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Federal Register / Vol. 86, No. 233 / Wednesday, December 8, 2021 / Proposed Rules G Amendments of any substantial governance documents of the reporting company, including the articles of incorporation or similar formation documents, bylaws, and significant policies or procedures; and iv Any other form of substantial control over the reporting company.
2 Direct or indirect exercise of substantial control. An individual may directly or indirectly exercise substantial control over a reporting company through a variety of means, including through board representation;
through ownership or control of a majority or dominant minority of the voting shares of the reporting company;
through rights associated with any financing arrangement or interest in a company; through control over one or more intermediary entities that separately or collectively exercise substantial control over a reporting company; through arrangements or financial or business relationships, whether formal or informal, with other individuals or entities acting as nominees, or through any other contract, arrangement, understanding, relationship, or otherwise. An individual who has the right or ability to exercise substantial control as specified in paragraph d1 of this section and this paragraph d2 shall be deemed to exercise such substantial control.
3 Ownership interests. i The term ownership interest means:
A Any equity, stock, or similar instrument, certificate of interest or participation in any profit sharing agreement, preorganization certificate or subscription, transferable share, voting trust certificate or certificate of deposit for an equity security, interest in a joint venture, or certificate of interest in a business trust, without regard to whether any such instrument is transferable, is classified as stock or anything similar, or represents voting or non-voting shares;
B Any capital or profit interest in a limited liability company or partnership, including limited and general partnership interests;
C Any proprietorship interest;
D Any instrument convertible, with or without consideration, into any instrument described in paragraph d3iA, B, or C of this section, any future on any such instrument, or any warrant or right to purchase, sell, or subscribe to a share or interest described in paragraph d3iA, B, or C of this section, regardless of whether characterized as debt; or E Any put, call, straddle, or other option or privilege of buying or selling any of the items described in paragraph
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d3iA, B, C, or D of this section without being bound to do so.
ii An individual may directly or indirectly own or control an ownership interest of a reporting company through a variety of means, including but not limited to:
A Joint ownership with one or more other persons of an undivided interest in such ownership interest;
B Through control of such ownership interest owned by another individual;
C With regard to a trust or similar arrangement that holds such ownership interest:
1 As a trustee of the trust or other individual if any with the authority to dispose of trust assets;
2 As a beneficiary who:
i Is the sole permissible recipient of income and principal from the trust; or ii Has the right to demand a distribution of or withdraw substantially all of the assets from the trust; or 3 As a grantor or settlor who has the right to revoke the trust or otherwise withdraw the assets of the trust:
i Through ownership or control of one or more intermediary entities, or ownership or control of the ownership interests of any such entities, that separately or collectively own or control ownership interests of the reporting company; or ii Through any other contract, arrangement, understanding, or relationship.
iii In determining whether an individual owns or controls 25 percent of the ownership interests of a reporting company, the ownership interests of the reporting company shall include all ownership interests of any class or type, and the percentage of such ownership interests that an individual owns or controls shall be determined by aggregating all of the individuals ownership interests in comparison to the undiluted ownership interests of the company.
4 Exceptions. Notwithstanding any other provision of paragraph d of this section, the term beneficial owner does not include:
i A minor child, as defined under the law of the State or Indian tribe in which a domestic reporting company is created or a foreign reporting company is first registered, provided the reporting company reports the required information of a parent or legal guardian of the minor child as specified in paragraph b3ii of this section;
ii An individual acting as a nominee, intermediary, custodian, or agent on behalf of another individual;
iii An employee of a reporting company, acting solely as an employee
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and not as a senior officer, whose substantial control over or economic benefits from such entity are derived solely from the employment status of the employee;
iv An individual whose only interest in a reporting company is a future interest through a right of inheritance;
v A creditor of a reporting company.
For purposes of this paragraph d4v, a creditor is an individual who would be a beneficial owner under the other provisions of paragraph d of this section solely through rights or interests in the company for the payment of a predetermined sum of money, such as a debt and the payment of interest on such debt. For the avoidance of doubt, any capital interest in the reporting company, or any right or interest in the value of the reporting company or its profits, are not such rights or interests for payment of a predetermined sum, regardless of whether they take the form of a debt instrument. If the individual has a right or ability to convert the right to payment of a predetermined sum to any form of ownership interest in the company, that individual is not a creditor of a reporting company for purposes of this section.
e Company applicant. For purposes of this section, the term company applicant means:
1 For a domestic reporting company, any individual who files the document that creates the domestic reporting company as described in paragraph c1i of this section, including any individual who directs or controls the filing of such document by another person; and 2 For a foreign reporting company, any individual who files the document that first registers the foreign reporting company as described in paragraph c1ii of this section, including any individual who directs or controls the filing of such document by another person.
f Definitions. For purposes of this section, the following terms have the following meanings.
1 Employee. The term employee has the meaning given the term in 26
CFR 54.4980H1a15.
2 FinCEN identifier. The term FinCEN identifier means the unique identifying number assigned by FinCEN
to an individual or reporting company under this section.
3 Foreign person. The term foreign person means a person who is not a United States person.
4 Indian tribe. The term Indian tribe has the meaning given the term Indian tribe in section 102 of the Federally Recognized Indian Tribe List Act of 1994 25 U.S.C. 5130.

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