United States: Foreign-owned Companies Operating In The United States Must File A 5 Year Survey With The U.S. Department Of Commerce By May 31, 2023 (for Paper Filings) And June 30, 2023 (for Electronic Filings).

The Bureau of Economic Analysis ("BEA") of the U.S. Department of Commerce, which conducts a series of mandatory surveys on foreign investments in the U.S., has recently published Form BE-12, its five-year survey on foreign direct investment in the U.S. for fiscal years ending in 2022. The previous five-year survey was conducted back in 2017. This BE-12 survey is mandatory for any 10% or more foreign-owned U.S. entity, regardless of whether the BEA has contacted them or not.

The BE-12 survey gathers financial and operational information on foreign-owned U.S. entities and is designed to gather comprehensive data on foreign direct investment in the U.S. The survey focuses on gathering data on sales, assets, liabilities and employment, which the BEA then uses to create detailed and precise statistics on the international operations of U.S. companies and the U.S. position in global investment.

This survey is required to be filed by all U.S. companies that are at least 10% owned by a non-U.S. entity. The determination of whether a foreign person has a 10% or greater ownership interest is generally based on control over management decisions rather than equity ownership.

Different BE-12 survey forms are available depending on the size of the U.S. entity:

• Form BE-12A: U.S. entities that are majority-owned by a foreign parent in 2022 and whose total assets, sales, gross operating revenues or net income exceed $300 million in 2022.

• Form BE-12B: U.S. entities that are majority-owned by a foreign parent in 2022 and whose total assets, sales, gross operating revenues or net income exceeded $60 million but did not exceed $300 million in 2022. Form BE-12B also applies to U.S. entities that are minority-owned by foreign investors in 2022 if their total assets, sales, gross operating revenues or net income exceed $60 million in 2022.
• Form BE-12C: U.S. entities at least 10% owned by a non-U.S. entity in 2022 if their total assets, sales, or gross operating revenues or net income did not exceed $60 million in 2022.

The forms are available online at BE-12 Benchmark Survey: Foreign Direct Investment in the United States | U.S. Bureau of Economic Analysis (BEA).

U.S. companies contacted by the BEA and which do not fall in the above categories will have to file the BE-12 Claim for Not Filing-Form.

The BEA exempts certain private funds from filing if they meet the following criteria:

1) The private fund, directly or indirectly, does not possess an "operating company" in which the U.S. reporter or foreign parent holds at least a 10 percent voting interest. The term "operating company" refers to a business that is not a private fund or a holding company ; and

2) If there are no "operating companies" between the U.S. company or foreign parent and the indirectly-owned private fund.

Companies may request a reasonable extension of the filing deadline before the due date.

Failure to provide the required information may result in fines ranging from $5,580 to $55,808 and possible criminal penalties, including imprisonment.

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