[co-author: Chris Agoranos]*

Every five years the Bureau of Economic Analysis (the “BEA”) requires U.S. companies with foreign ownership to complete a mandatory benchmark survey. The surveys produce the nation’s official statistics on foreign direct investment. They are used to measure the scale of the global business activity of U.S. multinational enterprises and the effects of these activities on the U.S. economy and on foreign host economies.

To conduct this survey, the BEA requires U.S. businesses to file a BE-12 form with the BEA. The benchmark survey is the BEA’s most comprehensive survey on foreign investment, requiring businesses to disclose financial information related to foreign investment from the business’s previous fiscal year. The benchmark surveys for the year 2023 require disclosures from the business’s fiscal year ending in 2022. The filing deadline is June 30.

With the filing deadline quickly approaching, we wanted to address some frequently asked questions about the BE-12.

Frequently Asked Questions

Who has to file the BE-12 benchmark survey?

If at least 10% of the voting interests in a U.S. business are, directly or indirectly, owned or controlled by one foreign person or entity, the U.S. business (a “U.S. affiliate” in BEA terminology) may need to file the BE-12 benchmark survey. This filing is required whether or not the U.S. affiliate is contacted by the BEA. Failure to file could subject the business to civil or criminal penalties, including fines.

Are there any exemptions or exceptions?

Yes. Private funds that (a) do not, directly or indirectly, own operating companies and (b) are not, directly or indirectly, owned by operating companies may be eligible for an exemption.

In addition, if a U.S. business is a majority-owned subsidiary of a U.S. parent company and the same foreign investors own direct or indirect interests in both the U.S. subsidiary and the U.S. parent company, the subsidiary should not file a separate BE-12 and should instead be consolidated on its parent company’s filing.

If you receive a notice from the BEA requesting your company file a BE-12, but it is exempt or no foreign owner holds at least 10% of its voting interests, you must file a BE-12 Claim for Not Filing.

What information will I need to disclose?

The BE-12 survey requests financial, industry, and ownership data about the U.S. business and its foreign investors. There are three different versions of the form, with large companies required to submit substantially more detailed information than small companies.

U.S. businesses with not more than $60 million (positive or negative) in total assets, sales, or net income (loss) for the fiscal year 2022 will complete the BE-12C, the shortest version of the form. Those with assets, sales or income (loss) less than $20 million (positive or negative) may further simplify the filing by omitting Parts II and III of the BE-12C. U.S. businesses that are, directly or indirectly, majority-owned by foreign investors and have more than $300 million in assets will complete the most extensive version of the form, BE-12A. Other companies complete Form BE-12B.

Why does the BEA conduct a benchmark survey?

The BEA uses the BE-12 to produce statistics on the scale and effects of foreign-owned business activities in the United States. These statistics help business leaders make decisions about hiring and investing. Congress, the White House, federal agencies, and state and local officials use the data, too. Policymakers and researchers study these statistics to learn how direct investment affects U.S. jobs, wages, productivity and taxes.

I usually file the BE-15 annual survey. Do I need to file a BE-12 and a BE-15?

No. The BE-12 replaces the BE-15 on benchmark-survey years.

Where do I access the forms?

Go to bea.gov/surveys/be12 to access the forms and for more information about filing.

*J.D. candidate at The University of North Carolina School of Law.