If you or your company directly or indirectly owned 10 percent or more of a foreign enterprise at any time during your 2014 fiscal year, you are required to file Form BE-10 with the Bureau of Economic Analysis (“BEA”) by May 29, 2015. (Those who must file 50 or more BE-10s have until June 30, 2015). Even if you have never heard of BEA, and have never received notice that you are required to file, you must file if you meet the ownership threshold. Failure to do so could result in a fine of up to $25,000 or up to a year in prison for individuals. Many individuals and companies may be unaware of this looming deadline. This requirement, which had been on hiatus for several years, was reinstated on November 20, 2014.
The BEA is a little-known bureau of the U.S. Department of Commerce that collects statistical data on the U.S. economy, including the kind of data that end up in calculating GDP and other important economic indices. Every five years (except when the requirement was recently and briefly suspended) it requires all U.S. persons, defined as any individual or entity resident in the United States or is subject to U.S. jurisdiction, with one or more “foreign affiliates” to file Form BE-10, which collects data regarding U.S. direct investment abroad and which’s is provided for in 15 C.F.R. § 801.8.
Having a “foreign affiliate” is defined as having “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.” If you qualify, you must file.
BEA already collects similar data on a yearly basis on Form BE-11 from individuals and companies that it has specifically notified must report. The difference with the BE-10 is that all U.S. persons must report their foreign affiliates. Somewhat confusingly, the BE-10 instructions also state that all U.S. persons must report even if they did not have any foreign affiliates. The BEA appears to intend that this wording requires only those U.S. persons notified by BEA that they must file to file a BE-10 “Claim for Not Filing” if they did not have a foreign affiliate in 2014, but a plain reading of the regulation leaves ambiguity that better drafting might cure.
Despite pleas from some (notably hedge fund managers who are likely to have stakes in many foreign enterprises) that the duty to report by all U.S. persons, including those never notified of a duty to report, would impose unduly burdensome requirements, BEA made clear in its Federal Register Notice announcing the 2014 BE-10 survey that the requirement is statutory and all U.S. persons that qualify must report. We suspect that many investors, all the way from individuals who maintain ties to a family business abroad to sophisticated investment firms, may be entirely unaware of their obligations. May 29th is just around the corner.