Malta Investment Funds

Published 10 May 2017

Maltese Undertakings for collective investment in transferable securities, Alternative Investment Funds and PRofessional Investor Funds

Introduction

The Malta Financial Services Authority (MFSA) is the single financial services regulator in Malta. The MFSA regulates and supervises credit and financial institutions, investment funds and services, trust and insurance business and also houses Malta’s Registry of Companies and International Tax Unit.

Malta is a full member of the European Union and Euro Zone.

The Investment Services Act, Chapter 370 of the laws of Malta, establishes the principal regulatory framework governing investment services and investment funds (“Funds”). As such, any Fund operating in or from Malta is required to procure an appropriate licence from the MFSA.

The current MFSA Investment Services Rules set out a regulatory framework governing the following types of investment funds:

  • retail Funds (including Undertakings for the Collective Investment in Transferable Securities (“UCITS”) and retail Alternative Investment Funds (“AIFs”)); and
  • non-retail Funds (including AIFs and Professional Investor Funds (PIFs) which, given that they are not available to the general public, are allowed more flexibility and are subject to a relatively “lighter” regulatory regime.

A Maltese Fund must be established as a scheme or arrangement which has, as its object, the collective investment of capital acquired by means of an offer of units for subscription, sale or exchange and which, additionally, also possesses any one of the following characteristics:

  • the scheme or arrangement operates according to the principle of risk spreading, with the exception of AIFs marketed to professional investors and PIFs; and either:
  • the contributions of the participants and the profits or income out of which payments are to be made to them are pooled; or
  • at the request of the holders, units are repurchased or redeemed out of the assets of the scheme or arrangement, continuously or in blocks at short intervals; or
  • units are, or have been, or will be issued continuously or in blocks at short intervals.

Taxation

Malta offers a highly efficient tax regime, which adopts double taxation rules (including double taxation treaties with all EU Member States and the United States of America) on a taxed company profits distributed as dividends. Malta companies are taxed at a rate of 35%, however, a full imputation system applies to the taxation of dividends whereby the tax paid by the company is imputed as a credit to the shareholder receiving the dividend to as low as 5%.

Furthermore, as a general rule, Malta Funds are exempt from Maltese income and capital gains tax as long as such Funds fall within the definition of non-prescribed Funds. Under Maltese Law, a prescribed Fund is a scheme, or arrangement, that:

  • Holds, at least, 85% of the total assets in Malta;
  • Is classified as a prescribed fund by the Commissioner of Inland Revenue (“CIR”).

Any Malta licensed Fund which does not satisfy the above criteria is classified as a non-prescribed Fund and, thus, is exempt from Malta tax as outlined below:

  • No Tax on the Net Asset Value (NAV) of the Fund;
  • No withholding tax on dividends paid to non-residents;
  • No tax on capital gains on the sale of units by non-residents;
  • No taxation on capital gains on the sale of shares or units by residents provided these are listed on the Malta Stock Exchange.

A non-prescribed Fund may still receive income which has been taxed – such as dividends from investments in local equities – and such tax is not available for credit or refund at the level of the Fund. Furthermore, as a non-prescribed Fund may be subject to foreign tax on its income, such tax should not be available as a credit or refund neither at the level of the Fund nor at the level of the investor.

 

UCITS

UCITS Schemes are retail Collective Investment Schemes that comply with the UCITS Directive and which are subject to restrictions on the type of eligible assets they may invest in, however this does not preclude UCITS from adopting different investment fund structures.

Structure

A UCITS can be structured as an investment company with variable share capital (SICAV), a contractual fund, unit trust or as a limited partnership.

The most popular vehicle is the SICAV, usually established as an open ended umbrella Fund, therefore having a UCITS comprising of two or more sub-Funds, each with different features such as different investment policies and objectives, different asset class investments and different target clients. Such umbrella Funds may be created provided that the constitutional documents expressly permit it and the offering documentation specifies the investment policy, objectives and restrictions specific to each sub-Fund.

Investment company

UCITS may be set up as limited liability companies and may be established as open-ended SICAVs, which may be formed as a public or private company with variable share capital. However, it must be noted that a UCITS set up as a private company is restricted to the extent to which it can transfer shares and is prohibited from issuing any invitation to the public to subscribe to any of the shares or debentures of the company whilst a public company may offer its shares or debentures to the public. Further, SICAVs allow for the introduction of additional investors without having to wait for the liquidation of an existing investor. In an open-ended UCITS, the value of a share reflects the NAV of the Fund.

SICAVs can be formed as Incorporated Cell Companies, having each incorporated cell within an incorporated cell company as a limited liability company endowed with its own legal personality. SICAVs can operate as a multi-fund structure, whereby the share capital may be divided into different classes of shares, with each class of shares representing a distinct sub-fund of the UCITS.

Contractual funds

Contractual funds established by means of a deed of constitution entered into for such purpose by the UCITS Management Company and the depositary of the UCITS. They are not deemed to be a separate legal entity since they are established through a contractual obligation and can be licensed as a multi-fund or multi-class UCITS. A contractual fund may set up one or more special purpose vehicle, which would be a company and through which the UCITS may gain access to double taxation treaties.

Unit trusts

UCITS can also be constituted by a trust deed between a management company and a trustee. Trustees operating in Malta must be approved by the MFSA whilst trusts established in foreign jurisdictions may be recognized in Malta and it is therefore possible to set up an investment fund as a foreign law trust.

Limited partnerships

Limited Partnerships benefit from a similar legislative framework to the one offered to SICAVs and may be constituted as multi-class partnerships or as multi-fund partnerships and the capital of the partnership can be divided into shares.

Corporate Requirements

The UCITS’ head office and registered office are to be both established in Malta and there must be a minimum of two directors, at least one must be independent from the manager and the custodian and if the Fund is self-managed, it shall have as a minimum of one Maltese resident director.

Service Providers

Manager

A Maltese UCITS may be self-managed or may appoint a UCITS European management company approved by the MFSA. The manager must have satisfactory financial resources and liquidity at its disposal.

Depository

The assets of the UCITS must be entrusted to a depositary for safe keeping. The depositary is also responsible to ensure that the asset manager is abiding by the investment and borrowing powers laid out in the prospectus.

The depositary shall either have its registered office or be established in the UCITS home Member State and it shall be independent from the asset manager and it shall be subject to prudential regulation and ongoing supervision.

Administrator

The UCITS may appoint an administrator who need not be based in Malta, provided such administrator is recognized by the MFSA. The services typically provided include valuation, transfer agency and registrar and corporate secretariat.

Investment Advisor

UCITS are generally not required to appoint an investment advisor. Furthermore, the proposed investment advisor need not be established and regulated in the same jurisdiction as the UCITS, but shall have sufficient financial resources and liquidity at its disposal to enable it to conduct its business.

Prime Broker

The UCITS, or its asset manager, may appoint one or more prime brokers or counterparties. Before entering into an agreement with a prime broker or counterparty, the UCITS or the asset manager on behalf of the UCITS shall exercise due skill, care and diligence on an on-going basis.

Furthermore, the depositary may be appointed as prime broker provided that it must separate the custody activities from its brokerage activities.

Auditor

The UCITS shall appoint an auditor approved by the MFSA and the UCITS shall obtain a signed letter of engagement from its auditor defining clearly the extent of the auditor’s responsibilities and the terms of appointment.

Capital requirements

Third-party managed: EUR 125,000 (if formed as a company)

Self-managed: EUR 300,000

Marketing and Distribution of the UCITS

A Maltese UCITS is required to draw up a prospectus and a short document (on each sub-fund) containing key information for investors, the Key Investor Information Document.

EU membership in 2004 brought the European stamp of approval to Malta‘s financial legislation and it enabled passporting rights for UCITS certified funds. Appropriately certified Funds can be freely distributed and marketed in Malta and other EU jurisdictions by following the notification procedures set out in the UCITS Directive.

 

Alternative Investment Funds

AIFs are essentially funds characterised as such in light of the EC Alternative Investment Fund Managers Directive (‘AIFMD’). Accordingly, and in principle, any Fund targeting professional investors and which is managed by an Alternative Investment Fund Manager (in terms of the AIFMD) or which, in the case of a self-managed fund, holds more than €100million assets under management or which opts-in to benefit from EU/EEA passporting entitlements, would be characterised and regulated as an AIF.

The units or shares of a Maltese AIF may be marketed to professional investors in any another EU or EEA Member State by virtue of the said passporting entitlements and/or to Qualifying Investors having a minimum investment requirement of EUR 100,000.

Structure

An AIF can be structured as an investment company (SICAV or INVCO), a contractual fund, unit trust or as a limited partnership.

Please refer to UCITS’ structure for information about setting up and AIF as a SICAV, contractual fund, unit trust and limited partnership.

Differently from a UCITS Fund, an AIF may be set up as a closed-ended investment company (INVCO), being a public company having a fixed share capital and restricted business. The business of an INVCO has to be restricted to the investment of its funds mainly in securities or operating as a retirement fund. The activities are further restricted as follows: the company’s holdings in any other company not being an investment company with fixed share capital cannot exceed 15% by value of its investments; the distribution of the company’s capital profits is prohibited by its memorandum and articles of association and no more than 15% of the income derived from securities can be retained by the company. However, an INVCO can still operate as a SICAV where the share capital is divided into different classes of shares, with each class of shares representing a distinct sub-fund of the AIF.

Service Providers

Manager

An AIF may only appoint an AIFM, in terms of the AIFM directive as its asset manager to be responsible for the management and investment of its assets. The AIFM is a delegate of the AIF and must be duly authorised to provide such services.

Investment advisor

AIFs ordinarily do not appoint an investment advisor.

The investment advisor may be appointed to advice the AIF’s asset manager in respect of transactions relating to financial instruments, however, it will not have any discretion with respect to the investment and re-investment of the assets of the AIF.

Depositary

The AIFM must appoint a single depositary for each AIF it manages. The depositary shall either be a licensed EU credit institution, a licensed EU MiFID firm authorised to provide the services of safe-keeping of assets or any other entity permitted to act as depositary.

The depositary must be independent from the asset manager and shall not be engaged as the valuer. The depositary may also act as prime broker, acting as counterparty to the AIF, subject to certain conditions being met.

Administrator

An AIF may appoint an administrator, which role may also be carried out by the AIFM.

Valuer

The AIFM or the AIF (if self-managed) shall be responsible for the valuation of the assets of the AIF.

Prime Broker

The AIF or the AIFM on behalf of the AIF may appoint one or more prime brokers or counterparties.

Auditor

An AIF shall appoint an approved (by the MFSA) auditor.

Capital Requirements

The AIF is to have sufficient financial resources at its disposal to enable it to conduct its business effectively, to meet its liabilities and to be prepared to cope with the risks to which it is exposed. It is to maintain an “initial capital” of EUR 300,000 and that the NAV of the AIF is expected to exceed this amount on an ongoing basis.

In addition if the portfolio of the AIF exceeds a value of EUR 250 million, it is required to maintain “own funds” equal to the highest of:

0.02% of the AIF’s portfolio in excess of EUR 250 million capped at EUR 10 million; or

one quarter of the preceding year’s fixed overheads.

Marketing of the AIF

If the AIF is managed and subject to the full AIFM Directive requirements, it can marketed to Professional Investors in the EU/EEA through the passporting regime or Retail Investors under stricter national rules.

 

Notified Alternative investor funds

The MFSA has announced on the 11 February 2016 the launch of a new fund regime for Alternative Investment Funds – the Notified AIF. The Notified AIF does not require licensing by the MFSA and is not subject to ongoing supervision. A list of Notified AIFs in good standing is available on the MFSA’s website.

A Notified AIF takes the most of the features of the licensed AIF but without having to undergo the process of licensing by the MFSA. However, despite that the Notified AIF will not be licensed by the MFSA, the Manager will take the burden of ensuring that the Notified AIF is in compliance with all the respective rules and regulations.

Structure

A Notified AIF may be structured in the form of any of the forms previously discussed under the AIF regime above.

Main Features

The eligibility for a Fund for the process of notification applies to AIFs which are promoted to Qualifying or Professional Investors. Funds falling within the scope of the Notified AIF shall be managed by an AIFM which is authorised and regulated under the AIFMD. Therefore a Notified AIF cannot be self-managed. Furthermore, the Notified AIF cannot be in the form of a Loan Fund and cannot invest in non-financial assets.

The AIFM

Under the Notified AIF’s regime, due diligence requirements and ongoing supervision are the AIFM’s responsibility. Thus, prior to submitting a request for notification, the AIFM shall carry out the necessary due diligence process to ensure that the service providers and governing body of the AIF are “fit and proper” as specified by the MFSA. Moreover, the AIFM shall undertake and ensure that each service provider and governing body of the AIF maintain the “fit and proper” standard on an ongoing basis.

The AIFM should notify the MFSA in the case of any changes in service providers and/or members of the governing body of the AIF and shall keep records of all evidence of, and correspondence regarding, the due diligence process carried out. The AIFM shall further appoint an MLRO for the supervision of the Notified AIF.

 

Professional Investor Funds

PIFs are promoted to Qualifying Investors subject to (which rules also apply to AIFs and Notified AIFs promoted to Qualifying Investors):

  • a minimum investment threshold of EUR 100,000 or the equivalent in any other currency, which investment may not be reduced below this minimum amount by way of a partial redemption; and
  • declares in writing to the manager and the PIF, AIF or Notified AIF that it is aware of an accepts the risks associated with the proposed investment; and
  • meets one or more of the following criteria:
    • a body corporate which has net assets in excess of EUR 750,000 or which is part of a group which has net assets in excess of EUR 750,000 (or in each case the equivalent in any other currency);
    • an unincorporated body of persons or association which has net assets in excess of EUR 750,000 (or the equivalent in any other currency);
    • a trust where the net value of the trust’s assets is in excess of EUR 750,000 (or the equivalent in any other currency);
    • an individual whose net worth or joint net worth with that person’s spouse or civil partner, exceeds EUR 750,000 (or the equivalent in any other currency);
    • a senior employee or Director of Service Providers to the PIF, AIF or Notified AIF.

In the case of an umbrella fund comprising several sub-funds, the relevant investment threshold would apply on a “per scheme” basis rather than on a “per sub-fund basis” such that an investor may spread the investment requirement across various sub-funds.

Where a PIF, AIF or Notified AIF’s base currency is not denominated in Euro, exchange rate fluctuations do not affect the minimum investment threshold provided that, at the time the investment is placed, the threshold was satisfied on the basis of the exchange rate prevalent on the date of such investment.

Before a PIF, AIF or Notified AIF may accept any investment from any investor holding himself out to fall into the respective category, the PIF, AIF or Notified AIF would be required to obtain a completed Declaration Form in which the investor confirms that he has read and understood the mandatory risk warnings and describes why he satisfies applicable requirements. The PIF, AIF or Notified AIF may rely on the declaration provided by the investor – unless it has any information to the contrary.

 

Investment Objectives

As noted above, Funds must have a spreading or diversification of investments. An investment portfolio must accordingly be sufficiently varied and should hold near-cash investments for the dual purposes and benefit of diversifying the Fund portfolio whilst addressing liquidity concerns which may arise when investors liquidate their holdings in accordance with the Fund’s Offering Document.

As regards currency denomination, each Fund must be denominated in one base currency for financial reporting purposes. However, each sub-fund in an umbrella structure may have a different base currency.

 

Composition of a Fund’s Board of Directors

The Board of Directors of an AIF, Notified AIF and PIF must be composed of three or more Directors being independent from the Manager or the management function (in the case of a self-managed Fund), the Administrator and the Custodian, and having experience in the financial services industry.

The proposed Directors of any Fund must satisfy the rigorous “fit and proper” requirements. In approving prospective Directors of a Fund, the following are qualities and qualifications are generally considered:

  • their collective expertise in matters relating to Funds;
  • prior experience of the prospective Directors; and
  • knowledge relating to principles of good corporate governance and regulatory issues.

 

Management of A Fund

A UCITS, AIF and PIF may be self-managed or managed by an external fund manager, while a Notified AIF must always be managed by an AIFM as previously discussed.

Should an external manager not be appointed in respect of a given Fund, responsibility for the portfolio and risk management of the Fund’s assets would be vested in its Board of Directors.

The Board of Directors of a self-managed Fund would typically appoint an Investment Committee – which must be composed of at least three persons who satisfy “fit and proper” tests and an additional competence assessment by the MFSA. The Investment Committee would be collectively responsible for the day-to-day investment management of the assets of the Fund according to the Terms of Reference established by the Board of Directors and approved by the MFSA.

Investment Committee meetings must be held at least quarterly and the majority of such meetings are to be physically held in Malta. Such meetings are deemed to be physically held in Malta if the minimum number of members that form a quorum necessary for a meeting are physically present in Malta.

In effect, a self-managed Fund must be capable of organising and controlling its affairs in a responsible manner and must have adequate operational, administrative and financial procedures and controls to ensure compliance with all regulatory requirements.

Self-managed AIFs are also subject to additional disclosure requirements vis-à-vis the MFSA and investors.

 

Other Functionaries

Apart from having a Board of Directors and an Investment Committee as outlined above, the Fund would be required to set up a proper infrastructure in Malta in order to maintain and operate its licensed activities. The nature and extent of that infrastructure would depend upon the operations proposed to be conducted, but would essentially include:

  • (in the case of a self-managed AIF and UCITS) the constitution of a dedicated and independent risk management function, which would involve the appointment of a risk officer who would be responsible for the implementation and ongoing maintenance of the risk management function which the self-managed AIF and UCITS would be required to constitute;
  • (in the case of a self-managed AIF) the constitution of a valuation function for the AIF so that a proper and independent valuation of the assets of that Fund will be performed in accordance with the AIFMD – such function may be carried out either by an independent external valuer or by the AIF itself but only if the valuation task is functionally independent from the portfolio management function within the AIF;
  • compliance officer, being resident in Malta, who would not be involved in any management or other executive capacity in the Fund, and who would be responsible for monitoring and ensuring the Fund’s adherence to the licence conditions which would be imposed by the MFSA upon the Fund; and
  • a money laundering reporting officer, being one of the Malta resident directors, who would be responsible for monitoring and ensuring the Fund’s adherence to the anti-money laundering and funding of terrorism obligations imposed under Maltese Law. This function may also be outsourced to the Fund Administrator.

In addition, any proposed shareholders/partners, ultimate beneficial owners, directors and officers must be suitable, fit and proper persons. Such persons would, accordingly, be subject to fit and proper tests conducted by the MFSA on the strength of detailed personal questionnaires in the prescribed form which are to be submitted to the MFSA together with ancillary due diligence documentation.

Furthermore, each individual who is proposed for appointment to a technical post (particularly as a member of the investment committee, a risk officer, a compliance officer, a money laundering reporting officer or otherwise in a portfolio management function), would have to demonstrate and substantiate his competence and experience in the relevant post to which he is being proposed for appointment by inter alia submitting a detailed competency form to the MFSA in the prescribed form.

 

The Application Process (ucits, Aif and pif)

The application process initially involves the completion of a specific application form which serves the purpose of outlining all relevant details pertaining to the proposed Fund, including its investment objectives, the identity and competence of each of its directors and officers and the type of investors to whom the fund is expected to be marketed.

In considering applications for licences, the MFSA would give due regard to the following:

  • the degree of protection afforded to the investors;
  • the degree of protection to the reputation of Malta taking into account Malta’s international commitments;
  • the promotion of competition and choice; and
  • the reputation and suitability of the applicant and all other parties connected with the scheme.

With a view to assessing the experience, standing, competence and track record of all parties who will be involved with a Fund, the MFSA would also require substantial disclosure in Personal Questionnaires and (where applicable) Competency Forms for each of the following persons involved in the fund (as the case may be):

  • Directors;
  • Members of the Investment Committee and any portfolio manager (in the case of a self-managed Fund);
  • Risk Manager;
  • Compliance Officer;
  • Money Laundering Reporting Officer; and
  • Founder Shareholders holding 10% or more of the voting shares in the proposed fund.

The application process effectively comprises three distinct phases as follows:

Phase One – Preparatory

  • Submission of a draft application form, together with supporting documentation and payment of non-refundable application fee/s. The draft application form and supporting documentation will be reviewed by MFSA.
  • “Fit and proper” checks begin at this stage. This entails verifying all information provided in the application documents – including contacting overseas regulators (where applicable) and referees.
  • The applicability of the relevant Standard Licensing Conditions is determined by MFSA depending on the nature of the proposed Fund. These licence conditions are very important since they represent the ongoing requirements to which the Fund will be subject, once licensed.

Phase Two – Pre-Licensing

  • MFSA issues its “in principle” approval for the issue of a licence.
  • Submission of signed copies of the finalised application form together with supporting documentation in final format.
  • Finalisation of any outstanding matters and resolution of any other issues raised during the application process.

A licence would be issued as soon as all pre-licensing issues are resolved.

Phase Three – Post Licensing/ Pre-Commencement of Business

The Fund may be required to satisfy a number of specific post-licensing matters prior to formal commencement of business.

Fund Application Fee Supervisory Fee
PIF/AIF

Umbrella: EUR 2,000

Sub-Funds: EUR 1,000 per sub-fund

Umbrella: EUR 2,000

Sub-Funds: EUR 600 per sub-fund

UCITS

Umbrella: EUR 2,500

Sub-Funds: EUR 450 per sub-fund

Umbrella: EUR 3,000

Sub-funds: EUR 500

Additionally, prescribed registration and annual fees are levied by the Malta Registrar of Companies. If the Fund is constituted as a SICAV, a registration fee of EUR 1,750 and an annual fee of EUR 1,000 would be chargeable by the Malta Registrar of Companies.

 

 

 

 

 

 

 

 

 

 

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