Category: Funds

Renewable Energy Sector: A Snapshot

Renewable energy is an industry that is definitely here for the long-term. Everyone is aware of the drastic need to move to alternative sources of energy and the positive impact this will also have on the environment.

The five primary sources of renewable energy are :

• Solar energy
• Wind energy
• Geothermal energy from heat inside the earth
• Biomass derived from plants
• Hydropower from flowing water

Economic Impact

Besides renewable energy’s positive effect on the climate, it is also making a significant impact on the economy, with the sector sees a surge in many major new start-ups and expanding corporates. Therefore, substantial investment is being allocated into this sector by both institutional and private investors.

Impact on Dixcart Guernsey

The Dixcart Guernsey office has a number of clients who operate in this flourishing sector.  Clients vary from unregulated corporate structures for Private Equity or Private Clients to manage their own investments, to licenced funds with specific interest in using the Private Investment Fund which is the focus of this article.

Why is Guernsey an Attractive Jurisdiction for Such a Fund?

Guernsey is a leading domicile for funds, with more than 50 years of experience in the formation, administration, and cross-border distribution of investment funds.  This therefore provides an excellent platform to Promoters to raise funds, as Guernsey is a jurisdiction investors (particularly institutional) are comfortable with.

For newer or start up Promoters, the Private Investment Fund (PIF) Regime offers a particularly appealing option with its ‘lighter touch’ approach. This is enabled as the Guernsey Regulator places reliance on the licensed Administrator to monitor the PIF’s activities and adherence to the PIF Regime and other rules.

A key point to note for a PIF is there cannot be more than 50 investors.  Further details on the three types of PIFs and specific key criteria to each type can be found by clicking: Manager PIF; Qualified Investor PIF; and, the Family PIF.

Why are Private Investment Fund structures of so much Interest?

The key reasons for the increased interest in PIFs are:

• Speed to market – Once the Designated Administrators have completed their fit & proper and other checks, there is a one business day turnaround by the Regulator for PIF application approval;
• Lighter Touch Regulation – As advised above, this is due to the Guernsey regulator relying on the Designated Administrator’s close monitoring role of the PIF;
• No requirement for private placement memorandum (PPM) or other information particulars, although it is common for a PPM style document to be provided to potential investors;
• Flexibility in being closed-ended or open-ended;
• Still a fully recognised collective investment scheme;
• Listing opportunities – Guernsey entities having the highest number of London Stock Exchange listings after the UK;
• World leading support network of professional advisors based in Guernsey; and
• Guernsey’s tax neutral status for collective investment schemes.

Additional Information

For further information on the establishment and administration of a private investment fund (or unregulated corporate structures) and their relevance to corporates operating in the renewable energy sector, please contact Steve de Jersey at advice.guernsey@dixcart.com

Dixcart Trust Corporation Limited, Guernsey: Full Fiduciary Licence granted by the Guernsey Financial Services Commission. Guernsey registered company number: 6512.

Dixcart Fund Administrators (Guernsey) Limited, Guernsey: Full Protector of Investor Licence granted by the Guernsey Financial Services Commission. Guernsey registered company number: 68952.

Background

Malta has long been a hub for innovative fund management, and in 2023 the Malta Financial Services Authority (MFSA) unveiled its latest offering to assist smaller managers: the Notified Professional Investor Fund, or NPIF for short.

Who will a NPIF be attractive to and why?

This new structure is attractive to de minimis AIFMs and third country AIFMs looking for alternative fund structures based in an EU country. The fund is an unregulated structure, with managers required to notify the Malta Financial Services Authority (MFSA), rather than going through a full-blown licensing process.

The NPIF merges the appeal of Malta’s existing Professional Investor Fund (PIF) framework with the benefits of “Notified” status, creating an efficient solution for fund managers.

What sets NPIFs apart is their remarkable speed to market, making them a perfect fit for time-sensitive investment strategies.

The NPIF primarily targets de minimis Alternative Investment Fund Managers (AIFMs) with Assets Under Management (AUM) of less than €100 million when leveraged, or €500 million when unleveraged, and qualifying for the lighter regulatory regime defined by the EU’s AIFM Directive.

It is suitable for de minimis AIFMs across all EU Member States, as well as AIFMs in a wide range of non-EU third party domiciles, if they are authorised by the MFSA or an EU or third-party equivalent. In addition to the speed to market offered by the Notified PIF, the structure also allows de minimis AIFMs and third country AIFMs to have more direct control over the portfolio management process.

The industry has also seen a growing appetite for co-investment vehicles. A Notified PIF can be used very efficiently as a co-investment vehicle. A particular structure can also be used as a feeder fund into a master structure.

National private placement rules

Any manager considering of setting up their fund as a Notified PIF must be aware that this fund does not have access to the marketing passport under the AIFMD but can be sold under the national private placement rules of the target countries. These differ considerably as some countries require a simple registration while others might offer a blanket exemption.

Key characteristics

Notified PIFs will improve Malta’s appeal as a fund jurisdiction, particularly for US, UK and other third country investment managers.

• Notified PIFs will be subject to a notification process rather than full licensing.
• The notification process may be completed within 10 working days.
• Promoters may benefit from lower setup and other operational and regulatory costs.
• Marketing material and offering documentation will not (is this correct?) be reviewed and approved by the MFSA.
• Notified PIFs can only be non-retail schemes available to Qualifying Investors, due to their risk level and minimum supervision.
• Due to the minimum level of supervision, adequate risk disclosures are to be made to any prospective investors accordingly.
• Any investment strategy, except for ‘Lending’ activity, will be allowed.
• Notified PIFs can only be set up as third-party managed funds, managed by specific Alternative Investment Fund Managers (“AIFMs”).
• Notified PIFs are not required to appoint a custodian.
• Fund administration services must be carried out by a Maltese established and recognised fund administrator, such as Dixcart.
• A third-party service provider shall conduct due diligence with respect to the Notified PIF, both at notification stage and on an ongoing basis.

Money Laundering Reporting Officer

Notified PIFs must appoint a Money Laundering Reporting Officer (“MLRO”). This function may be delegated to:

1. The administrator of the Notified PIF, provided that such administrator is:
   1. A recognised fund administrator; or
   1. Is authorised in an EU Member State or in a reputable jurisdiction.
      
      
2. An officer of the Notified PIF who has sufficient seniority and command.
3. At least one of the Directors must be resident in Malta.
4. The MFSA shall be notified of the appointment, removal, or replacement of any service provider to the Notified PIF in advance of the change.
5. The MFSA may remove a Notified PIF, including any Sub-Fund, from the List of Notified PIFs at any time at its sole discretion.

Regulation Details

Apart from the introduction of a dedicated rulebook, in its effort to establish this new NPIFs framework, the MFSA is proposing amendments to the following Regulations:

• Investment Services Act (List of Notified AIFs) Regulations (S.L. 370.34)
• Investment Services Act (Exemption) Regulations (S.L. 370.02)
• Investment Services Act (Fees) Regulations (S.L. 370.03)
• Trusts and Trustees (Exemption) Regulations (S.L. 331.02)
• Companies Act (Investment Companies with Variable Share Capital) Regulations (S.L. 386.02)

Additional Information

For further information about Maltese funds and how they might be of advantage to you, please contact our Dixcart office in Malta: advice.malta@dixcart.com.

Alternatively, please speak to your usual Dixcart contact.

Malta – A Popular Fund Regime

Since Malta joined the EU, in 2004, the country has enacted new legislation, and introduced additional fund regimes, which have made Malta an attractive location to establish a fund ever since.

Malta is a reputable and cost-effective jurisdiction, and also offers multiple types of fund to choose from, depending on the preferred investment strategy. This provides flexibility and an ability to adapt to different circumstances.

Malta allows the use of a variety of legal vehicles in the context of hedge funds and can be structured using the following legal vehicles:

• Investment company with variable share capital (SICAV)
• Investment company with fixed share capital (INVCO)
• Partnership
• Unit trust
• Common contractual fund

The Different Legal Vehicles

SICAVs and INVCOs are companies that enjoy separate juridical personality, while Unit Trusts, Mutual Funds and Limited Partnerships are non-corporate forms.

While the most popular legal form is the SICAV, with the vast majority of Maltese funds being structured using this form, each structure has different characteristics which may make it more or less suitable for particular investment objectives.

Malta SICAVs in More Detail

The investment company with variable share capital (‘Société d’Investissement à Capital Variable or ‘SICAV’) is by far the most popular structure for Maltese hedge funds. The SICAV closely resembles the Luxembourg structure of the same name is a ‘tried and tested’ vehicle for funds.

Shares in a SICAV are not assigned a nominal value, and the share capital of the company is always equal to the value of the issued share capital of the company. Essentially this means that the structure is particularly well suited for ‘open-ended’ schemes.

Also of interest is the fact that the Malta Companies Act states that, the objective of a SICAV is ‘the collective investment of its funds in securities and in other movable and immovable property or in any of them’. This, combined with the MFSA’s flexible approach to investment restrictions, in the context of Professional Investor Funds, means that the SICAV is a very flexible vehicle which permits a great variety of investment strategies.

Malta INVCOs in More Detail

The INVCO is an investment company with fixed share capital. The Malta Companies Act states that the INVCO is a public company, the business of which is that of ‘investing in funds, mainly in securities, with the aim of spreading investment risk and giving members of the company the benefit of the results of the management of its funds’.

An INVCO is also subject to the following restrictions:

1. The INVCO’s holdings in other companies, that are not investment companies with fixed share capital, must not exceed 15% of the value of its investments;
2. Distribution of the INVCO’s capital profit is prohibited, by its memorandum and articles of association; and
3. The INVCO must not retain more than 15% of income derived from securities.

These restrictions have caused the INVCO to become a less popular form of investment company in Malta when compared to the SICAV.

What are the Main Differences between SICAVs and INVCOs?

The principal differences between a SICAV and an INVCO are as follows:

1. A SICAV is an investment company with variable share capital (commonly referred to as “open-ended”).
2. An INVCO is an investment company with fixed share capital (commonly referred to as “closed-ended”).

The provisions of the Malta Companies Act require that the object of a SICAV Malta are restricted solely to the “collective investment of its funds in securities and in other movable and immovable property, or in any of them”; while those of an INVCO are limited to the investment of its funds “mainly in securities”.

In both cases, business must be conducted with the aim of spreading investment risk and giving shareholders of the company, the benefit arising from the management of its funds.

In addition, a SICAV has a duty to repurchase (i.e. redeem) any of its shares, on request, by a shareholder, and this duty of the SICAV has to be specified in its Memorandum and Articles of Association. 

Finally, as detailed above, the SICAV enjoys considerably higher levels of flexibility when it comes to the investment strategies which it can follow.

Additional Information

For further information about Maltese funds and how they might be ofadvantage to you, please contact our Dixcart office in Malta: advice.malta@dixcart.com.

Alternatively, please speak to your usual Dixcart contact.

This month we are delighted to introduce Steven de Jersey, a Director of the Dixcart Fiduciary Business and CEO of the Dixcart Fund offering in Guernsey.

Steven de Jersey

Director

FCA

steven.dejersey@dixcart.com

Steven is a highly accomplished Director at Dixcart Guernsey, bringing over 30 years of extensive experience in the Guernsey Finance Industry.  As a distinguished Member of the Institute of Chartered Accountants in England and Wales, Steven joined Dixcart in 2018 and assumed a pivotal role in leading the Corporate offering and Dixcart obtaining a Fund licence in 2021.  Accordingly, he actively promotes the corporate, fund and listing services throughout the Dixcart Group alongside the traditional private client services.

With a specialisation in the establishment and administration of diverse domestic and offshore corporate vehicles, trusts investment trusts, companies, limited partnerships, and fund vehicles, Steven caters to the needs of corporate, institutional, and private clients.  His expertise encompasses a wide range of areas, including holding structures, mergers and acquisitions, migrations, restructuring, refinancing, joint ventures, debt and equity, private placements, funds and listings.

Alongside his fund and corporate roles, Steve also oversees private client structures and collaborates closely with local and international advisors in efficiently administering traditional trust and foundation structures with underlying corporate structures.

In addition, Steve frequently travels to the UK and various other jurisdictions around the world, notably South Africa, nurturing vital connections with advisors and clients. He consistently demonstrates his dedication to fostering meaningful professional relationships with a focus on working with clients and their advisors in establishing and administering their structures and building up a trusted and strong working relationship.

Outside of work, Steven enjoys an active life.  He immerses himself in the local rugby and football scene, still actively participating for veteran’s teams as well as being a passionate motorsport enthusiast regularly competing in local events.

In summary, Steven de Jersey is an accomplished professional who combines his extensive expertise in the finance industry with a commitment to building lasting relationships with clients and colleagues.

Dixcart Trust Corporation Limited, Guernsey: Full Fiduciary Licence granted by the Guernsey Financial Services Commission. Guernsey registered company number: 6512.

Dixcart Fund Administrators (Guernsey) Limited, Guernsey: Full Protection of Investor Licence granted by the Guernsey Financial Services Commission. Guernsey registered company number: 68952.

The African Continent offers vast opportunities for inward investment and is of great interest to international investors searching for growth, particularly in relation to venture capital, private equity and infrastructure strategies.

Guernsey has an extensive track record in providing a stable, globally recognised and flexible regime for these strategies and Dixcart has seen a steady stream of enquiries for structuring investments into the African Continent for Private Equity Houses, South African Fund Managers, Family Offices, and groups of mutual interest investors.

This note looks at a Guernsey Investment structure investing into the African Continent using a South African Headquartering structure as an attractive and underutilised alternative to structuring through Mauritius.  It is assumed such an investment structure would generate interest and dividend income, as well as gains from the disposal of shares of underlying subsidiaries.

History

In 2012, South Africa established itself as an attractive “Gateway into Africa”, by amending its tax laws and exchange controls to provide significant incentives for private equity investments, not only into Africa, but also into the rest of the world, using South Africa as a holding jurisdiction.

This became known as the South African Headquarter Company Regime (the SA HQ Regime), which gives effect to these incentives.

Typical Structure

In the below diagram, a Guernsey Investment vehicle (either regulated or unregulated) (Guernsey Investment Co.) sits at the top for international investors to invest into, with a 100% Guernsey subsidiary below that is registered with the South African Revenue Services (SARS) as an SA HQ Company, with underlying wholly owned subsidiaries in the African country where the investment is ultimately being made.

How easy is it to qualify for the tax benefits offered by the SA HQ Regime?

Below is a brief summary of the requirements to qualify for the SA HQ Regime.

• The SA HQ Company must be tax resident in South Africa, which would require it to be effectively managed and controlled in South Africa.*
• Prescribed minimum percentages:
  • At least 10% shareholding in the SA HQ Company by each shareholder80% or more of the cost of the total assets must be attributable to the underlying investment
  • At least 50% of the gross income must comprise of passive income earned from the underlying investment
• An annual election to be treated as a SA HQ Company is required
• Annual reporting (non-onerous) is required.

*Note it is advisable to incorporate the SA HQ Co as a Guernsey company so not to be tied to South Africa should SARS change the Regime.

Tax benefits offered by the SA HQ regime**

• Profits and gains generated in the underlying structure are effectively exempt from SA tax

• Interest received – can be structured to minimise or zeroise tax

• Dividends received – exempt from SA tax

• Royalties received – outside the scope of SA tax

• Capital gains on the disposal of shares in the African Subsidiaries – exempt from SA tax

• Dividends declared to shareholders – outside the scope of SA tax

• Interest paid on borrowings – minimal or no SA tax

• Royalties paid – no SA tax

• Disposal of shares by non-resident shareholders – likely to be outside the scope of SA tax

**Subject to each structure’s circumstances. Independent tax advice from a recognised South African tax adviser will be required. Dixcart can make introductions to appropriate South African tax advisers, if required.

South African Tax Treaty Network

South Africa has more than twice as many Double Tax Treaties as Mauritius, with 102 treaties currently in force (23 of which are from the 54 African countries), compared to Mauritius’ 45 treaties.

Also, as an update, South Africa’s extensive treaty network continues to allow for treaty relief in almost every continent of the world, including Australia, North and South America, Africa and Europe. The Mauritius treaty network is, on the other hand, more focused on specific jurisdictions such as India and China and notably does not have treaties with Australia, Brazil, Canada, Ireland, Japan, Netherlands, New Zealand, Russia, Switzerland and the United States.

What are the Consequences of Disinvestment?

The shares held in the SA HQ Company Regime by the Investment Company would not be deemed as holding assets in South Africa as the SA HQ Company investments must be from outside of South Africa. This means that the disposal of the SA HQ Company’s shares by Investment Company as a non-resident shareholder would not give rise to any South African Capital Gains Tax (CGT) implications for it. However, the shareholders of the Investment Company, when they realise their holding, may be subject to tax in their jurisdiction of residence.

Conclusion

The Guernsey Investment structure for investing into the African Continent via a SA HQ Company is a very attractive and underutilised alternative to the traditional structuring through Mauritius, opening up additional Double Taxation Treaties as well as other operational advantages depending on the circumstances of investors and Investment Managers.

Additional Information

For more information on Guernsey and the SA HQ Company Investment structure for investing into Africa (or indeed anywhere else in the world) and how Dixcart can help, please contact Steven de Jersey at the Dixcart Guernsey office at: advice.guernsey@dixcart.com

Dixcart Trust Corporation Limited, Guernsey: Full Fiduciary Licence granted by the Guernsey Financial Services Commission. Guernsey registered company number: 6512. Dixcart Fund Administrators (Guernsey) Limited, Guernsey: Full Protector of Investor Licence granted by the Guernsey Financial Services Commission. Guernsey registered company number: 68952.

The African Continent offers vast opportunities for inward investment and is of great interest to international investors searching for growth, particularly in relation to venture capital, private equity and infrastructure strategies.

Guernsey has an extensive track record in providing a stable, globally recognised and flexible regime for these strategies and Dixcart has seen a steady stream of enquiries for structuring investments into the African Continent for Family Offices, Private Equity Houses, South African Fund Managers and groups of mutual interest investors.

Structures are bespoke and often include an ESG (environment, social and governance) investment strategy. Both corporate and fund vehicles are typically used, with Private Investment Funds (PIFs) the favoured fund structure.

This note looks at a Guernsey Fund structure with the consideration of a South African Headquartering company (SA HQ Co) subsidiary.  The principal is the same for a Guernsey holding company for international investors where a regulated Fund is not required.

Inward Investment: The Private Investment Fund (PIF)

For Fund Managers, there are compelling reasons to use a Guernsey fund structure due to the speed they can be launched, the competitive cost to establish and maintain, and the practicality of closely aligned time zones.

Guernsey is home to more than 850 investment funds with AUM of £310bn for Promoters, ranging from well-established global investment managers to boutique managers.

The newly revised Guernsey Private Investment Fund (PIF) structure provides incredible flexibility for:

• the speed it can be brought to market
• the streamlining of regulation with reliance being placed on the Designated Administrator, and
• there being three routes to market, tailored to suit different investor types

A PIF is limited to a maximum of 50 investors which is rarely an issue for these funds as they typically accommodate a limited number of investors.  For further information on the three PIF types please click here, for the Qualifying Investor PIF please click here, and for the Family Relationship PIF please click here.

The Qualifying Investor PIF is a quick and efficient way for Fund Managers to access international institutional investors and raise capital for their African strategies.

Whilst Mauritius has often been considered a natural fit for access to the African market due to its treaty networks, the combination of a PIF with a SA HQ Co Structure beneath, offers an attractive alternative for tax efficient investing across much of Africa and is discussed further below.

The South Africa Headquartering Regime (SA HQ Regime)

(For investing outside of South Africa)

The SA HQ Regime was established in 2012 as a “Gateway into Africa” by amending the laws and exchange controls to provide significant incentives for private equity investments.  The SA HQ Co would be a company incorporated in Guernsey but would have effective management and control in South Africa as a 100% subsidiary of the Guernsey PIF and be exclusively “resident” for South African tax purposes so can be registered as a HQ Co and have full access to tax treaty relief.

There should ideally be a single 100% foreign shareholder (i.e., the Guernsey PIF), with no requirement for this shareholder to be from a country with an existing South African Double Tax Agreement. However multiple shareholders, both foreign and local, are permissible.

This must be an active investment company, so the structure needs to affect the foreign investment as soon as possible. The predominant value of the company’s assets must represent interests in non-South African investments, with the income apportionment dependant on the SA HQ Co’s anticipated annual turnover.

The ideal income mix would be a combination of interest, dividends, and service fees. Whilst other classes of income are allowed under the SA HQ Co, these would be dealt with on a case-by-case basis working alongside an independent and recognised tax advisor in South Africa.

Highlights

• Full access to South Africa’s DTA network (23 DTA’s with African countries, 102 worldwide)
• Mitigation of SA transfer pricing provisions to related party transactions, including:
  • Intra-group financial assistance
  • Licensing of IP, involving the SA Investment Company
• SA’s Controlling Foreign Company (CFC) provisions are navigated to result in a nil net income imputation for the SA HQ Co
• The SA HQ Co can elect a functional currency other than the Rand
• The SA HQ Co may not be subject to further scrutiny on an exchange control front

Benefit Synopsis

The exact benefits will depend on the nature and location of each investment, but may be summarised as follows:

• Interest, dividends, and service fees can be received by the SA HQ Co from the foreign investment with a reduced or zero withholding tax, considering South Africa Double Tax Treaty provisions
• Dividends either paid out or received by the SA HQ Co, may be subject to relief, to the extent of either minimization, or a neutral tax effect.  This relief can make up for the lack of a treaty between South Africa and Guernsey
• Disposals of participating holdings by the SA HQ Co are not subject to Capital Gains Tax
• There is no South African tax on an optimally designed structure

Conclusion

The PIF with an SA HQ Co subsidiary provides a robust, flexible and efficient structure for PE Houses and Fund Managers for structuring through, to enable their networks of professional and institutional investors to implement their African strategies.

For single investors and Family Offices where a regulated structure is not required, a Guernsey company above the SA HQ Co provides the same solution.

Additional Information

For more information on Guernsey, and the investment structures for Africa (or indeed anywhere else in the World) and how Dixcart can help, please contact Steven de Jersey at the Dixcart Guernsey office at: advice.guernsey@dixcart.com and visit our website www.dixcart.com

Dixcart Trust Corporation Limited, Guernsey: Full Fiduciary Licence granted by the Guernsey Financial Services Commission. Guernsey registered company number: 6512.

Dixcart Fund Administrators (Guernsey) Limited, Guernsey: Full Protector of Investor Licence granted by the Guernsey Financial Services Commission. Guernsey registered company number: 68952.

Introduction

Guernsey Private Investment Funds (PIFs) are investment funds which are designed to offer a more flexible and streamlined approach to fund structuring and administration for private investors. They are a popular option for private equity investors, high-net-worth individuals and family offices seeking to establish bespoke investment funds.

Establishment, Administration and Regulation – Characteristics and Advantages

A PIF can be set up as either a closed-ended or open-ended fund, with no minimum investment per investor. They can be structured as limited partnerships, companies, or unit trusts, providing investors with a choice of different legal structures.

One of the key advantages of a PIF is the simplified regulatory framework which allows for a faster and more cost-effective set-up process compared to other types of investment fund. PIF’s are also exempt from certain regulatory requirements, such as the need to appoint a Guernsey-based custodian, which further reduces costs and administrative burdens.

All Guernsey PIF’s are subject to regulation by the Guernsey Financial Services Commission (GFSC), which ensures that they meet certain standards of transparency and accountability. The regulatory framework for PIF’s is specifically designed to be flexible and proportionate to the risks involved, which means that PIF’s can be established and managed in a way that suits the specific needs of investors.

In addition to these advantages, PIF’s also offer a range of investment options, including the ability to invest in a diverse range of assets, such as real estate, private equity, and hedge funds. This makes a PIF a popular choice for investors seeking to diversify their portfolios and access alternative asset classes.

General Features of a Guernsey PIF

Overview of general characteristics of a Guernsey PIF;

–           Unlimited offers can be made but no more than 50 legal persons as investors

–           Compatible with AIFMD and UK private placement regimes

–           No requirement for Regulatory approval of the promoter

–           No requirement for offering document / private placement memorandum

–           Audited accounts required

–           Guernsey licensed administrator, such as Dixcart, must be appointed

–           Cannot be listed

–           The GFSC generally aim to approve PIF applications within 24 hours from receipt of the application.

Conclusion

A Guernsey Private Investment Fund is a flexible and efficient option for private investors seeking to establish a bespoke investment fund that meets their specific needs and requirements. Offering a streamlined regulatory framework and a range of investment options, PIF’s are a valuable tool for private equity investors, high-net-worth individuals and family offices looking to grow and diversify their wealth.

For further information on Guernsey PIF’s and Dixcart’s highly competitive fees, and/or for advice regarding their establishment, on-going management and administration, please contact: steve.dejersey@dixcart.com or advice.guernsey@dixcart.com

Dixcart Guernsey (representing Dixcart Trust Corporation Limited and Dixcart Funds Administrators Guernsey Limited, registered Company Numbers: 6512 and 68952) hold a Full Fiduciary Licence and Guernsey Protection of Investors Licence granted by the Guernsey Financial Services Commission

Due to the level of flexibility offered by an Isle of Man Exempt Fund, enquirers often approach conversations with a carte blanche mindset regarding the structuring and operation of the Fund, and often believe that this is a simple solution.

Unfortunately, there are many aspects that need to be considered, some of which require expert guidance and services. It is these factors which I aim to introduce in this short piece. As this article’s name suggests, these are the elements you need to consider when, and ideally prior, to commencing structuring your Fund.

In this article we will examine and highlight some of the following elements:

• Setting up an Isle of Man Exempt Fund
• Isle of Man Exempt Fund Investors
• Isle of Man Exempt Fund Asset Selection
• Isle of Man Exempt Fund Investment Management
• Banking for Isle of Man Exempt Funds
• Tax Treatment of Isle of Man Exempt Funds
• Isle of Man Exempt Fund Costs
• How Can Dixcart Help?

Setting up an Isle of Man Exempt Fund

In this section we will not cover the legislative framework, but rather some of the options open to the Promoter regarding the constitution of their Isle of Man Exempt Fund.

You can read our article An Isle of Man Exempt Fund – What, How and Why? to find out more about the legislative framework and requirements of an Isle of Man Exempt Fund.

The Promoter should first take advice that will underpin their structuring – it will inform them of which entity, or mix of entities, is best suited to achieve their objectives.

There are two common choices regarding structuring:

A Limited Partnership

This is by far the most common route elected, and involves a Private Limited Company acting as General Partner (GP), formed under either the Companies Act 1931 (CA 1931) or Companies Act 2006 (CA 2006). You can find out more about the differences between the two regimes here:

• Formation of Companies in the Isle of Man Companies Act 1931
• Formation of Companies in the Isle of Man – Companies Act 2006

Usually the GP is a CA 2006 company, and the investors are the Limited Partners (LP).

The GP has unlimited liability and engages in the actual administration of the Exempt Fund.

The LPs’ liability is limited to their contributed capital, and they must not engage in the day-to-day management of the Exempt Fund.

Usually the GP engages a third-party investment adviser to manage the assets, however, subject to certain criteria the Promoter of the Isle of Man Exempt Fund can act as an investment adviser to the GP.

A Limited Partnership offers a more traditional structure that would be well suited to Promoters wishing to operate a single Isle of Man Exempt Fund.

A Protected Cell Company

Protected Cell Companies (PCC) were not covered in our foundation article, so I will give a little extra insight here for completeness.

The Isle of Man Protected Cell company can be formed under the CA 1931 or CA 2006. If the PCC is formed under the CA 1931, it is also subject to the Protected Cell Companies Act 2004. If the PCC is formed under the CA 2006, it is governed by the terms of the CA 2006.

Regardless of which Act the is chosen, the PCC must be limited by shares, however those shares can be of nominal or nil value. Further, an existing company that meets the requirements of a PCC can apply to be converted into a PCC.

A PCC is a single legal entity and can make agreements, be sued and own assets in its own right. The PCC can create an unlimited number of Cells, each of which represents ringfenced assets and liabilities which are segregated from the other Cells and the Non-Cellular assets and liabilities i.e. the PCC’s assets and liabilities. Importantly, each Cell does not have separate legal personality, and does not represent a separate legal entity.

In addition to the PCC’s Non-Cellular Ordinary Shares, Cellular shares may also be issued. The Shareholder of Cellular shares can participate in the activities of that Cell i.e. those rights defined by the Articles of Association. For our purposes this means the Investor, subject to meeting certain criteria and being compliant with their Tax Advice, can participate in the Investment Management – again we will consider this further down.

A set of accounts must be maintained, and a Tax Return submitted in respect of each Cell. Further, each Cell must be clearly identifiable as a Cell, and any transacting party must be made aware that they are dealing with a Cell of a PCC.

A PCC may be a good option for those seeking to create several Isle of Man Exempt Funds in a cost efficient manner. This can be for many different reasons, such as:

• Different rounds of investment
• Investing into different economic trade areas
• Structuring the Cells to mature at different dates
• Investing into different or ringfenced asset classes
• Segregating projects e.g. Real Estate development etc.

Whether the Promoter prefers the Limited Partnership or PCC, they will require legal services to draft important constitutional contracts, which will often be tailored to the structure the Promoter required e.g. will the Isle of Man Exempt Fund be an open or closed ended arrangement? Any particular operational requirements or objectives they want to make provision for etc.

This documentation can include, where appropriate, a modified Articles of Association or Partnership Agreement, Service Agreements between the fund administrator and the Promoter, Agreements between the Investment Manager and administrator, notices or declarations etc. All of which have cost implications for the Promoter to bear in mind – we consider costs later.

Dixcart work with legal experts to ensure all constitutional documentation is appropriate, compliant and fit for purpose. This drafting provides the bedrock for not only our relationship with the parties involved, but also delivers certainty and stability to the arrangement.

Isle of Man Exempt Fund Investors

To recap on what we covered in An Isle of Man Exempt Fund – What, How and Why?, an Isle of Man Exempt Fund provides some restrictions concerning the investors:

• There must be no more than 49 investors per Isle of Man Exempt Fund;
• The Isle of Man Exempt Fund cannot be promoted to the public.

The Isle of Man Exempt Fund is not designed to be a retail investment for high volumes of investors, rather it is geared as a private arrangement, describes as one on a ‘family and friends’ basis, for experienced investors. I have purposefully worded the first bullet here to underline the fact that, for example, under a PCC the Promoter can have an unlimited number of Cells and therefore Exempt Funds, so long as each Cell meets the requirements of a bona fide Isle of Man Exempt Fund.

With this in mind, careful consideration needs to be given as to the ‘who’ and ‘how’ of the Isle of Man Exempt Fund – Who will be your target investors and how will you engage them?

Additionally, although not prescribed by statute, the Promoter should consider other relevant features of their target investor’s profile, such as the anticipated average level of investment, if there are minimum investment requirements, which jurisdictions will the investors be based etc.

For example, the Promoter may already work or associate with a group of appropriate individuals or companies, or may be a member of a network, or know appropriate Promoterele. There may be a minimum investment amount of hundreds of thousands set, with a target total investment pot of X million and an estimated rate of return at X%.

In short, the Promoter needs to develop a clear rationale for how the Isle of Man Exempt Fund is promoted, what is expected from the investors and what the investors can expect. Always remembering that public promotion must be avoided absolutely.

Isle of Man Exempt Fund Asset Selection

The regulatory framework offers the Isle of Man Exempt Fund ultimate flexibility with regards to the Promoter’s choice of asset classes, how custody is arranged, auditing etc. However, the Corporate Service Provider will have to meet its obligations regarding compliance, and therefore ensure their statutory duties are met.

Whilst it is not a strict legal requirement, it is best practice for a thorough Private Placement Memorandum (PPM) to be drafted which expressly covers all of the Ts&Cs of the Isle of Man Exempt Fund.

The PPM details the rules and objectives of the Isle of Man Exempt Fund in a similar way to a Fund Prospectus. It is the document that a prospective investor will want to review, in order to fully understand the Isle of Man Exempt Fund and how it operates.

The PPM covers subject matter such as the targeted asset classes, how and when capital is deployed, if the Exempt Fund will accumulate gains or distribute income. Here, the features relating to the selection of assets include:

Geolocation of assets and their custody – The Promoter needs to have a full understanding regarding the situs of the linked assets – where are they located and or held in the world? The rules governing compliance still reign supreme here. If the Promoter is wishing to deploy capital into jurisdictions at higher risk of money laundering, terrorist finance, bribery or corruption, this needs to be considered carefully. Even where the risks can be mitigated by process and procedure, and activity undertaken by the Corporate Service Provider, those structures that carry higher risks also incur enhanced compliance monitoring and controls, which in turn have cost implications.

Nature of the linked assets – where the fund is ‘vanilla’ in nature i.e. carries out a simple investment mandate such as investing into listed stocks and shares etc. such activity does not negatively affect the risk rating. Whereas, if the scope of the Isle of Man Exempt Fund included novel assets, such as Crypto Currencies, the activity could very well carry compliance implications.

It is our current policy that holding NFTs as personal investments can be acceptable. However, to deal with or offer out such assets in a commercial setting would be outside of our risk profile. In the instance of an Exempt Fund this can be a nuanced point and would be taken on the circumstances of the Fund offering, considering the purpose of the Fund and investors amongst other things.

In the instance of an Isle of Man Exempt Fund, where novel assets are being considered, it is best to contact us at an early stage to discuss the acceptability of the prospective asset classes.

Important disclosures – If the promoters have any existing interests either in the assets being transferred into the Isle of Man Exempt Fund, or in the proposed assets to be invested into, such interests need to be disclosed within the PPM e.g. if there is an introducers arrangement, if they hold a position within a company whose shares will be purchased or transferred, if there is a commercial relationship with the vendor of the assets, or any other incentive of any kind, this must be disclosed.

There are many more aspects to be considered, which are of course unique to each Isle of Man Exempt Fund.

Isle of Man Exempt Fund Investment Management

There are no prescriptive legislative requirements pertaining to an Isle of Man Exempt Fund and how it manages its linked assets. However, this isn’t to say that the Promoter has a blank canvas regarding how the Exempt Fund property is managed.

The service provider will have its own appetite for risk, and therefore corresponding policies and procedures that relate to asset management. At Dixcart we offer two options in this regard:

1. The Promoter or Dixcart engage a third-party investment manager;
2. Under certain circumstances, the Promoter can act as investment adviser.

Option no’1 is preferable, as the investment manager will be a qualified and licensed professional who is geared to deliver such services.

Option no’2 is considered on a case-by-case basis and requires that the Promoter applying to be the investment manager has demonstrable experience or expertise in the chosen asset classes. This may flow from their career to date, qualifications etc.

The investment management of the Isle of Man Exempt Fund needs to be considered from outset.

Banking for Isle of Man Exempt Funds

When the Promoter is considering how they bank the Isle of Man Exempt Fund, there are similar considerations to their asset selection. There will be a risk-based approach adopted by the chosen bank and various factors e.g. jurisdictions, asset class etc. will directly influence how acceptable the application for an account will be. This may also result in higher banking costs.

Further, many high street banks simply will not provide services to entities that do not have Isle of Man Directors. Where this is the case, other options may have to be considered i.e. can you bank in other jurisdictions? Does the Promoter have existing banking relationships?

Dixcart have existing relationships with all major banks on the Isle of Man and can facilitate banking services on fully managed entities. Or where Dixcart are not providing Directors, introductions can be made where appropriate.

Tax Treatment of Isle of Man Exempt Funds

In my line of work, I think I may say this sentence more than any other:

‘Have you taken tax advice?’

Tax advice is absolutely and unequivocally at the centre of any offshore planning. As a Corporate and Trust Services Provider, we need to be sure that A) the Promoter is not creating any unknown liabilities for themselves, and B) the Promoter structuring is not going to create any adverse consequences for Dixcart C) the structuring will work as intended.

There are many angles that need to be considered when it comes to the Isle of Man Exempt Funds – here are a few of the considerations:

Assets

The advice will consider where the assets are located. Depending on the treatment of the asset within the jurisdiction and the nature of the assets, there may be tax liabilities e.g. an asset that generates income and gains etc.

The Investors

When entering and exiting the fund, the investors will need to take tax advice to ensure they do not create any unintended tax consequences – an unexpected tax bill could remove any benefit of participating within the Exempt Fund, or even create a loss.

The Promoter

As with the investors, the Promoter will need tax advice to assess their personal circumstances in order to ensure that the structure is the most effective way to achieve their objectives, and that engaging in the structuring will not lead to any unintended tax consequences.

These are only very high-level considerations, and there are likely to be many more. Each Isle of Man Exempt Fund will be unique on the facts, and therefore this complex arrangement demands that all parties’ tax positions are fully considered.

Over our 50+ years, Dixcart have built up a superb network of professionals who can advise on such structures. No matter where you are in the world, we can make appropriate introductions to a local tax adviser.

Isle of Man Exempt Fund Costs

I have already alluded to this earlier within the article, so I will keep this short. I am not dissuading the Promoter of the virtues of the Isle of Man Exempt Fund, as they can be very beneficial, however this does need to be caveated:

Setting up an Isle of Man Exempt Fund may well be a cheaper exercise than establishing other types of Fund, however please note that this is NOT a cheap exercise. We would always suggest that the Promoter also considers the potential use of an investment holding company as an alternative to their Isle of Man Exempt Fund, and whether their objectives can be met in this way.

The legals alone will likely cost in the order of tens of thousands of pounds. The Promoter will also have the Corporate Service Provider’s administrative fees, which are usually calculated as the higher of a minimum cost and a percentage of assets under management. Finally, the Promoter will have to meet any third-party fees – which will thoroughly depend on the nature of the linked assets i.e. if the assets are property such as real estate, you may need property managers, insurance etc.

In summary, the Exempt Fund could have six figure running costs, so this will need to be factored into the likely growth on the Isle of Man Exempt Fund and any tax savings and efficiencies compared to all other financial considerations.

How Can Dixcart Help

Dixcart hold Class 3(11) and 3(12) Isle of Man FSA licenses, which enables us to act as the Functionary of an Isle of Man Exempt Fund.

We do not provide investment management services or tax advice. We cannot give undertakings with regards to the acceptance of banking, draft your legals or deviate from our compliance obligations.

As a Functionary, we provide statutory support to corporate structures and provide management services e.g. provide Directors, accounting services, produce Net Asset Valuations, banking services, liaise with third party service providers etc.

As a Trust and Corporate Service Provider, we have a network of advisory contacts that span all relevant disciplines all over the world. Whilst we cannot provide all required services, we are very well placed to deliver a solution with these partners.

Get in touch

Dixcart provide a single point of contact for the setup and management of Exempt Funds; establishing the fund and organising the formation and management of the underlying assets.

If you require further information regarding Isle of Man Exempt Funds or any of the vehicles discussed, please feel free to get in touch with David Walsh, at Dixcart Isle of Man, to see how they can be used to meet your objectives: advice.iom@dixcart.com.

Alternatively you can connect with David on LinkedIn.

Dixcart Management (IOM) Limited is Licensed by the Isle of Man Financial Services Authority***

***This information is provided as guidance as at 14/12/22 and should not be considered advice. The most appropriate vehicle is determined by individual Promoter needs and specific advice should be sought.

Since joining the EU Malta has become an attractive location to establish a fund. The legislation that was enacted at the time meant that additional fund regimes could be introduced. As a result, Malta has a reputation for being a cost-effective jurisdiction, offering multiple types of funds to choose from, depending on the preferred investment strategy.

All Maltese funds are regulated by the Malta Financial Services Authority (MFSA). Malta benefits from a series of European Union Directives which allow collective investment schemes to operate freely throughout the EU, on the basis of a single authorisation from one member state.

There are various different funds in Malta:

• Professional Investor Funds “PIF”
  •  PIFs are available only to Qualifying Investors
• Alternative Investment Funds
  • A new category recently introduced as a result of the Alternative Investment Fund Managers Directive (AIFMD), and now comprising of retail NON-UCITS (Undertaking for Collective Investment in Transferable Securities) and PIFs. There are 3 categories of AIFs:
  • AIFs promoted to Professional Investors
  • AIFs promoted to Qualifying Investors
  • AIFs promoted to Retail Investors
• Notified Alternative Investment Funds “NAIF”
  • Private Collective Investment Scheme – maximum 15 participants and which does not require a Collective Investment Scheme licence, but needs to be recognised by the MFSA.

Various Fund Structures

Single‐fund and multi‐fund structures are available.

In multi‐fund structures you have separate sub‐funds / compartments with their respective investment themes.

Whereas in multi‐fund (umbrella) structures, an election is made to have the assets and liabilities of each sub‐fund within the umbrella structure treated, for all intents and purposes of law, as separate from the assets and liabilities of each other sub‐fund of that structure (segregation of assets and liabilities).

Need to Instruct a Service Provider

In Malta, each fund requires a  service provider for day-to-day management.

Below is a brief overview of the key roles involved in a fund and their specific duties:

• Board of Directors

The Board, which is nominated by the Founder Shareholders, is responsible for the general affairs of the scheme, including the appointment of a service provider. In order to adhere to the Maltese regulatory requirements, the Board should:

• be composed of no less than three members;
  • one of the Directors must be resident in Malta;
  • one of the Directors must be independent.

The majority of the board meetings must be held physically in Malta. Directors of a NAIF are not subject to a due diligence assessment by the Regulator but will be subject to due diligence assessment by the AIFM (Alternative Investment Fund Manager), assuming responsibility of the NAIF.

• Manager (unless self-managed)

The Investment Manager is the person responsible for the discretionary investment management of the assets of the Fund. This includes; establishing or reviewing investment policy; rules for stock selection; portfolio construction; investment techniques and instruments; as well as negotiation and implementation of the acquisition and disposal of the investments.

This management function includes certain risk management activity, which depends on whether the fund is a UCITS and the AIFMD regime.

• Self‐Managed Schemes

Funds (such as  UCITS, retail non‐UCITS, PIFs or AIFs) which do not appoint an external Investment Manager, are called self‐managed schemes. This self-managed option is only available where funds are bodies corporate (whose structure allows the full assumption of the management function by the administration).

Self‐managed funds must comply with specific provisions applicable to them under MFSA rules (in the form of supplementary licence conditions), including rules on the initial capital requirements of self‐managed schemes.

• Fund Administrator

The Fund Administrator is the person appointed by the Scheme or its Manager, responsible for the provision of administration services to the Fund. Fund administration services typically include the following:

i. preparation of Net Asset Values;

ii. pricing the investment portfolio;

iii. preparation of contract notes;

iv. registrar functions;

v. payment of bills;

vi. reconciliations;

vii. fund accounting;

viii. preparation of financial statements;

ix. performance reporting;

x. compliance reporting.

• Compliance Officer and Money Laundering Reporting Officer.

The NAIF, is required to comply, on an ongoing basis, with the provisions of local laws and any applicable rules and regulations, as well any other applicable regulations in any jurisdictions where it is marketed. In this regard, the NAIF must appoint a Compliance Officer, who, in terms of the local requirements, must be the same Compliance Officer as of the AIF.

The Board of the NAIF is also responsible for compliance with its obligations under the Prevention of Money Laundering and Funding of Terrorism Regulations. The NAIF must therefore also appoint a Money Laundering Reporting Officer.

The Fund must also have the following service providers in place; the MLRO, Compliance Officer, Custodian, Auditor, and Investment Advisor depending on the type of fund.

Case Study

Set-up of a Malta Fund – gathering investors from an EU country and the rest of the world such as; US, Thai, China and Middle East. The proposed fund will focus on purchasing buildings to refurbish, plots of land integrally held in an EU country. During the first year, the first round of investments will be around €20 million. 

• Option A – Launch of a new dedicated collective investment scheme with one sub-fund at launch, structured as a Maltese Notified Alternative Investment Fund (“NAIF”). A dedicated collective investment scheme will provide you with the possibilities to; (i) build your own brand, (ii) launch additional sub-funds in the future under the same brand name, (iii) retain control; you will hold certain voting rights, including the rights to choose the Directors and Service Providers, and (iv) receive income via the founder shareholding.
• Option B – Launch of a new sub-fund under an already existing collective investment scheme. The SICAV  (société d’investissement à capital variable) would be an already existing Notified AIF, and therefore included in the list of NAIFs held by the Malta Financial Services Authority. The launch of an additional sub-fund within an existing structure will improve the time to market and the total expense ratio of the fund, since certain fixed costs (such as Directors’ remuneration and insurance, for instance) are shared between the sub-funds that are launched.

The proposed solutions offer fund promoters such as; an investor, pension fund, insurance company, bank or management company, different cost-effective ways to launch a product and the possibility to access the market quickly.

Elise Trustees, a sister company of Dixcart Management Malta, holds a fund administrator licence and can therefore provide a comprehensive range of services including; fund administration, accounting and shareholder reporting, corporate secretarial services, shareholder services and valuations.

The fund (the Collective Investment Scheme), must itself be licensed by the MFSA.

Additional Information

For further information on Maltese Funds, please do not hesitate to contact Jonathan Vassallo: advice.malta@dixcart.com at the Dixcart office, in Malta or your usual Dixcart contact.

Background

While there has been significant attention paid to the role of public finance, until recently there has been less attention on the critical part, private finance can and must play, if the goals of the Paris Agreement; to limit global warming to below 2 degrees Celsius (preferably 1.5) degrees, and for developed economies to invest $100bn annually – are to be met.

The transition to net zero requires a fundamental rewiring of our global energy system. It will drive disruptive innovation across almost every sector and every region globally.

What Role is Guernsey Playing?

There is a significant opportunity for global private finance to partner with the Guernsey finance industry to drive a proactive sustainability agenda, and to establish Guernsey as the leading global centre for financing the transition to net zero.

This includes traditional sectors such as: trusts and corporates, funds, insurance and investment management, as well as the development of new specialist expertise and support services, for example around ESG, data and fintech.

Key differentiators that enable Guernsey to capture this opportunity are:

• A strong track-record for innovation
• An engaged, supportive regulator
• Fast, easy access to global markets
• A strong, stable, trusted home for private capital
• A trusted home of specialist solutions
• A strong pool of experienced advisors

Dixcart Services

Investment Funds: Dixcart Fund services provide an opportunity for private and corporate clients to establish Guernsey fund structures with a responsive and open regulator. Dixcart aims to support the growth of the Guernsey green investment sector, from a total NAV of almost £5bn in 2022, to a projected £56bn+ by 2040. Wider opportunities exist in assisting green projects providing inward investment into regions such as Sub-Saharan Africa and other geographical areas, encouraging net-zero investment project targets for Guernsey Registered, Authorised and Private Investment Funds

Trust & Company: Dixcart remains one of the leading privately owned, fully independent, client relationship and service level driven trust, corporate and fund services groups in the Crown Dependencies and further afield. Dixcart has a clear goal to develop opportunities to become the leading trusted provider for private clients (particularly Family Offices) and corporate clients, who are sustainably investing within the industry.

The Guernsey Way Forward

Guernsey has committed to a 2050 net zero target, and an interim policy commitment to reduce emissions by 57% of 1990 levels, by 2030. Together with the States of Guernsey, Guernsey Finance has set a clear ambition for Guernsey to play a leading role in driving the transition towards a greener, more sustainable future globally.

Via Guernsey Green Finance, Guernsey has already proven itself to be at the forefront of innovation in the green and sustainable finance sector.

A number of key examples include:

TISE Sustainable – Headquartered in Guernsey, The International Stock Exchange (TISE) hosts one of Europe’s most comprehensive sustainable market segments and is aligned to the UN’s Sustainable Stock Exchange initiative

Guernsey Green Fund – the world’s first regulated product in this space, now channelling close to £5bn into green projects

Guidance and Frameworks – developing industry-first frameworks and guidance including an ESG framework for insurers and the green private equity principles

Collaboration & Engagement – Sustainable Finance Week, took place on the 20^th to 23^rd of September 2022 and brought together global leaders and experts in this field, to act as a catalytic force for innovation and collaboration. The week started with an exciting initiative, with the publication of a Green Fund Report: Guernsey kicks off Sustainable Finance Week with new green fund regime and ‘just transition’ report | We Are Guernsey

Guernsey also actively participates in a number of key international initiatives and networks including; the UN Financial Centres for Sustainability (FC4S) Network, UK Green Finance, and Network for Greening the Financial System (NGFS).

Conclusion

While the challenges are great the solutions exist in Guernsey. For further information regarding Dixcart services and support, and to discuss your requirements and opportunities contact Steven de Jersey, at the Dixcart office in Guernsey: advice.guernsey@dixcart.com