Amendments passed by the U.S. Securities and Exchange Commission (SEC) changed a variety of SEC rules, forms, and schedules related to the disclosure and payment of SEC filing fees. As summarized in an SEC Fact Sheet, the most visible changes for most filings will be (1) replacement of the current fee schedule on the cover page and in the EDGAR submission header of most paid SEC filings with new fee schedules and (2) changes to fee payment methods. The amendments will improve and expedite the SEC’s review of filing fee calculations. The new filing fee payment methods will provide filers with more flexibility, but will also force businesses to consider how their choice of fee payment methods may affect the timely payment of fees in order to avoid consequences of late payment. The amended Rules, Forms and Appendices that implement the new Fee Tables came into effect on January 31, 2022. The amended Fee Payment Rules will come into effect on May 31, 2022. XBRL Interactive Markup Requirements for Fee Tables fees will come into effect in July. 31 2024 (large expedited filers) and 31 July 2025 (all other filers).
Two areas of focus under the old SEC filing fee regime will continue to require particular attention. First, fee offsets and deferrals should be carefully reviewed and calculated, as the basis and calculation of fee offsets will be more transparent and more easily reviewed by the SEC. Second, while the Amendments will update permitted fee payment methods to include Automated Clearing House (ACH) transfers and debit and credit card payments, subject to various conditions described below, in In most cases, new fee payment methods will not be processed. immediately and some may involve delays of one to three business days before funds are made available to the SEC for fee payment. These delays may increase the risk of untimely payment of SEC filing fees. Additionally, businesses may need to consider other limitations on new fee payment methods, such as a $25,000 per day and per deposit fee limit on credit card payments. The changes do not significantly change the risks in either of these areas, but are likely to make unintended errors more visible.
AMENDED FORMS AND APPENDICES
The amendments affect the following filings under the Securities Act of 1933: Form S-1, Form S-3, Form S-4, Form S-8, Form S-11, Form F-1, Form F -3 and Form F. -10. The amendments also affect the following schedules filed under the Securities Exchange Act of 1934: Schedule 13E-3, Schedule 13E-4F, Schedule 14A, Schedule 14C, Schedule TO, and Schedule 14D-1F. These amendments come into force on January 31, 2022.
DISCLOSURE OF FILING FEES INFORMATION
Exhibits on the fee schedule. The amendments implement a system of filing fee tables that will be filed as exhibits, replacing the filing fee table and information on the cover page and in the EDGAR submission header of most paid filings with the SEC. The new exposure requirement and related instructions are set forth in Regulation SK Section 601(b)(107) and the relevant SEC Forms and Schedules. The changes to Forms S-1 and S-3, for example, include three tables. “Table 1: Newly Registered and Rollover Securities” applies to all filed S-1 and S-3 forms. Where applicable, such filings should also include “Table 2: Claims and Sources of Fee Offsets”, which provides information on the fee offsets applied to filing fees, and “Table 3: Combined Prospectuses”, which provides additional information for repositories that rely on the rule. 429. Blank Schedule 1 and Schedule 2 forms for Form S-1 filings are displayed at the end of this alert. The fee schedule and changes to SEC forms and schedules vary somewhat depending on the form or schedule filed. The fee schedule and related amendments to the form and schedule came into effect on January 31, 2022.
XBRL markup requirement. The changes will require companies to file fee calculation information in a “structured” format, which means the data must be tagged using Inline XBRL, as required by ST Section 408. Large Accelerated Filers must comply with this requirement for filings made on or after July 31, 2024. All other filers must comply with this requirement for filings made on or after July 31, 2025.
ACCEPTED FEES PAYMENT METHODS
The amendments eliminate paper checks and money orders as accepted methods for paying SEC filing fees. The SEC will continue to accept payment of filing fees by wire transfer. In addition to electronic transfers, the amendments allow businesses to pay deposit fees by ACH transfers and by debit or credit cards issued by US financial institutions, subject to certain limitations. Changes to how fees are paid will come into effect on May 31, 2022.
Filers should be aware that none of these payment methods are instant, and filing fees are not considered paid until the SEC receives the funds. Because certain fee payment methods can cause delays of up to three business days in paying filing fees, the SEC advises in the adopting statement that “filers should time their payments and filings in result”. Timing considerations for payment of fees include the following:
- Wire transfers are usually (but not always) available the same business day, but businesses incur fees for wire transfers;
- ACH transfers can be made through the banking system or through the US Treasury’s Pay.gov system. Domestic ACH transfers for amounts of $100,000 or less are eligible for same-day settlement if made through the banking system, but businesses incur fees for these ACH transfers. Pay.gov will not charge a processing fee for ACH payments, but ACH transfers through Pay.gov should require one to three business days for settling and making available to the SEC for payment of filing fees; and
- The SEC expects that debit card payments will not be available until the next business day. The SEC expects credit card payments may take up to 24 hours following the transaction be available. Pay.gov should not charge fees for processing debit and credit card payments, but debit and credit card issuers may charge fees on these transactions. Pay.gov currently supports Visa and MasterCard debit cards and Visa, MasterCard, American Express and Discover credit cards issued by a US financial institution. Credit card payments will be subject to a daily limit and deposit fee of $25,000.
DEPOSIT FEES OFFSETS
The amendments change some fee offset rules and include a new table that provides additional information about fee offset sources, uses, and calculations.
The most substantial change allows a company that wishes to increase the reported amount of one or more classes of securities on a registration statement and decrease the reported amount of one or more other classes on the same registration statement to file a pre-effective amendment that calculates the total filing fee owed based on the then-current bid amounts, bid prices and filing fee rates and relying on Rule 457(b) to apply amounts previously paid under the registration statement as a credit against the current total filing tax due, provided that the company has not relied on rule 457(o) to calculate the filing tax initial. This filing fee compensation procedure is only available if the company simultaneously seeks to increase the amount of one or more classes or to add one or more classes and decrease the amount of one or more other classes, but does not will not be available in situations where a company seeks only to decrease or only to increase the amount of a class of registered securities, or only to add a class of securities to the registration statement.
The Amendments also clarify, consolidate and harmonize various rules and instructions relating to depository fee offsets and other matters relating to depository fees. This includes Rule 415(a)(6) and related Form S-3 instructions, which allow corporations to carry forward previously registered but unsold securities to a new registration statement, and apply filing fees. previously paid for unsold securities on the new listing statement.
EXAMPLES OF CHARGE TABLES: TABLE 1 AND TABLE 2 (FORM S-1)
Section 601(b)(107) sets out requirements and instructions for new fee schedules, which are specific to individual forms and schedules. The SEC has also amended the relevant forms and schedules. The following examples show the tables for newly registered and deferred securities (Table 1) and filing fee offset requests and sources (Table 2) for a Form S-1 registration statement.
Table 1: Newly Registered and Rollover Titles (Form S-1)
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Table 2: Cost Compensation Claims and Sources (Form S-1)
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