Corporate Collective Investment Vehicles: A new company structure for fund managers
The Corporate Collective Investment Vehicle Framework and Other Measures Bill passed Parliament in February. The passing of this legislation means a new company structure, the corporate collective investment vehicle (CCIV), will commence from 1 July 2022.
The new law introduces a Chapter 8B in the Corporations Act 2001 (Cth) (Corporations Act) with core provisions outlining the establishment of CCIVs, as well as operational, tax and regulatory requirements.
This blog summarises the new CCIV, its structure, registration, tax treatment, benefits and considerations for investors and fund managers.
Background on the CCIV
The CCIV concept was first introduced in November 2009 in the Johnson Report. The report recommended that to attract more offshore investment into Australia's managed funds sector, Australia needed a collective investment vehicle that would provide flow-through tax treatment and would be more recognisable to offshore investors than the current managed investment scheme (MIS).
The Government accepted this recommendation in the 2016-2017 Budget where it announced its intention to produce a new regulatory framework for a CCIV regime, and released the first exposure draft legislation for consultation in September 2017.
The CCIV framework was developed considering equivalent vehicles used in other jurisdictions while still resembling the existing MIS structure. The lengthy development time was due to the complexity of integrating a new type of company that essentially has hybrid company and MIS-like features into an existing regulatory landscape. In particular, the tax treatment of CCIVs had fundamental issues which required several drafts and some time to resolve.
What is a CCIV?
A CCIV is an investment vehicle with a corporate structure, having the legal form of a company limited by shares with similar powers, rights, duties and characteristics.
The key features of a CCIV include:
Like a managed investment scheme, a CCIV will have a public company as a director (the corporate director). The CCIV does not need to hold an AFSL to issue securities, however the company director must hold an AFSL authorising it to operate the business.
The CCIV must not have any other officers or employees (other than a director or a receiver, liquidator or a trustee or other person administering an arrangement between the CCIV and another party).
A CCIV will be able to conduct its affairs through sub-funds. Each sub-fund will constitute a distinct and protected part of the CCIV’s business, registered independently with ASIC and segregated from any other sub-fund of the same CCIV. Each sub-fund is comparable to an individual unit trust which is commonly used under the existing MIS regime. Accordingly, investors will hold an investment in a specific sub-fund of the CCIV and receive returns referable to their share of capital in that sub-fund.
The primary governing document for a CCIV is the constitution. Unlike other company types, a CCIV must have a constitution and not rely on the replaceable rules set out in the Corporations Act.
A CCIV can be either retail or wholesale.
o Just one retail client in a CCIV will deem the CCIV a ‘retail CCIV’.
o A retail CCIV is subject to greater disclosure obligations, such as product disclosure statements (PDS) and potentially other regulatory obligations, such as the design and distribution obligations (refer below to ‘Other Considerations’ for further information on disclosure requirements).
o As in the MIS regime, the constitution of a retail CCIV must make adequate provision for certain matters (for example, the handling of complaints made by investors).
o A wholesale CCIV must have a constitution but there are no prescribed contents.
o Retail CCIVs must also have a compliance plan, which meets the legislative requirements (basic prescribed requirements) and a compliance plan auditor.
Structure of CCIVs
The below diagram provides an illustration of the new CCIV framework and how it will operate:
Registering a CCIV
To operate, a CCIV will need to be registered with ASIC, and upon registration:
The CCIV will be a separate legal entity. Although sub-funds will not be separate legal entities, sub-funds will effectively operate as separate protected silos (each with assets and liabilities).
The CCIV must have the expression ‘Corporate Collective Investment Vehicle’ at the end of its name. A sub-fund’s name must also adhere to certain naming requirements under the Corporations Act. Each registered sub-fund will also be given an ‘Australian registered fund number’ (ARFN).
Registration of a subsequent sub-fund occurs via a separate process, and any securities issued by the CCIV must be issued in relation to a specific sub-fund.
A CCIV cannot change company type once registered as a CCIV.
Taxation of CCIVs
The tax treatment of CCIVs will align with the existing tax treatment for 'Attribution Managed Investment Trusts' (AMITs). The intent is for the tax outcomes for an investor (or member) in a CCIV sub-fund to be the same as those of an investor in an AMIT. This includes 'flow through’ treatment and concessional withholding tax rates on certain distributions to eligible foreign investors, although the CCIV is a corporate entity and will pay a legal dividend.
The new legislation introduces rules (in the new Subdivision 195-C to the Income Tax Assessment Act 1997) that deem each CCIV sub-fund as a separate trust for tax purposes. As such, the CCIV (the company) is the trustee of each CCIV sub-fund trust. The deeming principle overrides how the existing tax laws would ordinarily treat a CCIV (as a company) and its members (as shareholders in a company) and has the effect of treating members of the CCIV as the beneficiaries of the CCIV sub-fund trust.
To access these benefits, the sub-funds of a CCIV need to meet the AMIT tax eligibility criteria which broadly include:
Passing the widely-held test
Not being closely-held
Being limited to carrying on passive income activities
Being an Australian resident
Similar to AMITs, CCIVs will be subject to the public trading trust (PTT) provisions which, if failed, can result in the sub-fund being taxed as a company. Broadly, the PTT provisions require 'public' unit trusts to only carry on passive activities, such as investing in land for rental income purposes. That same test will apply to the CCIV's sub-fund.
Benefits of CCIVs
For foreign investors familiar with a corporate regime and would not otherwise invest in a trust-based scheme, a CCIV should provide a viable investment option that achieves the same tax outcomes as in an MIS environment.
Another potential benefit of the CCIV regime is the ability to run multiple sub-funds under the same structure. This may reduce the compliance cost of establishing new trusts for each fund and the ability to offer different products within the same structure (whilst keeping each sub-fund distinct). For example, a Debt CCIV could be created, offering different debt products by issuing different classes of shares (referrable to a different sub-fund). Class A shares could be referrable to a sub-fund with “secured mortgages” while Class B shares could be referrable to a sub-fund with “mezz loans” and so on. From a branding perspective, the CCIV should allow a fund manager the ability to host all its products within one single vehicle (with multiple and distinct sub-funds).
There are several considerations for fund managers and investors to consider when using CCIVs.
As previously noted, a single corporate director operating a CCIV can only ‘operate the business and conduct the affairs of the CCIV’ with authorisation under its AFSL. However, a corporate director will not be authorised to issue securities under this new AFSL authorisation. Rather, the CCIV itself will issue the securities, though exempt from holding an AFSL. Other entities that provide financial services in relation to or on behalf of a CCIV (e.g. an agent of a CCIV), may also require an AFSL in relation to those services.
A CCIV, rather than its corporate director, is generally responsible for giving retail clients a PDS relating to the relevant sub-fund, prior to issuing securities. The sub-fund’s PDS may include further information in relation to the overarching CCIV. A CCIV’s PDS is generally subject to the same content requirements that ordinarily apply to PDSs for other financial products.
This approach is to ensure consistency with the disclosure arrangements that apply to registered schemes. Like the MIS regime, the CCIV regulations also include a category of “simple sub-fund products”, allowing the “simple” PDS regime to apply to such sub-funds.
Tax on income
The taxation of CCIV sub-fund trusts is based on present entitlements to the trust law income of a trust, which is generally not applicable to corporate entities.
The CCIV regime seeks to overcome this by aligning these principles via deeming the income of the sub-fund trust for tax purposes to equate to the accounting profit, therefore a present entitlement to that income is based on the dividends declared (and payable) within three months of year-end. This raises complexity around how a particular dividend will be referrable to an accounting profit of a particular period.
Tax on a CCIV sub-fund differs from a unit trust. For unit trusts, the trustee has the flexibility to determine distributable income or otherwise equate distributable income to taxable income. The CCIV sub-fund has no such discretion and therefore, there is a risk that taxation at the top marginal result can occur where CCIV sub-fund trust makes an accounting loss but has taxable income in a particular period, which may prevent the taxable income flowing through to its members. In addition, this requirement to distribute the entire accounting profit (through declaration of dividends) within three months of year-end, presents practical challenges that do not otherwise arise for AMITs.
Tax on transition
The proposed regime does not articulate how existing funds can transition to the new CCIV regime without creating unintended tax consequences. The absence of any stamp duty relief from the States and Territories is a key consideration for existing managers looking to transition their funds into a CCIV structure.
How we can help
There are several matters to take into consideration in determining whether CCIVs are an appropriate investment vehicle for your business, including administrative requirements, registration, taxation outcomes, client attractiveness and suitability.
Hall Advisory can assist you in making this assessment and provide support in the following areas:
How to establish and structure the CCIV, including strategic advice tailored to your business objectives;
Supporting you through the registration process with ASIC;
Reviewing compliance considerations, including disclosure requirements at the CCIV and sub-fund levels;
Providing ongoing administrative support to operate a CCIV; and
Facilitating training for employees to build their understanding of the new regime and its implications.
If you need support in any of these areas, contact us for a confidential, no-obligation consultation.