Bermuda Regulatory Outlook – Fund Management/ REITs

Marion Steward


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As we look ahead in 2022, there are several regulatory changes
expected during the year which will impact Bermuda entities. With
the landscape constantly evolving, we know that organisations will
want to stay up to date with their regulatory requirements, and
ahead of any filing, compliance or administrative obligations.

Investment Business Act

Entities which carry on “investment business” (as
defined in the Investment Business Act 2003, the
Investment Business Act“) should be
aware of expected changes to the Investment Business Act involving
licensing and registration. Currently, entities which carry on
investment business outside of Bermuda are of out scope of the
Investment Business Act completely, and other entities which do
carry on investment business in Bermuda are able to avail
themselves of a number of exemptions from licensing requirement,
which involves a one time notification to the Bermuda Monetary
Authority (the “Authority“). Pursuant to
a bill currently being debated in the House of Assembly, we expect
that previously out of scope or exempt entities will be required to
either be:

  1. licensed under the Investment Business Act; or

  2. registered as a Class A Registered Person (an entity which does
    not maintain a place of business in Bermuda) or as a Class B
    Registered Person (persons who are exempt from the Investment
    Business Act).

These changes mean that all persons who carry on investment
business in Bermuda will be required to make a filing with the
Authority. Class A and Class B Registered Persons are likely to
eventually have other reporting and regulatory requirements. We
expect the amendment bill to be enacted in Q2, following which the
Authority has indicated there will be a 12 month transition period
following which entities will have to be either licensed or
registered.

Once the legislation is finalised Conyers will be publishing a
more fulsome alert on these upcoming changes to assist our clients
with planning.

Economic Substance Act – Fund Managers

Amendments to the Economic Substance Act 2019 (the
“Economic Substance Act”) were enacted pursuant to The
Economic Substance Amendment (No.2) Regulations 2021 (the
“Amendment Regulations”) which will affect the relevant
activity of “fund management”. The Amendment Regulations
mean that an entity will be carrying on the relevant activity of
“fund management” simply by managing investments for an
investment fund. Fund managers may recall that when the original
regulations supporting the Economic Substance first came out it was
only fund managers required to be licensed under the Investment
Business Act which were required to meet the economic substance
requirements. The new changes mean that all fund managers
are now required to satisfy such requirements.

A change in the guidance issued by the Registrar of Companies in
2021 should also be noted for 2022. Initially if an entity carried
out a relevant activity caught by the Economic Substance Act but
earned nil gross revenue from such activity, it was not required to
make a filing. However revisions to the Guidance Notes now means
that if an entity carries on a relevant activity such entity is
required to file an economic substance declaration, regardless of
whether or not it earned gross revenue from such activity. Such
entities must complete the shorter ‘Nil’ Declaration, and
submit it within six months of their financial year. It should be
noted that although required to make a filing, entities with no
gross revenue do not have to have to economic substance in
Bermuda.

Please click here to read more about the impact on
fund managers by the Amendment Regulations.

Investment Funds Act

This is a reminder that operators of certain funds, including
Overseas Funds, Professional Class B Funds, Professional Closed
Funds and authorised funds (as such are defined in the Investment
Funds Act 2006) are required to certify to the Authority that they
have at all times in the preceding financial year been in
compliance with the applicable rules and requirements of their
designation. Such certifications must be provided to the Authority
annually within six months of the financial year end of the fund.
Pursuant to amendments which were effective on 1 January 2022,
operators of funds which fail to comply with the certificates and
statement requirements imposed on them will now be liable to pay a
fee for every month (whether in whole or in part) that such
certification or statement is not submitted to the Authority.

Personal Information Protection Act

Although the Personal Information Protection Act 2016
(“PIPA”) has not yet become fully enacted, it is expected
that guidance and regulations will be forthcoming in 2022. PIPA,
when fully in force, will impose specific obligations on the
processing of personal information including the requirement for
organisations to adopt suitable measures and policies to give
effect to the rights of individuals as set out in PIPA.
Organisations will also be required to appoint a ‘privacy
officers’ for the purposes of compliance with PIPA who have the
responsibility for communicating with the Privacy Commissioner.
Organisations should begin planning to ensure they are prepared
when PIPA does become fully operative. The Conyers Privacy Team can
assist with such planning as well as preparation of privacy
policies and notices.

To read more about the requirements of PIPA, please click
here:

Understanding PIPA: Why Do We Need Privacy
Legislation?

Understanding PIPA: Defining its Scope and
Starting to Prepare

Understanding PIPA: The Role and Requirements of
Privacy Officers

Common Reporting Standard

Bermuda Reporting Financial Institutions (RFIs) and
Trustee-Documented Trusts (TDTs) are reminded they must now
annually file a certification that they are in compliance with
their Common Reporting Standard (“CRC”) obligations. The
Ministry of Finance has added an Annual CRS Compliance
Certification Form (the “Certification Form”) to the
Bermuda Tax Information Reporting Portal, to be completed by all
RFIs and TDTs. The first filings for the period ending 31 December
2020 were due on 15 January 2022, and all future filings must be
submitted no later than 30 September following the end of the
reporting period. As such, RFIs and TDTs should be aware that they
must complete the Certification Form for the period ending 31
December 2021 by 30 September 2022.

Another development to note is that the Ministry of Finance will
soon begin issuing notices requiring certain Bermuda RFIs to
undertake a CRS Independent Compliance Review so as to provide
further assurance that Bermuda RFIs are applying the CRS rules
correctly. Using a risk-based approach, the Ministry will identify
a subset of Bermuda RFIs that are required to engage an approved
independent reviewer to perform a CRS Review.

KEY DATES TO NOTE















Q1 Funds – 31 March

  • deadline for private funds, professional closed funds and
    Professional Class A and Professional Class B funds to pay annual
    fee to BMA

  • deadline for private funds to file annual certification and
    accounts (management or audited) with BMA

  • deadline for professional closed funds to file annual
    certification and audited accounts with BMA

Economic Substance – 31
March
Deadline for entities with a 30/09 FYE that carry
out a “relevant activity” to make economic substance
filing with the Registrar of Companies
Q2 Funds – 30 June Deadline for Professional Class A funds and
Professional Class B funds which have a 31/12 FYE to submit to BMA
(i) annual certification (ii) audited financial statements and (ii)
statement of any material changes to their offering document
Economic Substance – 30 June Deadline for entities with a 31/12 FYE that carry
out a “relevant activity” to make economic substance
filing on the Registrar of Companies
Q3 Economic Substance – 30
September
Deadline for entities with a 31/03 FYE that carry
out a “relevant activity” to make economic substance
filing with the Registrar of Companies
CRS – 30 September Deadline for Bermuda Reporting Financial
Institutions and Trustee-Documented Trusts to complete and submit
the CRS Certification Form for the period ending 31 December
2021
Q4 Economic Substance – 31
December
Deadline for entities with a 30/06 FYE that carry
out a “relevant activity” to make economic substance
filing with Registrar of Companies

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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