Have You Filed Your BE-180? 2015 Is A Benchmark Year For Reporting Financial Services Transactions Between US Financial Services Providers And Foreign Persons

The Commerce Department's Bureau of Economic Analysis (BEA) continues to broaden reporting requirements for its various surveys by mandating that all qualifying business entities submit government surveys during "benchmark" years (every five years). The BE-180 "Benchmark Survey of Financial Services Transactions Between U.S. Financial Services Providers and Foreign Persons," is the most recent BEA requirement. The benchmark survey for fiscal year 2014 is required from all entities "subject to the reporting requirements of the BE-180 . . . whether or not they are contacted by BEA." 80 Fed. Reg. 28818.1

When is the BE-180 filing due?

In its May 20, 2015, Federal Register Notice, BEA had set an October 1, 2015, deadline for the submission of these benchmark surveys by all US financial services providers. However, with experience as its teacher, BEA quickly realized that the deadline might be optimistic, and thus promulgated both "automatic extensions" and guidance for seeking further extensions.

Automatic extensions are available until November 1, 2015, under the following circumstances:

If the U.S. Reporter was notified of the BE-180 survey by BEA and has a BE-180 identification number below 140012490; or If the U.S. Reporter was not notified of the BE-180 survey by BEA and does not have a BE-180 identification number. Automatic extensions are granted to December 1, 2015, if the U.S. Reporter was notified of the BE-180 survey by BEA and has a BE-180 identification number above 140012490.

In addition to these automatic extensions, BEA will consider further extensions up to 30 or 60 days, depending on the reasons for the extension, as noted in the following guidance:

If the automatic extension applies based on the company's BE-180 identification number, BEA will consider extensions up to an additional 30 days if a request is submitted by November 1, 2015. These requests can be submitted either by calling BEA at 202 606 5588 or sending an e-mail to be-180extension@bea.gov. For entities not notified by BEA and who do not have a BE-180 identification number, extensions up to an additional 60 days beyond November 1, 2015, can be obtained by following the process at http://www.bea.gov/surveys/pdf/be180_eFile_online_instructions.pdf, which is essentially the process for first obtaining a BE-180 identification number, then asking for the extension. These extension requests also must be filed by November 1, 2015. Only a properly completed filing will comply with the deadline. Thus, a submission must be either a "fully completed and certified BE-180 report" or a properly submitted "qualifying exemption claim," with either pages 1-5 or 1-3 submitted. 80 Fed. Reg. 28821 (May 20, 2015). As a practical matter, however, BEA excuses erroneous exemption claims made in good faith and will, where such errors occur, request the full filing.

What is the BE-180—background

The BE-180 is a mandatory survey (for those to whom it applies, as described below), conducted every five years by BEA under the authority of the International Investment and Trade in Services Survey Act, 22 U.S.C. 3101-3108 (the "Act"). Section 3103(b) of the Act provides that "with respect to United States direct investment abroad ... the President shall conduct a comprehensive benchmark survey at least once very five years." In Section 3 of Executive Order 11951, as amended by Executive Orders 12318 and 12518, the president delegated responsibility for performing functions under the Act concerning direct investment to the Secretary of Commerce, who in turn delegated it to BEA.

Who must file the BE-180—everyone?

Virtually every financial services provider, as defined in the BEA regulation and instructions, must make a filing of some portion of the BE-180. Thus, the first determination is whether your entity meets the definition of "financial services provider." A financial services provider for purposes of the BE-180 is an entity that provides financial services as defined in North American Industry Classification System (NAICS) codes 52 and 55.2 Perhaps recognizing that these are broad NAICS codes and hoping to avoid at least...