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Walkers is a leading international law firm. We advise on the laws of Bermuda, the British Virgin Islands, the Cayman Islands, Guernsey, Ireland and Jersey.
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Cayman Islands: Update on Automatic Exchange of Information – New CRS Compliance Form

As mentioned in our previous advisory, the DITC has provided the industry with the advance release of its new CRS Compliance Form in an industry advisory. This form must be completed annually by all Reporting Financial Institutions ("RFIs") and Trustee Documented Trusts for the same period as their CRS returns.

Deadline

The deadline for the submission of the CRS Compliance Form to the DITC is expected to be 15 September each year. However, for the 2019 reporting period the deadline will be 31 December 2020, to give sufficient time to collect the information required once the DITC Portal opens, which is expected to be during the fourth quarter of 2020. The DITC will apply automatic penalties where this deadline is not met.

Click to view advisory

UK Commercial Real Estate and the Resurgence of JPUTS

Jersey property unit trusts (or “JPUTs”) have for many years been a very popular vehicle through which to acquire and hold UK commercial real estate. Some have speculated that the days of the JPUT were numbered due to UK tax reforms, but that prediction has not come to fruition and JPUTs continue to be a popular vehicle for the acquisition and holding of UK commercial real estate.
 
Walkers’ Jersey team has recently seen an increasing number of instructions coming from South East Asia and the Middle East for the establishment of new JPUTs to acquire and hold UK commercial real estate, as well as existing holding structures being restructured to include JPUTs as a consequence of the recent changes to the UK capital gains tax regime.

Click to view advisory

 

 

 

Jersey property unit trusts (or “JPUTs”) have for many years been a very popular vehicle through which to acquire and hold UK commercial real estate. 

Some have speculated that the days of the JPUT were numbered due to UK tax reforms, including the abolition of seeding relief from UK Stamp Duty Land Tax in 2006 and changes to the UK capital gains tax regime in 2019, but that prediction has not come to fruition and JPUTs continue to be a popular vehicle for the acquisition and holding of UK commercial real estate.
 
Walkers’ Jersey team has recently seen an increasing number of instructions coming from South East Asia and the Middle East for the establishment of new JPUTs to acquire and hold UK commercial real estate. We have also seen existing holding structures being restructured to include JPUTs as a consequence of the recent changes to the UK capital gains tax regime. 

This short note explores the background and the recent history of JPUTs.

What is a JPUT?

A JPUT is a Jersey trust through which legal title to the trust fund (usually UK commercial real estate) is held by one or more Jersey-based trustees. The trustee(s) hold the trust assets on trust for the benefit of unitholders in accordance with the terms of a trust instrument (which must be in writing). 

Each unitholder has an undivided beneficial interest in the trust fund of the JPUT and the rights of the unitholders (for example their rights to distributions) are set out in the trust instrument. 

The JPUT issues units to the unitholders in much the same way as a company issues shares to its shareholders and those units are transferable, meaning that ownership of the underlying property can be transferred indirectly by a sale of the units in the JPUT. 

A JPUT does not have separate legal personality and so contracts through its trustee(s). 

The JPUT trustee(s) may appoint investment advisors and property managers to assist with the day to day management and operation of the trust property if required. 

JPUT trustees

A JPUT must have a minimum of one trustee. However, where the JPUT is established to hold UK property, it is common for UK law purposes for a JPUT to have two trustees who hold legal title to the property jointly to ensure that any overriding interests are overreached. 

A regulated professional trustee company in Jersey may be chosen to act as trustee. However it is increasingly common for a Jersey special purpose company to be incorporated to act as trustee (a “SPV Trustee”). SPV Trustees usually fall within an exemption meaning that they do not need to be regulated in Jersey to conduct trust company business.

SPV Trustees are generally administered by a Jersey corporate services provider who will usually provide the directors, a company secretary, a registered office and other administration services.

The trustee(s) must comply with the terms of the trust instrument and are also subject to fiduciary duties under Jersey trusts law including  the duties to: (i) observe the utmost good faith and (ii) to exercise their powers (as trustee) only in the interests of the unitholders and in accordance with the terms of the trust instrument.

Ongoing Popularity

In the heady days of 2005 and 2006, acquisitions of UK commercial real estate structured through JPUTs (and to a slightly lesser extent their Guernsey cousins, GPUTs) accounted for a substantial portion of UK commercial property transactions, but changes to tax rules relating to ‘seeding relief’ meant that, although they didn’t disappear from the map, JPUT establishments decreased in number.

That said, a steady stream of establishment of JPUTs has continued throughout, and there remain a significant number of historic JPUT structures in existence.

Taxing issues

It is fair to say that JPUTs went through a difficult period in 2017 and 2018 after the UK government’s 2017 autumn budget in which it was (very quietly) announced that capital gains tax would be applied for the first time to non-UK residents’ gains on direct and certain indirect disposals of UK commercial property. 

A number of issues with this were raised in consultation, including that previously tax exempt investors such as pension funds and sovereign wealth funds would be subject to the tax. 

In response, the UK government introduced (amongst other things) a “transparency election” which allows a JPUT to be treated as transparent for UK capital gains tax purposes. Where a transparency election has been made by the JPUT, a direct disposal of UK real estate by the JPUT will be treated as a direct disposal by each unitholder (meaning that tax exempt unitholders would retain their tax exemption). 

The transparency election requires the unanimous consent of the unitholders in the JPUT and is irrevocable once made. Thankfully this election has the effect of preserving the tax neutrality of JPUTs, shifting UK capital gains tax to the level of the investor.

A resurgence?

It now seems that JPUTs are back in the spotlight for sovereign wealth, real estate and pension funds – and we have seen a series of instructions in recent months in which investors and their advisers are choosing JPUT structures for UK real estate investment.

The reasoning behind this resurgence is down in no small part to the many advantages that JPUTs have as an investment vehicle through which to hold UK commercial property including the following:

Tax transparency and efficiency

• JPUTs can be structured so that they are transparent for UK income tax and UK capital gains tax purposes, facilitating investment through the same vehicle by investors with differing UK tax treatments. This UK tax transparency means that investing through a JPUT can avoid multiple levels of taxation on a disposal of UK commercial real estate and allows UK tax exempt investors to preserve their tax treatment when investing in UK commercial property either on their own or when investing with investors that are subject to UK tax;

• No Jersey (or if properly structured, UK) stamp duty is payable on the transfer of units in a JPUT;

• Provided that the unitholders of the JPUT are non-Jersey resident individuals or legal bodies that are ultimately wholly owned by nonJersey resident individuals: no Jersey income tax or capital gains tax is payable by the trustee(s); and no Jersey withholding tax is applicable to interest payments or distributions by the JPUT trustee(s).

Flexible vehicle – the Jersey regulatory and legal framework applicable to (non-fund) JPUTs is extremely flexible allowing JPUTs to be tailored to meet the specific commercial requirements of investors. 

Well known structure - JPUTs are tried and tested and are very familiar to investors, advisors and lenders involved with the UK commercial real estate market meaning that they are efficient from a transactional perspective. Additionally, the Jersey financial industry has a significant amount of experience and expertise (both legal and administrative) in establishing and administering JPUTs.

Third party finance – there are no Jersey law or regulatory restrictions on the ability of a JPUT trustee to borrow, provide guarantees, indemnities or security over the trust fund (although there may be restrictions contained in the trust instrument). Additionally, unitholders can grant security over units in the unit trust and any unitholder loans that have been provided to the JPUT. This all makes the JPUT ideally suited to transactions involving third party finance.
Cost efficient and quick to establish – a non-fund JPUT can be established in a number of days. Establishment of a non-fund JPUT requires a “COBO consent” from the Jersey Financial Services Commission, the appointment of a trustee or trustees, a written trust instrument and initial trust property (which is usually a nominal cash sum).

Private structure or Fund – the JPUT may be used as a holding structure for a single investor into a single property, as the equivalent of a “propco” SPV under a larger structure (including a non-Jersey fund), or as a fund itself with any number of unitholders and any number of properties, subject of course to appropriate regulatory approvals being obtained.

Conclusion

The slowdown that occurred in 2017 and 2018 now seems to be well and truly over and Jersey’s JPUT offering is once again one of the primary options for holding real estate. Added to that, UK real estate remains a targeted “safe haven” asset class at a time of significant market disruption and uncertainty. The Walkers team has significant experience and track record in dealing with JPUTs at all stages of their evolution (establishment, acquisitions, secured financings, disposals, reorganisations and winding up) and are able to advise on their use and structuring.

Ireland Update – Publication of Draft Legislation Implementing Fifth Anti-Money Laundering Directive

A bill which will transpose the Fifth Anti Money Laundering Directive into Irish law has been published. The Criminal Justice (Money Laundering and Terrorist Financing) (Amendment) Bill 2020 will effect a number of key changes to Irish AML/CFT law including:

  • the extension of scope of ‘designated persons’ to include additional categories of businesses such as virtual currency exchange providers;
  • new obligations on designated persons regarding checks of customers who are subject to beneficial ownership disclosure requirements and verification of identity of senior managing officials;
  • amendments to e-money instrument customer due diligence value thresholds;
  • prescribed actions for enhanced customer due diligence for customers in high-risk third countries; and
  • amendments to politically exposed person requirements.

It is expected that the Department of Finance will bring forward additional legislative amendments to establish a central register of beneficial ownership for express trusts, establish centralised national bank and payment account registers and to provide for a registration and fitness and probity regime for virtual currency exchange providers.

 

Click to view advisory

Ireland Update – Investment Limited Partnerships (Amendment) Bill 2020

In December 2019, we provided an update on the progress of the Investment Limited Partnerships (Amendment) Bill 2019 (the "2019 Bill") through Dáil Éireann and Seanad Éireann (the Irish houses of parliament). Shortly after this update the 2019 Bill lapsed as a result of the dissolution of the Irish houses of parliament. A new bill, the Investment Limited Partnerships (Amendment) Bill 2020, has recently been published and is working its way through the Irish houses of parliament.

While the key provisions set out in the 2019 Bill remain substantially unchanged (see our advisory from July 2019 for a summary of these provisions), additional provisions have been included proposing to amend the existing investment limited partnership legislation to reflect beneficial ownership obligations for such entities including requirements relating to an internal register and a central register maintained by the Central Bank.

Similar amendments are proposed to the Investment Funds, Companies and Miscellaneous Provisions Act 2005 in respect of investment funds structured as common contractual funds. Additional technical amendments to the ICAV Act 2015 are also proposed including provisions relating to powers of attorney and intra-group transactions.

Ireland Update– Data Protection Commission Issues Guidance on Cookies

In April 2020 the Data Protection Commission (“DPC”) issued a guidance note on the use of cookies by data controllers (the “Guidance”). The Guidance is designed to address deficiencies identified by the DPC in its examination of the use of cookies and similar technologies by a selection of website operators from a range of different industry sectors, including some in the financial services sector.

The Guidance clarifies the law applicable to the use of cookies and similar technologies and, amongst other things, explains the requirements around consent including how it should be obtained in practice. The DPC states in the Guidance that it would allow a period of six months from its publication (i.e. 6 October 2020) for data controllers to bring their products, including websites and mobile apps, into compliance, after which enforcement action will commence. With this deadline fast approaching, data controllers should review their use of cookies and similar technologies now to ensure that they are in compliance with their legal obligations in advance of 6 October 2020.

 

Click to view advisory

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