Bierce & Kenerson, P.C.

Checklists and Forms: Foreign Investment

LEGAL GUIDE TO FOREIGN INVESTMENT IN THE UNITED STATES

PLANNING CHECKLIST

Foreign Investment
Our clients include developers, commercial banks, venture capitalists, investment banks, closely-held entrepreneurial businesses and publicly-owned multinationals in a broad range of industries. Our attorneys have closed over $3 billion in financial and investment transactions.

International Business Planning

Corporate Tax Planning

Federal, state and local taxes
Tax treaties: permanent establishments, licensing, intercompany loans, information sharing agreements, limitation on benefits
Character of Income
Transfer pricing: tangibles, intangibles, services, loans, advance pricing agreements with IRS
Anti-avoidance: CFC, PHC, FPHC

Corporate Structuring

Types of entities: stock corporations, limited-liability companies, partnerships (limited or general) and trusts
Governance: fiduciary duty and liability of owners and managers, voting trusts, shareholder "buy-sell" agreements, "squeeze-outs" of minority owners

Financial Planning

Acquisitions: taxable or tax-free
Loans to affiliates, "earnings stripping," guarantees, back-to-back loans
Private placements: intermediaries, venture capital, pension funds, accredited investors
U.S. capital markets
Strategic investments with related commercial agreements

Comparative and Public International Law

Protecting contractual choice of law
Contrasting American and common law principles with civil law traditions and foreign laws, regional cooperation treaties, accounting and customs
Impact in the U.S. of European Union rules: old Articles 85 and 86, advertising law, directives on information technology, product liability, etc.

Administration

Risk Management

Regulating foreign ownership: by industry and geopolitics; foreign assets control regulations
Liability-limiting techniques
Dispute resolution techniques
Unfair Competition: federal and state antitrust, common law, intellectual property misuse, import regulations

Planning for the Foreign Manager

Pre-immigration planning: step-up in tax basis, foreign grantor trusts, estate and gift taxation, transfer tax, effect of estate and gift tax treaties
Business and investment visas: immigrants and non-immigrants
Expatriation taxation (pending legislation): "long-term" visitors

Human Resources Management

Hiring, promotion and termination: compliance procedures, discrimination.
Employment "at will"
Non-disclosure and non-competition
Incentives: commission, bonus, stock options, "phantom" stock, deferred and performance-based compensation.
Pension and profit-sharing plans (ERISA), Social Security, disability insurance, unemployment insurance
Immigration/visa issues

Disclosure and Reporting Rules

Tax: reporting, record keeping, documentation requirements; "treaty-based return positions"
Regulatory: antitrust, banking, agriculture, national security, statistical surveys

Special Situations

Joint Ventures and Strategic Alliances

Rationale, structure and due diligence
Cultural conflict and implementation
Valuation and antitrust

Intellectual Property

Types: patent, copyright, trademark, trade secret, know how, statutory inventors rights
Purchase, license and development
Special case: information technology and "new media""
Parallel imports: trademarked goods
Exporting U.S.- developed technology: controls, taxation
Infringement: personal liability of directors and officers

Real Estate

Special entities: cooperative corporation, condominium and REIT
Regulation: land use, environmental impairment, wetlands preservation
Ownership limitation: liens, riparian rights, easements, encroachments, rights of way, eminent domain
U.S. real property interests: taxable dispositions; non-recognition provisions; tax returns and payments

Foreign Activities of U.S. Businesses

NAFTA: North American content of goods assembled in North America
Foreign Corrupt Practices Act: bribery abroad; Justice Department review procedures
Export control licenses
Bank Secrecy Act

U.S. Activities of Foreign Businesses

CFIUS Committee on Foreign Investment in the U.S.
BEA Department of Commerce Surveys of Foreign Investment
Special industry regulations
General business regulations

Company Protection

Privacy: FTC rules on privacy and security; FCC rules on "do-not-call" list; Graham-Leach-Bliley Act (Financial services, banking, insurance, securities broker-dealers), HIPAA (health care providers and data processing); CAN-SPAM Act; USA PATRIOT Act and related national security laws
Civil Rights
Frauds: RICO, wire fraud (by telecommunications), common law