作者：罗华 Thomas Hsieh 金杜律师事务所公司业务部
As part of its role to publish official U.S. economic statistics, the U.S. Department of Commerce’s Bureau of Economic Analysis (“BEA”) conducts quarterly and annual surveys to gather information about U.S. direct investment abroad and foreign direct investment in the United States.
This year marks the deadline for submitting responses to the BEA’s BE-12 benchmark survey of foreign direct investment in the United States. The BE-12 survey is conducted every five years and is BEA’s most comprehensive survey on the financial and operating data of foreign businesses’ U.S. affiliates. BEA uses the data from survey responses to generate and publish statistics on the volume and impact of foreign businesses in the United States.
Given the breadth of information covered by the BE-12 survey, all Chinese companies with U.S. affiliates must be aware of the impending deadline to file their responses, which should cover fiscal years ending in 2017. BEA requires a BE-12 report to be submitted for each U.S. business in which a foreign person or entity owns or controls, directly or indirectly, 10 percent or more of the business’s voting securities (or an equivalent interest if such business is unincorporated) at the end of such business’s fiscal year ending in calendar year 2017. Although U.S. businesses may receive a notification to file from BEA, all eligible entities must submit the BE-12 survey, regardless of whether BEA has directly contacted them.
Only the qualifying U.S. business (as opposed to a foreign investor) needs to complete and file a response to the BE-12 survey, and it will use one of four forms based on the following criteria:
- Form BE-12A – For majority-ownedS. affiliates that have total assets, sales or gross operating revenues, or net income of more than $300M (whether positive or negative).
- Form BE-12B – For (1) majority-ownedS. affiliates that have total assets, sales or gross operating revenues, or net income of more than $60M (whether positive or negative), but for which none of these exceed $300M (whether positive or negative), and (2) minority-owned U.S. affiliates that have total assets, sales or gross operating revenues, or net income of more than $60M (whether positive or negative)
- Form BE-12C – For U.S. affiliates (whether majority- or minority-owned) that have total assets, sales, or gross operating revenues, or net income of $60M or less (whether positive or negative). Only selected items on this form must be completed for those affiliates with total assets, sales or gross operating revenues, or net income of less than $20M (whether positive or negative).
- Form BE-12 Claim for Not Filing – For U.S. affiliates that do not meet the requirements for filing any of the above BE-12 forms, but was contacted by BEA to file. Examples of such entities may include, but are not limited to, U.S. affiliates whose foreign voting ownership interest is less than 10 percent, U.S. affiliates that were fully consolidated or merged with the report of another U.S. affiliate, or U.S. businesses that were liquidated or dissolved.
BE-12 responses must generally include information regarding the U.S. affiliate’s organizational structure and its foreign investors and parents (both direct and indirect), and financial and operating data including financial statements and description of the goods and services provided by the U.S. affiliate.
Hard copy submissions of completed BE-12 reports are due by May 31, 2018, while submissions made through BEA’s e-filing system are due by June 30, 2018. Failure to submit a BE-12 response may result in civil and/or criminal penalties.