The Central Bank of Ireland (the “Central Bank”) issued feedback on 28 March 2014 to its consultation in relation to whether investment structures, most notably exempt unit trusts (“EUTs”), should be considered to be Alternative Investment Funds (“AIFs”) in the wake of the implementation of the Alternative Investment Fund Managers Directive (“AIFMD”) in Ireland. The feedback statement entitled “Feedback Statement on CP68: Consultation on types of alternative investment funds under AIFMD and unit trust schemes under the Unit Trusts Act 1990 (including EUTs, REITs etc.)” (The “Feedback”) also addresses the position of REITs and SPVs in this regard.
In July 2013, the Central Bank published Consultation Paper – CP68, inviting submissions in relation to key questions regarding investment structures provided for under Irish law whose status under the AIFMD was unclear. The consultation was focused on whether these structures ought to be brought within its regulatory ambit and considered as AIFs under the AIFMD. The status of EUTs is of major importance to the Irish pension industry as they have been a key vehicle used for pensions in Ireland but have been outside the regulatory scope of the Central Bank until now. CP68 also considered the status of other structures, specifically REITs and SPVs.
REITs are viewed as potentially playing a key role in revitalizing the Irish property market and Ireland is determined to position itself as a key European domicile for such products. Ireland is already one of the primary European domiciles for SPVs. Accordingly; the treatment of such structures under Irish law is of general interest as well as being of considerable importance to relevant stakeholders.
Some policy pointers
While our analysis will focus on EUTs, REITS and SPVs, the Central Bank review does provide some pointers to likely policy orientations on issues such as raising capital and single investor funds.
Before moving on to the specific structures, we will review the Central Bank’s position in relation to these issues.
Many managers will be looking at what boundaries will be applied by regulators to the concept of reverse solicitation under the AIFMD and, during the consultation, it was suggested that “a EUT could be established at the instigation of the investor and therefore could be deemed not to “raise capital”“.
The Central Bank’s response to this was quite firm, stating:
“The notion that EUTs are created after capital is raised or provided by investors does not in the view of the Central Bank allow for EUTs to fall outside the definition of AIF. In practice this argument could be made by any number of investment funds and reliance on this element could be a measure for circumvention. The Central Bank therefore does not accept that a timing test alone is sufficient to ground a test as to whether external capital has been raised within the meaning of the AIFMD.”
However, the Central Bank has indicated that where it can be shown that a structure was established solely at the initiative of the investors in that structure (rather than an intermediary or product provider) and provided investment decisions are also made by the investors, this will generally not be deemed to constitute an AIF. This should exempt co-ownership scenarios.
Single investor funds
Many EUTS are established as single investor vehicles and the Central Bank was happy to accept that such vehicles will remain out of scope provided that the “unit trust scheme is constitutionally confined to one beneficiary”. The constitutional prohibition is critical. This analysis will also apply to umbrella structures provided each sub-trust has one beneficiary and there is no sharing of benefits between sub-trusts. The Central Bank has also clearly stated that the single beneficiary cannot be an entity representing multiple ultimate beneficiaries and this statement will need to be borne in mind when it comes to structuring.
The investment structures analysed
The basis, upon which EUTs were exempt from regulatory oversight and registration under applicable legislation, being the Unit Trusts Act 1990, was because they were limited to investment by pension funds and charities only and accordingly, not open to the “public”. However under AIFMD, the key test is not “availability to the public” but whether it is marketed to retail investors. In these circumstances, the Central Bank has indicated that it will require such AIFs to be regulated, irrespective of the requirements of the Unit Trusts Act.
The blanket exemption from Central Bank regulatory oversight which EUTs previously enjoyed has accordingly been removed but a number of significant exemptions have been identified so that not all EUTs will constitute AIFs.
(i) Single Investor Funds
See the analysis above.
The continuation of this exemption with respect to single investor structures should be a considerable relief to the pension industry as it will mean that many structures will be capable of being placed outside the scope of the AIFMD and its inherent compliance costs. However, in many cases, an element of restructuring will be necessary to take advantage of this, for example where umbrella trusts are used, they may be “contaminated” by collective funds or other steps will be necessary to ensure compliance, for example amending the constitutional documents of schemes to limit them to a single investor.
(ii) Schemes limited to charities and/or regulated occupational pension schemes
While the Central Bank has discretion with regard to schemes marketed to retail investors, it has accepted the “availability to the public” test may apply with regard to professional investors and as a result, accepts that schemes limited to charities and/or regulated occupational pension schemes do not need to seek authorisation.
While SPVs were in scope for the purposes of the Consultation, the Central Bank has for the moment merely restated its opinion in relation to this matter as expressed in its AIFMD Q&A document from November 2013.
In the document, the Central Bank confirmed that:
“as a transitional arrangement, entities which are either: (a) Registered Financial Vehicle Corporations with the meaning of the FVC Regulation (Regulation (EC) no. 24/2009 of the European Central Bank); or (b) Financial vehicles engaged solely in activities where economic participation is by way of debt or other corresponding instruments which do not include ownership rights in the vehicle as are provided by the sale of units or shares” will not be deemed to be subject to the AIFMD by the Central Bank at this time. The Central Bank may revise its position in this regard at a future date depending on the views and approach of ESMA who is expected to issue further guidance in this regard. ESMA had touched on the position of SPVs to an extent in earlier consultation documents, but further guidance is still expected in this regard.
The Central Bank’s clarification is important as it confirms that Irish securitisation SPVs or Section 110 companies can currently be considered out of scope.
Legislation providing for REITs was introduced for the first time in Ireland via the Finance Act 2013. Two REITS have successfully been established to date and more are in the pipeline. These have attracted considerable international interest as a means of accessing exposure to the recovering Irish property market.
There has been an element of uncertainty to date as to whether REITs constitute AIFs. It may be argued that REITs are ordinary companies with general commercial purposes and as such, are not collective investment undertakings. A review of the criteria issued by ESMA for determining whether or not a structure ought to be considered as an AIF would indicate that a REIT may fall outside the relevant scope on the basis that they have a “general commercial or industrial purpose”, namely property development or property rental. Other factors that may lead to the conclusion that a REIT does not constitute an AIF might include the manner of involvement of the REIT in the day-to-day management of underlying investments, the lack of an external investment manager, the differences in structure of a REIT compared to a typical fund in terms of life span and redemption facilities and the fact that a REIT does not have the provision of investment returns to investors as its essential purpose.
Furthermore, it can be argued that REITs do not have a defined investment policy which is fixed when investors commit to the fund, and which the investment manager must follow. Rather, they have a corporate or business strategy which is not formally fixed and they follow a flexible investment policy as required by its operating business.
The Central Bank has not definitively determined that REITs constitute AIFs in the Feedback. It has, however, noted that the initial REITs established in Ireland have themselves indicated that they are likely to be AIFs and it has observed that it has “not encountered a REIT structure in Ireland which we do not believe to be an AIF and therefore considers that the onus remains on any REIT to demonstrate otherwise”. Accordingly, the position of the Central Bank is essentially that there is a rebuttable presumption that a REIT is an AIF and the onus rests with any REIT to demonstrate that it does not constitute one, should it wish to make such a submission.
It is interesting to compare the approach of the Central Bank in this regard to that of other European regulators. In the UK, the FCA’s final guidance provides that there is no presumption either way as to whether or not a REIT is an AIF. The German regulator, the BaFIN, has revised its original draft approach to this issue, which was to deem REITs to automatically constitute AIFs and instead examines each vehicle on a case-by-case basis.
Accordingly, it is possible that REITs could be structured to stay out of the scope of AIFMD. Structuring a REIT so that it is exempt from AIFMD compliance requirements may enable the structure to avoid considerable administrative costs and as such, achieve a competitive advantage over comparable AIFMD compliant vehicles. On the other hand, such a structure would be unable to take advantage of the European passport provided for under the AIFMD and as such, would be more restricted in its distribution. Promoters of REITs should accordingly consider the pros and cons of being deemed to be an AIF and consider making a submission to the Central Bank if the costs of compliance with the AIFMD will outweigh any distribution benefits.
Implications and timing considerations
Unit trusts currently in existence which needs to apply for authorisation from the Central Bank under the Unit Trusts Act 1990 as a result of its determinations in the Feedback should do so by 1 October 2014 (unless they can restructure to make use of one of the exemptions cited prior to that date). A further exception which might be relevant applies in the case of existing closed-ended schemes, where an Irish AIFM that has managed closed-ended AIFs from a period preceding 22 July 2013 may continue to manage such AIFs in the absence of authorisation under the Regulations, provided it has not made any additional investments since 22 July 2013.
The standard transitional arrangements under the AIFMD will apply to AIFMs of EUTs found to be AIFs. Accordingly, AIFMs below the threshold set out in Regulation 4 must register with the Central Bank by 22 July 2014 and those above this threshold must seek authorisation by this date. At the same time, the Central Bank has stated that, in view of the timing of the Feedback, it will be willing to work with applicants within the legally defined applicable timescales, to facilitate compliance.
The Central Bank is to update the AIFMD Q&A document which appears on its website to reflect the policy determinations set out in the Feedback. Some further clarifications or amendments may be forthcoming in due course, depending upon ESMA’s approach to the issues it is examining, especially regarding SPVs and REITS.
Firms which were awaiting the outcome of the Central Bank’s deliberations should now proceed to determine the implications of the Feedback and take the necessary steps to ensure compliance. This may include undertaking a restructuring of existing EUTs to minimise the impact of the Central Bank’s determinations, as well as applying for registration or authorisation. In view of the looming deadlines, prompt action is advisable.
This update was authored by:
Mark Browne / Dublin office of Dechert LLP
T: +353 1 436 8511 / [email protected]
Declan O’Sullivan / Dublin office of Dechert LLP
T: +353 1 436 8510 / [email protected]
Investors remain worried about COVID, but positive towards stamp duty holiday
By Jamie Johnson, CEO of FJP Investment
The journey back to economic normality will be strenuous. COVID-19 has imbued many financial markets with a great deal of uncertainty, making accurate forecasts difficult for fear that a second spike in cases or further lockdown measures may affect market confidence at a moment’s notice.
However, ensuring investor confidence remains high in the short-to-medium term is paramount for avoiding economic stagnation throughout the rest of 2020. Without economic stimulus, the UK’s post-pandemic economic recovery will remain delayed until the virus is contained globally; and given the uncertainty surrounding when this will be accomplished, the economic damage inflicted in the meantime could be grave.
The Government, of course, has been quick to recognise this. It has implemented numerous policies designed to coax activity back to some key markets, most notably in the property sector.
The stamp duty land tax (SDLT) holiday especially seems to be succeeding in attracting buyers back to the market, with property listing site Rightmove recording an immediate 75% increase in buyer enquiries following the policy’s implementation. Meanwhile, Halifax’s August house price index (HPI) revealed a year-on-year average house price rise of 5.2%.
After months of the government dissuading people from moving home due to COVID-19 contagion fears, it seems as though the SDLT holiday is managing to release some of the pent-up demand for property that accrued during lockdown. Domestic and international buyers alike are now compelled to take advantage of the lucrative real estate opportunities on offer, with tax savings of up to £15,000 available during the holiday.
What is crucial, however, is that this momentum is sustained. As COVID-19 case numbers begin rising once again, if people view the UK as not having a handle on the spread of the virus, they may be reluctant to make any major decisions regarding their asset portfolio.
To explore how exactly investors are currently perceiving the government’s capacity for effective COVID-19 containment, and how they are managing their financial affairs during this challenging period, FJP Investment recently commissioned an independent survey of over 900 UK-based investors. Each of the investors surveyed has an investment portfolio in excess of £10,000, excluding savings, pensions, SIPPs and residential property.
What we discovered was that, although the SDLT holiday referenced above is being positively received, there are still obstacles to overcome within the wider economic bounce-back.
Among those surveyed, a quarter (24%) of investors stated they are planning on buying one or more new properties to take advantage of the SDLT holiday, a figure that rises to 43% for those aged between 18 and 34.]
Given the substantial potential discounts available, it makes sense that those keen on making their first step onto the property ladder – or building a real estate portfolio – would jump at the chance while market conditions are right. With the SDLT holiday period coming to a close at the end of March 2021, buyers will be keen on finalising their transactions before this key date.
However, 43% of the investors surveyed believed that more financial incentives and support should be offered by the government. Sticking to the property sector, over half (54%) think the mortgage payment holiday relief scheme should be extended beyond its current finishing date of 31st October 2020.
Elsewhere, FJP Investment’s research showed that 57% of investors are keen to see more financial relief for businesses that have experienced disruption to their cashflow due to the pandemic.
Facilitating the strong economic recovery
More worryingly for the government, however, is the current lackluster reception of its recent public health strategy. The majority (54%) of the investors surveyed admitted they had lost confidence in Boris Johnson’s government due to their apparent mishandling of the COVID-19 pandemic so far.
Increasing case numbers and unfavourable international comparisons risk deterring both domestic and international investors away from UK property – elongating pandemic-related economic stagnation for the foreseeable future.
Ensuring the government soon regains a reputation for good governance and epidemiological competence, then, should be an absolute priority for government advisers. Prospective investors – not just in property but all manner of UK-based assets – must have confidence their assets will not undergo a surprise devaluation due to factors outside of their control.
Personally, I’m confident that the right decisions will be made and the current boom in demand for UK property will be sustained. Investors will continue to be successfully attracted back to the market, and the UK can enjoy a prosperous real estate market once again – fuelling a wider post-pandemic economic resurgence across the nation.
Revitalising the token market
By Gavin Smith, CEO at Panxora
With interest rates near zero and fears that whipsawing stock markets are set for further plunges, many investors are turning to alternative markets in the search for returns. Money flowing into cryptocurrency hedge funds and trusts like Grayscale is at all-time highs and the large cap coins seem to be entering a bull phase, but that capital is not trickling down into new token projects. Why are blockchain token projects struggling to attract funding?
Seed investor scepticism
Setting aside the reputational issues with mainstream investors, even those educated in blockchain tech are not signing on the dotted line. This is certainly due in part to the hangover from the early token market.
During the heady days of 2016/17, investors could buy tokens during the token sale, and if the project was legitimate – even if the business case wasn’t particularly strong – prices would soar based on market enthusiasm. Early investors purchased at a discount and cashed out almost immediately for a handsome profit – and then repeated the process again. The token sale allowed founders to amass a war chest large enough to finance the entire token project – without having to give up a large chunk of company equity. Everyone got what they needed out of the deal.
Running a token sale is far more expensive today than it was during the boom. Getting the attention of the token buying public in a market where advertorial has replaced editorial is expensive. This coupled with a regulatory framework that requires the advice of accountants, solicitors and information gathering of KYC details for investors all comes with an escalating price tag.
To accommodate the change in cost structure, tokens now need to acquire funding in two rounds. Frequently there is a first round where capital is raised from a few, large investors. This cash is then used to finance setup and marketing the main token sale. The token sale, in turn, provides the capital needed to run the entire business project.
Bridging the gap between token projects’ needs and early stage investors
To successfully get a token through the capital raising process, founders must acknowledge the risk assumed by those very early investors and reward them appropriately. And given that tokens may stagnate or fall in price post token sale means that a deep discount in token price is not necessarily attractive enough to get investors to commit.
Many tokens have turned to offering equity in the business in the effort to raise that first tranche of capital. If you look at the number of successfully concluded token sales, the downward trend has continued since Q2 2018, so offering equity is not sufficiently stimulating the market.
Two sides of the coin
So, what is the answer? It’s a complex question but one thing is certain. Any solution must be rooted in a deep understanding of what both parties need to successfully conclude the deal.
On the one hand, token founders’ needs are clear: they need enough capital to get the token ready for and through a successful liquidity event that will provide sufficient funds to build the project. The challenge lies in striking the right balance between accruing that capital and making sure not to offer so much project equity that give up either the control or the incentive founders need to drive the project forward.
On the other hand, while the needs of the seed capital investors are more complex, there are two areas of key concern: transparency and profit incentives.
Transparency can mean many things, but almost always includes providing more informative cost and profit projections, as well as answers to a whole range of questions, not least the following:
- What happens to investor capital if the token sale event fails? Token founders must be transparent from the outset. The token market is highly speculative and early investors run the risk of losing their money should the project fail. Therefore, investors require a well-established fund governance process in place throughout the fundraising so they can make informed decisions on whether the project is worthwhile.
- How are the assets for the entire project managed? Investors need to know that their money is in good hands and that proper treasury management techniques are being used to manage cryptocurrency volatility risk. Ideally, an independent custodian will be used to hold the funds and limit founders’ ability to draw down the capital – releasing funds to an agreed-upon schedule of milestones.
- How are the rights of investors protected, for instance in the case of a trade sale? Investors need to know what happens if the company they are investing in is sold. What impact could this have on the value of their stake? Would a separate governance framework need to be established? These are critical questions and investors aren’t likely to settle for any ambiguity in the answers.
Profit incentives are important when it comes to encouraging early participation in a project. Investors need convincing that the proposition will keep risks to a minimum and focus on providing a strong probability of a return. This means that founders need to be able to defend the case for the increase in the value of their token.
But this isn’t the only incentive that matters. Investors can also be incentivised by preferential offerings such as early access to projects and services that might help their own business.
Let’s not forget that investors don’t support just any project. What really matters is that there is something special and unique about the business being underwritten by the token. Preferably something that could be shared upfront and directly benefit the investor – proof that the investment is really worth it.
And that’s what it all comes down to. Ultimately, while token projects are having a hard time finding funds at the moment, if they can prove their worth and provide full transparency and clear profit incentives to ease investors’ concerns, the money is out there. And deals can be done.
Achieving steady returns in challenging times for later life planning
By Matt Dickens, Senior Business Development Director at Ingenious
The macro-economic conditions of the last five years have presented a relentless challenge for money managers seeking to produce consistent returns. It seems an all too distant memory that UK markets were caught in a happy period of low volatility and positive growth since the recovery from the financial crisis started in 2009. Enter 2016 and we have since found ourselves in an era of exceptional uncertainty. An acrimonious Brexit referendum and the following ambiguity, pressure on sterling, repeated challenges to the UK Government, a trade war between two of the world’s super-powers and now a global pandemic. All this as the world is going through a digital revolution.
Under these exceptional conditions, many investment strategies have understandably struggled to sustain the growth that investors had previously enjoyed without taking on elevated levels of risk and experiencing greater volatility and its associated negative impact. However, Ingenious Estate Planning has been operating alternative investment strategies for several years, which have produced a steady return with low volatility over this time as they possess little correlation to the main listed markets.
The affordable end of the UK’s residential real estate market has proven to be extremely robust during the recent uncertainty. The market benefits from some core fundamentals that have assisted it withstanding a lot of the pressures experienced by other sectors. Firstly, a large and sustained supply deficit. In 2018 the UK built 80,000 fewer houses than the actual requirement of 300,0001. This strong, inherent demand poses a clear investment opportunity to investors who can fund construction projects in the safe knowledge that there is an established demand on completion.
Secondly, this supply deficit has been recognised by Governments for several years and there has been a raft of policies enacted, all supportive of building more houses. For instance, the Help to Buy scheme has enabled many, often first-time buyers onto the property ladder. This scheme means there is a well-established and subsidised group of buyers ready to buy whenever developers complete construction. Thirdly, and more recently, the Government has acted quickly to identify the property sector as one that is key to the UK’s recovery from Covid-19. Through relaxing planning laws and offering stamp duty holidays, both the construction and sales market are being given valuable incentives that support an ongoing return for real estate investors.
Secured lending model
Despite these positive forces however, there remain some risks with investing in the property market, so a conservative investment strategy is key to protecting investors. Rather than take a 100% equity, or ownership, position in a house-builder, developer or single property, a portfolio-based, secured lending model, has a number of clear risk-mitigating benefits. For instance, by lending to a portfolio of developers, carefully selected on a project-by-project basis, and by earning a fixed rate of interest, rather than taking equity risk, there is inherently lower volatility in returns given the protection of a senior debt position on each development. Contracts set out clear loan terms meaning that regular interest is paid on the investment and upon final sale the repayment is made in full, all with the benefit of banking-style security protections. By contrast, equity investments and associated valuations can fluctuate over time as the asset price changes and so it is far more vulnerable to market conditions and sentiment, and ultimately any drop in value is suffered by the investor. In the lending model, any loss is initially felt by the borrower.
Benefits for estate planning
Ingenious Estate Planning Private Real Estate utilises this secured lending investment strategy. The Business Relief- qualifying service is commonly used by clients planning for later life. As savers and investors reach retirement and decumulation, they present wealth managers with a unique set of investment problems. Without careful planning, the start of this phase for many could signal the end of any capital growth and herald their savings being eroded to pay for life’s needs. Any investment offering both high volatility and potential drawdowns may therefore become unpalatable. And while many would wish to gift savings to their children to mitigate the risks to their beneficiaries of paying a hefty inheritance tax bill upon their death, the thought of losing both control and access to these savings when they may still need them, means many feel uncomfortable in taking that step.
However, this does not need to be a fate accepted by savvy investors and planners who can utilise a proven trading strategy that continues to both carefully and predictably grow their investment while also providing potentially full relief from inheritance tax.
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