United States: Upcoming Deadline For BEA Foreign Affiliate Reporting On BE-10

The U.S. Department of Commerce, through the Bureau of Economic Analysis (the "BEA"), requires reporting on Form BE-10 (a "BE-10 Filing") from any U.S. person (including entities or individuals) that had a "Foreign Affiliate" (as defined below) at any point during the U.S. person's 2014 fiscal year. Form BE-10 is a 5-year benchmark survey, with the prior survey conducted in 2009. At the time of the 2009 survey, a BE-10 Filing was required only from a U.S. person contacted by the BEA. In a rule published in the Federal Register on November 20, 2014, the BEA announced that any U.S. person that satisfies the applicable reporting threshold discussed below (referred to as a "U.S. Reporter") will be required to make a BE-10 Filing, regardless of whether the BEA has contacted such entity. A BE-10 Filing may be required as early as May 29, 2015. 

Reporting Threshold

A U.S. person is required to make a BE-10 Filing if the U.S. person holds direct or indirect1 ownership or control of 10% or more of the "voting securities" of a non-U.S. entity (a "Foreign Affiliate"). Form BE-10 does not provide for any de minimis exceptions to the filing requirement for entities with limited or no assets or revenues. In determining the existence of a Foreign Affiliate, it is necessary to determine whether the interest in question is a "voting security." As a general matter, the general partner of a limited partnership or managing member of a limited liability company will be deemed to own 100% of the voting securities of the limited partnership or limited liability company. 

Reporting Deadline

Form BE-10 must be filed by May 29, 2015 if a U.S. Reporter is filing to report fewer than 50 Foreign Affiliates or by June 30, 2015 if a U.S. Reporter is filing to report 50 or more Foreign Affiliates. However, the BEA has indicated that it will consider reasonable requests for extensions received by the BEA before the original due date of the report. The BEA has requested that extension requests enumerate the substantive reasons necessitating the extension on the Request for Extension Form available on the BEA website.

Content of the Form BE-10

Each U.S. Reporter is required to file a Form BE-10A to report data regarding the U.S. Reporter itself and a BE-10B, BE-10C or BE-10D, as applicable, for each of its Foreign Affiliates. If the U.S. Reporter is an entity, Form BE-10A must cover the "fully consolidated U.S. domestic business enterprise."2  Data on the Foreign Affiliates is reported on Form BE-10B, C, or D, depending on the amount of assets, sales, or net income of each Foreign Affiliate. In certain circumstances, the BEA reporting permits consolidation of multiple Foreign Affiliates on a single Form BE-10B, C, or D. To the extent a Foreign Affiliate is owned by more than one U.S. Reporter, the U.S. Reporter with the highest percentage ownership files a complete Form BE-10B, C, or D and the other U.S. Reporter makes only a partial filing. The BEA reports are kept confidential and used for statistical analysis. The BE-10 forms and instructions can be found here

Practical Implications for Asset Managers

Fund structures may trigger a BE-10 Filing obligation in several scenarios. Typical scenarios for a private fund structure include: (i) a U.S. fund that holds 10% or more of the voting securities of a foreign portfolio company, holding company, or other structuring vehicle; (ii) a U.S. holding company or other fund structuring vehicle that holds 10% or more of the voting securities of a foreign portfolio company; (iii) a U.S. portfolio company that holds 10% or more of the voting securities of a foreign subsidiary; and (iv) a U.S. general partner, managing member, or similar entity (but not the limited partners, who do not hold voting securities, as addressed above) that owns 10% or more of the "voting securities" of a foreign fund (including a U.S. person holding voting shares of a fund organized as a Cayman corporation). While possible, a registered investment company is less likely to trigger a BE-10 Filing obligation unless the registered investment company owns 10% or more of the voting securities of any foreign issuer. 

Consequences for Failure to File

While the BEA has stated informally that it does not intend to penalize an entity that fails to file, persistent failure to file may ultimately result in civil and criminal penalties. The BEA may pursue civil penalties up to $25,000 and seek injunctive relief, and willful violations may result in criminal penalties of up to $10,000 and imprisonment for up to one year. 

Changes to Other BEA Forms

For a discussion of the recent changes to the BEA Foreign Direct Investment Reporting on Form BE-13, please refer to our January 6, 2015 Alert, which can be accessed here.

Interpretive Issues and Questions

There are a number of unresolved interpretive issues that are not addressed by the BE-10 instructions, particularly with regard to the form's application to asset managers and the funds they manage. If you have questions regarding the application of these filing requirements, please contact your usual Ropes & Gray advisor.

1  Indirect ownership is calculated by multiplying the ownership percentage at each direct ownership level (such that if A owns 50% of B and B owns 75% of C, A indirectly owns 37.5% of C).

2 The "fully consolidated U.S. domestic business enterprise" includes (1) the U.S. business enterprise whose voting securities are not owned more than 50 percent by another U.S. business enterprise, and (2) proceeding down each ownership chain from that U.S. business enterprise, any U.S. business enterprise whose voting securities are more than 50 percent owned by the U.S. business enterprise above it. The consolidation excludes foreign branches and all other foreign affiliates.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions