U.S. Treasury Publishes Interim Rule Requiring Filing Fee for CFIUS Transaction Reviews

On April 27, 2020, the U.S. Department of the Treasury published an interim rule requiring the payment of a filing fee to the Committee on Foreign Investment in the United States (CFIUS) in connection with CFIUS’s review of transactions within its jurisdiction.

The interim rule takes effect on May 1, 2020, and applies to joint voluntary notices filed pursuant to CFIUS’s regulations pertaining to certain investments by foreign persons (Part 800) and certain transactions by foreign persons involving real estate (Part 802). There are no filing fees associated with the filing of a short-form declaration, although in many cases the filing of a declaration will lead to the filing of a notice and thus may ultimately require payment of the filing fee. More information regarding CFIUS’s recently expanded jurisdiction, rules, and authorities can be found here.

Unless it has been waived, the applicable fee must be paid before CFIUS will initiate a review of a notice pertaining to the transaction. The applicable fee amount for a transaction is determined by the value of the transaction:

A transaction’s value is determined by the consideration paid by the foreign party to the transaction, including all cash, assets, shares or other ownership interests, debt forgiveness, services, or in-kind consideration. With certain exceptions, the transaction value is determined by the total transaction value and is not limited to the value of the assets or businesses located in the United States.

Parties to transactions that will be filed with CFIUS in the form of a notice will need to allocate responsibility for the applicable filing fee. Parties electing to file the shorter-form declaration (for which no fee is owed) must plan for the possibility that they ultimately do file a notice (whether upon CFIUS’s request, or voluntarily if CFIUS does not clear the transaction on the basis of the declaration), in which case a fee could be owed.