver’s license for each of its “beneficial owners” with the federal government by December 31, 2024. This new filing follows a December 23 ruling by a three-judge panel of the Fifth Circuit that lifted the preliminary injunction.

If the Biden administration is successful and is allowed to enforce this draconian law, millions of American small business owners will be forced to register with the government—over the holidays—or face criminal penalties and a $500 fine for every day the report is late, incomplete, or inaccurate. 

Of course, the Department of the Treasury (FinCEN) has not bothered to inform the affected businesses about this ruling reversal. A business owner can only discover that they no longer have to file by January 13 if they go onto the filing website. 

And yes, the Biden-Harris administration has decided this is a hill to expire on, because legacy... or something. They are appealing the Fifth Circuit decision.

It's maddening. As one outlet surmised,

Politicians prattle on endlessly about their love for small business, as opposed to the corporate giants it’s easy to denounce. Yet when they get the chance, they saddle small business with laws like the Corporate Transparency Act. A federal court in Texas has handed Donald Trump and the Republican Party an opportunity by imposing a nationwide injunction on the CTA’s reporting mandate.

A huge opportunity for the Trump-Vance administration. Small business is the engine that runs the American economy, making up 44 percent of the U.S. gross domestic product. We matter greatly, but when the rubber meets the road, the action and inaction of elected leaders reflects how little they believe this.

As my colleague Brandon Morse wrote, SpaceX, Tesla, and X owner Elon Musk and tech entrepreneur Vivek Ramaswamy started their own tempest on the social media platform X about H1-B visas and allegedly blaming "lazy American culture" for the need of importing low-wage tech labor rather than finding qualified Americans who can and will do the work. While this is a worthy conversation, it means little to small businesses who cannot tell from one day to the next whether they are in compliance or out, and whether they can use money to stay afloat, grow their business, or pay off excessive regulations. 

By coming to the defense of small businesses under the thumb of this FinCEN law, the DOGE Bros. can prove whether they are America First or just playing at this for cameras, sound bites, and social media engagement.

We're waiting.