IRS and FinCEN Form 8300 and Geographic Targeting Order (11/2/14)

Recently, FinCEN issued a Geographic Targeting Order, here, imposing additional reporting and recordkeeping requirements on a relatively small (but apparently financially active) area of Los Angeles, California.  The order and the cover communication for the order is here.  Key excerpts of the order are:

GEOGRAPHIC TARGETING ORDER 

The Director, Financial Crimes Enforcement Network (FinCEN), U.S. Department of the Treasury, is authorized to issue an order that imposes certain additional reporting and recordkeeping requirements on one or more domestic financial institutions or nonfinancial trades or businesses in a geographic area to carry out the purposes of and prevent evasions of the Bank Secrecy Act. See 31 U.S.C. § 5326(a); 31 C.F.R. § 1010.370; Treasury Order 180-01,  

IT IS HEREBY FOUND that reasonable grounds exist tor concluding that the imposition of the additional reeordkeeping and reporting requirements described in this Geographic Targeting Order ("Order") upon the Covered Businesses described below is necessary to carry out the purposes of and prevent evasions of the Bank Secrecy Act. See 31 U.S.C. § 5326(a); 31 C.F.R. § 1010.370. 

THEREFORE, IT IS ORDERED THAT: 

Part 1 - Definitions. 

** * * 

1.2 ''Covered Business" means the following trades and businesses located in the Covered Geographic Area, including their agents, subsidiaries, and franchisees:
(a) garment and textile stores;
(b) transportation companies;
(c) travel agencies;
(d) perfume stores;
(e) electronic stores (including those that only sell cell phones):
(I) shoe stores;
(g) lingerie stores;
(h) flower/silk flower stores;
(i) beauty supply stores; and
(j) stores bearing "Import" or "Export" in its name. 

1.3 "Covered Geographic Area" means the area in the City of Los Angeles, California, south of East 8th Street, north of East 16th Street, and between Santee Street and South Central Avenue. 

1.4 "Currency" shall have the same meaning as provided in 31 C.F.R. § I 0 I 0.330(c)(I). 

* * * * 

1.10 "Order Period" means the 180-day period beginning, October 9, 2014 and ending the close of business on April 6, 2015. 

Part 2- Special Reporting, Recordkeeping, nnd Customer Identitification Obligations of the Covered Businesses. 

2.1 A. Covered Business which, in the course of a trade or business in which such business is engaged, receives currency in excess of $3,000 in 1 Transaction (or 2 or more related Transactions in a 24-hour period) shall make a report of each such Transaction or Transactions by filing a FinCEN Form 8300. Each such FinCEN Form 8300 must be:
(a) completed in accordance with the terms of this Order and the FinCEN Form 8300 instructions (when such terms conflict, the terms of this Order shall apply): and
(b) e-filed through the Bank Secrecy Act E-filing system. 

* * * * 

2.3 It shall be unlawful for the Covered Business to process, accept, or receive funds for, or otherwise participate in a Transaction that is the subject of this Order unless the Customer conducting the Transaction provides an officer, director, employee, or agent of the Covered Business with identification in one of the following forms:
(a) a driver's license or an identification card issued by a State of the United States, the District of Columbia, or a Territory or Possession of the United States;
(b) a military or military dependent identification card;
(c) a non-resident alien registration card:
(d) a foreign national identity card:
(e) a passport n2/ or
(f) a combination of other unexpired documents, with an individual's name and address, and a photograph.
   n2 Because a passport does not contain an individual's permanent address, when a Customer provides a passport as form of identification, a Covered Business would need to review additional identification that specifies the Customer's address. 

that, in each case, is currently valid and contains the name, address, and a recognizable photograph of such Customer. 

2.4 It shall he unlawful for the Covered Business to process, accept, or receive funds for, or otherwise participate in a Transaction that is the subject of this Order unless the Customer conducting the Transaction provides an officer, director, other employee, or agent of the Covered Business with a written certification regarding whether such Customer is conducting the Transaction on behalf of another individual, organization, or business, and, if so, report all required information in Part II of the Form 8300 (Person on Whose Behalf This Transaction Was Conducted). 

2.5 It shall be unlawful for the Covered Business to process, accept, or receive funds for, or otherwise participate in a Transaction that is the subject of this Order unless the Customer conducting the Transaction provides an officer, director, other employee, or agent of the Covered Business with the telephone number for the Customer involved in the Transaction. In the  event that the Customer is conducting the Transaction on behalf of another individual, organization or business, the Covered Business must obtain, in addition to the other information required in Part ll of the Form 8300, a telephone number for the Funding Party and the Funding Location, and enter such information in the comments section on the Form 8300. To indicate that this section contains information regarding the "Funding Party" or the "Funding Location" the comments section entry should include the phrase "Funding Party Phone Number" or "Funding Location." For example: Funding Party Phone number: [insert phone number] or Funding Location: [insert address]. 

2.6 It shall be unlawful for the Covered Business to process, accept, or receive funds for, or otherwise participate in a Transaction that is the subject of this Order unless the Customer conducting the Transaction provides an officer, director, other employee, or agent of the Covered Business with the name and phone number for the Goods Recipient and the Goods Location, and enter such information in the comments section on the Form 8300. To indicate that this section contains information regarding the "Goods Recipient" or the Goods Location, the comments section entry should include the phrase "Goods Recipient Phone Number" or "Goods Recipient" or "Goods Location." For example: Goods Recipient Phone Number: [insert phone number] or Goods Recipient: [insert name] or Goods Location: [insert address].

The joint IRS and FinCEN Form  8300, Report of Cash Payments Over $10,000 Received in a Trade or Business is here.

I add background material in the  Form 8300:

The IRS Form 8300 is the one historically used to report pursuant to Section 6050I, here.  The information on that original IRS-only Form 8300 was subject to the strict non-disclosure rules of Section 6103, here.  The information on the Form, however, could be useful to other law enforcement agencies, if it were available.  The history is recounted in Courtney J. Linn, Redefining the Bank Secrecy Act, Currency Reporting and the Crime of Structuring, 50 Santa Clara L. Rev. 407, 416 (2010), here:

Whereas most currency reporting requirements derive from the BSA, the Form 8300 requirement has a different origin. When enacted in 1984, the Form 8300 requirement was intended primarily as a means of assisting the IRS in identifying tax evaders, and thus was codified in the Tax Code. 40 In 1998, Congress authorized the Secretary of the Treasury to disclose Form 8300s to officers and employees of any federal agency for the administration of federal criminal statutes not related to tax administration. 41 However, the requirement remained within the Tax Code, meaning that Form 8300 disclosure for non-tax investigations turned on disclosure rules that apply to tax returns and return information. 42 In 2001, Congress effectively detached Form 8300s from their tax law origins by reenacting the Form 8300 requirement as part of the BSA. This made it easier for law enforcement agencies engaged in non-tax investigations to access Form 8300 information. 43 As of January 1, 2002, Form 8300 disclosures are authorized under the more permissive disclosure provisions of the BSA and accompanying regulations. 44
   n40. See I.R.C. § 6050I (2006); see also U.S. Gen. Accounting Office, Money Laundering: The Use of Cash Transaction Reports by Federal Law Enforcement Agencies 2-3 (1991) (discussing the origins of the Form 8300 requirement).
   n41. See Peter Reuter & Edwin M. Truman, Chasing Dirty Money: The Fight Against Money Laundering 66 (2004); Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, 102 Stat. 4181.
   n42. See I.R.C. § 6103(i)(8) (2006); see also Internal Revenue Manual §§9.5.5.4.8.4, 9.5.5.4.8.5 (2007) (setting forth the elaborate procedures an IRS agent must follow to disseminate a Form 8300 under Title 26 authority).
   n43. Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, Pub. L. No. 107-56, tit. III, § 365(a), 115 Stat. 272 (codified as amended at 31 U.S.C. § 5331 (2006)).
   n44. See Internal Revenue Manual § 9.5.5.4.8 (2007) ("The rules under Title 26 strictly limit [Form 8300] disclosures, whereas the rules under Title 31 are less restrictive."). 

The BSA provision is 31 USC 5331(a), here.  The form, therefore, is now the joint IRS and FinCEN Form 8300.  It has been reported that, because the BSA violation has no textual requirement of “willfulness,” the DOJ may prefer prosecuting for the BSA violation.  See Linn, supra, p. 443.