(Last updated: 3/31/2009)
Foreign private issuers are eligible to use Form 20-F
and Forms F-1
, and F-4
which provide certain financial statement and disclosure accommodations.
Question: Can a foreign private issuer elect to use the registration and reporting forms that domestic companies use?
Answer: Yes. However, if it elects to do so, it must comply with all of the requirements of the "domestic company" forms. A foreign private issuer that voluntarily files on domestic forms is not required to prepare its financial statements in accordance with U.S. GAAP (see section 6120.6).
A foreign issuer - other than a foreign government - that does not meet the definition of a foreign private issuer must use the same registration and reporting forms as a domestic registrant. A foreign issuer that ceases to meet the foreign private issuer definition becomes subject to the reporting requirements for a domestic registrant. The test for compliance with the foreign private issuer definition is required to be performed as of the last business day of the registrant's most recently completed second fiscal quarter (the determination date). Reports filed or furnished during the remainder of the fiscal year in which the registrant ceased to meet the definition may continue to be made using forms and requirements applicable to foreign private issuers. Beginning on the first day of the fiscal year following the determination date, the registrant must use the forms and follow the requirements prescribed for domestic registrants. [Regulation C
, Rule 405
and Exchange Act Rule 3b-4
] For example, if a calendar fiscal year registrant determines on June 30, 2022 that it is no longer a foreign private issuer, it would become subject to domestic reporting requirements on January 1, 2023. It would not be required to file Forms 8-K
during the period from June 30, 2022 through December 31, 2022. However, it would be required to file reports on Form 8-K
for events occurring on or after January 1, 2023, file quarterly reports on Form 10-Q
for quarters ended after January 1, 2023, and file its annual report for the year ended December 31, 2022 on Form 10-K
rather than Form 20-F
. The financial statements in the Forms 10-Q
would need to be presented in conformity with U.S. GAAP for all required periods. The due dates of the Forms 10-Q
would be based on the issuer's status as a large accelerated filer, accelerated filer, or non-accelerated filer, tested as of the determination date described above. See Section 1330
for the due dates applicable to each category of filer.
If the registrant is no longer eligible to file as a foreign private issuer, the financial statements should be recast into U.S. GAAP for all periods presented in the financial statements. Consideration should be given as to the appropriate currency in which the registrant should report. These registrants must use the U.S. dollar as their reporting currency, unless another reporting currency is more appropriate (e.g., where substantially all of the registrant's operations are conducted in a single foreign currency). (S-X 3-20
(a)(2)). (Last updated: 12/31/2022)
With respect to Canadian registrants, IFRS has been incorporated into Canadian GAAP for publicly accountable enterprises for fiscal years beginning on or after January 1, 2011. Financial statement requirements for Canadian registrants are the same as required for other registrants. If the Canadian registrant is a foreign private issuer, it may prepare its financial statements in accordance with IFRS as issued by the IASB, or U.S. GAAP. A Canadian company that is not a foreign private issuer must use U.S. GAAP in filings with the SEC. (Last updated: 12/31/2022)
Foreign private issuers that voluntarily file on domestic forms may file financial statements prepared under home-country GAAP and provide a reconciliation to U.S. GAAP under Item 18 of Form 20-F
. Foreign private issuers that voluntarily file on domestic forms may file financial statements prepared under IFRS as issued by the IASB without reconciliation to U.S. GAAP. [S-X 4-01
(a)(2)] In both cases the filings should prominently disclose that the company meets the foreign private issuer definition but is voluntarily filing on domestic forms. (Last updated: 9/30/2009)
Canadian and other foreign private issuers must provide financial statements prepared according to U.S. GAAP in order to use scaled rules available to smaller reporting companies. [S-X 8-01]
Note that scaled disclosure rules may be used only if the issuers file on a form available to U.S. domestic companies (e.g., Form 10-K
). [S-X 8-01
, Note 1]
Reincorporation of a foreign private issuer as a U.S. entity generally will require a Securities Act registration statement on a domestic form (S-4
) for the exchange of shares with the new domestic issuer. All periods must be restated to U.S. GAAP and U.S. dollars. See Section 6120.4.
Deregistration rules differ for foreign private issuers versus domestic issuers. Generally, foreign private issuers are permitted to deregister when trading volume in the U.S., rather than number of U.S. shareholders, falls below specified levels. Refer to Exchange Act Rule 12h-6.
Foreign private issuers that file on Form 20-F
and foreign private issuers who voluntarily file on Form 10-K
are not subject to executive compensation disclosures required by S-K 402
, and may, instead, follow Form 20-F
executive compensation disclosures. However, a foreign-domiciled registrant that does not meet the foreign private issuer definition must
file on 10-K
and is required to comply with S-K 402