As part of their anti-money laundering programs, certain financial institutions (banks, broker-dealers, mutual funds, FCMs and IB-Cs) are required to implement formal risk due diligence programs that include certain minimum elements, including: Client Identification and Verification (PIC); obtain information about the nature and purpose of a client`s account; ongoing monitoring of accounts receivable; and obtaining beneficial ownership information at a threshold of 25 % for customers of legal entities (with some exceptions), identification of a controlling person (also considered as beneficial owner) and verification of the identity of beneficial owners. See, for example, 31 C.F.R. § 1020.210 (Anti-Money Laundering Program Requirements for Banks); 31 C.F.R. § 1010.230 (beneficial ownership requirements). The information will be regularly available to federal law enforcement and, under certain circumstances, to state, local and foreign agencies. It is only available to financial institutions subject to customer due diligence requirements with the authorization of a customer of a legal entity. It is the responsibility of financial institutions to monitor customer deposits and other transactions to ensure that they are not part of a money laundering scheme. Institutions must verify the origin of large sums of money, monitor suspicious activity and report cash transactions over $10,000. In addition to complying with anti-money laundering laws, financial institutions must ensure that customers are aware of this. The potential social and political costs of money laundering, if left unchecked or ineffective, are serious.
Organized crime can infiltrate financial institutions, take control of large sectors of the economy through investment, or offer bribes to officials and governments. The investment phase represents the first entry of proceeds of crime into the financial system. In general, this phase has two objectives: it relieves the criminal of the need to keep large amounts of illegally acquired cash; And it inserts the money into the legitimate financial system. At this point, money launderers are most likely to be caught, as pumping large sums of money into the legitimate financial system can arouse suspicion. Many states, including New York and California, have parallel anti-money laundering provisions under state law. See, for example, section 470 of the New York Penal Code. In reality, money laundering cases may not have all three phases, some phases may be combined, or several phases may be repeated several times. For example, money from the sale of drugs is divided into small quantities, then deposited by « money maulles » and then transferred to a shell company in payment for services. In this case, placement and layering are done in one step. Before the age of 18 U.S.C.
§ 982, if a person has been convicted of money laundering, any property, real or personal, involved in the offense or any property attributable to the offense is subject to forfeiture. Anti-money laundering initiatives gained global prominence in 1989 when a group of countries and organizations from around the world formed the Financial Action Task Force (FATF). Its task is to develop international standards for the prevention of money laundering and to promote their implementation. In October 2001, following the 9/11 terrorist attacks, the FATF expanded its mandate to include combating terrorist financing. 2.1 Which judicial or administrative authorities impose anti-money laundering requirements on financial institutions and other businesses? Please provide details of these anti-money laundering requirements. Criminalization of the laundering of proceeds of crime in article 6 of the Organized Crime Convention The Bank Secrecy Act (BSA), 31 U.S.C. §§ 5311 et seq., is the basis of the U.S. anti-money laundering regime. However, secrecy is a misnomer. The BSA is a disclosure law designed to help law enforcement stop money laundering by requiring banks to record and report movements of currency and monetary instruments. Although the BSA was enacted to prevent criminal activity, it targeted banks, not criminals.
It wasn`t until 1986, when law enforcement sought additional weapons for the war on drugs, that Congress passed the Money Laundering Control Act (MLCA), which for the first time established money laundering as a federal crime. The BSA was also amended to require financial institutions to develop procedures to monitor compliance with the law. FinCEN has launched the lengthy regulatory process to implement the CTA. On 8 December 2021, FinCEN published a notice on the development of proposed rules, inviting public comments on the proposed requirements for legal entities to report beneficial ownership information, who is considered the beneficial owner, what information must be submitted and when. 86 Fed Regulation 69920. Two other CTA regulatory proposals will follow – one on access to and disclosure of information, and later a proposal to revise beneficial ownership requirements for financial institutions in light of the Beneficial Ownership Register. Ownership in the form of bearer shares is not permitted for corporations organized under the laws of U.S. states.
It is not prohibited to provide financial services to companies whose shares are restricted or authorized to their holder; However, as an anti-money laundering practice, many financial institutions prohibit or restrict relationships with legal entities whose shares are held on bearer terms. 4.2 Are there any important areas where your country`s anti-money laundering regime is not in line with the recommendations of the Financial Action Task Force (FATF)? What are the barriers to compliance? The government does not have to prove that the person carrying out the money laundering operation knew that the proceeds originated from a particular form of illegal activity. 3.19 Describe the extent to which businesses subject to anti-money laundering requirements outsource their anti-money laundering compliance efforts to third parties, including any restrictions on their ability to do so. To what extent and under what circumstances can these companies rely on their own compliance with anti-money laundering requirements or delegate responsibilities to third parties? Title insurance companies and others involved in property closures and settlements are not subject to the current requirements of the BSA, although the BSA`s bylaws provide the authority to apply the requirements of the BSA to them. However, as noted in question 3.17, title insurance companies in certain U.S. metropolitan areas have been temporarily subject to certain reporting requirements for several years. FinCEN also encourages real estate agents, trustees, securities firms and others involved in real estate transactions to voluntarily file SARs. Due to government concerns about money laundering through real estate, FinCEN issued a warning on May 8. December 2021 issued a Notice of Proposed Rulemaking, inviting the public to comment on the possible extension of BSA requirements to the real estate sector, potentially covering both residential and commercial real estate and permanently. 86 Federal Regulation 69589. FinCEN is expected to publish a draft regulatory opinion with a specific regulatory proposal in the future.
The money laundering cycle can be divided into three distinct phases; However, it is important to remember that money laundering is a unique process.