BE-12 Benchmark Survey – Foreign Direct Investment in the United States

The BE-12 report is a survey conducted by the United States Bureau of Economic Analysis (“BEA”). The survey is conducted every 5 years and is the most comprehensive survey on financial and operating date of U.S. affiliates of foreign multinational enterprises.

• The survey covers fiscal years ending in 2022.

• All entities subject to the reporting requirements must file, even if they are not contacted by BEA.

• Those who would normally file a BE-15 annual survey will file the benchmark survey instead for 2022.

The BE-12 is BEA's most comprehensive survey, in terms of both the number of companies covered and the amount of information gathered, on financial and operating data of U.S. affiliates of foreign multinational enterprises. The survey is used to produce statistics on the scale and effects of foreign-owned business activities in the United States. Business leaders use these statistics to inform decisions about hiring and investing. Policymakers and researchers use them to analyze the impacts of direct investment on jobs, wages, productivity and taxes.

The BE-12 is required to be filed by all US business enterprises, including branches, in which a foreign person owns or controls, directly or indirectly, 10 percent or more of the voting securities (if an incorporated U.S. business enterprise) or an equivalent interest (if an unincorporated U.S. business enterprise). Unlike the annual BE-15 survey, which collects similar information upon notice from BEA, all business enterprises subject to the reporting requirement must file the BE-12, irrespective of whether they have been contacted by BEA to file.

In the event an enterprise is notified by BEA to file a BE-12 survey, but the business does not meet the filing requirements, such enterprise is required to file the BE-12 Claim for Not Filing. In the event an enterprise is not notified by BEA to file the BE-12 survey and the business does not meet the filing requirements, then NO action is necessary.

Generally, the BE-12 survey requests information about the business enterprise’s ownership (including the identity of the direct foreign parent and the ultimate beneficial owner), holdings, industry classification, total sales, employment, exports, imports, and transactions between the foreign parent and US entity. In addition, business enterprises must report on select financial and operating data. Business enterprises may need to calculate or recalculate the requested data based on BEA’s specifications.

The BE-12 benchmark survey is conducted once every 5 years in place of the BE-15 annual survey. The BE-15 annual survey is conducted during the 4 years in between benchmark surveys.

Smaller businesses that are not required to file annual surveys are required to participate in benchmark years, during which there are no size exemption thresholds. Larger businesses that file the BE-15 survey annually will instead fill out the BE-12 in a benchmark year. A response is required from entities subject to the reporting requirements, whether or not contacted by BEA.

There are separate categories of forms created by the BEA for filing purposes, depending on the business attributes of an enterprise, which is the determining factor in the exact form required to be filed by such enterprise.

Form BE-12A – Filed by U.S. business enterprises that are majority owned by foreign parents that have total assets, sales or gross operating revenues, or net income of more than $300 million (positive or negative). [A majority owned US business enterprise is one in which the combined direct and indirect ownership interests of all foreign parents of the U.S. business enterprise exceed 50%.]

Form BE-12B - Filed by U.S. business enterprises that are majority owned by foreign parents that have total assets, sales or gross operating revenues, or net income of more than $60 million, but less than $300 million, and minority owned business enterprises that have total assets, sales or gross operating revenues, or net income of more than $60 million. [A minority-owned U.S. business enterprise is one in which the combined direct and indirect ownership interests of all foreign parents of the U.S. business enterprise are at least 10% but do not exceed 50%.]

Form BE-12C - Filed by other foreign-owned US business enterprises that have total assets, sales or gross operating revenues, or net income of $60 million or less.

Form BE-12 Claim for Not Filing – Filed by a U.S. business enterprise that is contacted by the BEA but the business does not meet the filing requirements. Filed by an entity that is not directly or indirectly foreign owned. Also filed by an entity where the foreign ownership fell below 10% or if it was liquidated or dissolved before the end of the fiscal year.

In contrast to the BE-15 survey, which is mandatory only for the select entities contacted by BEA for further reporting, all entities with a foreign voting ownership interest of 10 percent or more and all US affiliates of foreign parents are required to mandatorily file the BE-12. There may be a possibility that BEA may separately contact businesses that must report, but this is not necessary. The definition of a US business enterprise for reporting purposes is broad and includes not only legal entities but also branches and other unincorporated ventures, real estate, land, and land rights. Specifically, the filing requirement applies to real estate owned for profit-making purposes (i.e., not held for personal use of a corporation owner or an owner’s primary residence). Further, there is no minimum asset or revenue threshold for filing. All US business enterprises still in existence and at least 10 percent foreign-owned at the end of the business’s fiscal year that ended in 2022 must file even if the business was, for example, inactive or had no assets.

The easiest way to file the survey report is online with eFile at ww.bea.gov/efile. The survey report may also be filed in paper for, by sending a fax to 301-278-9500, or mailing to the address on the form.

The due date for paper submissions is May 31, 2023, whereas E-filing submissions will be due on June 30, 2023. Reasonable requests for extension of the filing deadline will normally be granted if requested BEFORE the due date of May 31, 2023 or by June 30, 2023.

Although nothing specific is mentioned on BEA’s website, penalties for failure to make required filings may be significant, as they may include both civil and criminal penalties as well as imprisonment.

Sharda Balaji is the Founder and Ansh Sali is an Associate at NovoJuris Legal.