We disagree. The actual revenues reported by A and B are not derived from the same operating business(es) (i.e., businesses under common control), nor does this appear to be a situation where the revenues reported by one UPE are a subset of the other UPE’s revenues. Thus, two filing fees are required.
Question
Dear PNO,
We request confirmation regarding the appropriate filing fee for a transaction in which acquiring entity C is owned 50/50 by two UPEs, A and B. Each of A and B are filing as acquiring persons.
Both UPEs report revenue under identical NAICS codes. For certain codes, the revenue is derived by A or B from entities not under common control, while for others, the revenue is derived by C. None of the NAICS codes reported by A or B are unique to one UPE; the set of codes reported is identical.
16 C.F.R. § 803.9(c) and PNO Informal Interpretation 1311006 provide that two fees are due unless the Item 5 response for each UPE is the same. The ABA Premerger Notification Practice Manual (5th Ed.), interpretation 210, interprets 803.9(c) and 1311006 to indicate that only one fee is required when one UPE reports in Item 5 a subset of the other UPE’s revenues.
Given that the NAICS codes reported by A and B are identical, we request confirmation that only one filing fee is required for this transaction.
We look forward to your response.
| NAICS | A Revenues (excluding C) | B Revenues (excluding C) | C Revenues |
| NAICS 1 | $5 million | $10 million | – |
| NAICS 2 | – | – | $10 million |
| NAICS 3 | – | – | $10 million |
* Revenues reported by A and B exclude any amounts derived by C, which is jointly owned. Revenues reported by C are derived by C itself.