In a transaction involving an acquisition, formation or investment in a U.S. business by a foreign entity, there are a variety of legal, business, financial and operational matters to carefully consider, and ultimately, on which to execute. One lesser-known legal matter is the requirement to file the Form BE-13, Survey of New Foreign Direct Investment in the United States. Somewhat unintuitively, even though the filing requirement is triggered by the foreign entity’s involvement, the obligation to make the filing falls on the U.S. entity. Failure to file can lead to civil and even criminal penalties.
What is the BE-13 Survey?
The BE-13 Survey is a mandatory survey conducted by the Bureau of Economic Analysis of the United States Department of Commerce (BEA). The BEA uses the collected information to analyze foreign investment activity in the U.S. The BEA itself keeps the surveys confidential, but publishes reports aggregating the data collected. The BE-13 Survey was discontinued in January 2009 but was reinstated in November 2014.
What are the Filing Requirements?
In general, a U.S. business is required to report a transaction to the BEA if: (i) a foreign entity acquires 10% or more of its voting interest, or (ii) it is an existing U.S. affiliate of a foreign parent and establishes a new U.S. business, expands its U.S. operations or acquires a U.S. business. Depending on the type of transaction, one of five forms is required to be filed.
The Five BE-13 Forms: Which to File?
Information for the BE-13 Survey is collected by the BEA using the following five forms:
BE-13A (Acquisition of U.S. Business Enterprise that Remains a Separate Entity)
A U.S. business is required to file a Form BE-13A if a foreign entity acquires a voting interest in such U.S. business and (i) the total cost of the acquisition is greater than $3 million, (ii) the U.S. business will operate as a separate legal entity, and (iii) by this acquisition, at least 10% of the voting interest in the acquired entity is now held, directly or indirectly, by the foreign entity.
Even though the form references an “acquisition,” the 10% threshold means that this form also must be filed in connection with an investment in a U.S. business by a foreign entity.
Depending on the circumstances, the purchase of U.S. real estate may be covered by this form. If the purchased U.S. real estate is intended for sale or lease without significant added construction, it is covered by this Form BE-13A. On the other hand, if the purchased U.S. real estate will be improved, it is covered by Form BE-13B.
- BE-13B (Establishment of New U.S. Business Enterprise)
A U.S. business must file a Form BE-13B if a foreign entity, or an existing U.S. affiliate of a foreign entity, establishes a new legal entity in the United States and (i) the projected total cost to establish the new legal entity is greater than $3 million, and (ii) the foreign entity owns, directly or indirectly, 10% or more of the new business’ voting interest.
Creation of a new legal entity, whether or not incorporated and whether or not it has physical operations, and construction of real estate intended for lease or sale are covered by Form BE-13B. On the other hand, the purchase of U.S. real estate that is intended for sale or lease without significant construction is covered by Form BE-13A.
- BE-13C (Acquisition of U.S. Business Enterprise that is Merged with an Existing U.S. Affiliate)
A U.S. business must file a Form BE-13C if an existing U.S. affiliate of a foreign parent acquires a U.S. business or segment that it then merges into its operations and the total cost to acquire the business is greater than $3 million.
- BE-13D (Expansion of an Existing U.S. Affiliate)
A U.S. business must file a Form BE-13D if an existing U.S. affiliate of a foreign parent expands its operations to include a new facility where business is conducted and the projected total cost of the expansion is greater than $3 million.
The transfer of an existing operation from one location to another, replacement of equipment or an upgrade of an existing facility and an expansion of an existing facility are not covered by Form BE-13D.
- BE-13E Claim for Exemption
From time to time, the BEA may contact a U.S. business requesting that it file a Form BE-13 with respect to a transaction. These letters are generalized and do not describe the potentially covered transaction or which Form BE-13 should be filed. In this case, the U.S. business must respond to this request by either filing the appropriate Form BE-13 or filing a Form BE-13 Claim for Exemption.
If a U.S. business undertakes a transaction that would otherwise be covered by Forms BE-13A, BE-13B, BE-13C or BE-13D except that the transaction size does not meet the $3 million threshold, the U.S. business must file a claim for exemption, whether or not it has been contacted by the BEA. For example, if the U.S. business received an investment of $1 million from a foreign entity in exchange for 15% of its equity, the U.S. business would need to file a claim for exemption.
When do I File? And are There any Penalties for Non-compliance?
BE-13 forms are required to be filed no later than 45 calendar days after the acquisition is completed, the new U.S. business is established, the expansion is begun or a notification letter is received from the BEA by a U.S. business that does not meet the filing requirements for the survey.
Penalties for failing to file include civil penalties of $4,450 up to $44,539 and injunctive relief. Penalties for willful failure to file include fines of not more than $10,000 and imprisonment for not more than one year.