Funds 2014 - Hassan's

FUNDS

Overview One of Gibraltar’s success stories in recent years has been the growth of its

Gibraltar’s fund legislation provides for a range of fund products; these range from

fund industry. Over the last decade, Gibraltar has introduced and developed a

private unregulated funds, to regulated experienced investor funds for investment

robust legislative framework for investment funds. This, along with Gibraltar’s

by experienced investors, to retail funds such as UCITS.

transformation into a modern “onshore” finance centre, has made Gibraltar a popular alternative to many traditional fund domiciles.

The fund industry in Gibraltar comprises of a mixture of international and local firms such as law firms, fund administration firms, accountants, banks,

Gibraltar’s unique position as a member of the European Union where domiciled

investment managers, stock brokers and auditors. The Gibraltar Funds and

funds can benefit from a favourable tax regime and effective regulation, has also

Investment Association (GFIA) is the representative body for Gibraltar’s fund

boosted its popularity.

industry.

Gibraltar Facts Gibraltar is a self-governing British overseas territory located at

The currency is the Gibraltar pound, although the British

the southern tip of Spain;

pound and Euro are widely accepted;

Gibraltar has been a member of the EU since 1973 under the

Gibraltar has a population of approximately 29,000 and a

British Treaty of Accession;

land area of 7 square kilometres;

Gibraltar’s legal system is based on the English legal system.

Gibraltar

However, the Gibraltar Government are capable of enacting their

temperatures are 23°C – 35°C (summer) and 10°C – 20°C

own domestic laws;

(winter);

English is the official language although Spanish is widely

Leading financial activities in Gibraltar are financial

spoken;

services, tourism, shipping and on-line gaming;

The Gibraltar Government is responsible for internal affairs

Gibraltar has an international airport with daily flights to

whereas the United Kingdom maintains responsibility for

London. Malaga airport is 90 minutes by car from Gibraltar

defence, foreign relations, internal security, and financial

and provides flight connections throughout Europe and

stability;

internationally.

has

a

Mediterranean

climate.

Average

Why Gibraltar for Funds?

EU Membership

Alternative Investment Fund Managers Directive

Gibraltar has been a member of the European Union by virtue of the British

Gibraltar’s position in the EU means that any manager considering Gibraltar as

Treaty of Accession since 1973. As a result, funds domiciled in Gibraltar are able

a jurisdiction to domicile a fund or establish a licenced investment manager

to benefit from EU Directives such as the Parent Subsidiary Directive (PSD),

must consider the impact that AIFMD will have on their business. A manager

the Interest and Royalties Directive (IRD) and the Alternative Investment Fund

that complies with AIFMD will effectively be able to passport the European

Managers Directive (AIFMD).

domiciled funds they manage into all EU member states. This will allow AIFMD compliant managers to market the Gibraltar funds they manage across Europe.

No Taxation for Funds The vast majority of Gibraltar funds undertake activities which fall outside

Onshore

the Income Tax Act 2010 (ITA 2010) on general principles, either because their

Gibraltar’s transition into a modern international “onshore” finance centre

income consists of exempt investment income; or income which accrues and

was completed at the beginning of 2011 with the enactment of the ITA

derives outside of Gibraltar, or capital gains on disposal of assets. There are no

2010. The ITA 2010 came into force on the 1 January 2011 and completes a

withholding taxes on dividends, interest or royalties in Gibraltar. There is also

sequence of undertakings which have transformed Gibraltar into an onshore

no estate duty, capital gains tax or other capital taxes.

jurisdiction; these include the signing of eighteen tax information exchange agreements by the Gibraltar Government and Gibraltar’s compliance with

A Gibraltar-based fund manager is taxable under section 74 ITA 2010 at a rate

EU money laundering and cooperation rules. There is now no distinction

of 10% as such activity is deemed to have “accrued in and derived” in Gibraltar.

between “onshore” and “offshore” business in Gibraltar.

All the typical deductions from trading income, such as rent, salaries, and office costs would be allowable in arriving at taxable profits.

Well Regulated The fund industry in Gibraltar is regulated by the Financial Services Commission (FSC). The FSC is committed to maintaining regulatory standards that are equivalent to those of the United Kingdom’s Financial Services Authority. The FSC is a robust and sound governing body whilst retaining the flexibility required of a smaller jurisdiction and so providing for a close working relationship between regulator and regulated funds. In September 2012, the FSC announced the establishment of a funds panel consisting of representatives from different sectors of the industry which will engage with the FSC and advise on fund-related matters.

Infrastructure A wealth of international companies have established themselves in Gibraltar including banks, fund administrators, accountants, stock brokers and lawyers which form part of and service the fund industry. Other benefits of Gibraltar’s infrastructure include political and economic stability, a professional workforce trained to British standards and no work permit restrictions for Europeans.

Lifestyle The combination of Gibraltar’s accessibility by land, sea and air, central European time zone, Mediterranean climate and ease of access to Spain, makes Gibraltar a particularly attractive jurisdiction for a manager to set-up and run an investment fund. There are properties in Gibraltar to meet the needs of most persons relocating. High-end resorts in Spain, such as Sotogrande, are also within commuting distance. Gibraltar has separate attractive tax regimes for high-earning individuals such as the Category 2 regime (Cat 2) or High Executive Possessing Specialist Skills (HEPSS) regime.

Private Schemes A Gibraltar private scheme is an unregulated collective investment scheme

persons who may accept the offer and they must be in possession of sufficient

established under the Financial Services (Collective Investment Schemes)

information to be able to make a reasonable evaluation of the offer.

Regulations 2011. A private scheme is essentially a private investment entity which intends to raise capital by offering its participation units to investors by

Other than the restriction on the limited nature of the promotion, there are no

private placement. The word “fund” is not permitted to be used in the name of

statutory restrictions on the type of investor who can invest nor are there any

an entity operating as a private scheme.

investment or leverage restrictions.

The most common structure for a private scheme is a Gibraltar limited company.

A private scheme is not subject to any licensing requirements by the FSC or

Other structures which may be considered are a unit trust or Gibraltar limited

any other regulatory authority. This allows private schemes to be established

partnership.

quickly and begin offerings shortly afterwards.

Private schemes may only be offered to an identifiable category of persons

Private schemes can either be managed by a third-party investment manager or

whose number does not exceed fifty. The members of that category are the only

be “self-managed” by the board of directors.

Experienced Investor Funds An Experienced Investor Fund (EIF) is a regulated collective investment scheme

and the fund’s administrator has received confirmation of such advice; or

exclusively for investment by “experienced investors” and is established under the Financial Services (Experienced Investor Fund) Regulations 2012 (EIF Regs 2012).

• a participant who invests a minimum of €100,000 or its equivalent in one or more experienced investor funds, including this Fund ; or

An experienced investor is defined pursuant to section 3(1) EIF Regs 2012: • a participant who is a professional client, as defined under the Financial • a participant whose business or profession includes dealing with

Services (Markets In Financial Instruments) Act 2006; or

investments; or • a participant in a fund that has re-domiciled to Gibraltar where the • a participant who has a net worth in excess of €1,000,000, or joint net worth in excess of €1,000,000 with their spouse; or

Financial Services Commission of Gibraltar has permitted the inclusion of such participant either in respect of a specific fund or generally in respect of funds or a category of funds from a certain jurisdiction.

• a participant who has a current aggregate of €100,000 invested in one or more experienced investor funds; or

An EIF can be established as a Gibraltar limited company, a Gibraltar unit trust, a Gibraltar limited partnership, a Gibraltar protected cell company (PCC) or any

• a participant who invests a minimum of €100,000 or its equivalent in one or more experienced investor funds, including this Fund ; or

other form recognised in Gibraltar, which may include foreign structures where the management and control is in Gibraltar and which is approved by the FSC. The choice of structure will be influenced by the need for tax transparency

• a participant who invests a minimum of €50,000 in an experienced investor fund and who has been advised by a Professional Adviser to invest in the fund

and whether investors can benefit from fiscal arrangements between their jurisdiction of residence and the jurisdiction of investments.

An EIF established as a PCC is essentially a limited company established with various

is required to produce an offering document which is commonly referred to as a

cells, or sub-funds. PCCs enable the statutory segregation of assets and liabilities

private placement memorandum (PPM), which must include certain information

into different cells which are ringfenced for insolvency purposes. Individual cells

about the fund. The PPM must contain such information as would reasonably be

may be established according to investment strategy, geographical emphasis or

required and expected by participants, potential participants, and their professional

even for certain clients such as insurance companies or pension funds that may

advisers, for the purposes of making an informed judgment about the merits of

require asset segregation under the terms of their own mandates. There is no limit

participating in the EIF and the extent of the risks of participating in the fund.

to the number of cells a PCC may create.

An EIF is required to undergo an annual audit by an auditor registered under the An EIF structured as a Gibraltar limited company or a Gibraltar PCC, must have a

Gibraltar Audit Registration Board. The audit must be conducted in accordance

board of directors which includes two Gibraltar resident directors who are authorised

with internationally recognised audit and accounting standards.

by the Gibraltar FSC to provide directorships to EIFs and so ensuring substance in the fund’s board which is important both from a fiscal and a regulatory perspective.

An EIF is a regulated fund and is registered with the FSC within 10 business days of the launch meeting. The launch meeting is effectively the initial board meeting

An EIF must appoint a local Gibraltar fund administrator licenced by the FSC

where the operator agrees that all necessary contracts have been completed

or, subject to certain conditions, a foreign administration firm which has been

and to launch the product under the EIF regime. An EIF can begin marketing its

authorised by the FSC to provide services to EIFs. The foreign administrator must

participation units and trading from this time onwards. Alternatively, the EIF can

be established in the European Economic Area or in a jurisdiction that provides

opt for pre-launch authorisation; if this pre-authorisation option is chosen, the

a regulatory and legislative regime equivalent to that as provided in Gibraltar.

EIF is deemed authorised at the launch meeting. Prior to the launch meeting the

A foreign administrator must appoint a local Gibraltar agent for service. An EIF

EIF must file specified documents with the FSC no later than 10 business days before the launch meeting.

AIFMD Alternative Investment Fund Managers Directive (AIFMD)

manage AIFs with assets under management (AUM) of EUR 100m (leveraged)

Gibraltar’s unique position as a European fund hub means it will be one of only

or EUR 500m (unleveraged) to be authorised and thus comply with obligations

a handful of jurisdictions able to offer effective and efficient fund solutions

such as capital requirements, operational requirements, remuneration,

to fund managers that wish to comply with AIFMD and access its marketing

conflicts of interest, risk and liquidity management, transparency, disclosure

passport provisions. One major benefit for a Gibraltar fund manager complying

and regulatory reporting. AIFMD does provide an “opt-in” provision for AIFMs

with AIFMD will be the pan-EU marketing passport bestowed on them. This

which would not automatically meet the capital threshold requirements but

will allow a Gibraltar authorised AIFM to offer its AIFs freely throughout EU

wish to be authorised under AIFMD.

member states to professional investors.

AIFMD will operate alongside and create a separate European regulatory regime from UCITS IV and MiFID. All EU member states must implement AIFMD into their national laws by 22nd July 2013 and existing fund managers which fall within the scope of AIFMD have until 22nd July 2014 to bring their operations in-line with the directive.

The concept behind AIFMD is to create a harmonised regulatory regime across Europe for fund managers (termed “Alternative Investment Fund Managers” and/or “AIFMs”) that manage a group of non-retail fund products (termed “Alternative Investment Funds” and/or “AIFs”). AIFMD requires AIFMs which

UCITS IV The Financial Services (Collective Investment Schemes) Act 2011 transposes into

undergoing time consuming authorisation procedures in each member state

Gibraltar Law EU Directive 2009/65/EC on Undertakings for Collective Investment

where the UCITS fund wishes to raise investment.

in Transferable Securities (otherwise known as the UCITS IV Directive).

The UCITS IV regime replaces the requirements for a UCITS fund to issue a The combination of Gibraltar’s on-shore status, EU membership, an efficient

simplified prospectus with a key investor information document. The notion

tax system and a solid infrastructure for investment funds, makes Gibraltar a

behind this document is that it is a concise standardised document which

strong alternative to traditional jurisdictions with regards domiciling UCITS

provides fair, clear and understandable information to investors. It must contain a

funds and UCITS management companies.

risk indicator based on historical volatility – a scale which indicates risk/reward.

A UCITS fund in Gibraltar can be established as either a common fund (which

UCITS funds domiciled in Gibraltar will be taxed in accordance with Gibraltar’s Income

can include a unit trust and contractual fund), or an open-ended investment

Tax Act 2010. Unlike some other jurisdictions, no special exemptions are required to

company. A UCITS fund may also utilise a Gibraltar PCC in order to create an

make Gibraltar UCITS funds tax efficient: the general provisions of Gibraltar tax law are

umbrella scheme allowing multiple sub-funds within one structure.

such that a fully taxable company or other entity undertaking international business does not suffer tax in Gibraltar. Gibraltar does not levy tax in most cases on investment

One key feature of the UCITS IV regime is that UCITS funds will benefit from

income wherever derived, such as dividends, interest, royalties from intellectual property,

a full streamlined passport. This passport allows UCITS funds established

or on capital gains. In the case of UCITS funds, the activity will most certainly fall outside

in one member state to market their shares/units in other member states

Gibraltar’s tax regime on general principles because income will consist of exempt

by following a simplified regulator-to-regulator notification procedure

investment income i.e. trading income from a trade conducted outside of Gibraltar,

via standardised electronic documentation. This removes the burden of

dividends or interest.

Taxation of Gibraltar Funds Income tax in Gibraltar is levied on a territorial basis, under the accrued and

royalties paid from a group company to a Gibraltar company.

derived in Gibraltar principle. Gibraltar also does not levy tax in most cases on investment income wherever derived, such as dividends, interest, royalties

Funds can also obtain a specific exemption under section 3(17) of the Income

from intellectual property, or on capital gains.

Tax (Allowances, Deductions and Exemptions) Rules 1992 from taxation from the Income Tax Commissioner if thought necessary or desirable.

The vast majority of Gibraltar funds undertake activities which fall outside the Gibraltar tax regime on general principles, either because their income consists of exempt investment income; trading income from a trade conducted outside Gibraltar; or income which accrues and derives outside Gibraltar, or capital gains on the disposal of assets. Therefore no special exemptions are required in the case of most funds: the general provisions of Gibraltar tax law are such that a fully taxable company or other entity undertaking international business does not suffer tax in Gibraltar.

This is significant because a fund structured as a fully taxable company should be able to benefit from the PSD and the IRD whereas exempt vehicles in many cases are denied such benefits, and therefore there should be no withholding taxes on dividends paid by a subsidiary in another EU member state to a Gibraltar parent company. Also there should be no withholding taxes on

Personal Taxation (for High Earnings Individuals) Category 2 Residency

a director of a Company which does not transact any trade or business in

Category 2 tax residency is a special tax regime whereby a wealthy high-earning

Gibraltar.

person pays an annual maximum capped tax of approximately £30,000. In order to qualify to become a Category 2 resident, the following conditions must be met:

• The Category 2 individual must be of substantial and sound financial standing and have a minimum net worth of £2 million;

• The Category 2 resident must either own or rent approved residential accommodation in Gibraltar. The accommodation must be approved by the Gibraltar Finance Centre and be used exclusively by the Category 2 individual and his direct family;

• The Category 2 individual cannot have been resident in Gibraltar during the five years immediately proceeding the year of assessment;

• The Category 2 individual is not allowed to engage in a trade, business or employment in Gibraltar. Exceptions to this rule include where duties are incidental to a business outside of Gibraltar or the Category 2 resident is

High Executive Possessing Specialist skills (HEPSS) HEPSS is a tax status for executives with specialist skills coming to live and work in Gibraltar. The advantage of this form of tax residency is that taxation is limited to the first £120,000 of income. This equates to a maximum tax payable of approximately £30,000 (an effective rate of 24.95%). Individuals wishing to qualify under HEPPS must earn more than £100,000 per annum. In order to qualify under HEPPS, the following conditions must be met:

• Applicants must possess skills not already present in Gibraltar and their relocation to Gibraltar must also help promote and sustain economic activity in Gibraltar;

• Applicants must earn more than £100,000;

• Applicants cannot have been resident in Gibraltar for the three years immediately proceeding the application;

• HEPSS individuals must live in a Gibraltar qualifying property (similar to those of Category 2 residents.

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Contact: Hassans Funds Department. Address: Hassans International Law Firm, 57/63 Line Wall Road, Gibraltar.

Telephone: +350 200 79000. Email: fundsteam@hassans.gi. Website: www.gibraltarlaw.com

Hassans International Law Firm (Hassans) has published this brochure with the aim of informing interested parties on Gibraltar fund products and services. This brochure shall only be regarded as providing general information on Gibraltar, Gibraltar’s fund industry and Gibraltar funds. This brochure provides general information primarily to interested parties and their consultants and shall not be regarded as being of consultative character or legal advice. This brochure cannot replace legal advice and/or general counselling on Gibraltar fund products and/or services. Hassans requests any person which may have an interest in Gibraltar fund products and/or services to seek legal advice. Hassans aims to keep the information in this brochure as correct, adequate, available and as up to date as possible, however Hassans undertakes no responsibility for this. This means that Hassans cannot be made liable in damages for consequential losses.

Distribution of this brochure may be subject to certain restrictions in some countries. This brochure is not prepared for the purpose of redistribution and as such persons receiving possession of this brochure are obliged to check and observe such restrictions themselves. Persons having acquired this brochure from a third party cannot on the basis of the marketing material assert a claim or the like against Hassans.