Investment Fund Regulatory and Tax developments in selected jurisdictions pptx

1

FUND NEWS
January 2013
Investment Fund Regulatory and Tax developments in
selected jurisdictions
Issue 99 – Regulatory and Tax
Developments in January 2013

Regulatory News

European Union
Commission adopts regulatory and
implementing technical standards for
the Regulation on OTC derivatives,
central counterparties and trade
repositories
On 19 December 2012, the European
Commission adopted nine regulatory
and implementing technical standards to
complement the obligations defined

under the Regulation on OTC
derivatives, central counterparties
(CCPs) and trade repositories. They
were developed by the European
Supervisory Authorities and have been
endorsed by the European Commission
without modification. The adoption of
these technical standards finalises
requirements for the mandatory clearing
and reporting of transactions.
The full texts of the standards are
available via the following web
link:

x

Regulatory Content
European Union
Regulatory & implementing technical
standards for OTC derivatives,
CCPs & trade repositories
Page 1

ESMA Q&A Short selling and certain
aspects of credit default swaps
Page 2

Tougher credit rating rules voted
by European Parliament Page 2

ESMA approves co-operation
agreement with Brazilian regulator
Page 2


Luxembourg
New status for Advisers of UCIs
and SIFs

Page 3
Circular 13/557 on EMIR Page 3
CSSF Anti-money laundering
Regulation 12-02
Page 4

UK
Progress in transposing the AIFMD
into UK law Page 5


International
IOSCO Suitability rules for distribution
of Complex Financial Products
Page 6

Tax Content
European Union
Council agreement on enhanced
cooperation for FTT Page 7

Belgium
Modification of ‘exit tax’ regime &
increase in interest WHT Page 7

Germany
Draft Investment Tax Act Page 8

UK
HMRC draft guidance on

Unauthorised Unit Trusts Page 9

USA
FATCA Final Regulations released Page 10

Fund News – January 2013

2


ESMA Q&A on Implementation of the
Regulation on short selling and
certain aspects of credit default
swaps
On 30 January 2013 the European
Securities and Markets Authority
(ESMA) issued a second update of its
Questions and Answers paper (Ref:
ESMA/2013/159) on the practical
implementation of the Regulation on
short selling and credit default swaps
which is available via the following
link:

Tougher credit rating rules voted by
European Parliament
In a Press Release dated 16 January
2013 the European Parliament advised
that in the plenary session of the same
day, new rules were voted on credit

rating agencies. The rules cover the
following main areas:
1) Set dates for sovereign debt ratings
Unsolicited sovereign ratings could be
published at least two but no more than
three times a year, on dates published
by the rating agency at the end of the
previous year.
2) Agencies to be liable for ratings
Investors will be able to sue an agency
for damages if it breaches the rules set
out in the legislation either intentionally
or by gross negligence, regardless of
whether there is any contractual
relationship between the parties. Such
breaches would include, for example,
issuing a rating compromised by a
conflict of interests or outside the
published calendar.
3) Reducing over-reliance on ratings
To reduce over-reliance on ratings,
MEPs urge credit institutions and
investment firms to develop their own
rating capacities. By 2020 no EU
legislation should directly refer to
external ratings.
4) Capping shareholdings
A credit rating agency will have to refrain
from issuing ratings, or disclose that its
ratings may be affected, if a shareholder

or member holding 10 % of the voting
rights in that agency has invested in the
rated entity. The new rules will also
bar anyone from simultaneously holding
stakes of more than 5% in more than
one credit rating agency, unless the
agencies concerned belong to the same
group.


ESMA approves co-operations
agreements with Brazilian regulator
The European Securities and Markets
Authority (ESMA) approved the co-
operation arrangements between the
Brazilian Comissão de Valores
Mobiliários (CVM) and the EU securities
regulators for the supervision of
alternative investment funds (AIFs). The
co-operation arrangements include the
exchange of information, cross-border
on-site visits and mutual assistance in
the enforcement of the respective
supervisory laws. This co-operation will
apply to Brazilian alternative investment
fund managers (AIFMs) that manage or
market AIFs in the EU and to EU AIFMs
that manage or market AIFs in Brazil.

Fund News – January 2013

3


Luxembourg
New status for Luxembourg
investment advisers of undertakings
for collective investment (UCI) and
specialised investment funds (SIF)
On 10 January 2013 the Commission de
Surveillance du Secteur Financier (CSSF)
published a press release relating to the
new status of Luxembourg based
investment advisers of UCIs subject to
the Law of 17 December 2010, and of
SIFs subject to the Law of 13 February
2007. The new status will not impact
foreign advisers of Luxembourg
UCIs/SIFs.
Further to the entry into force of the
Law of 21 December 2012
implementing Directive 2010/78/EU
amending the powers of the European
supervisory authorities, the scope of the
Law of 5 April 1993 on the financial
sector has been modified. Luxembourg
based investment advisers of UCIs or
SIFs will now fall in the scope of the

Law on the financial sector and they will
have to apply for authorisation under
Article 24 of that law. The authorisation
will be granted by the Minister of
Finance.
Each Luxembourg based investment
adviser of UCIs or SIFs exercising the
activity at the time of the entry into force
of the Law of 21 December 2012 has
until 30 June 2013 at the latest to
comply with the requirements of Article
24 of the Law on the financial sector.
The entity must contact the CSSF by
email (), before 1
March 2013 in order to ensure that the
application can be dealt with within the
legal delay.
The full text (in French) is available via
the following web
link:

Circular 13/557 on EMIR
The CSSF issued Circular 13/557 on 23
January 2013 which provides an
overview of the requirements of the
European Markets and Infrastructure
Regulation (EMIR). The Circular
recommends that financial
counterparties should assess their EMIR
readiness and lists the following
questions that should be considered:
• Which trade repository can you
report to for the types of derivatives
you trade?
• Will you report directly to the trade
repository or delegate reporting to
your counterparty or a third party?
• Which CCPs accept to clear the

types of OTC derivatives you trade?
Will you access clearing directly as a
‘clearing member’? If not, you will
need to be a client of a clearing
member.
• Are your existing systems and
processes adequate to implement
the new operational risk mitigation
requirements set out in EMIR?
• Do you have collateral agreements
in place and sufficient collateral
available to collateralise non-cleared
OTC derivative trades?
The Circular is available on
www.cssf.lu



Fund News – January 2013

4


CSSF Anti-money laundering
Regulation 12-02
The CSSF Regulation 12-02 of 14
December 2012 on the fight against
money laundering and terrorist financing
has been published on 9 January 2013.
Its purpose is first to respond to the

FATF criticism set out in the evaluation
report of Luxembourg published in 2010,
where the legally binding character of
the AML/CTF circulars issued by the
CSSF and the CAA was challenged.
This regulation aims to complete the
current AML/CTF legislation in place and
to finally transcribe the latest
amendments introduced by the Grand-
Ducal Regulation of 1 February 2010 and
the Law of 27 October 2010. In addition
CSSF circulars 08/387 and 10/476 are
repealed.
What are the main innovations
introduced by this Regulation?
To follow is a summary of the provisions
mentioned in this Regulation that are the
most relevant for the investment funds
industry.
Chapter 2: Scope
In cases where investment funds are
distributed through intermediaries acting
on behalf of underlying investors, i.e.
account opened in the name of the
intermediaries or in the name of indirect
investors, professionals are required
upon starting a business relationship to
apply enhanced due diligence
measures for these intermediaries
taking into consideration the same

principles applicable to the cross-border
correspondent banking relationships or
other similar relationships with
institutions in Third Countries. As such
professionals should gather sufficient
information to be in a position to
determine the reputation of the
intermediary, the quality of supervision,
as well as to assess its AML/CTF
measures and controls. This information
should enable the professionals to
assign a level of risk to this intermediary
and determine the level of due diligence
to apply.
Chapter 3: Risk Based Approach
According to articles 4 and 5 of the
Regulation and as stipulated by article
3(3) of the modified Law of 12
November 2004, ‘professionals are
required to perform an analysis of the
risks inherent to their business activities’
taking into consideration the risks linked
to the nature of their customers, the
offered products and provided services.
Professionals should set down the
outcomes of this analysis in writing and
be in a position to communicate this
analysis to the CSSF.
As such, professionals should assess
and categorise their customers

according to a certain level of risk. This
categorisation needs to be performed
prior to client acceptance. It should not
be considered as a “one shot exercise”
but must be continuously reviewed in
order to apply the appropriate due
diligence measures to mitigate the
identified risks.
Article 7 of the Regulation states that in
order to apply simplified due diligence
measures for direct customers, where
the customer is a credit or financial
institution of another EU Member State
or in a third country as defined by article
3-1 of the modified Law of 12 November
2004 or in order to rely on customer due
diligence performed by third parties as
defined by article 3-3 of the modified
Law of 12 November 2004,
professionals should perform a risk
assessment of the country where the
credit/financial institution or the third
party is located. This assessment should
enable the professionals to demonstrate
that they have sufficiently documented
their comfort that the country has
equivalent AML/CTF requirements in
place to those applied in Luxembourg
and that simplified due diligence
measures could be applied. The

outcomes of such assessment should
be reviewed and updated on a regular
basis.
Chapter 4: Customer due diligence
procedures
Beneficial owner
The obligation to identify the customer
and verify its identity includes the
identification of the beneficial owner and
the fact that professionals should take all
reasonable measures and use relevant
information or data obtained from a
reliable source to verify properly the
identity of the beneficial owner. Art 17
of the Regulation indicates that
professionals should obtain a written
declaration from the customer whether
he is acting or not for his own account.
The customer will need to agree to
inform the professional about any
change in the beneficial ownership.
There is nevertheless no longer a
reference to the former declaration of
beneficial owner signed by the beneficial
owner itself that was recommended by
Fund News – January 2013

5

repealed CSSF circulars 05/211 and
08/387.
In addition, there is also a question mark
regarding article 23 of this Regulation
and the more stringent reinterpretation
of the definition of beneficial owner and
the 25% ownership threshold defined by
article 1(7) of the modified Law of 20
November 2004.
Information on the purpose and intended
nature of the business relationship
While identifying its customers and in
order to understand the aim of the
business relationship, professionals have
the obligation to obtain information as
regards the origin of funds of the
customers but also as regards the type
of transactions foreseen. This
information should enable the
professionals to conduct an ongoing
monitoring of the customers’ business
relationship according to article 24 of the
Regulation.
Although this new Regulation does not
reinvent the wheel, we believe that
some of its provisions will definitely
have an impact on the Investment Funds
industry, at the level of the UCI and the
Management Company as well as the
Registrar, from both a commercial and

operational point of view.
UK
Progress in transposing the AIFMD
into UK law
On 11 January 2013, HM Treasury
(“HMT”) published its first Consultation
Paper on the “Transposition of the
Alternative Investment Fund Managers
Directive” (“AIFMD”). This is the first of
two consultations planned by HMT. The
second consultation, to be published
later in quarter one of 2013, will include
guidance on:
• scope of application of the Directive,
including charity funds; the
European Venture Capital Funds
(“EuVECA”) and European Social
Entrepreneurship Funds (“EuSEF”)
Regulations;
• marketing of EEA retail funds, third
country retail funds, and Financial
Services and Markets Act 2000
Section 270 and 272 funds;
• application of the approved persons
regime to internally managed
investment companies; and
• application of the Financial Services
Compensation Scheme and
Financial Ombudsman Service to
AIFM.

This consultation includes a wider scope
for AIFMs than the Directive:
• UK managers of authorised funds
which are not UCITS authorised
funds, so the management of
authorised Non-UCITS Retail
Schemes (“NURS”) and Qualified
Investor Schemes (“QIS”); together
with UK managers where the assets
under management (“AUM”) are
less than €100million will have to
comply with the requirements of the
AIFMD.
• AIFMs of AUM under €100m are,
however, to be exempt from three
aspects of AIFMD:
i) the Delegation Test:
that is the requirement
for the AIFM to
undertake
substantially more
activities primarily
portfolio management
or risk management
than their delegates
and therefore would
not be considered a
‘letter-box entity’;
ii) certain reporting and
transparency

requirements such as
reporting data to the
regulator on leverage;
and
iii) the remuneration
provisions and
disclosure
requirements of the
Directive.
However, all other aspects of the
Directive are to apply including the
regulatory capital and conduct of
business rules.
Additionally some firms will need to
comply with special provisions in regard
to the de minimis threshold (€100m),
Fund News – January 2013

6


such as:
• Private Equity firms, are only in
scope of the Directive if they are
managing AUM of more than
€100m.
• Internally-managed funds, such as
Investment Trusts, will need to
apply for a registration even if the
assets are under €100m AUM. The

Prospectus and Transparency
Directive and update to the FSA
Listing Rules will provide sufficient
transparency in regard to the
activities of these funds. However,
the Financial Conduct Authority
(“FCA”) will have discretion as to
whether they choose to register a
fund, if there are concerns around
disqualification of directors or
criminal activity ; and
• Investment Trusts with external
managers are required to ensure the
external manager is authorised.
• For managers of Unregulated
Collective Investment Schemes
(“UCIS”) under €100m marketing
into the UK only on private
placement basis there will be no
change in regulatory requirements.
However, if they manage both
authorised funds (NURS and QIS)
and UCIS they will have to comply
with the requirements for the
authorised funds they manage.
HM Treasury intends to make no change
to the types of investors a NURS or QIS
fund can be marketed to. They are also
considering changes to the types of FSA
permissions that managers can have and

which will determine the activities they
can undertake.
HMT do not intend to make the private
placement third country manager
requirements greater than the Directive
minimum, until the private placement
regime is reviewed in 2015.
This consultation and the Commission’s
Regulations issued in December have
triggered an intensive period of
implementation activity.
Notwithstanding the short period
remaining, it is clear that the UK will
impose compliance from July 2013 and,
for UK AIFMs, will not allow the
transition to full compliance to go
beyond July 2014.
The deadline for responding to this
consultation is 27 February 2013. The
consultation paper (134 pages) is
available via this web
link:

International
IOSCO Publishes Suitability
Requirements for Distribution of
Complex Financial Products
The International Organisation of
Securities Commissions (IOSCO)
published a final report on ‘Suitability

Requirements with respect to the
Distribution of Complex Financial
Products’, which sets out principles
relating to the distribution by
intermediaries of complex financial
products to retail and non-retail
customers.
The report introduces nine principles
that cover the following areas related to
the distribution of complex financial
products by intermediaries:
• Classification of customers
• General duties irrespective of
customer classification
• Disclosure requirements
• Protection of customers for non-
advisory services
• Suitability protections for advisory
services (including portfolio
management)
• Compliance function and internal
suitability policies and procedures
• Incentives
• Enforcement

These principles provide guidance for
Members and reflect the current
regulatory state of play in the distribution
of complex financial instruments by
intermediaries among IOSCO’s

members.
The report is available via the following
web
link:
Fund News – January 2013

7


Tax News
European Union
Council agreement on enhanced
cooperation for Financial Transaction
Tax
On 22 January 2013 the European
Council adopted a decision authorising
11 Member States to proceed with the
introduction of a financial transaction tax
(FTT) through enhanced cooperation.
The proposal on the FTT is expected
within the coming weeks.

Belgium
Modifications of ‘exit tax’ (‘TISbis’)
regime and increase of general
interest withholding tax rate
The law of 13 December 2012
containing various fiscal and financial
measures, bringing numerous changes
in Belgian tax legislation, was published
on 20 December 2012 in the Belgian
Gazette. Inter alia, the Belgian ‘exit tax’
regime is affected. The changes aim at
aligning the Belgian regime with the EU
Savings Directive, broadening the scope
of application and reflecting a decision of
the Court of the European Union. It shall
be recalled that a special tax regime –
usually referred to as ‘exit tax’ or also
‘TISbis’ regime – applies for Belgian-
resident individuals holding shares or
units in certain collective investment
institutions. Proceeds derived by the
individuals from the redemption of
shares or units in, or from the partial or
total liquidation of, a qualifying collective
investment institution are deemed to be
interest income (taxable at a rate of
25%) to the extent that the proceeds
relate to investments in debt claims.
Bringing down of threshold from 40%

to 25% and abolition of
grandfathering
So far, the exit tax regime came into
operation only in respect of collective
investment institutions that were
invested, directly or indirectly, for more
than 40% of their assets in debt claims.
This threshold for investment in debt
claims has now been brought down
from 40% to 25%. This brings the
Belgian exit tax regime again in line with
the EU Savings Directive, which has
provided for the 25% threshold since 1
January 2011.
Moreover, the grandfathering clause in
Belgian law for debt claims that prior to
1 January 2011 did not fall within the
scope of the Savings Directive is now
abolished, thereby reflecting the earlier
abolition of the grandfathering clause in
the EU Savings Directive.
Broadening of scope to cover
secondary transactions
Whilst the exit tax regime was triggered
so far only by the redemption of shares
or the (partial or total) liquidation, the
amended regime applies also on the
occurrence of secondary transactions,
i.e. the transfer of shares or units.
Exclusion of investment entities

established in EEA countries and not
qualifying for European passport
Previously, collective investment
institutions without a European passport
escaped the application of the exit tax
regime provided they were established
in a member state of the EU. Following
a decision by the Court of Justice of the
European Union (10 May 2012; C-
370/11), Belgium has now excluded also
those collective investment institutions
without a European passport that are
established outside the EU but within
the European Economic Area.
Increase of general interest
withholding tax rate to 25%
The general interest withholding tax rate
has been increased from 21% to 25%
for interest paid or attributed as of 1
January 2013. The same tax rate will be
applied, as part of the personal income
tax assessment, to the (part of) capital
gain realised upon redemption,
liquidation or sale of shares / units in the
aforementioned qualifying collective
investment institutions if these are
established outside Belgium and no
Belgian withholding tax has been applied
to the proceeds. Belgian-resident
individuals have to report these capital

gains in their personal income tax return.





Fund News – January 2013

8


Germany
Draft Investment Tax Act
On 30 January 2013, the German
Government circulated a government
draft version of the new Investment Tax
Act.
The proposed changes could in particular
affect German investors in foreign
hedge funds and private equity funds
qualifying as non-UCITS funds, much
less investors in UCITS funds. The
updated draft contains inter alia a couple
of amendments that can be regarded as
advantages for those funds.
1. Non-UCITS funds, qualifying as an
open-ended alternative investment
funds (AIF)
− Under the draft a non-UCITS
has to fulfill specific

requirements in order to qualify
as an AIF thus being entitled
under a transparent taxation
under the Investment Tax Act.
Otherwise the general
principles of taxation in
Germany will apply.
These conditions include inter
alia:
• the existence of an investment
supervision and redemption
rights (which have to be fulfilled
cumulatively, whereby a trading
of the fund units at a stock
exchange is sufficient to meet
the redemption requirement),
• the restriction to the
investment and administration
of assets for the collective
account of investors,
• no engagement in active
entrepreneurial management of
the assets and no
entrepreneurial influence on the
portfolio companies,
• principle of risk diversification,
• not more than 20% of the
fund’s assets may invested in
non-listed corporations,
• the prohibition of short-term

loans exceeding 30% of the
fund’s assets,
• the restriction to invest in
specific eligible assets only
(e.g. securities, money market
instruments, derivatives, bank
loans, precious metals,
unsecuritised loan receivables if
its market value can be
determined),
• Up to 10% may be invested in
non-eligible assets,
• Investment invest in trade
fixture and public private
partnerships (ÖPP) under
certain circumstances.
• The restriction, that
participations in the same
corporation must not exceed
5% of the fund’s assets, has
been cancelled.
− The grandfathering rule has been
taken over from the initial draft. A
grandfathering will be granted for
the benefit of funds established
before 22 July 2013. A
grandfathered fund will continue to
be treated as investment fund for
tax purposes, even if it no longer
meets the requirements under the

new Investment Tax Act.

2. Foreign investment companies not
qualifying as an AIF (foreign
investment companies)
− One of the main issues of the initial
draft was, that investors in foreign
investment companies not
qualifying as an AIF and organised
as a corporation (e.g. a Luxembourg
SICAV/ SICAF, Irish PLC or
Guernsey Ltd.) would have been
taxed on a lump-sum method. This
disadvantage is now cancelled.
German investors in such
investment companies organized as
a corporation will now be taxed
according to the general income tax
rules. Consequently, inter alia the
German CFC rules under the
Foreign Tax Act will be applicable. In
addition, corporate investors can
benefit from the 95% participation
exemption under § 8b of the
German Corporation Tax Act, if the
investment company is (i) subject to
income tax in its state of residence
at a rate of at least 15% or (ii) has its
state of residence in European
Union or in a treaty state on the

European Economic Area and is
subject to an income taxation (i.e.
not tax exempt).
− Please note, that the rules with
respect to foreign investment
companies comparable with the
legal form of a German
“Sondervermögen” (e.g. a
Luxembourg FCP or a French FCPR)
not qualifying as an AIF, have been
taken over from the initial draft. This
means that these foreign
investment companies are deemed
to constitute a corporate body
within the meaning of § 2 No. 1 of
the German Corporation Tax Act and
will be therefore subject to limited
tax liability with its German source
Fund News – January 2013

9


income. Unfortunately no
grandfathering will be granted for
existing fund structures. For
investment structures, however,
previously neither taxed according
to the Investment Tax Act nor the
Foreign Tax Act, thus subject to the

partnership rules (Gesonderte und
einheitliche Feststellungserklarung),
this will bring clarity insofar, as the
Foreign Tax Act should in future
become applicable.

UK
HMRC draft guidance on
Unauthorised Unit Trusts
HM Revenue & Customs (“HMRC”)
have now published its draft guidance
for Unauthorised Unit Trusts (“UUTs”).
This is intended to help taxpayers
understand how the new rules will work
in practice.



While the proposed changes are broadly
welcome, two issues that have raised
concerns are:
1) the requirement to prepare accounts
in accordance with the existing IMA
SORP for Authorised Funds (“the
AF SORP”); and
2) to have those accounts audited.
The AF SORP is designed for the
activities, regulation, and operational
requirements of funds authorised by the
Financial Services Authority (“Authorised

Funds”). While the investment and
borrowing capabilities of Authorised
Funds (UCITS; Non-UCITS Retail
Schemes; and Qualified Investor
Schemes) have, overall, a substantial
capacity for diversity of investments,
they are required to deliver features that
are not required of UUTs.
UUTs may carry out activities; have
operational features; and operate with



investment assets beyond the scope
permitted for Authorised Funds. An
example would be property
development. Such aspects are not
addressed by the AF SORP and
preparers of UUT financial statements
and the UUT’s auditors may have to
interpret the required accounting from
the principles in the AF SORP rather
than by reference to specific guidance in
the AF SORP.
The new draft guidance does not offer
additional advice for UUTs on this and so
it may present additional challenges and
result in a wider variation in
interpretations when UUTs prepare
financial statements.

HMRC have requested comments on
this draft guidance by 28 February 2013.
The legislation will take effect after
Finance Bill 2013 receives Royal Assent,
with various transitional rules phasing in
the changes for existing UUTs.
The draft guidance (13 pages) is
available via this web
link:







Fund News – January 2013

10


USA

FATCA Final Regulations released
On 17 January 2013, the U.S.
Department of Treasury (Treasury) and
the Internal Revenue Service (IRS)
released the final regulations for the
Foreign Account Tax Compliance Act
(FATCA). Since the enactment of FATCA

in March 2010, Treasury and the IRS
have issued several rounds of
preliminary guidance, including proposed
regulations. The recently released final
regulations have been much anticipated
by taxpayers that expect to be affected
by the new FATCA withholding and
reporting regime, particularly in light of
the looming January 1, 2014, effective
date.
Several of the key provisions are listed
below:
• Harmonisation with
intergovernmental agreements
• Relaxation of certain documentation
and due diligence requirements
• An expanded scope of
“grandfathered obligations”
• Liberalisation of requirements for
certain retirement funds and savings
accounts
• Limited FFIs – continued transition
rule
• Bearer shares
• Brokers (delivery vs. payments)
• Registration process

The KPMG analysis of the FATCA final
regulations is available via the following
web

link:




Meet us at:

Fund News – January 2013

11


Contact us
Dee Ruddy
Senior Manager
T: + 352 22 5151 7369
E:


Audit
Nathalie Dogniez
Partner
T: + 352 22 5151 6253
E:
www.kpmg.lu



Publications

Tax
Georges Bock
Partner
T: + 352 22 5151 5522

E:






Advisory
Vincent Heymans
Partner
T: +352 22 5151 7917
E:






Charles Muller
Partner
T: +352 22 5151 7950
E:

The evolution of
an industry –
2012
KPMG/AIMA
Global Hedge
Fund Survey
here:
Analysis of
UCITS IV tax
implications –
updated version
here:






Evolving
Investment
Management
Regulation
here:

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