[Federal Register Volume 79, Number 145 (Tuesday, July 29, 2014)]
[Notices]
[Pages 44071-44074]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-17775]
[[Page 44071]]
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SECURITIES AND EXCHANGE COMMISSION
[Investment Company Act Release No. 31185; File No. 812-14290]
The New Ireland Fund, Inc. and Kleinwort Benson Investors
International Ltd.; Notice of Application
July 23, 2014.
AGENCY: Securities and Exchange Commission (``Commission'').
ACTION: Notice of application under section 6(c) of the Investment
Company Act of 1940 (``Act'') for an exemption from section 19(b) of
the Act and rule 19b-1 under the Act.
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Summary of Application: Applicants request an order to permit a
registered closed-end investment company to make periodic distributions
of long-term capital gains with respect to its outstanding common stock
as frequently as twelve times in any one taxable year, and as
frequently as distributions are specified by or in accordance with the
terms of any outstanding preferred stock that such investment company
may issue.
Applicants: The New Ireland Fund, Inc. (``Fund'') and Kleinwort
Benson Investors International Ltd. (``Adviser'').
Filing Dates: The application was filed on March 14, 2014, and
amended on June 24 and July 22, 2014.
Hearing or Notification of Hearing: An order granting the
application will be issued unless the Commission orders a hearing.
Interested persons may request a hearing by writing to the Commission's
Secretary and serving applicants with a copy of the request, personally
or by mail. Hearing requests should be received by the Commission by
5:30 p.m. on August 18, 2014, and should be accompanied by proof of
service on applicants, in the form of an affidavit or, for lawyers, a
certificate of service. Hearing requests should state the nature of the
writer's interest, the reason for the request, and the issues
contested. Persons who wish to be notified of a hearing may request
notification by writing to the Commission's Secretary.
ADDRESSES: Secretary, Securities and Exchange Commission, 100 F Street
NE., Washington, DC 20549-1090; Applicants: Peter Hooper, The New
Ireland Fund, Inc., Westchester Financial Center, Suite 1000, 50 Main
Street, White Plains, NY 10606, and Lelia Long, Kleinwort Benson
Investors International Ltd., One Rockefeller Plaza, 32nd Floor, New
York, NY 10020.
FOR FURTHER INFORMATION CONTACT: Courtney S. Thornton, Senior Counsel,
at (202) 551-6812, or David P. Bartels, Branch Chief, at (202) 551-6821
(Division of Investment Management, Chief Counsel's Office).
SUPPLEMENTARY INFORMATION: The following is a summary of the
application. The complete application may be obtained via the
Commission's Web site by searching for the file number, or for an
applicant using the Company name box, at http://www.sec.gov/search/search.htm, or by calling (202) 551-8090.
Applicants' Representations
1. The Fund is a non-diversified, closed-end management investment
company registered under the Act and is organized as a Maryland
corporation. The investment objective of the Fund is long-term capital
appreciation through investment primarily in equity securities of
issuers organized under the laws of Ireland. The Fund's shares of
common stock are currently listed on the New York Stock Exchange, a
national securities exchange as defined in section 2(a)(26) of the Act.
Applicants state that the Fund may incur leverage through the issuance
of preferred stock and debt securities, by entering into a credit
agreement or otherwise as permitted by applicable law.\1\
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\1\ The Fund currently has no outstanding preferred stock.
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2. The Adviser is registered as an investment adviser under the
Investment Advisers Act of 1940, as amended. Effective July 21, 2011,
the Fund entered into an investment advisory agreement with the
Adviser. Under the investment advisory agreement, the Adviser acts as
investment adviser to the Fund and has responsibility for the
implementation of the Fund's overall investment strategy.
3. Applicants state that, prior to the Fund's implementing a
distribution policy (``Distribution Policy'') in reliance on the order,
the board of directors (the ``Board'') of the Fund, including a
majority of the directors who are not ``interested persons'' of the
Fund as defined in section 2(a)(19) of the Act (the ``Independent
Directors''), will request, and the Adviser will provide, such
information as is reasonably necessary to make an informed
determination of whether the Board should adopt a proposed Distribution
Policy. In particular, the Board and the Independent Directors will
review information regarding the purpose and terms of a proposed
Distribution Policy; the likely effects of such policy on such Fund's
long-term total return (in relation to market price and its net asset
value (``NAV'') per share of common stock); the expected relationship
between such Fund's distribution rate on its common stock under the
policy and the Fund's total return (in relation to NAV per share);
whether the rate of distribution would exceed such Fund's expected
total return in relation to its NAV per share; and any foreseeable
material effects of such policy on such Fund's long-term total return
(in relation to market price and NAV per share). The Independent
Directors will also consider what conflicts of interest the Adviser and
the affiliated persons of the Adviser and the Fund might have with
respect to the adoption or implementation of the Distribution Policy.
Applicants state that, following this review, the Board, including the
Independent Directors, of the Fund will, before adopting or
implementing any Distribution Policy, make a determination that the
Distribution Policy is consistent with the Fund's investment objectives
and in the best interests of the holders of the Fund's common stock.
The Distribution Policy will be consistent with the Fund's policies and
procedures and will be described in the Fund's registration statement.
4. Applicants state that the purpose of a Distribution Policy,
generally, would be to permit the Fund to distribute over the course of
each year, through periodic distributions in relatively equal amounts
(plus any required special distributions), an amount closely
approximating the total taxable income of the Fund during the year and,
if determined by the Board, all or a portion of returns of capital paid
by portfolio companies to the Fund during the year. Under the
Distribution Policy of the Fund, the Fund would distribute periodically
(as frequently as 12 times in any taxable year) to its common
stockholders a fixed percentage of the market price of the Fund's
common stock at a particular point in time or a fixed percentage of NAV
at a particular time or a fixed amount per share of common stock, any
of which may be adjusted from time to time. It is anticipated that
under the Distribution Policy, the minimum annual distribution rate
with respect to the Fund's shares of common stock would be independent
of the Fund's performance during any particular period but would be
expected to correlate with the Fund's performance over time. Except for
extraordinary distributions and potential increases or decreases in the
final dividend periods in light of the Fund's performance for an entire
calendar year and to enable a Fund to comply with the distribution
[[Page 44072]]
requirements of Subchapter M of the Internal Revenue Code (``Code'')
for the calendar year, each distribution on the Fund's common stock
would be at the stated rate then in effect.
5. Applicants state that prior to the implementation of a
Distribution Policy for the Fund, the Board shall have adopted policies
and procedures under rule 38a-1 under the Act that: (i) Are reasonably
designed to ensure that all notices required to be sent to the Fund's
stockholders pursuant to section 19(a) of the Act, rule 19a-1
thereunder and condition 4 below (each a ``19(a) Notice'') include the
disclosure required by rule 19a-1 under the Act and by condition 2(a)
below, and that all other written communications by the Fund or its
agents regarding distributions under the Distribution Policy include
the disclosure required by condition 3(a) below; and (ii) require the
Fund to keep records that demonstrate its compliance with all of the
conditions of the order and that are necessary for the Fund to form the
basis for, or demonstrate the calculation of, the amounts disclosed in
its 19(a) Notices.
Applicants' Legal Analysis
1. Section 19(b) of the Act generally makes it unlawful for any
registered investment company to make long-term capital gains
distributions more than once every twelve months. Rule 19b-1 limits the
number of capital gains dividends, as defined in section 852(b)(3)(C)
of the Code (``distributions''), that a fund may make with respect to
any one taxable year to one, plus a supplemental distribution made
pursuant to section 855 of the Code not exceeding 10% of the total
amount distributed for the year, plus one additional capital gain
dividend made in whole or in part to avoid the excise tax under section
4982 of the Code.
2. Section 6(c) of the Act provides, in relevant part, that the
Commission may exempt any person or transaction from any provision of
the Act to the extent that such exemption is necessary or appropriate
in the public interest and consistent with the protection of investors
and the purposes fairly intended by the policy and provisions of the
Act.
3. Applicants state that one of the concerns leading to the
enactment of section 19(b) and adoption of rule 19b-1 was that
stockholders might be unable to distinguish between frequent
distributions of capital gains and dividends from investment income.
Applicants state, however, that rule 19a-1 effectively addresses this
concern by requiring that distributions (or the confirmation of the
reinvestment thereof) estimated to be sourced in part from capital
gains or capital be accompanied by a separate statement showing the
sources of the distribution (e.g., estimated net income, net short-term
capital gains, net long-term capital gains and/or return of capital).
Applicants state that similar information is included in the Funds'
annual reports to stockholders and on the Internal Revenue Service Form
1099 DIV, which is sent to each common and preferred stockholder who
received distributions during a particular year.
4. Applicants further state that each of the Funds will make the
additional disclosures required by the conditions set forth below, and
each of them will adopt compliance policies and procedures in
accordance with rule 38a-1 under the Act to ensure that all required
19(a) Notices and disclosures are sent to stockholders. Applicants
state that the information required by section 19(a), rule 19a-1, the
Distribution Policy, the policies and procedures under rule 38a-1 noted
above, and the conditions listed below will help ensure that each
Fund's stockholders are provided sufficient information to understand
that their periodic distributions are not tied to a Fund's net
investment income (which for this purpose is the Fund's taxable income
other than from capital gains) and realized capital gains to date, and
may not represent yield or investment return. Accordingly, Applicants
assert that continuing to subject the Funds to section 19(b) and rule
19b-1 would afford stockholders no extra protection.
5. Applicants note that section 19(b) and rule 19b-1 also were
intended to prevent certain improper sales practices, including, in
particular, the practice of urging an investor to purchase shares of a
fund on the basis of an upcoming capital gains dividend (``selling the
dividend''), where the dividend would result in an immediate
corresponding reduction in NAV and would be in effect a taxable return
of the investor's capital. Applicants submit that the ``selling the
dividend'' concern should not apply to closed-end investment companies,
such as the Funds, which do not continuously distribute shares.
According to Applicants, if the underlying concern extends to secondary
market purchases of shares of closed-end funds that are subject to a
large upcoming capital gains dividend, adoption of a periodic
distribution plan actually helps minimize the concern by avoiding,
through periodic distributions, any buildup of large end-of-the-year
distributions.
6. Applicants also note that the common stock of closed-end funds
often trades in the marketplace at a discount to its NAV. Applicants
believe that this discount may be reduced if the Funds are permitted to
pay relatively frequent dividends on their common stock at a consistent
rate, whether or not those dividends contain an element of long-term
capital gain.
7. Applicants assert that the application of rule 19b-1 to a
Distribution Policy actually could have an inappropriate influence on
portfolio management decisions. Applicants state that, in the absence
of an exemption from rule 19b-1, the adoption of a periodic
distribution plan imposes pressure on management (i) not to realize any
net long-term capital gains until the point in the year that the fund
can pay all of its remaining distributions in accordance with rule 19b-
1, and (ii) not to realize any long-term capital gains during any
particular year in excess of the amount of the aggregate pay-out for
the year (since as a practical matter excess gains must be distributed
and accordingly would not be available to satisfy pay-out requirements
in following years), notwithstanding that purely investment
considerations might favor realization of long-term gains at different
times or in different amounts. Applicants assert that by limiting the
number of long-term capital gain dividends that the Fund may make with
respect to any one year, rule 19b-1 may prevent the normal and
efficient operation of a periodic distribution plan whenever the Fund's
realized net long-term capital gains in any year exceed the total of
the periodic distributions that may include such capital gains under
the rule.
8. Applicants also assert that rule 19b-1 may force fixed regular
periodic distributions under a periodic distribution plan to be funded
with returns of capital \2\ (to the extent net investment income and
realized short-term capital gains are insufficient to fund the
distribution), even though realized net long-term capital gains
otherwise would be available. To distribute all of a Fund's long-term
capital gains within the limits in rule 19b-1, a Fund may be required
to make total distributions in excess of the annual amount called for
by its periodic distribution plan, or to retain and pay taxes on the
excess amount. Applicants assert that the requested order would
minimize these anomalous effects of rule 19b-1 by enabling the Funds to
[[Page 44073]]
realize long-term capital gains as often as investment considerations
dictate without fear of violating rule 19b-1.
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\2\ Returns of capital as used in the application means return
of capital for financial accounting purposes and not for tax
accounting purposes.
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9. Applicants state that Revenue Ruling 89-81 under the Code
requires that a fund that seeks to qualify as a regulated investment
company under the Code and that has both common stock and preferred
stock outstanding designate the types of income, e.g., investment
income and capital gains, in the same proportion as the total
distributions distributed to each class for the tax year. To satisfy
the proportionate designation requirements of Revenue Ruling 89-81,
whenever a fund has realized a long-term capital gain with respect to a
given tax year, the fund must designate the required proportionate
share of such capital gain to be included in common and preferred stock
dividends. Applicants state that although rule 19b-1 allows a fund some
flexibility with respect to the frequency of capital gains
distributions, a fund might use all of the exceptions available under
the rule for a tax year and still need to distribute additional capital
gains allocated to the preferred stock to comply with Revenue Ruling
89-81.
10. Applicants assert that the potential abuses addressed by
section 19(b) and rule 19b-1 do not arise with respect to preferred
stock issued by a closed-end fund. Applicants assert that such
distributions are either fixed or determined in periodic auctions by
reference to short-term interest rates rather than by reference to
performance of the issuer, and Revenue Ruling 89-81 determines the
proportion of such distributions that are comprised of long-term
capital gains.
11. Applicants also submit that the ``selling the dividend''
concern is not applicable to preferred stock, which entitles a holder
to no more than a specified periodic dividend at a fixed rate or the
rate determined by the market, and, like a debt security, is priced
based upon its liquidation preference, dividend rate, credit quality,
and frequency of payment. Applicants state that investors buy preferred
stock for the purpose of receiving payments at the frequency bargained
for, and any application of rule 19b-1 to preferred stock would be
contrary to the expectation of investors.
12. Applicants request an order under section 6(c) of the Act
granting an exemption from the provisions of section 19(b) of the Act
and rule 19b-1 thereunder to permit the Fund to distribute periodic
capital gain dividends (as defined in section 852(b)(3)(C) of the Code)
as often as monthly in any one taxable year in respect of its common
stock and as often as specified by or determined in accordance with the
terms thereof in respect of its preferred stock.
Applicants' Conditions
Applicants agree that the order will be subject to the following
conditions:
1. Compliance Review and Reporting. The Fund's chief compliance
officer will: (a) Report to the Fund's Board, no less frequently than
once every three months or at the next regularly scheduled quarterly
Board meeting, whether (i) the Fund and the Adviser have complied with
the conditions of the order, and (ii) a material compliance matter (as
defined in rule 38a-1(e)(2) under the Act) has occurred with respect to
such conditions; and (b) review the adequacy of the policies and
procedures adopted by the Board no less frequently than annually.
2. Disclosures to Fund Stockholders.
(a) Each 19(a) Notice disseminated to the holders of the Fund's
common stock, in addition to the information required by section19(a)
and rule 19a-1:
(i) Will provide, in a tabular or graphical format:
(1) The amount of the distribution, on a per share of common stock
basis, together with the amounts of such distribution amount, on a per
share of common stock basis and as a percentage of such distribution
amount, from estimated: (A) net investment income; (B) net realized
short-term capital gains; (C) net realized long-term capital gains; and
(D) return of capital or other capital source;
(2) the fiscal year-to-date cumulative amount of distributions, on
a per share of common stock basis, together with the amounts of such
cumulative amount, on a per share of common stock basis and as a
percentage of such cumulative amount of distributions, from estimated:
(A) Net investment income; (B) net realized short-term capital gains;
(C) net realized long-term capital gains; and (D) return of capital or
other capital source;
(3) the average annual total return in relation to the change in
NAV for the 5-year period ending on the last day of the month ended
immediately prior to the most recent distribution record date compared
to the current fiscal period's annualized distribution rate expressed
as a percentage of NAV as of the last day of the month prior to the
most recent distribution record date; and
(4) the cumulative total return in relation to the change in NAV
from the last completed fiscal year to the last day of the month prior
to the most recent distribution record date compared to the fiscal
year-to-date cumulative distribution rate expressed as a percentage of
NAV as of the last day of the month prior to the most recent
distribution record date. Such disclosure shall be made in a type size
at least as large and as prominent as the estimate of the sources of
the current distribution; and
(ii) will include the following disclosure:
(1) ``You should not draw any conclusions about the Fund's
investment performance from the amount of this distribution or from the
terms of the Fund's Distribution Policy'';
(2) ``The Fund estimates that it has distributed more than its
income and net realized capital gains; therefore, a portion of your
distribution may be a return of capital. A return of capital may occur,
for example, when some or all of the money that you invested in the
Fund is paid back to you. A return of capital distribution does not
necessarily reflect the Fund's investment performance and should not be
confused with `yield' or `income'''; \3\ and
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\3\ The disclosure in condition 2(a)(ii)(2) will be included
only if the current distribution or the fiscal year-to-date
cumulative distributions are estimated to include a return of
capital.
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(3) ``The amounts and sources of distributions reported in this
19(a) Notice are only estimates and are not being provided for tax
reporting purposes. The actual amounts and sources of the amounts for
tax reporting purposes will depend upon the Fund's investment
experience during the remainder of its fiscal year and may be subject
to changes based on tax regulations. The Fund will send you a Form
1099-DIV for the calendar year that will tell you how to report these
distributions for federal income tax purposes.'' Such disclosure shall
be made in a type size at least as large as and as prominent as any
other information in the 19(a) Notice and placed on the same page in
close proximity to the amount and the sources of the distribution.
(b) On the inside front cover of each report to stockholders under
rule 30e-1 under the Act, the Fund will:
(i) Describe the terms of the Distribution Policy (including the
fixed amount or fixed percentage of the distributions and the frequency
of the distributions);
(ii) include the disclosure required by condition 2(a)(ii)(1)
above;
(iii) state, if applicable, that the Distribution Policy provides
that the Board may amend or terminate the Distribution Policy at any
time without prior notice to Fund stockholders; and
[[Page 44074]]
(iv) describe any reasonably foreseeable circumstances that might
cause the Fund to terminate the Distribution Policy and any reasonably
foreseeable consequences of such termination.
(c) Each report provided to stockholders under rule 30e-1 under the
Act and each prospectus filed with the Commission on Form N-2 under the
Act, will provide the Fund's total return in relation to changes in NAV
in the financial highlights table and in any discussion about the
Fund's total return.
3. Disclosure to Stockholders, Prospective Stockholders and Third
Parties.
(a) The Fund will include the information contained in the relevant
19(a) Notice, including the disclosure required by condition 2(a)(ii)
above, in any written communication (other than a communication on Form
1099) about the Distribution Policy or distributions under the
Distribution Policy by the Fund, or agents that the Fund has authorized
to make such communication on the Fund's behalf, to any Fund
stockholder, prospective stockholder or third-party information
provider;
(b) The Fund will issue, contemporaneously with the issuance of any
19(a) Notice, a press release containing the information in the 19(a)
Notice and will file with the Commission the information contained in
such 19(a) Notice, including the disclosure required by condition
2(a)(ii) above, as an exhibit to its next filed Form N-CSR; and
(c) The Fund will post prominently a statement on its Web site
containing the information in each 19(a) Notice, including the
disclosure required by condition 2(a)(ii) above, and will maintain such
information on such Web site for at least 24 months.
4. Delivery of 19(a) Notices to Beneficial Owners. If a broker,
dealer, bank or other person (``financial intermediary'') holds common
stock issued by the Fund in nominee name, or otherwise, on behalf of a
beneficial owner, the Fund: (a) Will request that the financial
intermediary, or its agent, forward the 19(a) Notice to all beneficial
owners of the Fund's stock held through such financial intermediary;
(b) will provide, in a timely manner, to the financial intermediary, or
its agent, enough copies of the 19(a) Notice assembled in the form and
at the place that the financial intermediary, or its agent, reasonably
requests to facilitate the financial intermediary's sending of the
19(a) Notice to each beneficial owner of the Fund's stock; and (c) upon
the request of any financial intermediary, or its agent, that receives
copies of the 19(a) Notice, will pay the financial intermediary, or its
agent, the reasonable expenses of sending the 19(a) Notice to such
beneficial owners.
5. Additional Board Determinations for Funds Whose Common Stock
Trades at a Premium.
If:
(a) The Fund's common stock has traded on the stock exchange that
it primarily trades on at the time in question at an average premium to
NAV equal to or greater than 10%, as determined on the basis of the
average of the discount or premium to NAV of the Fund's common stock as
of the close of each trading day over a 12-week rolling period (each
such 12-week rolling period ending on the last trading day of each
week); and
(b) The Fund's annualized distribution rate for such 12-week
rolling period, expressed as a percentage of NAV as of the ending date
of such 12-week rolling period, is greater than the Fund's average
annual total return in relation to the change in NAV over the 2-year
period ending on the last day of such 12-week rolling period; then:
(i) At the earlier of the next regularly scheduled meeting or
within four months of the last day of such 12-week rolling period, the
Board, including a majority of the Independent Directors:
(1) Will request and evaluate, and the Fund's Adviser will furnish,
such information as may be reasonably necessary to make an informed
determination of whether the Distribution Policy should be continued or
continued after amendment;
(2) will determine whether continuation, or continuation after
amendment, of the Distribution Policy is consistent with the Fund's
investment objective and policies and is in the best interests of the
Fund and its stockholders, after considering the information in
condition 5(b)(i)(1) above; including, without limitation:
(A) Whether the Distribution Policy is accomplishing its
purpose(s);
(B) the reasonably foreseeable material effects of the Distribution
Policy on the Fund's long-term total return in relation to the market
price and NAV of the Fund's common stock; and
(C) the Fund's current distribution rate, as described in condition
5(b) above, compared with the Fund's average annual taxable income or
total return over the 2-year period, as described in condition 5(b), or
such longer period as the Board deems appropriate; and
(3) based upon that determination, will approve or disapprove the
continuation, or continuation after amendment, of the Distribution
Policy; and
(ii) The Board will record the information considered by it,
including its consideration of the factors listed in condition
5(b)(i)(2) above, and the basis for its approval or disapproval of the
continuation, or continuation after amendment, of the Distribution
Policy in its meeting minutes, which must be made and preserved for a
period of not less than six years from the date of such meeting, the
first two years in an easily accessible place.
6. Public Offerings. The Fund will not make a public offering of
the Fund's common stock other than:
(a) A rights offering below NAV to holders of the Fund's common
stock;
(b) an offering in connection with a dividend reinvestment plan,
merger, consolidation, acquisition, spin-off or reorganization of the
Fund; or
(c) an offering other than an offering described in conditions 6(a)
and 6(b) above, provided that, with respect to such other offering:
(i) The Fund's annualized distribution rate for the six months
ending on the last day of the month ended immediately prior to the most
recent distribution record date, expressed as a percentage of NAV per
share as of such date, is no more than 1 percentage point greater than
the Fund's average annual total return for the 5-year period ending on
such date; and
(ii) the transmittal letter accompanying any registration statement
filed with the Commission in connection with such offering discloses
that the Fund has received an order under section 19(b) to permit it to
make periodic distributions of long-term capital gains with respect to
its common stock as frequently as twelve times each year, and as
frequently as distributions are specified by or determined in
accordance with the terms of any outstanding preferred stock as such
Fund may issue.
7. Amendments to Rule 19b-1
The requested order will expire on the effective date of any
amendments to rule 19b-1 that provide relief permitting certain closed-
end investment companies to make periodic distributions of long-term
capital gains with respect to their outstanding common stock as
frequently as twelve times each year.
For the Commission, by the Division of Investment Management,
under delegated authority.
Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2014-17775 Filed 7-28-14; 8:45 am]
BILLING CODE 8011-01-P