Upcoming Deadline: Bureau of Economic Analysis BE–10 Benchmark Surveys

By Heyward Armstrong and Amy Batten

The Bureau of Economic Analysis (BEA) conducts various surveys of U.S. multinational companies and U.S. affiliates of foreign enterprises to generate statistical information regarding the global business activities of U.S.-based companies and the impact of foreign investment by non-U.S.-based companies. Generally, individuals and entities are only required to complete and file a BEA survey form when certain financial thresholds are exceeded or when specifically requested by the BEA. Every five years, however, the BEA requires all U.S. persons that own, directly or indirectly, 10% or more of the voting equity of a foreign affiliate to file a Form BE–10 (regardless of whether they are specifically requested to do so by the BEA).[1]

Based on the timing of the five-year BE–10 filing cycle, as more fully described below, Form BE–10 filings will be coming due later this quarter. These filings include the following primary disclosures:

• Identifying information
  • Name
  • Location
  • Industry Code
• Ownership percentage (indirect and direct) of the person or entity reporting
• Total assets and liabilities
• Total sales or gross operating revenues
• Net income or loss after foreign income tax is paid

Foreign Affiliates and U.S. Persons

With respect to the BE–10 survey, a "U.S. person" means 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. A "foreign affiliate" means an affiliate located outside the United States in which a U.S. person has direct investment.

In general, a U.S. person’s foreign operation or activity is considered a foreign affiliate if it is legally or functionally separable from the domestic operations or activities of the U.S. person. In most cases, it is clear whether the foreign operation or activity constitutes an affiliate. For example, if the operation or activity is incorporated abroad, it is always considered a foreign affiliate. Even if it is unincorporated, the foreign operation or activity is usually legally or functionally separable from the U.S. person’s domestic operations or activities and would, accordingly, be considered a foreign affiliate.

On the other hand, the following characteristics, while not dispositive, generally suggest that an operation or activity is probably not a foreign affiliate:

• it engages only in sales promotion or public relations activities on behalf of the U.S. person;
• it conducts business abroad only for the U.S. person’s account, not for its own account;
• it has no separate financial records that allow the preparation of financial statements;
• its expenses are paid by the U.S. parent;
• it is not subject to foreign income taxes; and
• it has limited physical assets or few employees permanently located abroad. 

Special Requirements for Private Funds 

If a foreign investment by a U.S. person in a private fund meets certain requirements, the U.S. person is generally not required to file a BE–10 report for that foreign investment unless specifically requested to do so by the BEA. In particular, absent a specific request from the BEA and so long as the U.S. person does not own the foreign private fund indirectly through an “operating company,” an investment in a foreign private fund is only required to be reported if the U.S. person owns, directly or indirectly, both (i) a 10% ownership interest in the foreign private fund and (ii) 10% of the voting interest in an “operating company” through the foreign private fund.[2] 

Types of BE–10 Forms to be Filed

A U.S. person that is subject to filing is required to file the following forms:

• Form BE–10A. This form is filed with respect to the U.S. person for the “fully consolidated U.S. domestic business enterprise” of a U.S. reporter that has a reportable foreign affiliate (i.e., an investment equal to or greater than 10% of the voting interest in a foreign affiliate that does not come within the private fund exemption).
• Forms BE-10B, BE-10C and BE-10D. These forms must be filed in addition to the Form BE-10A by the U.S. person with respect to each of its foreign affiliates (aggregation of foreign affiliates on a single form is permitted under certain circumstances):
  • Form BE–10B. This form is filed for each majority-owned foreign affiliate of a U.S. parent that has assets, sales or net income of more than $80 million (positive or negative).
  • Form BE–10C. This form is filed for each of the following foreign affiliates of a U.S. parent: (i) each majority-owned foreign affiliate of a U.S. parent with total assets, sales or net income greater than $25 million but for which none of these exceed $80 million (positive or negative); (ii) each minority-owned foreign affiliate of a U.S. parent that has assets, sales or net income of more than $25 million (positive or negative); and (iii) each foreign affiliate that has assets, sales and net income of $25 million or less (positive or negative) and that is a foreign affiliate parent of other foreign affiliates that are filing Form BE–10B or Form BE–10C.
  • Form BE–10D. This form is filed for each foreign affiliate that has assets, sales and net income of no more than $25 million (positive or negative) and that is not a foreign affiliate parent of other foreign affiliates that are being reported on Form BE–10B or Form BE–10C.

If a U.S. person is contacted by the BEA regarding making a filing with respect to 2024 but is exempt from filing, it should file a Form BE-10 Claim for Not Filing. If the U.S. persons is not contacted by the BEA, it does not need to make this filing to confirm its exemption from the BE-10 filing requirements. 

Deadline and Penalties

The deadline to file Form BE–10 depends on the number of BE–10 Forms (BE–10B, BE–10C and/or BE–10D) an individual or entity is required to file, and a separate form is required for each affiliate. If filing fewer than 50 forms, the deadline for the fully completed and certified BE–10 report is May 30, 2025. If filing 50 or more forms, the deadline is June 30, 2025. It is important to note that the failure to file a Form BE–10 with the BEA can lead to civil penalties of nearly $60,000 and, for a willful failure to file a report, criminal penalties of up to one year in prison and/or a $10,000 fine.

For additional information and access to the BE–10 Forms, please visit the following website: https://www.bea.gov/BE-10-benchmark-survey-us-direct-investment-abroad. Smith Anderson will continue to monitor and keep you apprised of relevant information related to BEA surveys. If you have any questions related to this alert, please do not hesitate to contact your regular Smith Anderson lawyer or any other member of our firm.

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[1] Similarly, every five years the BEA requires disclosure on Form BE–12 with respect to foreign direct investment in the United States by all U.S. affiliates subject to the requirements, regardless of whether they have been contacted by the BEA. These forms will next be due in 2028 and are beyond the scope of this alert.

[2] For additional information regarding the requirements of the private fund exemption, please visit the following website: https://apps.bea.gov/surveys/privatefunds/.