I was intrigued that a FinCEN representative was understood to make a direct statement that no SAR filing was necessary on the "landlord" scenario. At the Helpline's inception, I was told that FinCEN personnel would simply not answer "should I file" questions. The list of reasons offered was long and well-reasoned. One was the simple fact that (as noted in the Examination Manual) SAR filing decisions are subjective. Another was that the caller might have inadvertently omitted a critical fact from the question.
To test, I submitted the scenarios mentioned above via e-mail and asked if a "marijuana limited" SAR was necessary. I got a voice mail response before the end of business on the same day. The response relied wholly on Footnote 7 in FIN-2014-G001
. In regard to whether to file on the marijuana related business' landlord. It says:In such circumstances where services are being provided indirectly, the financial institution may file SARs based on existing regulations and guidance without distinguishing between “Marijuana Limited” and “Marijuana Priority.”
It does not say a SAR filing is unnecessary; it says the bank is not required to choose between marijuana related SAR labels
. So, any SAR filing decision is still left to the bank. The person who returned my call did a decent job of walking the line, saying only that any SAR filed in these scenarios would not be filed as a "marijuana limited" SAR. There was no statement that the SAR filing was unnecessary. My respondent said the same would be applicable to the employee, investor, and provider of essential services examples. There was no "file" or "do not file" direction. There was a somewhat gratuitous observation that there should be ongoing monitoring where these connections exist.