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Federal Register / Vol. 86, No. 233 / Wednesday, December 8, 2021 / Proposed Rules
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lowest money laundering risks, as well as factors related to parties, the transaction, and the property, bearing on risk and its assessment. What kinds of transactions and customers are highest and lowest risk? How are those risks mitigated and what are the associated costs of that mitigation?
23. What are the money laundering risks associated with all-cash purchases of real estate by natural persons?
24. Is it possible to estimate the extent to which residential property values are affected by money laundering transactions? Is there a similar estimate for commercial real estate?
25. What are the money laundering risks of commercial versus residential transactions?
C. Which real estate transactions should FinCENs rule cover?
The questions in Part IX, Sections C
E, may be most relevant for any proposed rule imposing a specific reporting requirement pursuant to 31
U.S.C. 5318a2, as amended by Section 6102cof the AML Act, but commenters may examine these questions in the context of a proposed rule promulgating traditional AML/CFT
requirements for persons involved in real estate closings and settlements.
26. What general factors should FinCEN consider in determining which transactions to cover?
27. Should FinCENs proposed rule be limited to residential real estate or should FinCEN cover transactions involving other forms of real estate e.g., commercial, farmland. If you believe FinCEN should cover other forms of real estate, should FinCEN do so in conjunction with the regulation of residential real estate transactions or separately?
28. How should FinCEN define residential real estate? Is the definition used for the Real Estate GTOs either underor over-inclusive?
29. How should FinCEN define commercial real estate?
30. Should FinCENs proposed rule be limited to transactions involving legal entities or should it cover natural persons as well? If not, why?
31. Assuming FinCENs proposed rule is limited to purchases by legal entities, which legal entities should any rule cover? Is the definition of legal entity in the Real Estate GTOs too broad or too narrow? Should trusts be covered?
32. Should FinCENs proposed rule be limited to non-financed transactions all-cash?
33. Assuming FinCENs proposed rule is limited to non-financed transactions, how should FinCEN define the term non-financed transaction?

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34. Should FinCEN geographically limit the scope of any proposed regulation?
35. Are there any jurisdictions or geographic areas within the United States in which residential real estate transactions have unique customs or requirements that would make designing a rule to cover such jurisdictions in conjunction with the remainder of the country problematic?
36. Should FinCEN provide a lower limit or de minimis amount for the reporting threshold for transactions?
D. Which persons should be required to report information concerning real estate transactions to FinCEN?
37. Should FinCEN require any, a subset, or all of the following entities to report information regarding nonfinanced transactions: i Real estate lawyers and law firms; ii real estate agents/brokers/settlement agents; iii title insurance companies; iv title and escrow agents and companies; v real estate investment companies; vi real estate development companies; vii real estate property management companies;
viii real estate auctions houses; ix investment advisers; x private money lenders; and xi money service businesses?
38. Which financial institutions and nonfinancial trades and businesses are in a position to ascertain and report: i The identity of the legal entity or legal arrangement purchaser of the real estate;
ii the natural persons who are the direct or indirect owners of the legal entity or arrangement purchaser; iii the specific details of the transactions e.g., date of sale, location of property, sale price, and any other terms or conditions; iv the source of funds; v the form of payments e.g., wire transfer, check, currency, etc.; vi the purpose of the transaction; vii the intended use of the proceeds of a sale; and viii the businesses involved in the transfer of funds?
39. What are the potential benefits and costs of promulgating a transaction reporting requirement that covered real estate brokers and agents, title agencies and/or insurance companies, or attorneys? What burden quantify if possible would it places on such entities?
40. What would be the best way to assign reporting requirements to ensure a reporting requirement falls on at least one financial institution or nonfinancial trade or business for every non-financed transaction by a legal entity purchaser?
41. Should FinCEN require reports from multiple financial institutions or nonfinancial trades or businesses involved in a non-financed purchase of
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residential real estate, or should FinCEN
propose a reporting requirement via a cascading hierarchy based on the types of entities involved in a particular transaction, as is the case for IRS Form 1099S? 82
42. What should FinCEN consider when assigning the reporting burden with respect to potential evasion of the reporting requirements?
E. What information should FinCEN
require regarding real estate transactions covered by a proposed regulation?
43. What information should FinCEN
require to be reported regarding the legal entity or if applicable, natural person purchasing real estate in a covered transaction?
44. Should FinCEN require information about the seller? If so, what information should FinCEN require regarding the seller?
45. What information should FinCEN
require about the financial institution or nonfinancial trade or business reporting the transaction to FinCEN?
46. What information should FinCEN
require regarding the real estate underlying the transaction?
47. Should FinCEN require information regarding the source of funds used to purchase real estate?
48. How can FinCEN craft the information required to avoid overly burdensome or duplicative reporting requirements?
49. How should FinCEN require reports under any potential regulation be filed? Should FinCEN utilize an existing BSA form or develop a new reporting form for any proposed regulation?
F. What are the potential burdens or implementation costs of a potential FinCEN regulation?
50. What would be the costs, burdens, and benefits associated with collecting, storing, and reporting real estate transactional information to FinCEN?
51. How would FinCENs regulatory requirements be integrated into your current compliance program?
52. How much time will you need to successfully integrate these requirements into your current systems and procedures?
53. Estimate the initial projected cost of implementation and the projected long-term support costs for ongoing program maintenance. Do you anticipate being able to integrate implementation costs into your existing compliancerelated budget?
54. Would certain financial institutions or nonfinancial trades or 82 See
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generally 26 CFR 1.60454.

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