Form BE-10 is the Benchmark Survey of U.S. Direct Investment Abroad. A U.S. person (including an individual or entity) that, directly or indirectly, had a “direct investment” in a foreign business during such U.S. person’s 2019 fiscal year must file Form BE-10. Absent an exemption, all U.S. persons that had a direct investment in a foreign business must file a Form BE-10A for the U.S. person, and a separate form must be filed by the U.S. person for each foreign business which it had a direct investment in.

A “direct investment” is one where the U.S. person owns or controls, directly or indirectly, ten percent (10%) or more of the voting securities of a foreign business enterprise.
Notwithstanding the foregoing, since the 2014 Form BE-10 Benchmark Survey of U.S. Direct Investment Abroad, the Bureau of Economic Analysis (the “BEA”) has introduced a new exemption from reporting for certain U.S. persons with private fund¹ foreign affiliates. A U.S. person does not need to report a foreign affiliate if all of the following apply: (i) the foreign affiliate is a private fund, (ii) the private fund foreign affiliate does not own, directly or indirectly through another business enterprise, an operating company² in which the consolidated U.S. reporter owns at least ten percent (10%) of the voting interest, and (iii) if the U.S. reporter owns or controls the private fund indirectly (through one or more other business enterprises), there are no operating companies between the consolidated U.S. reporter and the indirectly-owned or controlled foreign private fund.

The following circumstances (among others) will likely lead to a Form BE-10 filing requirement:

• A U.S. general partner or managing member of a domestic or non-U.S. limited partnership or limited liability company, respectively, that owns or controls ten percent (10%) or more of the voting securities of a non-U.S. operating company; and
• A U.S. investment manager that owns or controls ten percent (10%) or more of the voting interest in a foreign affiliate (such as a non-U.S. investment manager).

Form BE-10 is currently due May 29, 2020, unless a U.S. person is required to file more than 50 forms, in which case the Form BE-10 is due by June 30, 2020. We understand that the BEA is freely granting extensions to persons that apply for one.

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¹ A “private fund” is defined as any issuer that would be an investment company as defined in Section 3 of the Investment Company Act of 1940 (“the Act”), but for Section 3(c)(1) or 3(c)(7) of the Act.

² An “operating company” is defined as a business enterprise that is not a private fund or a holding company. A “holding company” is defined as a business enterprise engaged in holding the securities or financial assets of companies and enterprises for the purpose of owning a controlling interest in them or influencing their management decisions. To be considered a holding company, income from equity investments must be more than fifty percent (50%) of total income. A business that engages in holding company activities but generates more than fifty percent (50%) of its total income from other activities is not a holding company.