Investment funds are governed by the Bahamas Mutual Funds Act, 1995 and the Bahamas Mutual Funds Regulation, 1995. In 2003 were adopted the Investment Funds Act, 2003 (the "IFA") and its accompanying regulations, the Investment Funds Regulations, 2003 (the "IFR"). These acts formulate the concept of SMART Fund based on English common law. Regulation and supervision of the funds activities are carried out by the Securities Commission of the Bahamas (the "Commission").
The SMART Fund is a specific mandate alternative regulatory test fund suitable for innovative structuring of investment funds. It was previously used mostly family businesses and private investors. To attract a broader range of investors there has been developed seven SMART fund templates.
The most popular among the investors are SMART funds 002 and 004 (for small number of investors) and SMART fund 007 for super qualified investors.
The investors (maximum 10 people) must comply with the criterion of an ‘Eligible Investor’, namely to be either a physical person with an annual income of more than 200 000 USD or a legal entity (its beneficiary must also meet the criterion of an ‘Eligible Investor’). The fund may be licensed and launched same day through an Unrestricted Fund Administrator or 72-hour response through the Commission.
It is a reliable investment tool for a narrow circle of business partners or family. It is effectively used for the separation of the family business from the rest of the family assets. Investors (no more than 5 people) are not limited by annual income.
There is a minimum investment of US$500,000 and it is possible to delegate fund administrator authority to any respectable person in any jurisdiction allowing the fund to get a very qualified administrator. The fund is profitable for well-qualified corporate investors, and for those who are engaged in professional asset management, has an active investment activity at the international level. The number of investors vary from 1 to 50.
The funds are virtually exempt from all dues and payments. The country has a rule that investments to the fund are not taxed and inheritance applies the reduced rate. The funds are highly protected from claims of shareholders, the compulsory share of inheritance and foreign legislation (e.g., tax legislation).
If the investment fund has shares for sale to a prospective investor in the amount of at least 50 thousand dollars, or these shares listed on the Stock Exchange (including the OTC market), as reported by the "Commission" in the local newspaper "Gazette ", it may be engaged in business activities in the territory of the Bahamas. There is no external audit and exchange control. Investors have the rights to full privacy and to transfer fund to another jurisdiction.
Luxembourg is a traditional European investment center. It has been recently ranked second as the place with the biggest number of registered investment funds, just after the USA. It is characterized by having necessary business infrastructure and the advantages of onshore jurisdiction.
There are the most common collective investment tools of Luxembourg:
These funds can be implemented only for professional institutional investors, for example insurance companies and banks.
Form of business organization
Société d’Investissement à Capital Variable (SICAV) – is a legal entity in a form of joint-stock company; its capital according to regulations is equal to the amount of capital account.
Société d’Investissement à Capital Fixe (SICAF) – is a legal entity with fixed capital; it can act like a public fund or a closed one.
These funds are tax-neutral. They are exempt from an income tax, a capital gains tax and withholding tax. The annual subscription tax (tax d’Abonnement) is paid; its rate is 0,05% on their net assets (it is paid quarterly). The investments to other collective investment funds are excluded from the basis of taxation. The capital duty is charged at a fixed rate of 1250 euro per operation.
SICAF and SICAV activity is possible only after approval by Commission de Surveillance du Secteur Financier (CSSF). The depositary bank supervises the property of funds and controls share operations.
The minimal capital is 1.25 million euro and is paid during 6 months from the day of CSSF approval. Keeping the register of investors, calculating net assets etc. should take place in Luxembourg. The decisions about investments can take place out of Luxembourg.
There is a law on anti-money laundering: financial brokers have to identify personalities of fund investors.
The audited accounts are published every year including the calculation of net asset value. The unaudited accounts are published every six months.
SICAF and SICAV’s shares can be freely sold within the European Union.
The new Law on Specialised Investment Funds (SIFs) was adopted on 13 February 2007 and offers greater flexibility and broader sphere of investors.
Form of business organization: company with fixed or variable capital (SICAV/SICAF), unit investment fund (fonds commun de placement (FCP)), partnership limited by shares (SCA), special limited partnership (SCSp), limited liability company. This list is open.
SIFs are permitted to invest in all types of assets including securities or money market Funds; real estate; private investment capital; infrastructure; private equity and hedge Funds.
SIFs are exempt from a corporate income tax, a capital gains tax and withholding tax. The annual subscription tax (tax d’Abonnement) is paid; its annual rate is 0,01% on their net assets (it is paid quarterly). The investments to other collective investment funds are excluded from the basis of taxation. The capital duty is charged at a fixed rate of 1250 euro per operation.
The treaties on avoidance of double taxation are applicable.
SIFs are under permanent supervision of Luxembourg‘s Financial Market Authority (CSSF). CSSF approves constituent or emissive documents (and all the changes), the appointment of directors, portfolio managers, depositary and auditors.
On receipt of the approval from CSSF the minimum amount of net assets for 12 months shall be 1,25 million euro. Fund’s assets must be valued at fair market value.
The annual accounts should be audited by an independent auditor. It must be published within six months after the end of the financial year. Furthermore, SIF in Luxembourg must prepare a sale prospectus which contains all the necessary information necessary to enable investors to carry out an informed evaluation of the investment policy and the risks of investing.