U.S. Persons With a Reportable Foreign Affiliate Must File Form BE-10: Benchmark Survey of U.S. Direct Investment Abroad, by May 29, 2020

By Soheila Shahidi and Carlene Lowry

Any U.S. person with a reportable foreign affiliate is required to file the Benchmark Survey of U.S. Foreign Direct Investment Abroad (Form BE-10) by May 29, 2020.  This mandatory survey is conducted once every five years by Bureau of Economic Analysis (BEA) under the authority of the International Investment and Trade in Services Survey Act (22 U.S.C. 3101-3108).  Failure to file this form could result in civil penalties between $2,500 and $25,000 and a willful failure to file can result in a separate criminal penalty of not more than $10,000 and imprisonment for not more than one year.  If a U.S. person has ownership or control, directly or indirectly, of 10 percent or more of the voting securities of an incorporated foreign business enterprise or an equivalent interest in an unincorporated foreign business enterprise (including a branch or real estate held for other than personal use), then the U.S. person must file Form BE-10 regardless of whether the U.S. person has been contacted by the BEA.  However, if the U.S. person does not meet the 10 percent ownership threshold or meets the 10 percent threshold, but is a citizen of a foreign country and certain other requirements are met, the U.S. person would need to file the Form BE-10 Claim for Not Filing, only if the BEA contacts the U.S. person.

A “U.S. person” for this purpose, includes any individual, branch, partnership, associated group, association, estate, trust, corporation, or other organization that is resident in, or subject to, the jurisdiction of the United States.

Please note that more than one version of the BE-10 must be filed in relation to a single foreign affiliate.  A complete response includes a Form BE-10A for the U.S. person's domestic operation and one or more of BE-10B, BE-10C, or BE-10D for each foreign affiliate, depending on the amount of the affiliate’s assets, sales, and net income, and whether the U.S. person’s ownership in the foreign affiliate exceeds 50 percent.

The BE-10 Forms may be filed electronically through BEA’s e-File system, faxed, or mailed. 

Additionally, the BEA imposes other reporting requirements to capture information about foreign investments within the United States.  Examples include, but are not limited to, Form BE-13 which must be filed within 45 days of foreign investment in the United States, and Form BE-12 which must be filed every five years to report foreign investment in the United States, with the next report being due in 2023.