Investment Management Staff Issues of Interest
Oct. 12, 2017
The staff in the Division of Investment Management occasionally identifies issues under the Investment Company Act, the Investment Advisers Act or other federal securities laws that may benefit from being highlighted generally for investment companies, investment advisers and their counsel. The staff is providing summaries of these issues below. The summaries are not intended as a comprehensive summary of all legal and compliance matters pertaining to the topics discussed herein. Rather, these responses are intended as general guidance and should not be relied on as definitive. The summaries are not rules, regulations or statements of the Commission, and the Commission has neither approved nor disapproved these summaries.
Questions regarding the Issues of Interest should be directed to (202) 551-6865.
Investment Advisers Act
- Investment Advisers Registered with the Commodity Futures Trading Commission ("CFTC") that Advise Private Funds (November 15, 2012)
- Advisory Contracts - Consent (June 15, 2012)
- Dodd-Frank Act Changes to Investment Adviser Registration Requirements (January 2013)
- Regulation of Investment Advisers: Outline and Staff Views (March 2013)
- Advisory Contracts - Transition for Newly Registered and Registering Advisers (March 30, 2012)
- Persons Who Provide Advice Solely Regarding Matters Not Concerning Securities (March 27, 2012)
Investment Company Act
- After-Tax Return (February 22, 2013)
- Joint Transactions — Portfolio Holdings of Companies Electing Status as Business Development Companies (“BDCs”) (November 27, 2012)
- Affiliated Funds of Funds — Section 12(d)(1) of the Investment Company Act (October 19, 2012)
- Advisory Contracts — Combined Investment Advisory and Service Fees (October 5, 2012)
- Funds Using Tender Option Bond (TOB) Financings (March 29, 2012)
- Business Development Companies — Auditor Verification of Securities Owned (March 12, 2012)
- Rule 18f-3 under the Investment Company Act — Removal of a Class (September 2, 2010)
- Rules 436 and 482 under the Securities Act (August 10, 2010)
Investment Advisers Act
Investment Advisers Registered with the Commodity Futures Trading Commission ("CFTC") that Advise Private Funds
The staff has received inquiries about the ability of certain CFTC-registered investment advisers to private funds to rely on the exemption from registration under the Advisers Act provided by Section 203(b)(6) of that Act, as amended by the Dodd-Frank Act.
Prior to the passage of the Dodd-Frank Act, Section 203(b)(6) of the Advisers Act excluded from the registration requirement in Section 203(a) of the Advisers Act any investment adviser registered with the CFTC as a commodity trading advisor whose business did not consist primarily of acting as an investment adviser, as defined in Section 202(a)(11) of the Advisers Act, and who did not act as an investment adviser to an investment company registered under the Investment Company Act of 1940 ("Registered Fund") or a business development company ("BDC"). We refer to that provision as "Old Section 203(b)(6)." As introduced in December 2009, the legislation that became the Dodd-Frank Act would have amended Old Section 203(b)(6) to further limit the exemption to investment advisers that did not act as investment advisers to private funds. As enacted in July 2010, the Dodd-Frank Act preserved Old Section 203(b)(6), but redesignated it as Section 203(b)(6)(A) and added a new Section 203(b)(6)(B). Section 203(b)(6) now exempts from the requirement to register with the Commission: "(A) any investment adviser that is registered with the Commodity Futures Trading Commission as a commodity trading advisor whose business does not consist primarily of acting as an investment adviser, as defined in section 202(a)(11) of this title, and that does not act as an investment adviser to (i) an investment company registered under title I of this Act; or (ii) a company which has elected to be a business development company pursuant to section 54 of title I of this Act and has not withdrawn its election; or (B) any investment adviser that is registered with the Commodity Futures Trading Commission as a commodity trading advisor and advises a private fund, provided that, if after the date of enactment of the Private Fund Investment Advisers Registration Act of 2010, the business of the advisor should become predominately the provision of securities-related advice, then such adviser shall register with the Commission."
The staff has received inquiries asking whether a CFTC-registered adviser may rely on the exemption provided by new Section 203(b)(6)(B) if it advises a private fund and: (i) advises a Registered Fund or BDC; or (ii) its business was (and remains) predominantly the provision of securities-related advice before the Dodd-Frank Act was enacted, and thus has not "become" predominately the provision of securities-related advice. The staff believes such an adviser — one to a Registered Fund or BDC, or one whose business is predominantly the provision of securities-related advice — is not exempt under Section 203(b)(6)(B). The staff believes that any other reading of Section 203(b)(6)(B) as it applies to an investment adviser to a private fund would not be consistent with the protection of investors or the purposes fairly intended by the policy and provisions of the Advisers Act, as amended by the Dodd-Frank Act. For example, the staff believes that the exemption in Section 203(b)(6)(B) is not available to a CFTC-registered investment adviser who advises a private fund and whose business is not predominately the provision of securities-related advice, if such investment adviser acts as an investment adviser to a Registered Fund or a BDC. The staff is not aware of any suggestion in the legislative history of the Dodd-Frank Act that Congress intended to exempt from the requirement to register as an investment adviser any adviser to a Registered Fund or a BDC. The staff also believes that the exemption in Section 203(b)(6)(B) is not available to a CFTC-registered investment adviser who advises a private fund and whose business was (prior to the enactment of the Dodd-Frank Act) and remains predominately the provision of securities-related advice. [November 15, 2012]
Section 205(a)(2) of the Advisers Act generally makes it unlawful for an SEC-registered adviser to enter into or perform any investment advisory contract unless the contract provides that no assignment of the contract shall be made by the adviser without client consent. The staff recently was asked for its views on when an investment adviser may obtain consent for these purposes with respect to the assignment of an advisory contract that involved two steps. In particular, the assignment involved a transfer of 100% of the adviser’s outstanding voting securities. The securities of the investment adviser were transferred first temporarily (in this case for one day) to an intermediate entity solely for tax purposes, and then to the ultimate purchaser. The requestor asked whether it could obtain consent to both steps in the transaction at the same time, rather than obtaining consent separately ( i.e., obtaining consent to the temporary transfer first, and then obtaining consent to the ultimate transfer).
We advised the investment adviser that it may be sufficient for the adviser to obtain consent to both steps in the transaction at the same time. We noted that regardless of whether the adviser obtains consent at the same time or separately, it must provide sufficient information to its clients to enable them to make an informed decision, and the opportunity for the clients to withhold consent. We also noted that we were taking no position relating to the tax issues raised by the inquiry.
In providing this guidance, we noted certain previously issued related guidance. In particular, the staff previously has clarified that Section 205(a)(2) does not prohibit an adviser’s assignment of an investment advisory contract without client consent. The section merely provides that the contract must contain the specified provision. (See American Century Companies, Inc./J.P. Morgan & co. Incorporated Staff No-Action Letter (12/23/1997) available at http://sec.gov/divisions/investment/noaction/1997/americancentury122397.pdf )
Thus, the assignment of a non-investment company advisory contract without obtaining client consent could constitute a breach of the advisory contract, but not a violation of Section 205(a)(2). [June 15, 2012].
Sections 205(a)(2) and (3) of the Advisers Act generally prohibit registered advisers, and advisers required to be registered, from entering into, extending, renewing, or performing under an advisory contract that fails to include the provisions specified by those sections. In general, this means that an advisory contract must provide that (i) the contract may not be assigned by a registered adviser without the consent of the client and (ii) the registered adviser, if a partnership, will notify its clients of any change in membership within a reasonable time after such change.
As a result of the Dodd-Frank Act changes to the Advisers Act, previously exempt advisers are now required to register with the Commission. Nevertheless, newly registering advisers may be operating under existing advisory contracts that were entered into when such advisers were neither registered nor required to be registered with the Commission. As a result, these advisory contracts may fail to include the specified provisions of sections 205(a)(2) and (3). Advisers may need to seek the consent of their clients to amend the advisory contracts to include these provisions. Obtaining the consent of clients in a timely fashion to amend all existing advisory contracts, however, may be impracticable for some advisers.
The Commission has previously sought to minimize the disruption to the contracts of newly registering advisers when such contracts were permissible at the time they were entered into. See e.g., Investment Advisers Act Release No. 2333 (Dec. 2, 2004) (the Commission adopted rules to grandfather pre-existing contractual arrangements providing for performance-based compensation that were entered into when the adviser was exempt from registration) and Investment Advisers Act Release No. 3372 (Feb. 15, 2011) (the Commission adopted rules to grandfather pre- existing performance fee contractual arrangements that satisfied the requirements of the rule at the time that the contract was entered into ).
Accordingly, the staff would not recommend enforcement action to the Commission under sections 205(a)(2) and (3) of the Advisers Act if an adviser that has applied for registration but was not registered, nor required to be registered, when it entered into its advisory contracts, did not amend an advisory contract to include the provisions required by sections 205(a)(2) and (3), provided that: (i) the adviser undertakes to operate and perform under the advisory contract as if it contained the provisions specified in sections 205(a)(2) and (3), (ii) the adviser discloses such undertaking to the client and, in the case of a private fund client, each investor (or independent representative of the investors) in such client, (iii) the advisory contract was entered into or last amended prior to the submission of the adviser’s application for registration; and (iv) any future amendment of the advisory contract would include the statutory provisions set forth in sections 205(a)(2) and (3). [March 30, 2012]
The staff occasionally is asked about the status under the Investment Advisers Act of 1940 ("Advisers Act") and the Investment Company Act of 1940 ("Company Act") of persons who provide advice solely regarding matters that do not concern securities (collectively, "Non-Securities Matters," and such persons, "Non-Securities Advisers"), including commodities, diamonds, precious metals, coins, and stamps. The staff's analysis of the status of Non Securities Advisers under the Advisers and the Company Acts is set forth below.
An investment adviser, as defined in Section 202(a)(11) of the Advisers Act, generally is required to register with the Commission unless the adviser qualifies for an exemption under Section 203(b) of the Advisers Act or is prohibited from registering under Section 203A of the Advisers Act. Section 202(a)(11) defines "investment adviser," in relevant part, as "any person who, for compensation, engages in the business of advising others, either directly or through publications or writings, as to the value of securities or as to the advisability of investing in, purchasing, or selling securities, or who, for compensation and as part of a regular business, issues or promulgates analyses or reports concerning securities." A Non-Securities Adviser therefore is not an investment adviser as defined in Section 202(a)(11) and would not be required to register under the Advisers Act, even if the Non-Securities Adviser provides advice on Non-Securities Matters to an investment company registered under the Company Act ("RIC") or a company which has elected to be a business development company pursuant to Section 54 of the Company Act ("BDC"). The staff understands that many Non-Securities Advisers to RICs register under the Advisers Act as a precautionary matter because they are not certain that the advice they provide has not or would not concern securities.
A Non-Securities Adviser may meet the definition of investment adviser under Section 2(a)(20) of the Company Act. Section 2(a)(20) of the Company Act defines an investment adviser to an investment company, in part, to include a person who "regularly furnishes advice to such company with respect to the desirability of investing in, purchasing or selling securities or other property, or is empowered to determine what securities or other property shall be purchased or sold by such company." A Non-Securities Adviser to a RIC or a BDC that meets the definition in Section 2(a)(20) of the Company Act is subject to the provisions of the Company Act that apply to an investment adviser. These provisions include, among others, Section 15 of the Company Act governing the investment adviser's contract and Section 17 of the Company Act prohibiting certain affiliated transactions. [March 27, 2012]
Investment Company Act
Effective January 1, 2013, the Health Care and Education Reconciliation Act of 2010 (Pub. L. No. 111-152, 124 Stat. 1029 (2010)) imposed on certain taxpayers a 3.8% tax on net investment income (“3.8% tax”).
The staff recently was asked for its views on whether the 3.8% tax should be included in determining the highest individual marginal federal income tax rate used to calculate after-tax return required by Instructions 4 to both Item 26(b)(2) and (3) of Form N-1A. Since investors that are subject to the highest marginal rate on taxable income (currently 39.6%) are also subject to the 3.8% tax, we believe that registrants should include the 3.8% tax in after-tax return calculations (e.g., use 43.4% as the highest individual marginal federal income tax rate on ordinary income). Similarly, we believe that registrants should include the 3.8% tax in calculating the tax on qualified dividend income and long-term capital gains or any tax benefit resulting from capital losses required by Instruction 7 to Item 26(b)(3) (i.e., use 23.8% as the highest individual federal long-term capital gains tax rate, which is the sum of the 3.8% tax and the 20% maximum long-term capital gains tax rate). [February 22, 2013]
Joint Transactions — Portfolio Holdings of Companies Electing Status as Business Development Companies (“BDCs”)
The staff is aware that certain private funds that plan to elect status as business development companies under the Investment Company Act (“Planned BDCs”), hold securities (typically, debt securities) issued by companies (“Portfolio Companies”) controlled by other private funds (“BDC Affiliates”) advised by the Planned BDC’s investment adviser or an entity controlling, controlled by or under common control with the Planned BDC’s investment adviser. The staff is of the view that if, following the election of BDC status, the BDC holds securities issued by a Portfolio Company controlled by a BDC Affiliate, the BDC and the BDC Affiliate may be participating in a “joint enterprise or other joint arrangement or profit-sharing plan” within the meaning of section 57(a)(4) of the Investment Company Act and rule 17d-1 under that Act (“Joint Transaction”). Section 57(i) of the Investment Company Act makes rule 17d-1 applicable to BDC Affiliates. Under rule 17d-1, a BDC Affiliate may not participate in a Joint Transaction unless an application regarding the Joint Transaction has been filed with the Commission and granted by an order. [November 27, 2012]
The staff recently was asked for its views on the following situation: a fund had separate administration and advisory agreements and its board wanted to combine the terms of each agreement into a single “management agreement” without obtaining shareholder approval of the single agreement under Section 15(a) of the Investment Company Act of 1940. The contractual relationships would be adjusted so that a different entity (i.e., the adviser) would be responsible for providing fund administration services, but the nature and level of services would not decrease. The management agreement would provide for a management fee rate equal to the sum of the advisory fee rate assessed under the existing advisory agreement, and the fee rate payable under the existing administration agreement. The management agreement would be approved by the board of directors of the fund, including a majority of independent directors. The fund would provide written notice of the new arrangement to existing shareholders no later than the mailing of the fund’s next periodic (annual or semi-annual) report, and would include this notice in any prospectus delivered to prospective shareholders, until such time as the prospectus is amended to reflect the existence of the new agreement. The fund’s prospectus fee table would be updated to reflect the new fee rate as part of the fund’s “management fees,” and not as an “other expense” of the fund. A footnote to the fee table breaking out the fee rates attributable to the advisory and administration services also would be included.
The staff previously granted no-action relief to the Franklin Templeton Group of Funds in the reverse situation: the fund sought to unbundle a combined advisory and administration agreement without obtaining shareholder approval based on certain representations.1 In Franklin Templeton, and in this situation, the proposed changes would not reduce or modify in any way the nature or level of the advisory or administration services provided to the fund, and the aggregate advisory and administration fee rate payable by the fund would not exceed the aggregate fee rate payable by the fund under its existing agreements. In Franklin Templeton, and in this situation, the funds asserted that the contractual change described should not require shareholder approval as shareholders would not be disadvantaged by the change and obtaining shareholder approval would not serve a useful purpose and would involve unnecessary costs.
In our view, this situation is consistent with Franklin Templeton. We note that any future material change to the management agreement, including any amendment that results in increasing the overall combined advisory and administrative fee rates for the fund, would require approval by shareholders in accordance with Section 15(a).
Section 12(d)(1) of the Investment Company Act of 1940 ("Investment Company Act") generally limits certain investment companies from purchasing shares of other investment companies, and limits certain investment companies from selling their shares to other investment companies, in excess of certain percentage limitations(“fund-of-funds limitations”). The limitations are intended to address a number of abuses, including: (1) the pyramiding of voting control in the hands of persons with only a nominal stake in the controlled fund; (2) the ability of the controlling fund to exercise undue influence over the adviser of the controlled fund though the threat of large-scale redemptions, and loss of advisory fees to the adviser; (3) the difficulty for investors of appraising the true value of their investments due to the complex structure; and (4) the layering of sales charges, advisory fees, and administrative costs.1
In 1996, Congress enacted Section 12(d)(1)(G) of the Investment Company Act, which provides that the fund-of-funds limitations do not apply if, among other things, the acquired and acquiring companies are part of the same fund group. The intent underlying section 12(d)(1)(G) was to codify certain exemptive orders that the Commission had issued permitting certain funds to purchase shares of other funds in the same family or group of funds without having to comply with the fund-of-funds limitations.2
These exemptive orders typically provided relief from both section 12(d)(1) and section 17(a) of the Investment Company Act. Section 17(a) generally prohibits an affiliated person of a fund, or an affiliated person of the affiliated person, from knowingly selling securities or other property to the fund, or purchasing securities or other property from the fund. Section 17(a) was designed to prohibit self-dealing and other forms of overreaching of a fund by its affiliates.3
Since section 12(d)(1)(G) was adopted, we have received inquiries about whether a fund that intends to operate in reliance on that section is required to obtain relief from section 17(a). Those inquiring have argued that the intent of Congress in codifying this exemptive relief would be frustrated by requiring these funds to obtain section 17(a) relief in order to rely on section 12(d)(1)(G). We agree.
2 See, e.g., T. Rowe Price Spectrum Fund, Inc., Investment Company Act Rel. Nos. 21371 (Sept. 22, 1995) (notice) and 21425 (Oct. 18, 1995) (order); Vanguard Star Fund, Investment Company Act Rel. Nos. 21372 (Sept. 22, 1995) (notice) and 21426 (Oct. 18, 1995) (order). See also MassMutual Institutional Funds, SEC Staff No-Action Letter (Oct. 19, 1998).
3 See Investment Company Mergers, Investment Company Act Rel. No. 25259 (Nov. 15, 2001) (proposing amendments to rule 17a-8 under the Investment Company Act)(citing, among other things, Investment Trusts and Investment Companies: Hearings on S. 3580 Before a Subcomm. of the Senate Comm. on Banking and Currency, 76th Cong. 3d Sess., at 256- 59 (1940)).
An open-end or closed-end investment company ("fund") registered under the Investment Company Act of 1940 ("Investment Company Act") may seek to arrange a secured financing through a special purpose trust (“TOB trust”). In this arrangement, the fund deposits a tax-exempt or other bond into the TOB trust. The TOB trust issues two types of securities: floating rate notes (“floaters” or “TOBs”) and a residual security junior to the floaters (“inverse floater”). The TOB trust sells the floaters to money market funds or other investors and transfers the cash proceeds and the inverse floater to the fund. The fund typically purchases additional portfolio securities with the cash proceeds. The inverse floater entitles the fund to any value remaining after the TOB trust satisfies its obligations to the TOBs holders and allows the fund to call in the floaters and "collapse" the TOB trust. A third-party liquidity provider guarantees the TOB trust's obligations on the floaters.
This arrangement involves a borrowing by the fund and implicates section 18 of the Investment Company Act, which prohibits an open-end fund from issuing any “senior security,” except for a borrowing from a bank with 300% asset coverage, and generally requires a closed-end fund to have 300% asset coverage for any "senior security" that represents an indebtedness. Section 18(g) generally defines a "senior security" as "any bond, debenture, note, or similar obligation or instrument constituting a security and evidencing indebtedness,” and provides that "‘senior security representing indebtedness' means any senior security other than stock.” The staff has addressed TOB financings under section 18 on multiple occasions in reviewing fund registration statements and in the context of other communications with various funds and their counsel. In particular, the staff's position is that a TOB financing involves the issuance of a senior security by a fund unless the fund segregates unencumbered liquid assets (other than the bonds deposited into the TOB trust) with a value at least equal to the amount of the floaters plus accrued interest, if any. [March 29, 2012]
Under section 30(g) of the Investment Company Act and the Commission's Accounting Series Release No. 118 (Dec. 23, 1970), the certificate of independent public accountants ("auditor") contained in the financial statements of investment companies registered under the Investment Company Act must include a statement "that such independent public accountants have verified securities owned, either by actual examination, or by receipt of a certificate from the custodian." Although section 59 of the Investment Company Act does not make section 30(g) applicable to business development companies ("BDCs"), a BDC's auditor plays an important role under the Investment Company Act in preventing a BDC's assets from being lost, misused or misappropriated. Therefore, the staff believes that it is a best practice for a BDC to have its auditor verify all of the securities owned by the BDC, either by actual examination or by receipt of a certificate from the custodian, and affirmatively state in the audit opinion whether the auditor has confirmed the existence of all such securities. [March 12, 2012]
Section 18(f)(1) generally prohibits a registered open-end investment company or series thereof (“Fund”) from issuing any “senior security.” Section 18(g) of the Investment Company Act defines “senior security,” in relevant part, as “any class of a stock having priority over any other class as to distribution of assets or payment of dividends.” Section 18(i) generally requires that every share of stock issued by a Fund “shall be a voting stock and have equal voting rights with every other outstanding voting stock.”
Rule 18f-3 under the Investment Company Act provides a conditional exemption from sections 18(f)(1) and 18(i) of the Investment Company Act to permit a Fund to issue more than one class of voting stock, each subject to certain different expenses and rights as specified in the rule, provided that each class in all other respects has the same rights and obligations as each other class. Rule 18f-3(f)(1) states that a Fund may offer a class of shares with an exchange privilege providing that the shares may be exchanged for certain securities of another Fund. Rule 18f-3(f) permits a Fund, subject to certain conditions, to offer a class of shares that converts to shares of another class of the same Fund. Nothing in rule 18f-3 permits a Fund with multiple classes of shares to separate a class from the other classes and merge that class into another Fund.
The staff is aware of a provision in the organizational documents of certain Funds that purports to authorize each Fund's board of directors or trustees to designate any class of the Fund as a separate series (the “Provision”). The Provision is intended to facilitate the merger of the series created from the designated class into another Fund. The staff takes the view that the Provision conflicts with sections 18(f)(1) and 18(i) of the Investment Company Act. The staff believes that a Fund's designation of any or all classes as separate series pursuant to the Provision creates differences in the rights and obligations of the classes not permitted by rule 18f-3, thus making the rule unavailable to the Fund. [September 2, 2010]
The staff has been asked whether an investment company registered under the Investment Company Act of 1940 ("Investment Company Act") or a company that has elected to be treated as a business development company under the Investment Company Act (each, a "Fund") may include ratings information from a nationally recognized statistical rating organization ("NRSRO") about securities issued by the Fund in an advertisement that complies with Rule 482 under the Securities Act of 1933 ("Securities Act") without including a written consent of the NRSRO that assigned the rating in the registration statement for the Fund's securities.
Rule 436 under the Securities Act, which generally requires the filing of written consents of experts ("Written Consents"), applies to an expert's report or opinion quoted or summarized in a prospectus or a registration statement. Rule 405 under the Securities Act defines "prospectus" as "a prospectus meeting the requirements of section 10(a) of the [Securities] Act," unless the context otherwise requires. An advertisement that complies with Rule 482 is a prospectus under Section 10(b), rather than Section 10(a), of the Securities Act. Pursuant to Rule 482(h), an advertisement that complies with Rule 482 need not be filed as part of the Fund's registration statement. Therefore, Rule 436 does not require a Fund to file a Written Consent for an expert's report or opinion quoted or summarized in a Rule 482 advertisement that is not filed as part of the Fund's registration statement. A Fund would be required to file a Written Consent for an expert's report or opinion quoted or summarized in a Rule 482 advertisement that is filed as part of the Fund's registration statement. [August 10, 2010]