Welcome to Legal Shorts, a short briefing on some of the week’s developments in
the financial services industry.
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If you would like to discuss any of the points we raise below, please contact me or
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Key dates coming up
The 2014 Budget will be delivered on 19 March 2014. Following this, as
announced by the Treasury last week, the Finance Bill 2014 and
accompanying explanatory notes will be published on 27 March 2014. Draft
legislation for this Bill was published in December last year. Key financial
measures included in the Bill are provisions relating to offshore non-UCITS
funds, which will provide greater certainty on the tax residence of AIFs, a
code of practice on taxation for banks, a bank levy review and real estate
investment trusts (REITs).
FCA updates CRD IV webpage
The FCA has updated its webpage on CRD IV harmonised reporting to
announce that a CRD IV reporting test environment is available. The FCA
states that all firms affected by CRD IV can register with the FCA, though
COREP.Queries@fca.org.uk, to take advantage of the test environment for
their reports. The purpose of the test environment is to ensure that the
technical construction and the software used by firms are compatible with
the FCA's systems.
CRD IV delegated Regulation on remuneration
The European Commission has published the text of the delegated
Regulation setting out RTS on criteria to identify ‘material risk takers’.
Material risk takers are staff whose professional activities have a material
impact on an institution's risk profile and are subject to CRD IV
requirements on variable remuneration, including bonuses. The criteria
include a set of 15 standard qualitative criteria relating to the role and
decision-making power of staff members and standard quantitative criteria
relating to the level of total remuneration of the staff member concerned, in
absolute or relative terms. Michel Barnier has said that the Commission will
"remain vigilant to ensure the new rules are applied in full".
FCA guide on commodity markets
The FCA has published a guide to regulating the commodity markets. The
guide explains the regulatory framework and role of the FCA in relation to
the commodity markets and considers how the regulatory framework has
evolved since the last overview in 2007. The guide covers a number of
issues, such as the scope of UK and EU regulation of commodity
instruments, RIEs, MTFs, the FCA’s approach to supervising commodities
firms and new EU legislation having an impact on the framework, such as
MiFID II, EMIR, the new Benchmark Regulation and MAR.
FCA review on implementation of new platform rules
The FCA has published the results of its thematic review of how firms are
preparing for the implementation of the new platform rules. The rules will
come into force in April 2014. The FCA's findings are that, overall,
platforms seem well prepared for the introduction of the rules. One area its
review focused on was whether or not platforms had given enough
consideration to the impact of the changes on their consumers. It found that
firms have put significant effort into trying to understand what the changes
will mean for their consumers, while still considering the impact on their
own business models.
The European Commission has responded to the House of Commons
opinion on its subsidiarity concerns regarding the proposed Benchmark
Regulation. In response to the House of Commons’ opinion that certain
aspects of the Regulation do not comply with the principle of subsidiarity,
the Commission states that it considers it has provided sufficient reasons for
concluding that the proposed regulation can be better achieved at EU level.
The Commission concludes that a European framework for the provision
and use of benchmarks is necessary to ensure the robustness and reliability
of benchmarks provided and used in the EU and to prevent manipulation.
Derivative exposure risk under CRR
The European Banking Authority is consulting on draft RTS on the
minimum margin periods for risk (MPOR) used for the treatment of clearing
members' exposures to clients under the Capital Requirements Regulation.
The draft RTS specify the level of MPOR that clearing members may use to
calculate the regulatory requirements for counterparty credit risk. The
proposed methodology aims at capturing the risk arising from derivatives
exposures to clients adding very limited operational burden on institutions.
This is done by identifying the liquidation periods estimated by CCPs for
margin purposes as proxies for the margin periods of risk. Comments are
invited until 9 May 2014.
CLLS concerns on FCA new dealing commission rules
The City of London Law Society has published its response to the FCA’s
consultation on the use of dealing commission for investment managers. The
response sets out the CLLS’ significant concerns on certain aspects of the
FCA’s proposals, including querying: (i) the FCA’s presentation of the
proposals as a ‘clarification’, whereas the CLLS’ view is that they are
substantive; (ii) the necessity of introducing a new definition of research;
and (iii) the definition of corporate access, which CLLS considers to be too
broad and unnecessary. The FCA intends to publish a policy statement on
the consultation in the second quarter of 2014.
HMRC publishes guidance on UK FATCA implementing regulations
HMRC has published updated guidance notes for the International Tax
Compliance (United States of America) Regulations 2013. The updated
guidance is stated to supersede that published in August 2013 but not to
reflect the final US Treasury FATCA regulations published on 20 February
2014, so further changes to the guidance will be required. The update
guidance relates to financial institutions (section 2), financial accounts
(section 3) and due diligence (section 4). The guidance states that significant
changes will be published as stand-alone updates and that, every six months,
HMRC will publish consolidated guidance, with the next edition due to be
published in August 2014.
This week, David Heathfield, partner and general counsel at Baronsmead
Partners LLP, reports on tax exposures for funds, as follows:
“Tax liability policies can help to deal with a range of scenarios concerning
the potential tax exposures of a fund. The real extent of a fund’s exposure to
tax liabilities often becomes clear at the time of the annual audit. The
exposure becomes an even greater cause for concern in a scenario where the
fund is shrinking and, as a result, the relative tax exposure increasing. The
exposure to funds that trade and realise gains on listed securities is not a new
principle; however, the recent uptick in obtaining insurance solutions for tax
exposures seems to be driven by the frustration of managers who have
grown tired of keeping back large reserves to deal with uncertain and
extremely long-term tax liabilities.
The motivation for taking out insurance can come from a number of
different factors; the need to improve fund cash flow by releasing reserves,
to gain certainty around the operation of a statute of limitations and the
desire to allow for the full distribution of assets to complete the liquidation
If you would like to discuss the above or receive further information
regarding tax exposures for funds, please contact David Heathfield at