Are you an individual residing in the United States? Do you have no ownership interest in any foreign enterprise? Have you filed yet a Form BE-10 with the Bureau of Economic Analysis (“BEA”) informing them that you don’t have any ownership interest in any foreign business? No, you haven’t? Well if you don’t file that form with the BEA by May 29, 2015, you can be fined $10,000. Your welcome.
Now, it may not actually be the case that you have to file, but that is not what BEA’s regulations say. They say clearly that you have to file. The relevant section is 15 C.F.R. § 801.8, which establishes the mandatory filing requirement for U.S. persons with respect to their interests, or lack thereof, in foreign business enterprises. It says this:
(a) Response required. A response is required from persons subject to the reporting requirements of the BE-10, Benchmark Survey of U.S. Direct Investment Abroad—2014, contained herein, whether or not they are contacted by BEA. …
(b) Who must report. (1) A BE-10 report is required of any U.S. person that had a foreign affiliate—that is, that had direct or indirect ownership or control of at least 10 percent of the voting stock of an incorporated foreign business enterprise, or an equivalent interest in an unincorporated foreign business enterprise, including a branch—at any time during the U.S. person’s 2014 fiscal year.
(2) If the U.S. person had no foreign affiliates during its 2014 fiscal year, a “BE-10 Claim for Not Filing” must be filed by the due date of the survey.
This couldn’t be much clearer, could it? Everyone must file who is required to report, even if they are not contacted by BEA. And section (b) which defines “who must report” includes in subsection (2) U.S. persons without foreign affiliates and therefore must file a BE-10 Claim for Not Filing.
It is possible, indeed quite likely, that what BEA meant to say, but could not manage to actually say, is that the BE-10 Claim for Not Filing only must be filed by persons contacted by BEA to file and who did not have a 10 percent or greater interest in a foreign enterprise. So even though section (b) purports to define “who must report” that definition only means to cover people described in (b)(1) — who have a 10 percent interest — and not those described in (b)(2) who don’t.
First moral of the story: Economists shouldn’t write regulations and lawyers shouldn’t run the economy
Second moral of the story: If you are a U.S. person (business or individual) and you do have an 10 percent in a foreign enterprise, you have to file a BE-10 by May 29, 2015, something which I suspect many companies don’t know right now