On April 29, 2020, the Committee on Foreign Investment in the United States (“CFIUS”)
published a CFIUS interim regulation effective on May 1, 2020 (the “Interim Regulation”), which
creates a new tiered filing fee structure for formal notifications submitted to CFIUS based on
the value of the relevant “covered transaction.” This article provides a brief overview of the
Interim Regulation and its implications.
1. When a Filing Fee is Owed
Filing fees are only required for formal notifications submitted to CFIUS relating to “covered transactions.” The filing fee is due at the time the notification is filed with CFIUS. Broadly speaking, a “covered transaction” is a business transaction such as a merger or acquisition that could result in foreign control of a US business. 1CFIUS notifications may be voluntary or, in some cases, mandatory. Filing fees are not
required to file a “declaration” with CFIUS, and parties considering a voluntary notification may want to consider filing a declaration as an alternative. In circumstances where a notification must be withdrawn and refiled, the submitter will only be charged a filing fee if the amendment materially alters the original notification. Material alteration includes situations where there was a material inaccuracy or omission on the original notification which must be corrected. Filing fees must be paid for notices of any covered transaction submitted to CFIUS on or after May 1, 2020. CFIUS has made clear that, generally, a review of a covered transaction will not begin until payment of the filing fee has been received.
2. How Fees are Calculated
Parties to a covered transaction are responsible for calculating the fee owed. “Generally, the value of a transaction will be the total value of all consideration paid by or on behalf of the foreign person that is a party to the transaction – e.g., cash, shares, or in‐kind consideration.” (See CFIUS Filing Fee Regulations – Fact Sheet). The chart below outlines how fee amounts correspond to various transaction values.
Transaction Value Range Fee Amount
$0 ‐ $499,999.99 = $0
$500,000 ‐ $4,999,999.99 = $750
$5,000,000 ‐ $49,999,999.99 = $7,500
$50,000,000 ‐ $249,999,999.99 = $75,000
$250,000,000 ‐ $749,999,999.99 = $150,000
$750,000,000 + = $300,000
3. How to Pay the Fee
The filing fee must be paid via an Automated Clearing House (ACH) and must be paid by one payor per notice (i.e. only one party can pay the filing fees). The payor can be a legal representative or a third party; in other words, the payor does not need to be a to the covered transaction. Payments must be submitted via pay.gov. The payor will receive an email confirmation of payment; this email confirmation must be sent to [email protected] and to the CFIUS case officer (if you have one).
In certain circumstances, CFIUS will waive or refund the filing fee. A waiver will apply only in extraordinary circumstances relating to national security; examples of such circumstances have not yet been released. Refunds will be issued in limited circumstances, including if CFIUS determines a filing fee was paid for a transaction that does not fall within the definition of a “covered transaction.”
Any questions, comments, or concerns relating to the Interim Regulation should be submitted
on CFIUS’s page for the regulation prior to June 1, 2020. For more information on the
regulation, visit https://home.treasury.gov/policy‐issues/international/the‐committee‐on‐foreign‐investment‐in‐the‐united‐states‐cfius/cfius‐filing‐fees.
1See our recent blog post, “2 Things Your Business Needs to Know about CFIUS’s Final FIRRMA Regulations”, regarding the newly expanded definition of “covered transaction”, which now includes certain real estate transactions involving foreign investment.
*This publication does not necessarily deal with every important topic or cover every aspect of the topics with which it deals. It is not designed to provide legal or other advice. www.sequoialegal.com/international-business-law