United States: BEA's BE-12 Benchmark Survey Of Foreign Direct Investments Due May 2023

This year is the BE-12 Benchmark Survey year for the foreign direct investment reporting requirements of the US Department of Commerce's Bureau of Economic Analysis ("BEA"), a survey that was last conducted in 2018.¹ BEA has not yet released the forms for this year's BE-12 survey but has announced that the forms are due in May and identified some new features.

The BE-12 must be filed by all US business enterprises, including branches, in which a foreign person owns or controls, directly or indirectly, 10 percent or more of the voting securities or an equivalent interest. Unlike the annual BE-15 survey, which collects similar information upon notice from BEA, all business enterprises subject to the reporting requirement must file the BE-12, regardless of whether they have been contacted by BEA to file. In this Legal Update, we provide information on the enterprises subject to BE-12 reporting and the key requirements for filing the survey.

Background

BEA collects information about and conducts research and analysis on the US economy, which it uses to produce data and statistics for governmental and public use. One of the topics researched and studied by BEA is cross-border business with US entities. Specifically, one of the broad sets of statistics published by BEA is on international transactions and direct investment positions by foreign persons in the United States. To develop the statistics on internal transactions and direct investment positions, BEA requires US business enterprises fully or partially owned or controlled by a foreign person to make certain filings. BEA's authority to impose the reporting requirements comes from the International Investment and Trade Services Survey Act and its implementing regulations.² These reporting requirements include transactions where a foreign parent establishes, acquires, or expands a presence in the United States, transactions between a US affiliate and its foreign affiliate group, and financial and operating data of US affiliates. Penalties for failing to make required filings can be significant, as they include both civil and criminal penalties as well as imprisonment.

There are several major BEA filings relevant to a US business enterprise with a foreign parent. One is the BE-13, which US business enterprises must make when a new foreign direct investment relationship is created or an existing US affiliate of a foreign parent establishes a new US legal entity, expands its US operations, or acquires a US business enterprise. Another filing is the BE-605, which is a quarterly report of transactions between a US affiliate and its foreign parent(s) or between a US affiliate and the foreign affiliates of a foreign parent. Certain US business enterprises with foreign owners may also be required to file the annual BE-15 survey. Business enterprises required to file the BE-605 or BE-15 are contacted by BEA to file.

The BE-12 Benchmark Survey

What Is the BE-12 Benchmark Survey?

Every five years, the BEA conducts the BE-12 benchmark survey in lieu of the BE-15 annual survey. The BE-12 survey is BEA's most comprehensive survey on the financial and operating data of foreign-owned US business enterprises. This year, the survey requests data pertaining to a business's fiscal year ending in 2022. BEA uses the data from the BE-12 survey to measure the size and economic significance of foreign direct investment in the United States, measure changes in that investment, and assess its impact on the US economy.

Generally, the BE-12 survey requests information about the business enterprise's ownership (including the identity of the direct foreign parent and the ultimate beneficial owner), holdings, industry classification, total sales, employment, exports, imports, and transactions between the foreign parent and US entity. In addition, business enterprises must report on select financial and operating data. Business enterprises may need to calculate or recalculate the requested data based on BEA's specifications. There are also special reporting requirements for banking and insurance industry activities. Under the International Investment and Trade in Services Survey Act, the information business enterprises report is confidential, even as to other government agencies.

What Must Business Enterprises File?

There are a range of BE-12 forms. The exact BE-12 form that a business enterprise must file depends on the business's attributes:

• BE-12A – Filed by majority foreign-owned US business enterprises that have total assets, sales or gross operating revenues, or net income of more than $300 million (positive or negative).
• BE-12B – Filed by majority foreign-owned US business enterprises that have total assets, sales or gross operating revenues, or net income of more than $60 million, but less than $300 million, and minority foreign-owned US business enterprises that have total assets, sales or gross operating revenues, or net income of more than $60 million.
• BE-12C – Filed by other foreign-owned US business enterprises that have total assets, sales or gross operating revenues, or net income of $60 million or less.
• BE-12 Claim for Not Filing – Filed by a US business enterprise that is contacted by BEA but is not subject to the reporting requirements.

The survey also requests select financial and operating data and any annual financial statements.

Who Must File?

Unlike the BE-15 survey, which is required only for the select entities contacted by BEA for further reporting, all entities with a foreign voting ownership interest of 10 percent or more and all US affiliates of foreign parents must file the BE-12. BEA may, but not necessarily will, individually contact businesses that must report. The definition of a US business enterprise for reporting purposes is broad and includes not only legal entities but also branches and other unincorporated ventures, real estate, land, and land rights. Specifically, the filing requirement applies to real estate owned for profit-making purposes (i.e., not held for personal use of a corporation owner or an owner's primary residence). Further, there is no minimum asset or revenue threshold for filing. All US business enterprises still in existence and at least 10 percent foreign-owned at the end of the business's fiscal year that ended in 2022 must file even if the business was, for example, inactive or had no assets.

There are a limited number of exemptions that may apply to certain US business enterprises. For one, only the top-tier US affiliate needs to file a consolidated BE-12. If a lower-tier affiliate receives a request from BEA to file, that affiliate should submit a claim of exemption and refer the request to the top-tier affiliate. Another exemption is if a business enterprise was no longer in existence or no longer 10 percent or more foreign-owned at the end of its fiscal year ending in 2022, the business enterprise does not have to file. Further, certain private funds are exempt from submitting the survey. If an exempt business receives a notification to file from BEA, the enterprise must submit a BE-12 Claim for Not Filing.

When considering whether a foreign person has a 10 percent or more ownership interest, the interest is usually based on control of management decisions rather than equity. For partnerships, partners are presumed to have a 100 percent voting interest, shared equally. Limited partners are presumed to have no voting interest in a US business enterprise unless the partnership agreement provides limited partners with control. For limited liability companies, members are presumed to share 100 percent of the voting interest equally, regardless of the division of equity or the designation of one member as a managing member. As to business enterprises with multi-tier ownership, voting interests are multiplicative, not additive, which differs from the banking control rules.

When Is the BE-12 Due?

For paper submissions, the BE-12 will be due on May 31, 2023. E-filing submissions will be due on June 30, 2023.

Changes Since 2018

Late last year, BEA published a final rule updating the regulations under which it promulgates the BE-12 survey. In addition to modifications related to question wording, layout, and instruction, substantive changes to the survey include:

• Separating collection of the investment in and income from unconsolidated US affiliates and foreign entities, which were previously collected as a combined total.
• Adding questions regarding the reasons information regarding US business enterprises changed since the last report.
• Adding questions on the BE-12A form to collect sales data for intellectual property rights and advertising when there is no clear link between the industry of sales and the type of services supplied.
• Adding questions on the BE-12A form to collect sales data related to the provision of cloud computing and data storage and digital intermediation services.
• Eliminating expensed petroleum and mining expenditures from the BE-12A form.
• Eliminating commercial property from the state schedule of the BE-12A and BE-12B forms.
• Scaling back Part III of the BE-12A and BE-12B forms, the part that collects information on investment and transactions between the US affiliate and the foreign group, to include only foreign parent ownership and classification information, a question on reverse investment, and intercompany debt balances for US affiliates with less than $60 million in assets, sales, or net income.

Conclusion

Business enterprises with foreign ownership, including unincorporated businesses, land and real estate, should evaluate whether they must file a BE-12 report and, if so, discuss the filing requirements with the relevant foreign owner(s). BEA has set up an email subscription service on its website, through which subscribers will receive an email alert when the eFile and paper versions of the survey forms are released as well as alerts when updates are made to the BE-12 webpage. Business enterprises should also begin working with counsel and accountants to begin collecting the information and calculating the data necessary for responding to the BE-12 survey in order to meet the filing deadline.

Footnotes

1. See BEA, Direct Investment Surveys: BE–12, Benchmark Survey of Foreign Direct Investment in the United States, 87 Fed. Reg. 58,953 (Sept. 29, 2022), https://www.federalregister.gov/documents/2022/09/29/2022-21113/direct-investment-surveys-be-12-benchmark-survey-of-foreign-direct-investment-in-the-united-states.

2. 22 U.S.C. §§ 3101-3108; 15 C.F.R. pt. 801.

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