Private Funds In Focus (Winter 2014)

Year End Update - Compliance Certain Upcoming U.S. Regulatory Deadlines

The list below briefly summarizes various regulatory obligations and filing deadlines for private fund managers under U.S. rules.

What To Do?

Who Must Do It?

Deadline

File updated Form ADV Part 1

SEC-registered advisers and (for certain portions) exempt reporting advisers

90 days after adviser's fiscal year-end

File updated Form ADV Part 2A

SEC-registered investment advisers

90 days after adviser's fiscal year-end

Deliver updated Form ADV Part 2A (or summary of changes) to clients

SEC-registered investment advisers

120 days after adviser's fiscal year-end

Send annual privacy notice to certain investors (generally individuals, 401(k) and IRA investors)

Most advisers

Annually

Annual compliance review

SEC-registered advisers

Annually

File Schedule 13G

Beneficial owner of 5% or more of a class of voting equity of U.S. public company

February 14, 2014

File Schedule 13F

Manager of $100 million or more in U.S. listed equities

No later than 45 days following end of each calendar quarter (i.e., the next filing is due February 14, 2014)

Form 13H Annual Filing

Large trader of U.S. listed equities who trades 2 million shares or $20 million on any day or 20 million shares or $200 million in any month

February 14, 2014 (if a filer's Form 13H has become inaccurate during any calendar quarter, the filer should make an amended filing "promptly" following the end of such quarter)

File Form PF

SEC-registered adviser managing at least $150 million in gross assets under management attributable to private funds

Hedge fund advisers with at least $1.5 billion in gross AUM: Quarterly within 60 days after the end of each fiscal quarter

Private liquidity fund advisers with at least $1.5 billion in gross AUM: Quarterly within 15 days after the end of each fiscal quarter

All other private fund advisers with at least $150 million in gross AUM: Annually within 120 days after the end of each fiscal year

File Form D Amendment

Funds that have an ongoing offering of interests more than a year after Form D filing

Anniversary date of the previous Form D filing (and other-than annually in the event certain information on the form has changed)

CFTC Form CPO-PQR (and NFA Form PR)

Applies to all CFTC-registered commodity pool operators (CPOs)

Large CPOs (AUM attributable to CFTC Rule 4.7 funds≥ $1.5 billion): Quarterly, within 60 days of each calendar quarter-end

All other CPOs: Quarterly, within 60 days of the quarter-end for each of Q1, Q2 and Q3 and annually, within 90 days of each calendar year-end

CFTC/NFA Form CTA-PR

Applies to all registered commodity trading advisers (CTAs), regardless of size

Quarterly, within 45 days of each quarter-end

File financial statements for private funds operated under CFTC Rule 4.7 with NFA

Applies to all CFTC-registered CPOs

Annually, within 90 days after fiscal year-end

CFTC Rule 4.13(a)(3) annual affirmation filing

Any private fund continuing to rely on the CFTC Rule 4.13(a)(3) "de minimis" exemption

Annually, within 60 days of the end of each calendar year

CFTC Rule 4.14(a)(8) annual affirmation filing

Any CTA continuing to rely on the CFTC Rule 4.14(a)(8) exemption

Annually, within 60 days of the end of each calendar year

File TIC B Monthly and Quarterly Forms

Generally applies to U.S. managers and/or U.S. funds with reportable claims or liabilites in excess of $50 million (or $25 million with respect to an individual country)

Monthly Forms - No later than 15 days following the end of a month

Quarterly Forms - No later than 20 days following the end of a calendar quarter

File TIC Form S

U.S. adviser to report at least $50 million of transactions (i.e., purchases, sales, redemptions and new issues) in long-term securities with non-U.S. residents by U.S. clients in any month

Monthly

File Form SLT

U.S. adviser to report at least $1 billion of (i) long-term securities issued by U.S. clients to non-U.S. investors plus (ii) non-U.S. long-term securities owned by U.S. clients

Monthly

Year End Update - Tax Certain U.S. Tax Filings and Elections

The list below briefly summarizes certain U.S. tax filings and elections (and related deadlines) relevant to private investment funds, their investors and related persons. For key FATCA action items and deadlines, please see "FATCA Update" below.

What To Do?

Who Does It?

Deadline

Section 83(b) Filings

If an individual filed a Section 83(b) election with the IRS during 2013, that individual must attach a copy of the filed election to his or her U.S. federal income tax return for 2013.

The due date (including any applicable extensions) of that individual's 2013 U.S. federal income tax return

Form 8832 Filings

If an entity filed an IRS Form 8832 (an entity classification election) with respect to 2013, that entity must attach a copy of the Form 8832 with its U.S. federal income tax return. If that entity is not required to file a U.S. return, all direct or indirect owners of that entity generally must attach a copy with their U.S. federal income tax returns, if they are otherwise required to file U.S. returns.

The due date (including any applicable extensions) of that person's 2013 U.S. federal income tax return

"Qualified Electing Fund" (QEF) Elections

If a fund has invested in a non-U.S. portfolio company that is (or may be) a "passive foreign investment company" (PFIC), the first U.S. person in the PFIC's ownership chain (e.g., the fund itself if a U.S. fund, or each U.S. investor if a non-U.S. fund) may wish to file a QEF election with respect to that PFIC. The QEF election must be filed with that U.S. person's U.S. federal income tax return for the first year in which the fund invested in the PFIC.

For PFICs acquired in 2013, the due date (including any applicable extensions) of that U.S. person's 2013 U.S. federal income tax return

"Electing Investment Partnership" (EIP) Elections

Funds that satisfy certain requirements may opt out of otherwise mandatory tax basis adjustments (including those that may result from transfers of interests in a fund) by filing an EIP election. The EIP election must be filed with the fund's U.S. federal income tax return for the first year in which the election is intended to apply.

For funds wishing to be treated as EIPs with respect to 2013 (and subsequent years), the due date (including any applicable extensions) of the fund's 2013 U.S. federal income tax return

Certain U.S. Tax Filings with respect to Non-U.S. Entities

U.S. funds and their U.S. investors may be required to make certain filings with respect to non-U.S. entities owned by the fund. These filings may include, without limitation:

IRS Form 5471 (with respect to certain non-U.S. corporations, including "controlled foreign corporations," owned by the fund);

IRS Form 926 (with respect to certain contributions of property to a non-U.S. corporation);

IRS Form 8621 (with respect to certain non-U.S. corporations that are PFICs);

IRS Form 8865 (with respect to certain non-U.S. partnerships);

IRS Form 8858 (with respect to certain non-U.S. disregarded entities); and

IRS Form 8938 (with respect to certain non-U.S. financial assets).

Generally, the due date (including any applicable extensions) of the U.S. person's 2013 U.S. federal income tax return

Report of Foreign Bank and Financial Accounts (FBAR)

With very limited exceptions, a U.S. person who has a financial interest in, or signatory authority over, one or more non-U.S. financial accounts must report those accounts annually to the U.S. Department of the Treasury, unless the aggregate value of all such accounts did not exceed $10,000 at any time during the year. Under current law, private equity funds and hedge funds themselves generally are not considered "financial accounts." Nevertheless, funds and their managers may be required to file FBARs if they have non-U.S. bank or other financial accounts.

Must be filed electronically (no paper filings...