Investment company Act of 1940 — Sections 18(a)(1)(B) and 61(a)(1)
RESPONSE OF THE OFFICE OF CHIEF COUNSEL
IM Ref. No. 2009612946
Your letter dated June 4, 2009, requests our assurance that we would not recommend enforcement action to the Commission against American Capital, Ltd. ("ACAS") under Section 18(a)(1)(B) or Section 61(a)(1) of the Investment Company Act of 1940 (the "Act") if ACAS declares and makes cash distributions to its shareholders as described in your letter.
You state that ACAS is a closed-end investment company that has elected to be regulated under the Act as a business development company ("BDC"). You state that shares of ACAS's common stock are listed and traded on NASDAQ. You state that ACAS has both publicly offered and privately placed debt obligations outstanding.
You state that ACAS qualifies for pass-through tax treatment as a regulated investment company ("RIC") under Subchapter M of the Internal Revenue Code of 1986, as amended (the "Code"). You state that ACAS has met the requirements imposed upon RICs under the Code to avoid corporate level federal income taxes on income and gains by distributing such items to its shareholders as dividends. You represent that Section 852(a) of the Code requires a RIC to distribute to its shareholders at least 90% of its investment company taxable income for its tax year as taxable dividend distributions to qualify for the dividends-paid deduction afforded to a RIC.1 You represent that in determining investment company taxable income, Section 852(b)(2)(B) of the Code provides that the taxable income of the RIC is adjusted by, among other things, the deduction for dividends paid during the year.2 You also represent that Section 855(a) of the Code generally provides that if a RIC makes a distribution after the tax year to which it relates, the distribution is treated as if made during the prior tax year, provided that the distribution is both declared by the extended date for filing the tax return for the earlier tax year and generally is paid to shareholders by the end of the later tax year. You state that if a RIC loses its RIC status, subsequently qualifying for RIC status can be difficult.
You state that for its tax year ended September 30, 2008 (the "2008 tax year"), ACAS had investment company taxable income estimated at more than $760 million, and that after paying an estimated $460 million as cash distributions, approximately $300 million undistributed investment company taxable income remains. You state that for this undistributed investment company taxable income to be considered paid for the 2008 tax year, ACAS must declare this amount as a distribution by June 15, 2009 and pay it to shareholders by September 30, 2009. You also state that for the 2008 tax year, ACAS had net long-term capital gain of approximately $155 million and elected to retain this amount as a "deemed distribution" and pay at least $50 million federal income tax on behalf of its shareholders.3
You state that if ACAS fails to satisfy the Code's 90% distribution requirement by September 30, 2009, ACAS will cease to qualify for pass-through tax treatment as a RIC for the 2008 tax year. You state that ACAS's investment company taxable income and net long-term capital gain, regardless of distributions previously made to shareholders, instead would be subject to the current federal corporate tax rate applicable to a Subchapter C corporation of up to 35%. You state that ACAS's federal income tax obligation for the 2008 tax year would equal approximately $320 million.4 You also state that shareholders would not be allowed a tax credit for any federal income tax paid by ACAS. You state that distributions to individual ACAS shareholders would be taxed at the current rate of 15%, the rate applicable to dividends received from a taxable Subchapter C corporation.
You state that as of March 31, 2009 and December 31, 2008, ACAS's asset coverage of its senior securities representing indebtedness was less than 200%, and that such asset coverage may be less than 200% on the date that ACAS declares its final distribution for the 2008 tax year. Accordingly, you state that Section 18(a)(1)(B), as modified by Section 61(a)(1), could prohibit ACAS from declaring a cash distribution on its common stock. You also state that Section 18(a)(1)(B) explicitly excludes dividends payable in stock of the issuer from this prohibition.
You state that a distribution payable solely in stock of the issuer is not eligible for the dividends-paid deduction under the Code. You state that on January 7, 2009, the Internal Revenue Service released Revenue Procedure 2009-15 (the "Revenue Procedure"), which temporarily allows a RIC to satisfy the Code's distribution requirement by paying nearly all of its distribution in stock of the issuer in place of cash. You state that a stock distribution qualifies under the Revenue Procedure if each shareholder may elect to receive his or her entire distribution in either cash or stock subject to a limitation on the aggregate amount of cash to be distributed to all shareholders, which must be no less than 10% of the amount of the aggregate declared distribution (the "10% cash minimum").5 You state that the Revenue Procedure is available to a RIC that has issued common stock publicly traded on an established securities market in the United States. You state that the RIC must calculate the number of shares to be distributed to any shareholder based upon a formula utilizing market price that is designed to equate in market value the shares to be received by a shareholder with the amount of cash that otherwise would have been received. You also state that the Revenue Procedure applies solely to distributions declared on or after January 1, 2008 and declared with respect to a taxable year ending on or before December 31, 2009.
You state that ACAS requests no-action relief to permit it to declare and distribute the 10% cash minimum for distributions of investment company taxable income or net long-term capital gain made in reliance on the Revenue Procedure. You represent that for the 2008 tax year, ACAS would distribute approximately $300 million of remaining investment company taxable income to its shareholders on or before September 30, 2009. You state that approximately $30 million of this distribution would be in cash, representing the 10% cash minimum, and approximately $270 million would be in newly issued stock. You state that in the absence of the requested relief, ACAS would lose its pass-through RIC status and consequently would pay at least $260 million more in federal income tax. You also state that shareholders would be unable to claim a credit for either the at least $50 million federal income tax on the 2008 tax year net capital gain that ACAS has elected to pay on their behalf or the at least $260 million federal income tax on the 2008 tax year investment company taxable income.
Section 61(a) of the Act states that Section 18 of the Act applies to a BDC to the same extent as if it were a registered closed-end investment company, except as specified therein. Section 61(a)(1) states that the asset coverage requirement of Section 18(a)(1)(A) and (B) applicable to BDCs is 200 percent. Section 18(a)(1)(B) makes it unlawful
for any registered closed-end company to issue any class of senior security, or to sell any such security of which it is the issuer, unless…..provision is made to prohibit the declaration of any dividend (except a dividend payable in stock of the issuer), or the declaration of any other distribution, upon any class of the capital stock of such investment company … unless, in every such case, such class of senior securities has at the time of the declaration of any such dividend or distribution … an asset coverage of at least 300 per centum after deducting the amount of such dividend [or] distribution.
Section 18(h) of the Act defines asset coverage of a class of senior security representing an indebtedness of an issuer as "the ratio which the value of the total assets of such issuer, less all liabilities and indebtedness not represented by senior securities, bears to the aggregate amount of senior securities representing indebtedness of such issuer."
You state that ACAS requests no-action relief from Section 18(a)(1)(B) to the extent necessary to permit it to declare and distribute the 10% cash minimum for distributions of investment company taxable income or net long-term capital gain in reliance on the Revenue Procedure. You state that maintaining pass-through tax treatment as a RIC and avoiding the federal excise tax imposed by Section 4982 of the Code would be in the best interest of both the senior security holders and the shareholders. You state that with the requested relief, ACAS would have approximately $230 million more in aggregate net assets available for the benefit of the senior security holders and shareholders. You state that in the absence of the requested relief, ACAS would lose its pass-through RIC status, and consequently shareholders would not be able to claim a tax credit for the at least $50 million federal income tax on the 2008 tax year net capital gain that ACAS has paid on their behalf or the at least $260 million federal income tax on the 2008 tax year investment company taxable income that ACAS would incur. You also state that shareholders would be subject to taxation at the shareholder level for the amount of distributions for the 2008 tax year that they have received.
Based on the facts and representations stated in your letter, and without necessarily agreeing with your legal analysis, we would not recommend enforcement action to the Commission against ACAS under Section 18(a)(1)(B) of the Act or Section 61(a)(1) of the Act if ACAS declares and pays the 10% cash minimum for distributions of investment company taxable income or net long-term capital gain. This response represents our view on enforcement action only, and does not express any legal conclusions on the issues presented.6
James M. Curtis
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