Related provisions for INSPRU 3.2.28
Table There are some frequently asked questions about the application of the definition of an open-ended investment company in the following table. This table belongs to PERG 9.2.4 G (Introduction).
Question |
Answer |
|
1 |
Can a body corporate be both open-ended and closed-ended at the same time? |
In the FCA's view, the answer to this question is 'no'. The fact that the investment condition is applied to BC (rather than to particular shares in, or securities of, BC) means that a body corporate is either an open-ended investment company as defined in section 236 of the Act or it is not. Where BC is an open-ended investment company, all of its securities would be treated as units of a collective investment scheme for the purpose of the Act. A body corporate formed in another jurisdiction may, however, be regarded as open-ended under the laws of that jurisdiction but not come within the definition of an open-ended investment company in section 236 (and vice versa). |
2 |
Can an open-ended investment company become closed-ended (or a closed-ended body become open-ended)? |
In the FCA's view, the answer to this question is 'yes'. A body corporate may change from open-ended to closed-ended (and vice versa) if, taking an overall view, circumstances change so that a hypothetical reasonable investor would consider that the investment condition is no longer met (or vice versa). This might happen where, for example, an open-ended investment company stops its policy of redeeming shares or securities at regular intervals (so removing the expectation that a reasonable investor would be able to realise his investment within a period appearing to him to be reasonable). See also PERG 9.7.5 G. |
3 |
Does the liquidation of a body corporate affect the assessment of whether or not the body is an open-ended investment company? |
The FCA considers that the possibility that a body corporate that would otherwise be regarded as closed-ended may be wound up has no effect at all on the nature of the body corporate before the winding up. The fact that, on a winding up, the shares or securities of any investor in the body corporate may be converted into cash or money on the winding up (and so 'realised') would not, in the FCA's view, affect the outcome of applying the expectation test to the body corporate when looked at as a whole. The answer to Question 4 explains that investment in a closed-ended fixed term company shortly before its winding up does not, in the FCA view, change the closed-ended nature of the company. For companies with no fixed term, the theoretical possibility of a winding up at some uncertain future point is not, in the FCA's view, a matter that would generally carry weight with a reasonable investor in assessing whether he could expect to be able to realise his investment within a reasonable period. |
4 |
Does a fixed term closed-ended investment company become an open-ended investment company simply because the fixed term will expire? |
In the FCA's view, the answer to this is 'no'. The termination of the body corporate is an event that has always been contemplated (and it will appear in the company's constitution). Even as the date of the expiry of the fixed term approaches, there is nothing about the body corporate itself that changes so as to cause a fundamental reassessment of its nature as something other than closed-ended. Addressing this very point in parliamentary debate, the Economic Secretary to the Treasury stated that the "aim and effect [of the definition] is to cover companies that look, to a reasonable investor, like open-ended investment companies". The Minister added that "A reasonable investor's overall expectations of potential investment in a company when its status with respect to the definition is being judged will determine whether it meets the definition. The matter is therefore, definitional rather than one of proximity to liquidation". (Hansard HC, 5 June 2000 col 124). |
5 |
In what circumstances will a body corporate that issues a mixture of redeemable and non-redeemable shares or securities be an open-ended investment company? |
In the FCA's view, the existence of non-redeemable shares or securities will not, of itself, rule out the possibility of a body corporate falling within the definition of an open-ended investment company. All the relevant circumstances will need to be considered (see PERG 9.6.4 G, PERG 9.2.8.8G and PERG 9.8.9 G). So the following points need to be taken into account.
|
6 |
Does "realised on a basis calculated wholly or mainly by reference to..." in section 236(3)(b) apply to an investor buying investment trust company shares traded on a recognised investment exchange because of usual market practice that the shares trade at a discount to asset value? |
In the FCA's view, the answer is 'no' (for the reasons set out in PERG 9.9.4 G to PERG 9.9.6 G). |
7 |
Does the practice of UK investment trust companies buying back shares result in them becoming open-ended investment companies? |
In the FCA's view, it does not, because its actions will comply with company law: see section 236(4) of the Act and PERG 9.6.5 G. |
8 |
Would a body corporate holding out redemption or repurchase of its shares or securities every six months be an open-ended investment company? |
In the FCA's view a period of six months would generally be too long to be a reasonable period for a liquid securities fund. A shorter period affording more scope for an investor to take advantage of any profits caused by fluctuations in the market would be more likely to be a reasonable period for the purpose of the realisation of the investment (in the context of the 'expectation' test, see PERG 9.8 and, in particular, PERG 9.8.9 G which sets out the kind of factors that may need to be considered in applying the test). |
9 |
Would an initial period during which it is not possible to realise investment in a body corporate mean that the body corporate could not satisfy the investment condition? |
In the FCA's view, the answer to that question is 'no'. In applying the investment condition, the body corporate must be considered as a whole (see PERG 9.6.3 G). At the time that the shares or securities in a body corporate are issued, a reasonable investor may expect that he will be able to realise his investment within a reasonable period notwithstanding that there will first be a short-term delay before he can do so. Whether or not the 'expectation test' is satisfied will depend on all the circumstances (see PERG 9.8.9 G). |
4The guidance in relation to the recognition requirements in the sections of REC 2 listed in Column A of the table below applies to a RAP in relation to the equivalent RAP recognition requirements listed in Column C and (if shown) with the modifications in Column B.
Table: Guidance on RAP recognition requirements
Column A |
Column B |
Column C Relevant RAP recognition requirement |
REC 2.2.2G to REC 2.2.7G (Relevant circumstances and Outsourcing) |
Reg 13 |
|
REC 2.3.3G to REC 2.3.9G (Financial resources) |
Reg 14 |
|
REC 2.4.3G to REC 2.4.6G (Suitability) |
In addition to the matters set out in REC 2.4.3G to REC 2.4.6G, the FCA will have regard to whether a key individual has been allocated responsibility for overseeing the auction platform of the UK recognised body. |
Reg 15 |
REC 2.5.3G to REC 2.5.20G (Systems and controls and conflicts) and REC 2.5A (Guidance on Public Interest Disclosure Act: Whistleblowing) |
Reg 16 and 17(2)(f) |
|
REC 2.6.26G to REC 2.6.34G (Safeguards for investors) |
Reg 17 |
|
REC 2.7.3G to REC 2.7.4G (Access to facilities) |
The FCA shall have regard to whether a RAP provides access to bid at auctions only to those persons eligible to apply for admission to bid under regulation 16 of the UK auctioning regulations. |
Reg 17(2)(a) and 20 |
REC 2.8.3G to REC 2.8.4G (Settlement and clearing services) |
Reg 17(2)(d) and 21 |
|
REC 2.9.3G to REC 2.9.4G (Transaction recording) |
Reg 17(2)(e) |
|
REC 2.10.3G to REC 2.10.4G (Financial crime and market abuse) |
Reg 17(2)(g) |
|
REC 2.11.3G to REC 2.11.4G (Custody) |
REC 2.11.4G is replaced with the following for a RAP: Where a RAP arranges for other persons to provide services for the safeguarding and administration services of assets belonging to users of its facilities, it will also need to satisfy the RAP recognition requirement in regulation 17(2)(h) of the RAP regulations (see REC 2A.2.1UK). |
Reg 17(2)(h) |
REC 2.12.1G to REC 2.12.2G (Availability of relevant information) |
REC 2.12.1G to REC 2.12.2G are replaced with the following for a RAP: In determining whether appropriate arrangements have been made to make relevant information available to persons engaged in dealing in emissions auction products the FCA may have regard to: (1) the extent to which auction bidders are able to obtain information in a timely fashion about the terms of those emissions auction products and the terms on which they will be auctioned, either through accepted channels for dissemination of information or through other regularly and widely accessible communication media; (2) what restrictions, if any, there are on the dissemination of relevant information to auction bidders; and (3) whether relevant information is, or can be, kept to restricted groups of persons in such a way as to facilitate or encourage market abuse. A RAP does not need to maintain its own arrangements for providing information on the terms of emissions auction products to auction bidders where it has made adequate arrangements for other persons to do so on its behalf or there are other effective and reliable arrangements for this purpose. |
Reg 17(2)(c) |
REC 2.13.3G to REC 2.13.6G (Promotion and maintenance of standards) |
Reg 18 |
|
REC 2.14.3G to REC 2.14.6G (Rules and consultation) |
Reg 19 |
|
REC 2.15.3G to REC 2.15.6G (Discipline) |
Reg 22 |
|
REC 2.16.3G to REC 2.16.4G (Complaints |
Reg 23 |
This table belongs to COLL 3.2.4 R (Matters which must be included in the instrument constituting the fund14)
14Name of scheme |
||
1 |
A statement of: |
|
(1) |
the name of the authorised fund; and |
|
(2) |
whether the authorised fund is a UCITS scheme or a non-UCITS retail scheme. |
|
Investment powers in eligible markets |
||
2 |
A statement that, subject to any restriction in the rules in this sourcebook or the instrument constituting the fund14, the scheme has the power to invest in any eligible securities market or deal on any eligible derivatives market to the extent that power to do so is conferred by COLL 5 (Investment and borrowing powers). 14 |
|
Unitholder's liability to pay |
||
3 |
A provision that a unitholder in an AUT, ICVC or co-ownership scheme12 is not liable to make any further payment after he has paid the price of his units and that no further liability can be imposed on him in respect of the units which he holds. |
|
3A |
A provision that a unitholder in a limited partnership scheme is not liable for the debts or obligations of the limited partnership scheme beyond the amount of the scheme property which is available to the authorised contractual scheme manager to meet such debts or obligations, provided that the unitholder does not take part in the management of the partnership business.12 |
|
3B |
A provision that the exercise of rights conferred on limited partners by FCArules does not constitute taking part in the management of the partnership business.12 |
|
Base currency |
||
4 |
A statement of the base currency of the scheme. |
|
Valuation and pricing |
||
5 |
A statement setting out the basis for the valuation and pricing of the scheme. |
|
Duration of the scheme |
||
6 |
If the scheme is to be wound up after a particular period expires, a statement to that effect. |
|
Object of the scheme |
||
7 |
A statement: |
|
(1) |
as to the object of the scheme, in particular the types of investments and assets in which it and each sub-fund (where applicable) may invest; and |
|
(2) |
that the object of the scheme is to invest in property of that kind with the aim of spreading investment risk and giving unitholders the benefits of the results of the management of that property. |
|
27A |
Where the authorised fund is a qualifying money market fund, a statement to that effect and a statement that the authorised fund's investment objectives and policies will meet the conditions specified in the definition of qualifying money market fund. |
|
[deleted]13 13 |
||
Government and public securities: investment in one issuer |
||
8 |
Where relevant, for a UCITS scheme, a statement in accordance with COLL 5.2.12 R (Spread: government and public securities) with the names of 15the individual states, local authorities 15or public international bodies issuing or guaranteeing the transferable securities or approved money-market instruments15in which more than 35% in value of the scheme property may be invested15. |
|
Classes of unit |
||
9 |
A statement: |
|
(1) |
specifying the classes of unit that may be issued, and for a scheme which is an umbrella, the classes that may be issued in respect of each sub-fund; and |
|
(2) |
if the rights of any class of unit differ, a statement describing those differences in relation to the differing classes. |
|
Authorised fund manager's charges and expenses |
||
10 |
A statement setting out the basis on which the authorised fund manager may make a charge and recover expenses out of the scheme property. |
|
Issue or cancellation directly through the ICVC or depositary of an AUT or ACS12 |
||
11 |
Where relevant, a statement authorising the issue or cancellation of units to take place through the ICVC or depositary of an AUT or ACS directly.12 12 |
|
In specie issue and cancellation |
||
12 |
Where relevant, a statement authorising payment for the issue or cancellation of units to be made by the transfer of assets other than cash. |
|
Restrictions on sale and redemption |
||
13 |
Where relevant, the restrictions which will apply in relation to the sale and redemption of units under COLL 6.2.16 R (Sale and redemption). |
|
Voting at meetings |
||
14 |
The manner in which votes may be given at a meeting of unitholders under COLL 4.4.8 R (Voting rights). |
|
Certificates |
||
15 |
A statement authorising the person responsible for the register to charge for issuing any document recording, or for amending, an entry on the register, other than on the issue or sale of units.16 |
|
1512 | ||
Income |
||
16 |
A statement setting out the basis for the distribution or re-investment of income. |
|
Income equalisation |
||
17 |
Where relevant, a provision for income equalisation. |
|
Redemption or cancellation of units on breach of law or rules |
||
18 |
A statement that where any holding of units by a unitholder is (or is reasonably considered by the authorised fund manager to be) an infringement of any law, governmental regulation or rule, those units must be redeemed or cancelled. |
|
ICVCs: larger and smaller denomination shares |
||
19 |
A statement of the proportion of a larger denomination share represented by a smaller denomination share for any relevant unit class. |
|
ICVCs: resolution to remove a director |
||
20 |
A statement that the ICVC may (without prejudice to the requirements of regulation 21 of the OEIC Regulations (The Authority's approval for certain changes in respect of a company), by a resolution passed by a simple majority of the votes validly cast for and against the resolution at a general meeting of unitholders, remove a director before his period of office expires, despite anything else in the ICVC's instrument of incorporation or in any agreement between the ICVC and that director. |
|
ICVCs: unit transfers |
||
21 |
A statement that the person designated for the purposes of paragraph 4 of Schedule 4 to the OEIC Regulations (Share transfers) is the person who, for the time being, is the ACD of the ICVC.1 7 |
|
ICVCs and ACSs: Charges and expenses12 |
||
22 |
A statement that charges or expenses of the ICVCor ACS12 may be taken out of the scheme property.10 |
|
10ICVCs: Umbrella schemes - principle of limited recourse |
||
1022A |
For an ICVC which is an umbrella, a statement that the assets of a sub-fund belong exclusively to that sub-fund and shall not be used to discharge directly or indirectly the liabilities of, or claims against, any other person or body, including the umbrella, or any other sub-fund, and shall not be available for any such purpose. |
|
Co-ownership schemes: umbrella schemes - principle of limited recourse |
||
22B |
For a co-ownership scheme which is an umbrella, a statement that the property subject to a sub-fund is beneficially owned by the participants in that sub-fund as tenants in common (or, in Scotland, is the common property of the participants in that sub-fund) and must not be used to discharge any liabilities of, or meet any claims against, any person other than the participants in that sub-fund.12 |
|
AUTs: governing law for a trust deed |
||
23 |
A statement that the trust deed is made under and governed by the law of England and Wales, Wales or Scotland or Northern Ireland. |
|
AUTs: trust deed to be binding and authoritative |
||
24 |
A statement that the trust deed: |
|
(1) |
is binding on each unitholder as if it had been a party to it and that it is bound by its provisions; and |
|
(2) |
authorises and requires the trustee and the manager to do the things required or permitted of them by its terms. |
|
AUTs: declaration of trust |
||
25 |
A declaration that, subject to the provisions of the trust deed and all rules made under section 247 of the Act (Trust scheme rules) and for the time being in force: |
|
(1) |
the scheme property (other than sums standing to the credit of the distribution account) is held by the trustee on trust for the unitholders according to the number of units held by each unitholder or, where relevant, according to the number of undivided shares in the scheme property represented by the units held by each unitholder; and |
|
(2) |
the sums standing to the credit of the distribution account are held by the trustee on trust to distribute or apply them in accordance with COLL 6.8 (Income: accounting, allocation and distribution). |
|
AUTs: trustee's remuneration |
||
26 |
Where relevant, a statement authorising payments to the trustee by way of remuneration for its services to be paid (in whole or in part) out of the scheme property. |
|
AUTs: responsibility for the register |
||
27 |
A statement identifying the person responsible under the rules for the maintenance of the register. |
|
ACSs: governing law for a contractual scheme deed |
||
1227A |
A statement that the contractual scheme deed is made under and governed by the law of England and Wales, or Scotland or Northern Ireland. |
|
ACSs: contractual scheme deed to be binding and authoritative |
||
1227B |
A statement that the contractual scheme deed: |
|
(1) |
is binding on each unitholder as if it had been a party to it and that it is bound by its provisions; and |
|
(2) |
authorises and requires the depositary and the authorised contractual manager to do the things required or permitted of them by its terms. |
|
ACSs: ownership of scheme property |
||
1227C |
A statement that, subject to the provisions of the contractual scheme deed and all rules made under section 261I of the Act (Contractual scheme rules) and for the time being in force: |
|
(1) |
the scheme property (other than sums standing to the credit of the distribution account) is held by, or to the order of, the depositary for and on behalf of the unitholders according to the number of units held by each unitholder or, where relevant, according to the number of undivided shares in the scheme property represented by the units held by each unitholder; |
|
(2) |
the sums standing to the credit of the distribution account are held by the depositary to distribute or apply them in accordance with COLL 6.8 (Income: accounting, allocation and distribution); and |
|
(3) |
the scheme property of a co-ownership scheme is beneficially owned by the participants as tenants in common (or, in Scotland, is the common property of the participants). |
|
ACSs: responsibility for the register |
||
1227D |
A statement identifying the person responsible under the rules for the maintenance of the register. |
|
ACSs: UCITS and NURS eligible investors |
||
1227E |
For an ACS which is a UCITS scheme or a non-UCITS retail scheme, a statement that units may not be issued to a person other than a: |
|
(1) |
||
(2) |
||
(3) |
||
1227F |
A statement that the authorised contractual scheme manager must redeemunits as soon as practicable after becoming aware that those units are vested in anyone (whether as a result of subscription or transfer of units) other than a person meeting the criteria in paragraph 27E. |
|
ACSs: UCITS and NURS transfer of units |
||
1227G |
(1) |
A statement whether the transfer of units in the ACSscheme is either: |
(a) prohibited; or |
||
(b) allowed |
||
(2) |
Where transfer of units is allowed in accordance with (1)(b), a statement that units may only be transferred in accordance with the conditions specified by FCArules, including that units may not be transferred to a person other than a: |
|
(b) large ACS investor; or |
||
(3) |
For a co-ownership scheme which is an umbrella, a statement in accordance with (1)(a) or (1)(b) and, where appropriate, a statement in accordance with (2), must also be made for the sub-funds. Where individual sub-funds have differing policies in relation to transfer of units, separate statements are required. |
|
Co-ownership schemes: constitution |
||
1227H |
For a co-ownership scheme, a statement that the arrangements constituting the scheme are intended to constitute a co-ownership scheme as defined in section 235A(2) of the Act. |
|
Co-ownership schemes: operator's powers |
||
1227I |
A statement that the operator of a co-ownership scheme is authorised to: |
|
(1) |
acquire, manage and dispose of the scheme property; and |
|
(2) |
enter into contracts which are binding on unitholders for the purposes of, or in connection with, the acquisition, management or disposal of scheme property. |
|
Co-ownership schemes: winding-up |
||
1227J |
A statement that the operator and depositary of a co-ownership scheme are required to wind up the scheme if directed to do so by the FCA in exercise of its power under section 261X (Directions) or section 261Z (Winding up or merger of master UCITS) of the Act. |
|
Limited partnership schemes: participants |
||
1227K |
A statement that the limited partners, other than the nominated partner, are to be the participants in the scheme. |
|
Limited partnership schemes: resignation of limited partners |
||
1227L |
A statement that the scheme is not dissolved on any person ceasing to be a limited partner or nominated partner provided that there remains at least one limited partner. |
|
Limited partnership schemes: inability to operate as an umbrella |
||
1227M |
A statement that the limited partnership scheme prohibits pooling as is mentioned in section 235(3)(a) of the Act in relation to separate parts of the scheme property, with the effect that the scheme cannot be an umbrella. |
|
3Investment in overseas4 property through an intermediate holding vehicle |
||
328 |
3If investment in an overseas4 immovable is to be made through an intermediate holding vehicle or a series of intermediate holding vehicles, a statement that the purpose of that intermediate holding vehicle or series of intermediate holding vehicles will be to enable the holding of overseas4 immovables by the scheme. |