Corporate Alert: Commerce Department Requires US Companies to Submit Filings Regarding Certain Foreign Affiliates
Summary: Recently, the Bureau of Economic Analysis (BEA) of the US Department of Commerce released the 2014 BE-10 Benchmark Survey of US Direct Investment Abroad, pursuant to which US persons (defined below) are required to disclose to the BEA financial and operating data on foreign business enterprises in which they (directly or indirectly) own or control at least a 10 percent voting interest (a foreign affiliate). The survey is intended to collect recent economic data related to US investment abroad. All US persons with foreign affiliates must file the applicable BE-10 form(s), whether or not they have been contacted by the BEA. US business enterprises that have been contacted by the BEA, but had no foreign affiliates during 2014, must file a claim for exemption. BE-10 reports must generally be completed by May 29, 2015, though for filers with a large number of foreign affiliates, the filing deadline is June 30, 2015. This Client Alert discusses the key requirements of the BE-10 survey. Additional information, including the BE-10 forms and detailed instructions, can be found here.
Any US person that had a foreign affiliate at any time during the US person’s 2014 fiscal year, including any foreign affiliate that was established, acquired, seized, liquidated, sold, expropriated or inactivated during the fiscal year, must file a BE-10 report. Such US persons are referred to for purposes of the survey as “US Reporters.” If a US business enterprise had no foreign affiliates during its 2014 fiscal year but is contacted by the BEA with respect to the BE-10 survey, it must still file a BE-10 Claim for Not Filing—though no other forms in the survey will be required in that case. Notably, filing is required even for foreign-owned US persons with foreign affiliates.
- “Business enterprise” means any organization, association, branch or venture that exists for profit-making purposes or to otherwise secure economic advantage, and any ownership of any real estate.
- “Foreign affiliate” means an affiliate located outside of the United States in which a US person has a direct investment, which is defined as the ownership or control, directly or indirectly, of 10 percent or more of the voting securities of an incorporated foreign business enterprise or an equivalent interest in an unincorporated foreign business enterprise, including a branch.
- “Person” means any individual, branch, partnership, associated group, association, estate, trust, corporation or other organization (whether or not organized under the laws of any state), and any government (including a foreign government, the US government, a state or local government and any agency, corporation, financial institution or other entity or instrumentality thereof, including a government-sponsored agency).
- “US person” means any person resident in the United States (defined as “the several states, the District of Columbia, the Commonwealth of Puerto Rico, and all territories and possessions of the United States”) or subject to the jurisdiction of the United States.
As noted above, all US persons with foreign affiliates during 2014 are required to respond to the BE-10 survey. The types of forms submitted, however, will vary based upon the specific facts and circumstances. The following summarizes the various BE-10 forms and the situations in which they apply:
- Form BE-10A—This report is required for all US Reporters.
- Form BE-10B—This report must be submitted for each majority-owned foreign affiliate with assets, sales, net income or net loss (each, an “economic benchmark”) greater than $80 million at any time during or for the 2014 fiscal year.
- Form BE-10C—This report is required for (i) each majority-owned foreign affiliate where any one of the economic benchmarks exceeded $25 million but no economic benchmark exceeded $80 million at any time during or for fiscal year 2014; (ii) for each minority-owned foreign affiliate where any one of the economic benchmarks was greater than $25 million at any time during or for fiscal year 2014; and (iii) for each foreign affiliate for which none of the economic benchmarks was greater than $25 million during or for fiscal year 2014 and that is a parent company of another foreign affiliate being reported on Form BE-10B or BE-10C.
- Form BE-10D—This report is required for each foreign affiliate (regardless of whether majority- or minority-owned) for which no economic benchmark exceeded $25 million during or for fiscal year 2014 and that is not a parent company of another foreign affiliate being reported on Form BE-10B or BE-10C.
Content of the Reports
Form BE-10A requires, among other things, identifying information, sales and employment information, contract manufacturing services information, financial and operating data of the US Reporter, and import and export information. The foreign affiliate forms (i.e., Forms BE-10B-D) generally require, among other things, identifying information, financial and operating data, investments and transactions between the US Reporter and the foreign affiliate, and import and export information. The US Reporter submits the Form BE-10A for itself and Form BE-10B, C or D, as applicable, for each foreign affiliate.
The BEA may only use the information provided for analytical and statistical purposes; it may not publish or make available the information in a manner that can specifically identify the person to which the information relates. Reports are confidential and their disclosure will not be compelled without the prior written consent of the person filing the report and of the customer of such person, where the information supplied is identifiable as being derived from the records of such customer. BE-10 filings will be required every five years.
US Reporters filing fewer than 50 foreign affiliate forms (i.e., BE-10B, C and/or D) must file by May 29, 2015. US Reporters filing 50 or more foreign affiliate forms must file them by June 30, 2015. The BE-10 Claim for Not Filing is due by May 29, 2015.
Failure to make the required filings may result in civil penalties of up to $25,000 and/or injunctive relief commanding the US person to comply, as well as fines for willful violations of up to $10,000 and/or imprisonment for up to one year (for individuals). Any officer, director, employee or agent of any corporation who knowingly participates in such violations may be punished by a like fine, imprisonment or both.
 US airlines’ and ship operators’ foreign stations, ticket offices, and terminal and port facilities that provide services only to their own operations are not considered foreign affiliates and are not subject to the reporting requirements. Reports are required, however, when such facilities produce significant revenues from services provided to unaffiliated persons.
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