SURVEY OF NEW FOREIGN DIRECT INVESTMENTS IN THE UNITED STATES
Bureau of Economic Analysis (BEA)
Michael Kennedy
The BE-13 is a survey of new foreign direct investments in the United States. This article will discuss the purpose and function of the BE-13, the various different BE-13 forms that can be filed, how to file a BE-13, and the penalties for a failure to file. Although reinstated as a required filing in 2014, it is not widely known and only recently has it been enforced by the BEA.
WHO IS REQUIRED TO FILE A BE-13 SURVEY & WHY IS IT REQUIRED?
The United States Department of Commerce requires the Bureau of Economic Analysis (BEA) to prepare official U.S. economic statistics that provide relevant information on any acquisitions or establishment of U.S. businesses by foreign enterprises and investors to help gauge the performance of the U.S. economy and the role the United States plays in the global economy. The BE-13 survey aids in the development of national policy and state programs to help promote and attract foreign direct investment, as well as measure which countries account for the most new investments, which U.S. states attract the most investment, which industries are the most sought after, and how many jobs are created by the new investment.
Foreign direct investment is defined by the BEA as the ownership or control, directly or indirectly by one foreign person of 10% or more of the voting securities of an incorporated U.S. business enterprise or an equivalent interest of an unincorporated U.S. business enterprise including a branch.
FILING A BE-13
The appropriate BE-13 form for the enterprise is due no later than 45 calendar days after the establishment of a new U.S. business enterprise, the acquisition of an existing U.S. business is complete, or the expansion of an already reported company has begun irrespective of whether they were contacted by the BEA. The report must be signed by an authorized official of the company who thereby certifies that the report has been prepared in accordance with the applicable instructions and is completely and substantially accurate.
Typically, a BE-13 should be filed when the foreign investor’s total or projected cost of the transaction with the U.S. company exceeds $3 million. The foreign investor must also have over a 10% controlling interest in the U.S. company. More specifically, reporting is necessary when:
- An acquisition resulting in foreign ownership directly or indirectly through an existing U.S. Affiliate of the foreign entity of at least 10% voting interest in an existing U.S. business enterprise that will operate as a separate legal unit;
- Acquisition of a U.S. business or segment by existing U.S. Affiliate of a foreign parent, then merged into the U.S. Affiliate’s operations;
- Acquisition of a U.S. company resulting in foreign ownership of at least 10% interest in U.S. real estate intended to be held for lease or for sale;
- Establishment of incorporated or unincorporated U.S. legal entity which the foreign company will hold directly through the U.S. Affiliate, at least 10% voting interest, even if the new entity does not have physical operations;
- The expansion of an existing U.S. Affiliate through lease or purchase of a new facility to conduct business, including construction or lease of a new facility.
THE DIFFERENT BE-13 FORMS
There are 5 different BE-13 forms that may be filed depending on the scenario that best describes the transaction of the foreign company with the U.S. company. (1) BE-13A; (2) BE-13B; (3) BE-13D; (4) BE-13E; and (5) the most common for small and medium sized businesses, BE-13 Claim for Exemption.
BE-13A—Acquisitions & Mergers: A BE-13A is filed when a U.S. business enterprise is acquired in turn resulting in:
- a total cost of the acquisition is greater than $3,000,000;
- The U.S. business enterprise will operate as a separate legal entity from its foreign purchaser;
- a foreign entity holding greater than or equal to 10% of that business’s voting interest whether directly, or indirectly.
A BE-13A is also filed when a new U.S. legal entity is established for the sole purpose of acquiring a single entity within 30 days after creation. BE-13A filings include the purchase of U.S. Real Estate (including land) that is intended for the purpose of lease or sale without significant added construction. Real estate is excluded if you intend to perform construction.
BE-13B—New Enterprises: A BE-13B is filed when a foreign entity, or an existing U.S. affiliate of a foreign entity establishes a new legal entity in the United States and:
- the projected total cost to establish the new legal entity is greater than $3,000,000;
- the foreign entity owns 10% or more of the new business enterprise’s voting interest (directly or indirectly)
BE-13D—Expansion of an Existing U.S. Affiliate: A BE-13D is filed 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. A BE-13D is also filed if this was a real estate transaction where significant construction will be undertaken but, was not acquired as part of the creation of a new U.S. enterprise. BE-13D’s also include construction, or lease of a new facility, and expansion of an existing facility if it involves new buildings or structures.
BE-13E—Project Cost Updates: A BE-13E is filed if a U.S. business enterprise had previously filed for a BE-13B or BE-13D indicating that the established or expanded business entity is still under construction. An FYE form is filled out in which any updated cost information is annually collected until the construction concludes.
PENALTIES
The BEA may pursue civil penalties of not less than $2,500, and not more than $32,500, and injunctive relief commanding compliance, or both, for a failure to report. If a failure to report was done willfully by an individual, officer, director, employee, or agent of any corporation a fine of not more than $10,000 may be issued, or imprisonment of for not more than one year, or both under 22 U.S.C. 3105.
ADDITIONAL INFORMATION
For additional guidance and to determine which BE-13 Survey you must file, please contact our office at 519-252-3888 or mk@ingenuitycounsel.com. Ingenuity Counsel can handle all your U.S. corporate needs such as filing your initial or updated BE-13 Survey, BOIR, secretary of state filings, formations, acquisitions, and more.