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How to Start a Hedge Fund in the Us 2018

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How to Start a Hedge Fund in the Us 2018 HOW TO START A HEDGE FUND IN THE US 2018 THE OFFSHORE DIMENSION ERIC FLAYE, OF CONYERS, SHINES A LIGHT ON THE BVI HEDGE FUND STRUCTURING OPTIONS FOR US SPONSORS any of the initial questions US counsel In contrast, off shore entities (such as a typical BVI will have for a sponsor looking to launch fund) classifi ed as corporations for US tax purposes can a new hedge fund will be about the an- eff ectively ‘block’ any such att ribution of UBTI as they ticipated investor base, as that factor is are not tax-transparent vehicles. If the BVI fund earns fundamental in determining the appro- any UBTI, the character of that income is not passed- priate fund structure. through or otherwise att ributed to its investors. Th is MTh e three key categories of investors are: (i) taxable ‘blocking’ eff ect is the principal reason tax-exempt US US investors; (ii) tax-exempt US investors; and (iii) non- investors generally prefer to invest in off shore funds. US investors. If the anticipated investor base will principally be Non-US investors: such investors generally prefer to Eric Flaye practices in comprised of taxable US investors, as a general propo- invest in off shore funds classifi ed as corporations for the corporate department sition the US sponsor may rely exclusively on domestic US tax purposes so as to keep out of the US tax net (and in the British Virgin Islands jurisdictions (such as Delaware) for all of its potential avoid any att endant requirement to fi le US tax returns). office of Conyers Dill & structuring needs. Pearman. Flaye moved However, if the anticipated investor base also includes IS AN OFFSHORE FUND MERITED? to the BVI in 2015 with tax-exempt US investors and/or non-US investors, and Having identifi ed potential tax-exempt US investors seven years of onshore such investors represent a material source of prospective and/or non-US investors within the anticipated investor transactional experience, subscription capital, the US sponsor may need to include base, the sponsor will then have to determine whether firstly with Herbert Smith an off shore fund within the broader structure to cater to an off shore fund is warranted from a cost-benefi t per- Feehills in Sydney and then the particular tax considerations of such investors. Th is spective, taking into account: (i) the potential capital with Sullivan & Cromwell is where the British Virgin Islands (the BVI) – with its to be raised from such investors; (ii) the preferred tim- in London. He has a broad unique set of well-regarded, innovative and cost-com- ing of such capital contributions (e.g. are such investors corporate practice with petitive hedge fund products – comes to the fore. important seed/anchor investors, or can they instead be particular expertise and courted and the off shore fund established at a later stage focus on investment funds, TAX CONSIDERATIONS OF THE INVESTOR BASE once fund AuM hits critical mass?); and (iii) the incre- mergers and acquisitions, Taxable US investors: such investors generally prefer to mental formation and maintenance costs of the off shore joint ventures, and capital invest in domestic US hedge funds classifi ed as partner- structure and their expected impact on the fund’s per- market transactions. ships for US tax purposes (most commonly Delaware formance returns and track record. limited partnerships or limited liability companies). Th e BVI is oft en regarded as the leading blue-chip jurisdiction from the perspective of this value equation Tax-exempt US investors: such investors include cer- as it is a comparatively quick, painless and cost-competi- tain US pension plans, foundations, endowments and tive domicile in which to establish off shore hedge funds. other charitable organisations, and are a material source of hedge fund capital. Passive investment income earned OFFSHORE HEDGE FUND STRUCTURES by such investors is generally exempt from US federal Th ere are three principal structuring options for an off - income tax; however, this exemption does not extend to shore hedge fund. Th e appropriate structure will depend ‘unrelated business taxable income’ (UBTI). In the con- primarily on the particular trading strategy, investment text of hedge funds, the key potential source of UBTI is and tax considerations of the investor base, and pre- earnings arising from debt-fi nanced investment activi- ferred tax treatment of the investment manager’s perfor- ties (i.e. trading on margin). If a tax-transparent entity mance compensation. such as a typical domestic hedge fund earns any UBTI, its investors shall be treated as though they earned such Side-by-side structure: taxable US investors invest UBTI themselves, which may result in US tax liabilities directly in a domestic fund which in turn invests in an for those otherwise tax-exempt US investors who invest underlying portfolio of securities. Tax-exempt US inves- in the domestic fund. tors and non-US investors invest directly in an off shore 8 HFMWEEK.COM LEGAL fund which in turn invests in a separate underly- offshore feeder fund which in turn invests all ing portfolio comprised of the same or substan- its assets in the same offshore master fund. The tially similar securities as the domestic fund. offshore master fund then invests in one com- This structure necessitates at least two new fund BVI OFFERS A DIVERSE mon underlying portfolio of securities. This entities, which are separate but operate in paral- structure necessitates at least three new fund lel under common management. SET OF OFFSHORE entities. A side-by-side structure affords the manager A master-feeder structure results in one com- flexibility to implement different trading strate- HEDGE FUND PRODUCTS, mon trading strategy and common performance gies for the domestic and offshore funds, which results, and avoids duplicative trading and ad- may be beneficial if onshore and offshore inves- SUITABLE FOR THE ministration work. While such structures are tors have different investment and/or tax con- commonly used by the more established hedge siderations. Side-by-side structures are often FULL GAMUT OF funds, they are comparatively complex and ex- comparatively cheap to establish and simple pensive to establish and may not be appropriate to administer from an accounting perspective; SPONSORS FROM START- if onshore and offshore investors have different however, they can require duplicative trading investment and/or tax considerations. (or splitting of trade tickets) and administration UPS ALL THE WAY UP work and result in different performance results Mini-master structure: taxable US investors between the domestic and offshore funds, and TO INSTITUTIONAL invest directly in a domestic master fund. Tax- may not be appropriate or efficient for funds with exempt US investors and non-US investors in- trading-intensive strategies. Side-by-side struc- MANAGERS vest directly in an offshore feeder fund which in tures are often used for fund-of-funds strategies turn invests all its assets in the same domestic but are otherwise relatively uncommon. master fund. The domestic master fund then invests in one common underlying portfolio of Master-feeder structure: taxable US investors invest securities. This structure necessitates at least two new directly in a domestic feeder fund which in turn invests fund entities. all its assets in an offshore master fund. Tax-exempt US A mini-master structure results in one common trad- investors and non-US investors invest directly in an ing strategy and common performance results and is HFMWEEK.COM 9 HOW TO START A HEDGE FUND IN THE US 2018 LEGAL cheaper to establish than a master-feeder structure. The regulation by the BVI Financial Services Commission. key downside is that if any US regulatory restrictions ap- In contrast, a typical private equity or venture capital ply on the maximum number of investors in the domes- fund is closed-ended and therefore generally not subject tic master fund, the number of investors in the offshore to direct regulation in the BVI. feeder fund will also be counted towards this threshold. BVI funds may be incorporated as business compa- In contrast, no such investor look-through applies to nies or formed as limited partnerships or unit trusts. The master-feeder structures. business company, being a corporate vehicle, is by far the most common structure for BVI hedge funds. BVI HEDGE FUND PRODUCTS BVI regulated fund products potentially suitable A typical BVI hedge fund will be open-ended in nature for use as offshore hedge funds include Professional – by virtue of providing its investors the right to with- Funds, Private Funds, Approved Funds and Incubator draw capital at periodic intervals by reference to the net Funds. The following table outlines some of their key asset value of the fund – and therefore will be subject to characteristics. BVI HEDGE FUND PRODUCTS Professional Fund Private Fund Approved Fund Incubator Fund Suitability Suitable for a full-fledged hedge Suitable for significant ‘friends and Each suitable for start-up/emerging managers looking to prove their fund family’ type offerings investment strategy and establish a track record in the most cost-efficient manner Popular for ‘friends and family’ type private offerings and managed account structures Maximum AuM Uncapped Uncapped US$100 million US$20 million Maximum Number of Investors Uncapped 50 (or potentially uncapped 20 20 provided the offer is made on a “private basis”) Investor Qualification Requirements “professional investors” only None None “sophisticated private investors” only Minimum
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