Bermuda’s House of Assembly has passed the Investment Funds Act 2006, which sets out the regulatory regime for public funds and refines the framework for non-public, institutional funds. Under the Act, fund administrators in Bermuda will, for the first time, be licensed. Fund administrators are currently regulated under the Proceeds of Crime Act 1977 but the new Act will bring in fit and proper requirements for staff and ensure standards for systems and procedures. The Act will also introduce a new class of funds, known as “administered funds”, which will benefit from a lighter level of regulation on the grounds that the administrator is based in Bermuda and subject to codes of conduct and fund rules that will ensure the proper level of governance of the fund. Finance Minister Paula Cox said: “Regulation has become more important to the ongoing successful development of this sector. It is important that these service providers are recognised to have proper personnel operating their businesses with the proper systems in order to continue to secure business from all parts of the world.” Other provisions contained in the Bill include:
a clearly-defined distinction between public (retail) funds and institutional or non-public funds;
refinement of powers to exclude funds from particular requirements to provide certainty as to what minimum requirements must be met by fund operators, and to ensure that funds of a ‘private nature’ are not captured;
the inclusion of partnerships, as well as mutual fund companies and unit trusts;
clearer definition of the rules for the appointment of service providers and delegation of powers;
unit trustees to be enabled to hold property in segregated accounts, so as to provide trustees with the same benefits as companies operating with segregated accounts.
The Act also clarifies rules for prospectuses of funds, enhances the powers of the Bermuda Monetary Authority to require more information and to inspect, and more clearly defines the requirements and powers for sharing of information with other regulators. Cox said the legislation would streamline the incorporation process for investment funds and eliminate unnecessary administrative procedures by bringing more clarity and certainty to the authorisation process.
22 November 2006, the European Union’s Article 29 Data Protection working party ruled that SWIFT, the Brussels-based international banking network, had broken EU and Belgian law in secretly allowing the US Treasury Department access to its records after the 11 September terrorist attacks. It called for immediate talks with SWIFT and other financial bodies on data transfers to the US. “SWIFT has to change their system,” said Peter Schaar, head of the working party. “We hope we find ways to find a situation of compliance with EU law.? He said the panel would also contact financial institutions to look for “alternative ways to communicate data” either within or outside of SWIFT’s system. SWIFT, which handles global financial transfers, is a cooperative owned by over 7,000 financial institutions in more than 200 countries that use it. Under European law, companies are forbidden from transferring confidential personal data to another country unless that country offers sufficient protections. The EU does not consider the US to qualify. Belgium’s own data watchdog concluded in September that SWIFT had flouted European privacy rules, calling the disclosure of secret financial transfers “a gross miscalculation?. The federal prosecutor’s office launched a preliminary investigation to ascertain whether there were grounds for prosecution. But Belgian Prime Minister Guy Verhofstadt said he would seek no action against SWIFT but would push for EU-US negotiations to create common privacy rules. In a recent European Parliament hearing, members criticised SWIFT and the organisations that oversaw it, saying they had ignored privacy rules by failing to inform European institutions or citizens about the information transfers. Several called on SWIFT to move its operations in the US to Canada to prevent the US government from breaching European civil liberties. Others demanded to know why they had learned of the transfers from newspaper reports rather than from the European Central Bank, which knew of the transfers as early as June 2002 SWIFT has argued that cooperation with the US Treasury Department in counterterrorism investigations had been “absolutely legal” and essential in helping authorities prevent terrorist attacks. The EU and US started talks in November to establish common guidelines over data privacy rules. Divergent transatlantic views over data privacy rules also featured in talks over air passenger data sharing, on which the EU and the US clinched a deal last year.
28 November 2006, the upper chamber of the Dutch parliament approved a package of measures to introduce cuts in corporate income taxes and lower the domestic dividend withholding tax rate. The measures were to take effect on 1 January 2007, The new law includes the following important amendments:
the corporate income tax rate will be reduced from 29.6% to 25.5%;
the domestic dividend withholding tax rate will be reduced from 25% to 15%. The applicable rate will generally be lower under relevant tax treaties. For instance, provided certain conditions are met, a zero rate is available for dividends from the Netherlands to the US;
introduction of a group interest box, under which the balance of intercompany interest may be taxed at an effective tax rate of 5%. When combined with the abolishment of capital tax, this will make Dutch companies attractive for group financing activities;
introduction of a patent box regime, under which profits derived from qualifying intangible assets may be taxed at an effective tax rate of 10%;
relaxation of participation exemption requirements such that the participation exemption will apply to shareholdings of at least 5% of a subsidiary. This does not apply where the subsidiary holds more than 50% of non-free portfolio investments and is not subject to an adequate tax rate;
rules on the limitation of interest expenses are streamlined and existing limitations on the deduction of interest expenses for certain hybrid loans are eliminated.
Under the Bill, losses can be carried back one year and carried forward nine years. Furthermore, grandfathering will cover existing tax losses for a specific period. It should be noted that the Dutch authorities have asked the EU Commission to confirm that the reduced tax rates for the patent and interest boxes are in line with EU law. If EU approval is granted during 2007, the patent and interest boxes will be introduced with retroactive effect to 1 January 2007. The Netherlands already has the advantage of no capital tax, an extensive treaty network, and tax authorities that are willing to give rulings and provide advance certainty (except for potentially abusive situations).