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JUNE 2012

Legal Focus

63

An EIF can be established as a Gibraltar company, a company which has re-domiciled to Gibraltar, a Gibraltar unit trust, a Gibraltar protected cell company (PCC), a legal entity established in an EEA State or other entity in any form recognised by Gibraltar law. PCCs are useful vehicles for multi-portfolio structures.

Administrators - an EIF must appoint an Administrator who may be an Gibraltar Administrator authorised by the FSC or, as a result of the 2012 amendments, may now also be an Administrator established in the EEA or a jurisdiction that is, in the opinion of the FSC regulated and in accordance with a legislative and regulatory regime that provides the equivalent protection to Gibraltar’s legislative and regulatory regime, or an Administrator that the FSC approves with the consent of the Minister to be used as an Administrator of an EIF whether in general or in respect of a specific Fund.

An Administrator is not prevented from delegating functions to an external third party investment manager, advisor or custodian authorised by law to act as such.

Directors and Corporate Governance – An EIF must have at least 2 Gibraltar resident directors licenced by the FSC. The directors of an EIF must ensure proper governance of the Fund and ongoing compliance with Gibraltar legislation.

Depositary - A Depositary must be a different person from, and independent of, the Administrator and must be authorised by the FSC; usually a credit institution based in Gibraltar.

Auditor – Financial statements of an EIF must be audited annually by an Auditor registered under the Gibraltar Audit Registration Board. Such audit must be conducted in accordance with internationally recognised audit and accounting standards and the audited financial statements deposited at the Administrator’s office (or the Gibraltar office of the Administrator’s agent) and made available to the FSC.

EIF Offer Documents - An EIF must issue a PPM conforming to Fund industry standards which enables potential participants and their professional advisers to make an informed judgment about the merits of participating and reasonably appraise the risks. Such PPM must also be filed with the FSC and may not exclude the jurisdiction of the courts of Gibraltar with respect to an action concerning the fund.

Relocating an existing Fund to Gibraltar as an EIF

Gibraltar legislation enables foreign companies from “relevant States”* to re-domicile their registered offices or seats of registration to Gibraltar. The procedure is generally fast and enables the foreign company concerned to continue in uninterrupted existence.

enabling a fund to relocate to Gibraltar without attracting taxation or exit charges in its former jurisdiction.

A Fund wishing to relocate to Gibraltar as an EIF will have to make such changes to its constitutional documents and/or

documentation as may be required for it to comply with EIF legislation in particular and Gibraltar company law in general. However, as amendments to the Regulations provide that certain non-Gibraltar Administrators may be appointed, a Fund may retain its own reputable Administrator upon relocation to Gibraltar and thus facilitate a smooth migration to Gibraltar.

* “Relevant States” are all EEA States, Anguilla, Bermuda, British Antarctic Territory, British Indian Ocean Territory, Cayman Islands, Falkland Islands, Guernsey, Isle of Man, Jersey, Montserrat, Pitcairn, St. Helena, Turks and Caicos Islands, British Virgin Islands, all States who are members of the British Commonwealth, Liberia, Panama, Singapore, Switzerland, Hong Kong and the USA.

Gibraltar taxation

The current rate of Corporation Tax is 10% levied only on income which accrues and derives in Gibraltar.

Gibraltar has no Capital Gains Tax, Inheritance Tax or Wealth Tax and no tax is imposed on interest earned. There is no withholding tax on dividends as between companies.

Gibraltar has also adopted the EU Parent/ Subsidiary Directive and the EU Directive on Interest and Royalties.

Stamp Duty at ad valorum scale rates is only payable in respect of real estate transactions on property situate in Gibraltar. No Stamp Duty is payable on transfers of shares in Gibraltar companies, except where such transfers are connected with the transfer of real estate situate in Gibraltar. Stamp Duty on share capital, including any increase in share capital and loan capital attracts at a flat rate of £10. LM

contact details: carol Haw

Email: ch@attlev.gi tel: 350 20072150

fund

In the case

of a Fund, it therefore follows that asset owning continues equally uninterrupted thereby

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