The Devil is in the Details of the Business Plan

本所合作律師 Terrence L. Olsen與本所主持律師蔡佩蓁律師共同為文,提醒台灣廠商對外投資時,尤其是赴美設廠造加工組裝,或設立營業據點時,應在一開始時徹底思考、詳為擘化,針對設立美國公司應具備的營運計畫(Business Plan),應在哪些方面充分思量準備呢?本文除提醒台灣企業,亦提出美國律師應對外國投資者的母國文化與心理有所認知。本文並已於2017年3月3日刊載於ILW.COM(全美最大的移民法資訊網站) 

The Devil is in the Details of the Business Plan:

Starting from the Initial Organization, and Current Operation of the Foreign Entity & Following to the Development, and Growth of the U.S. Investment Enterprise

Recently, there have been many articles, and blog discussions about the future of international investment for the United States. There is much speculation in terms of whether, or not the EB5 Immigrant Investor Program will survive past the end of April 2017, and whether or not its requirements will be changed to go beyond what would be useful for any potential investor(s).

Furthermore, there is much talk, and hope about the new "start-up" International Entrepreneur Parole program, and how this can boost the U.S. economy by creating jobs, and projects-and whether, or not it will remain in effect for 2017 to become a useful reality. And of course, there is much concern about whether, or not the rules & scrutiny for E-2 Treaty Investment ventures, and L1A/L1B Intracompany Transferees will become more strict, and thereby less flexible to maneuver.

With this said, life will go on, and investment into the United States will go on. However, it will be, and is more important than ever to understand that investing in the U.S. is very complicated, and that providing investment documents to the U.S. government will require demonstrating all complexities, and explaining all of these complexities of the foreign entity, and its U.S. investment to the U.S. government.

In order to have a successful investment in the United States by a foreign entity, it is essential to become familiar with, and intimately understand the psychology of the foreign entity, its investors, and its country's investment culture. As per the focus of this article, and its two co-authors, the country of Taiwan, and its business & investment culture is analyzed, and explored to outline important issues to consider from the beginning to middle to end for the foreign/U.S. investment, and the all-important business plan to be submitted to the U.S. government.

    Compared to most U.S. businesses, Taiwanese investors, and entrepreneurs tend to be more conservative, and thereby have great concern for business failure(s). They usually see international investment as a great risk, which may also include the risk to lose capital, or investment monies during the first year to three years of investment in a start-up, or foreign investment matter.

   Taiwan is in rooted in a conservative business culture which is built around a survivalist mentality. Under the Taiwan Company Act, it is not a complex procedure to set up a business entity. The government agency does not require any business plan(s) so a comprehensive marketing or design strategy is usually neglected by the entrepreneurs or investors during the formation of a company. 

   In Taiwan, the Ministry of Economics Affairs will accept registration of a company once: (i) the structure of the entity has been chosen; (ii) the responsible persons have been selected, and agreed upon; (iii) the company name and business scope has been reserved/determined; (iv) a company seal has been prepared, and a capital account has been opened; (v) capital has been paid, and certified by a CPA; and (vi) a shareholders' meeting has been held. Therefore, the traditional U.S. business & government acceptance, and understanding of the importance of a business plan is not the same for the Taiwanese business culture.

  As the U.S. business attorney, and/or immigration attorney for possible Taiwanese companies, it is important to focus on explaining & bringing to life the following positives to be followed for investing in the United States in order to accomplish having more than just a sales, or distribution office in the United States: 

1) Balance the flow of communication, sell products online, sell in stores, and build customer base to drive profits for an international business plan;

2) Assemble an international business plan implementation team consisting of an international/business/immigration lawyer, banker, accountant, etc.;

3) Work with local, state, and federal U.S. government officials for site locations, logistics, projects, taxes, training, etc.;

4) Outline & understand the company's role as a quality supplier, manufacturer, exporter, importer, buyer, wholesaler, etc.;

5) Work with, and outline role with trade organizations, Chambers of Commerce, embassies, trade sections of consulates; and

6) Build, and maintain contact lists specific to the industry, and trade shows-locally and internationally-in order to connect with customers more efficiently, and quickly.

   Also, as the U.S. business attorney, and/or immigration attorney, it should not be assumed that the Taiwanese business/investor understands the elements of the business plan, and true functions of these elements. It is essential to the success of the U.S. investment to cover the following elements with the Taiwanese business/investor at the very beginning of any discussion(s) of investment in the United States:

1) Executive Summary - Including a mission statement, a brief history of the business, outline of the company's growth, products/services listed, and a summary of future plans;   

2) Market Analysis - Discussing the barriers & reasons for entry into the U.S. market, and the regulatory constraints for not being in the U.S. market & thereby the regulatory positives for being in the U.S. market;   

3) Business - Describing the company's products or services, and including a list of the prominent customers, and/or vendors;   

4) Ownership - Listing the members of the Board of Directors along with their position on the board, the extent of involvement with the company, general background, and contributions to the company's success;    

5) Marketing & Sales - Explaining the company's marketing strategy for growing the business once U.S. market goals & objectives have been achieved;   

6) Products/Services - Detailing the product, or service life cycle, intellectual property, and research and development; and   

7) Financials - Including income statements, balance sheets, and cash flow data summaries, and financial projections.  

 Lastly, as the U.S. business attorney, and/or immigration attorney, it is imperative that constant communication be maintained with the Taiwanese business/investor with the goal of attempting to achieve true and accurate meaning of all financials, translated documents, 5 to 10 year business goals, etc. It should be accepted that it can take at least three meetings (face-to-face, or video), or more to arrive at shared meaning in terms of the purpose & overall substance of what will be submitted to the U.S. government. It is essential to remember that the details of the documents, and the business plan are where the battles for accuracy & approval are either won, or lost.