If you are a foreign owner doing business in the U.S. you should review the requirements by the Bureau of Economic Analysis/U.S. Department of Commerce (“BEA”). BEA is collecting data to measure foreign direct investments in the U.S., and they are doing so retroactively back to January 1, 2014. The BE-13 Survey form will have to be filed by January 12, 2015. Even if you do not qualify you may still have to file an exemption. Please be sure to review the BEA requirements, as there are penalties for not filing. Going forward reports are due, at the latest, 45 days after the certain transactions occur as set out by BEA.
Who needs to file?
Any foreign owner who:
- Established an entity in the U.S.?
- Participated in a merger and acquisition of a U.S. entity?
- Expanded existing presence in the U.S.?
Foreign owners meeting any of the aforementioned criteria must determine:
- If the ownership interest of the foreign entity is at least 10% (direct and indirect), or if the investment is greater than 3 million U.S. dollars (actual or expected)?
If so, the BE-13 Survey form needs to be filed by January 12th, 2015. However, and this is important, even if a foreign owner does not qualify as to the above requirements the company may still be required to file for an exemption. For instances, if you are contacted by BEA you will have to file – either the BE-13 Survey form or the exemption form. (Examples as to when you may be contacted by BEA would be if a foreign entity already holds 10% or more voting rights, or the foreign entity has purchased real estate.) An exemption will also have to be filed if the investment is less than 3 million U.S. dollars. Note there are specific requirements as to how to file for an exemption for a holding company.
These are just a few examples, a more detailed explanation of the specific filing requirements and the necessary forms may be found at https://www.bea.gov/surveys/respondent_be13.htm.