Mandatory Economic Survey: Impending Deadlines for all U.S. Companies with Foreign Affiliates and Branches
Every five years, the U.S. Department of Commerce, Bureau of Economic Analysis ("BEA"), conducts a benchmark survey of foreign direct investment ("FDI") activities of U.S. businesses. This survey is known as the BE-10. Much like the BE-13 Survey of Foreign Direct Investment in the United States, which reports new inbound FDI (on which we reported in December 2014), this iteration of the BE-10 includes a new requirement that all entities that meet the outbound FDI criteria must file a response whether or not contacted by the BEA. The BE-10 must be submitted by any U.S. person that owned or controlled at least 10 percent of the voting stock of an incorporated foreign business (or an equivalent interest in an unincorporated foreign business) in its 2014 fiscal year. The BE-10 requires the U.S. parent (called the "U.S. Reporter") to file a Form BE-10A to detail the performance of its fully consolidated domestic activities (United States and its territories) and a separate Form BE-10B, BE-10C, or BE-10D for each foreign affiliate. Deadline for submissions by U.S. Reporters required to file fewer than 50 BE-10 forms is May 29, 2015. For U.S. Reporters required to file 50 or more forms, the deadline is June 30, 2015. The BEA will consider reasonable requests for an extension if received by the BEA no later than the original due date of the report and if the request includes substantive reasons necessitating the extension.
The Department of Commerce has indicated that failure to file a required report is subject to a civil penalty of not less than $2,500 and not more than $32,500 (and injunctive relief commanding a filing). A person willfully failing to file can be fined up to $10,000 and/or imprisoned for up to one year.
The BE-10 collects financial data (such as assets, liabilities, total sales, and net income) and operational information (including fiscal year-end date, ownership structure, products and services, and industry classifications). A BE-10 report contains more than one form. It includes a Form BE-10A for information about the U.S. Reporter and a BE-10B, C, or D for each foreign affiliate. The forms and data elements that a U.S. Reporter must complete for a foreign affiliate depend on the size of the affiliate and whether or not it is majority owned. Affiliates are measured by the larger of (i) total assets, (ii) sales or gross operating revenues (excluding sales taxes), or (iii) net income or loss (after provision for foreign income taxes) (the "Financial Factors")). The following table summarizes the forms required for each foreign affiliate:
|Majority-Owned Foreign Affiliate||Minority-Owned Foreign Affiliate|
|At least one Financial Factor (gain or loss) is greater than $300 million||BE-10B
(except Part III)
|At least one Financial Factor (gain or loss) is greater than $80 million, but all are less than $300 million||BE-10B|
(except Part IV)
|At least one Financial Factor (gain or loss) is greater than $25 million, but all are less than $80 million||BE-10C|
|All three Financial Factors (gain or loss) are less than $25 million||BE-10D|
If a foreign affiliate meeting the reporting requirements for Form BE-10D owns another foreign affiliate identified on a BE-10B or BE-10C, the foreign affiliate parent must be identified in a BE-10C.
The information provided in the BE-10 survey may be used only for statistical and analytical purposes under the International Investment and Trade In Services Survey Act. The government has indicated that submissions are confidential and are not subject to disclosure through Freedom of Information Act requests. They may be produced only with the prior written permission of the filer and any third-parties that may be identified in the information contained in the report.
Completed BE-10 submissions may be submitted on paper forms, or e-filed through the BEA website at www.bea.gov/efile. Businesses issuing annual reports to their stockholders should furnish copies of their 2014 annual reports when filing the BE-10 report. Detailed instructions for completing the form may be found here. For assistance in completing the forms, you may contact the BEA directly at +1.202.606.5566 or any of Jones Day's International Trade & National Security attorneys listed on this Alert.
For further information, please contact your principal Firm representative or one of the lawyers listed below. General email messages may be sent using our "Contact Us" form, which can be found at www.jonesday.com.
D. Grayson Yeargin
Chad O. Dorr
Chase D. Kaniecki
Lindsey M. Nelson
Jones Day publications should not be construed as legal advice on any specific facts or circumstances. The contents are intended for general information purposes only and may not be quoted or referred to in any other publication or proceeding without the prior written consent of the Firm, to be given or withheld at our discretion. To request reprint permission for any of our publications, please use our "Contact Us" form, which can be found on our web site at www.jonesday.com. The mailing of this publication is not intended to create, and receipt of it does not constitute, an attorney-client relationship. The views set forth herein are the personal views of the authors and do not necessarily reflect those of the Firm.