On April 27, 2020, the US Department of Treasury issued an interim rule that, effective May 1, 2020, establishes filing fees for certain voluntary CFIUS notifications. The interim rule largely tracks the proposed regulations which were published on March 9, 2020, and which we detailed in a previous update.
Under the interim rule, parties submitting full voluntary notifications for "covered transactions" under 31 CFR part 800 or "covered real estate transactions" under 31 CFR part 802 will, as of May 1, 2020, be subject to filing fees ranging from zero to US$300,000, depending on the value of the transaction. All formal notifications that are submitted on, or after, May 1, 2020 will be subject to the new fees, even if a draft notification is submitted prior to that date.
The fee schedule, which remains unchanged from the proposed regulations, will be as follows:
|Less than US$500,000
|US$500,000 to US$4,999,999
|US$5,000,000 to US$49,999,999
|US$50,000,000 to US$249,999,999
|US$250,000,000 to US$749,999,999
|US$750,000,000 and above
Generally, valuation will be calculated based on the total value of all consideration that has been or will be paid in the context of the transaction by or on behalf of the foreign person who is a party to the transaction. This includes cash, assets, shares or other ownership interests, debt forgiveness, services, or other in-kind consideration. There is an exception, however, for transactions in which the value of the transaction is equal to or greater than US$5,000,000, but the value of the interests or rights acquired in the US business is less than US$5,000,000. In such cases, the fee will be US$750.
The fees will not be applicable to short form declarations, mandatory notifications, or for any unilateral review initiated by CFIUS. The fees will apply, however, to transactions that are first submitted as a declaration but for which the Committee requests a full voluntary filing.
The Committee will not formally accept a voluntary notification for review until the fee is paid. CFIUS may, however, waive the filing fee, in whole or in part, if "extraordinary circumstances" warrant such a waiver. Refunds may also be available in certain circumstances, such as where CFIUS determines the transaction is not a "covered transaction" or "covered real-estate transaction."
Interested parties may submit comments on the interim rule through June 1, 2020. Comments can be submitted online at www.regulations.gov or by mail to US Department of the Treasury, Attention: Laura Black, Director of Investment Security Policy and International Relations, 1500 Pennsylvania Avenue NW, Washington, DC 20220.
We will continue to monitor these, and related, developments closely and publish additional updates, as appropriate.