Tax Law Insights

The U.S. Department of Commerce, Bureau of Economic Analysis (BEA), conducts seven (7) mandatory surveys to collect information on direct investment. These seven surveys consist of an initial survey for any new in-bound direct investment, and then applicable quarterly, annual, and 5-year benchmark surveys. The purpose of the new foreign direct investment survey is to capture new investment transactions when a foreign direct investment relationship is created. The purpose of the quarterly survey is to report positions and transactions between a U.S. affiliate and its foreign parents, and between the U.S. affiliate and the foreign affiliates of the foreign parents. The purpose of the annual survey is to report annual financial and operating data of U.S. affiliates. The benchmark survey is conducted every five years, and provides the most comprehensive coverage of business entities, transactions, and data on foreign investment in the U.S.

Survey of New Foreign Direct Investment in the United States

(Form BE-13)

Due date: No later than 45 days after the date of the investment transaction

1. Form BE-13A

Filed for a U.S. business enterprise when a foreign entity acquires a voting interest in the enterprise, segment, or operating unity, and the acquisition meets the following criteria:

• > The total cost of acquisition is more than $3 million.
• > The U.S. business enterprise will operate as a separate legal entity.
• > At least 10 percent of the voting interest in the acquired enterprise is now owned, directly or indirectly, by the foreign entity.

• Include:
  • > Purchase of U.S. real estate that is intended for lease or sale without significant added construction.
• Exclude:
  • > Purchase of U.S. real estate including land on which you intend to perform construction. Report either as part of the establishment of new U.S. affiliate (BE-13B) or as the expansion of an existing U.S. affiliate (BE-13D).
  • > Acquisition of voting interest in an existing U.S. affiliate in which a foreign entity already has a 10 percent voting interest. Report on Form BE-13 Claim for Exemption.
  • > S. real estate to be held exclusively for personal use and not for profit making purposes. Report on Form BE-13 Claim for Exemption.

1. Form BE-13B

Filed for a U.S. business enterprise 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 establishment of the new entity meets the following criteria:

• > The projected total cost to establish the new legal entity is more than $3 million.
• > At least 10 percent of the voting interest in the newly established business enterprise is now owned, directly or indirectly, by the foreign entity.

• Include:
  • > Creation of a new legal entity, whether incorporated or unincorporated, including a branch.
  • > Construction of real estate intended for lease or sale. If the construction is for purposes of an expansion see the instructions in Form BE-13D.
  • > Creation of a new legal entity even if it does not have physical operations.
• Exclude:
  • > Purchase of U.S. real estate that is intended for lease or sale without significant added construction. This is deemed to be an acquisition of a U.S. business enterprise and should be reported on Form BE-13A.
  • > The creation of a holding company that is being set up with less than $60 million, solely to acquire at least one target company within 170 days, and then will be dissolved.

1. Form BE-13C

Filed if an existing U.S. affiliate of a foreign parent acquires a U.S. business enterprise or segment that it then merges into its operations and the total cost to acquire the business enterprise is greater than $3 million.

• Include:
  • > Acquisitions of a U.S. business enterprise or segment made directly by a foreign parent and then merged into an existing U.S. affiliate of that foreign parent.
• Exclude:
  • > Acquisition of voting interest in an existing U.S. affiliate in which a foreign entity already has a 10 percent voting interest. Report on Form BE-13 Claim for Exemption.

1. Form BE-13D

Filed for an existing U.S. affiliate of a foreign parent when it expands its operations to include a new facility where business is conducted, and the projected total cost of the expansion is more than $3 million.

• Include:
  • > Construction or lease of a new facility by an existing U.S. affiliate.
  • > Construction of a facility that is intended for lease or sale by an existing U.S. affiliate.
• Exclude:
  • > Transfer of existing operations from one location to another.
  • > Replacement of equipment or upgrade of an existing facility.
  • > Expansion of an existing facility if it does not involve a separate facility where business is conducted.

1. Form BE-13E

Filed for a U.S. business enterprise that previously filed form BE-13B or BE-13D, and the established or expanded entity is still under construction. The form will collect updated cost information and will be collected annually until construction is complete.

1. Form BE-13 Claim for Exemption

Filed if a U.S. business enterprise meets any of the following criteria:

• > The U.S. business enterprise was contacted by BEA but does not meet the requirements for filing any of the other forms.
• > The U.S. business enterprise, whether or not contacted by the BEA, meets all requirements except the $3 million reporting threshold for filing one of the other forms.