524 U.S. at 328. Under that statute, forfeiture is “an additional sanction when ‘imposing sentence on a person convicted of’ a willful violation of” the reporting requirement in 31 U.S.C. § 5316. The Court noted that the forfeiture was “imposed at the culmination of a criminal proceeding and requires conviction of an underlying felony, and it cannot be imposed upon an innocent owner of unreported currency, but only upon a person who has himself been convicted of a § 5316 reporting violation.”

f many aspects of the real estate profession as well as the frequently changing structures and roles that enter and exit a transaction prior to consummation. As drafted, the 2024 NPRM may turn real estate closings into an episode of Spider Man.11In addition, FinCEN recently filed a notice with the Office of Management and Budget indicating that it intends to publish a separate proposal that addresses commercial real estate transaction reporting and recordkeeping.12 However, FinCEN’s proposal will not be released until September 2024. Commercial real estate market participants should consider engaging now with FinCEN to help shape the proposed regulation. Thoughtful engagement early in the process can help channel that action toward more efficient regulation.1 89 Fed. Reg. 12,424 (Feb. 16, 2024), https://www.federalregister.gov/documents/2024/02/16/2024-02565/anti-money-laundering-regulations-for-residential-real-estate-transfers.2 12 U.S.C. §§ 1829b, 1951-1960; 31 U.S.C. §§ 5311-5314, 5316-5336.3 31 C.F.R. ch. X.4See 68 Fed. Reg. 17,569 (Apr. 10, 2003).5 For more information about the expansion of real estate GTOs, please see our previous Legal Update.6 Press Release, FinCEN Renews and Expands Real Estate Geographic Targeting Orders (Apr. 29, 2022), https://www.fincen.gov/news/news-releases/fincen-renews-and-expands-real-estate-geographic-targeting-orders; Press Release, FinCEN Renews Real Estate Geographic Targeting Orders for 12 Metropolitan Areas (Oct. 29, 2021); Press Release, FinCEN Takes Aim at Real Estate Secrecy in Manhattan and Miami (Jan. 13, 2016).7 For more information about the 2021 NPRM, please see our previous Legal Update.8 Notably, transfers made in full or partial satisfaction of a debt previously contracted, such as through work-outs or non-judicial foreclosure, would not be exempted.9 FinCEN notes that the beneficial ownership information of certain legal entities is also collected under the BOI Rule, but believes that the 2024 NPRM, if adopted, would serve

he proposal now in order to be adequately prepared. Our prior Client Alert9 discusses AML best practices for private fund managers. Lowenstein will be monitoring further developments to the NPRM and subsequent rule.1 As defined by the Investment Advisers Act of 1940, 31 U.S.C. 80b-1 et seq.2 "FinCEN Proposes Rule to Combat Illicit Finance and National Security Threats in Investment Adviser Sector,” available athttps://www.fincen.gov/news/news-releases/fincen-proposes-rule-combat-illicit-finance-and-national-security-threats. For the full NPRM, seehttps://www.federalregister.gov/public-inspection/2024-02854/anti-money-launderingcountering-the-financing-of-terrorism-program-and-suspicious-activity-report.3 See “U.S. Treasury Renews Push to Make Investment Advisers Subject to the BSA,” available athttps://www.lowenstein.com/news-insights/publications/client-alerts/us-treasury-renews-push-to-make-investment-advisers-subject-to-the-bsa-aml.4 Id.5 The BSA is codified in 31 U.S.C. 5311-5314, 5316-5336.6 "Fact Sheet: Anti-Money Laundering Program and Suspicious Activity Report Filing Requirements for Registered Investment Advisers and Exempt Reporting Advisers Notice of Proposed Rulemaking (NPRM),” available athttps://www.fincen.gov/news/news-releases/fact-sheet-anti-money-laundering-program-and-suspicious-activity-report-filing.7 31 CFR 1010.410(e)-(f).8 Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, Public Law 107–56.9 See “AML Best Practices for Private Fund Managers: The Prudence of Establishing an AML Compliance Program,” 2023.02.17, available athttps://www.lowenstein.com/news-insights/publications/client-alerts/aml-best-practices-for-private-fund-managers-the-prudence-of-establishing-an-aml-compliance-program-investment-management.

The most immediate impact of these changes would be to require cross-border reporting of funds accessible through products covered by the expanded definition of “prepaid access devices” on the Report of International Transportation of Currency or Monetary Instruments (“CMIR”). Under 31 U.S.C. §5316, a person or her agent or bailee must file a CMIR, otherwise known as FinCEN Form 105, when the person knowingly transports more than $10,000 in “monetary instruments” into or out of the United States. The proposed amendment has three significant elements: It would expand the definition of “financial institution” under the Bank Secrecy Act to include issuers, redeemers and cashiers of “prepaid access devices,” digital currency,” or “any digital exchanger or tumbler of digital currency.”

He was found to be in possession of $357,144 in currency which he failed to report. Reporting the transfer of currency in excess of $10,000 across the border is required by the currency transaction laws, 31 U.S.C. §5316(a)(1)(A). In addition to prosecuting the defendant for making a false statement and for the currency transaction violation, the government also sought to forfeit the entire amount of money pursuant to 18 U.S.C. §982(a)(1), which provides that all property “involved in the offense” shall be forfeited.

International Transportation of Prepaid Access For purposes of future rulemakings, FinCEN seeks comment on the risks posed by international transport of prepaid access and the types of transactions that are particularly vulnerable to money laundering, terrorist financing and other illicit transactions through the financial system. Section 503 of the Credit Card Accountability Responsibility and Disclosure Act of 2009 (“CARD Act”) authorized Treasury to establish reporting requirements with respect to stored value pursuant to 31 U.S.C. 5316, which requires persons transporting or shipping currency and monetary instruments across the U.S. border in an aggregate amount over $10,000 to report of such transportation or shipment. Presently there is no similar requirement to report the transportation of prepaid access products across the border.