May 31st Deadline for the Commerce Department’s BE-12 Benchmark Survey of Foreign Direct Investment for 2022

Dr. Annamaria Hachmeister

May 31st Deadline for the Commerce Department’s BE-12 Benchmark Survey of Foreign Direct Investment for 2022 is approaching fast.

---

Dear Ladies and Gentlemen,

We would like to make you aware of the May 31st Deadline for the Commerce Department’s BE-12 Benchmark Survey of Foreign Direct Investment for 2022.

Introduction

Every five years (for the reporting years ending in 2 and 7), the U.S. Department of Commerce is conducting a five-year benchmark survey through its Bureau of Economic Analysis (“BEA”) on foreign direct investment in the United States under the authority of the International Investment and Trade in Services Act (“IITSA”) (22U.S.C. 3101-3108).

The BE-12 Benchmark Survey asks for information about the U.S. business’s ownership, subsidiaries, industry classification, sales, imports and exports, employment, and intercompany transactions. BEA uses the data in conjunction with data from its other surveys to create statistics on the size and economic effects of foreign-owned business activities in the US, to measure changes in such activities and to assess the impact on the U.S. economy. The collected data is confidential under the IITSA. The BEA cannot publish or disclose the data collected on its surveys without obtaining the written consent of the reporting entity first if publication or disclosure could lead to its identification.

Who must report and consequences for not filing (on time)

In contrast to the annual BE-15 survey, which collects similar information from U.S. businesses upon written request from the BEA, the BE-12 Benchmark survey must be filed by all U.S. business who are subject to the reporting requirements, regardless of whether they have been notified by the BEA. The BEA may fine U.S. businesses for non or late submission or inaccurate data with civil penalties between $2,500.00 and $25,000.00, and for willful violations with criminal penalties of up to one year in prison and criminal fines of up to $10,000.00.

The report is mandatory for U.S. business enterprises (including real estate held for non-personal use), including branches, in which a foreign person or entity holds or controls, either directly or indirectly, at least 10% voting interest at the end of the U.S. business’ s 2022 fiscal year.

The definition of a U.S. business enterprise is broad and not limited to only legal entities but also includes branches and other unincorporated business ventures. The reporting requirement is not tied to a minimum asset or revenue threshold; the assets and revenue will determine the applicable BE-12 survey form. All U.S. Business enterprises still in existence at the end of the business’s 2022 fiscal year with at least 10% foreign ownership have to file, even if they were inactive or had no assets.

Forms

The survey form has three different versions and a claim for exemption: Forms BE-12A, BE-12B, and BE-12C, as well as the BE-12 Claim for Not Filing.

• Form BE-12A. To be filed for a foreign majority-owned U.S. affiliate with total assets, sales or net income or loss of $300 million or more.
• Form BE-12B. To be filed for a foreign majority-owned U.S. affiliate with either total assets, sales, or net income (loss) of more than $60 million but below $300 million. To be filed for a foreign minority-owned U.S. affiliate with total assets, sales, or net income (loss) of more than $60 million.
• Form BE-12C. To be filed for a U.S. business with at least 10% foreign voting interest (directly or indirectly) with total assets, sales, or net income (loss) of $60 million or less.

Due Dates and Preparation

The Benchmark survey reports are due by May 31, 2023 for reports filed by mail, fax or eFile, and by June 30, 2023 for reports submitted through BEA’s electronic filing system available online at https://apps.bea.gov/efile/password/default.cfm.

For questions regarding compliance with the reporting requirements or more information, please contact: