Wednesday, May 27, 2015

Urgent - Bureau of Economic Analysis Forms For Foreign Entities Due as Early as May 29, 2015 (5/27/15)

I have just learned about certain BEA forms due as early as May 29, 2015.

The BEA Web Site for the forms is here.

A good discussion is Joseph Perera and Farley P. Katz, Alert: Benchmark Survey of U.S. Direct Investment Abroad (BE-10 Report) Due May 29, 2015 (Strasburger 5/26/15), here.  The authors make the following introduction which should gather the attention of clients (and their lawyers) who have foreign entities.
All U.S. persons that owned, directly or indirectly, 10% or more of the voting stock of a foreign corporation, or an equivalent interest in an unincorporated foreign business enterprise (e.g. a partnership), at any time during the 2014 fiscal year, are required to file a BE-10 Report. 
The authors also note that there are civil and criminal penalties for failing to file.

Addendum 5/29/15 8:30am:

The filing deadline for "New Filers" has been extended to 6/30/15.  See here.

3 comments:

  1. This is an odd definition of 'survey' -- if everyone who meets the eligibility criteria has to fill this info. Also, the instructions don't seem to be updated --- they include this line.

    'If the U.S. person had no foreign affiliates during its 2014 fiscal
    year, it must file a “BE-10 Claim for Not Filing”; no other forms
    in the survey are required.'

    Taken literally, that means everyone in the US has to file the BE-10 claim for not filing !

    I also don't understand why they can't derive most of this information from IRS form 5471. Privacy considerations should not prevent the IRS from providing statistical information.

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  2. If the US citizen is living outside of the US, it appears that they are not required to file. This form has a definition of "US PERSON" which is not the same as Title 26 "US PERSON" (thankfully). Of course, one could argue that US citizens are "subject to the jurisdiction of the US", but it appears they are only requiring "residents" of the US.

    S. U.S. person means any person resident in the United States or subject to the jurisdiction of the United States. See III.D.

    D. Determining country of residence or jurisdiction of individuals – An individual is considered a resident of, and subject to the jurisdiction of, the country in which it is physically located, subject to the following qualifications: 1. Individuals who reside, or expect to reside, outside their country of citizenship for less than one year are considered to be residents of their country of citizenship, 2. Individuals who reside, or expect to reside, outside their country of citizenship for one year or more are considered to be residents of the country in which they are residing. There are two exceptions to this rule: a. Individuals (and their immediate families) who either own or are employed by a business in their country of citizenship and who are residing outside of that country for one year or more in order to conduct business for the enterprise are considered residents of their country of citizenship if they intend to return within a reasonable period of time. b. Individuals who reside outside their country of citizen- ship because they are government employees (such as diplomats, consular officials, members of the armed forces, and their immediate families) are considered residents of their country of citizenship regardless of their length of stay.

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