Articles Posted in Investment Advisers

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The following article is reproduced with permission from Copyright 2019
The Bureau of National Affairs Inc. (800-372-1033) www.bna.com.

Summary: The qualified small business stock exclusion allows qualified business founders and investors to exclude from federal income tax some or all of the capital gains they realize on qualifying stock sales. Eric Bardwell and Catherine DeBono Holmes of Jeffer Mangels Butler & Mitchell LLP show how to take advantage of the exclusion.

INSIGHT: Are You Eligible for Tax-Free Capital Gains?

By: Eric Bardwell, Esq. and Catherine DeBono Holmes, Esq.

Tax code Section 1202 allows taxpayers to exclude up to 100% of the capital gains they realize on the sale of “qualified small business stock” (or “QSBS”) held for at least five years (Section 1202(a)).  This provision of the tax code was added in 1993, but it originally allowed only 50% of eligible capital gains to be excluded.  In 2009, the percentage of capital gains eligible for exclusion was increased to 75%, and in 2010, this percentage was increased to 100%, and the QSBS incentive was made permanent (Sections 1202(a)(3) and (4)).   Many business owners and investors, as well as their tax advisors, are still not aware that they may be eligible for this benefit.  In addition, existing small businesses and start-up founders may not be aware that the QSBS exclusion could enhance their ability to raise capital from investors seeking to boost their after-tax profits from investment in small and start-up businesses.  This article explains the basic requirements to qualify for the exclusion and discusses tax planning opportunities to optimize the exemption.

What is QSBS?

QSBS is stock that meets the following requirements: Continue reading →

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JMBM and AAEB5 Announce New Publication on EB-5 Financing and U.S. Securities Laws

Jeffer Mangels Butler & Mitchell LLP (JMBM) and Advantage America EB5 Group are pleased to announce the publication of Regional Centers & Sponsors and U.S. Securities Laws: How to evaluate broker-dealer, investment company and investment adviser registration requirements.

“When it comes to the EB-5 investment market, the SEC provides clear guidance in some areas and very little in others,” said co-author Catherine DeBono Holmes, Chair of  JMBM’s Investment Capital Law Group. “The information in this publication covers the complex compliance issues associated with EB-5 offerings.”

Written in response to hundreds of queries received from EB-5 professionals and developers, the articles in the 30-page booklet were first published as a four-part series on the Investment Law Blog.

“Regional Centers and project sponsors are right to be concerned with complying with U.S. securities laws,” said co-author Victor T. Shum, CEO of Advantage America EB-5 Group. “Violations come with penalties that can jeopardize both the project and its investors, so the EB-5 investment must be structured properly.”

Holmes and Shum each have significant experience as securities counsel on a wide range of investments – both public and private – and have many years of experience in the EB-5 arena, representing numerous clients on projects funded in part through EB-5 financing.

Click here to download a copy of the booklet on EB-5 Financing and U.S. Securities Laws.

 

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This article is the second in a series of articles on how EB-5 regional centers and sponsors can evaluate broker-dealer, investment company and investment adviser registration requirements under U.S. securities laws.

You may want to read: Part 1 – EB-5 offerings do not fit standard SEC registration requirements

Check back soon for the rest of the series, or subscribe to the Investment Law Blog, and you will be notified when the next article is published.

Part 2: Securities Broker-Dealer Registration Requirements and Hiring U.S. and Non-U.S. Brokers

As mentioned in Part 1 of this article, “EB-5 offerings do not fit standard SEC registration requirements” the Securities and Exchange Commission (“SEC“) is studying the EB-5 investment market, but there is no indication whether or when it will issue any guidance regarding the registration requirements applicable to the sale of EB-5 investments.  At the May 2014 annual conference of the Association to Invest In the USA (“IIUSA“), the trade association for the EB-5 regional center program, representatives of both the SEC and the Financial Industry Regulatory Association (“FINRA“) gave presentations regarding the potential application of registration requirements to EB-5 regional centers and others engaged in the marketing and sale of EB-5 investments, but there was no indication that the SEC or FINRA had developed any policies specifically addressing the unique characteristics of the EB-5 market.

There are exemptions from broker-dealer registration that are available to EB-5 regional centers and entities which act as general partners or managers of EB-5 investment funds.  In addition, there are exemptions that apply to non-U.S. broker-dealers in connection with the sale of U.S. securities that could be applied to the sale of EB-5 investments.  However, there is a lack of clear guidance specifically applicable to the broker-dealer registration requirements that apply to persons engaged in the marketing and sale of EB-5 investments outside of the U.S.  Until such time as the SEC provides specific policies, the EB-5 community is in need of practical advice on how to conduct their business in compliance with U.S. securities laws, and in a way that fits the realities of the EB-5 market. Continue reading →

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This article is the first in a series of articles on how EB-5 regional centers and sponsors can evaluate broker-dealer, investment company and investment adviser registration requirements under U.S. securities laws. Check back soon for the rest of the series, or subscribe to the Investment Law Blog, and you will be notified when the next article is published.

Part 1:  EB-5 Offerings Do Not Fit Standard SEC Registration Requirements

  • The SEC has not provided clear guidance on how to comply with U.S. securities laws requiring registration as a securities broker-dealer, investment company or investment adviser when conducting EB-5 offerings

The U.S. Securities and Exchange Commission (“SEC“) has stated in open meetings with the United States Citizenship and Immigration Services (“USCIS“) and the Association to Invest In the USA (“IIUSA“), the trade association for the EB-5 regional center program, over the past two years that EB-5 investment offerings are subject to U.S. securities laws, even though EB-5 investments are offered primarily outside the United States to persons who by definition are not currently U.S. residents but are seeking to become U.S. residents as a result of making their investment in an EB-5 offering.  However, the SEC has not provided any specific guidance to the EB-5 investment community on the ways in which they can comply with the registration requirements that apply to the registration requirements for securities broker-dealers, investment companies or investment advisers under U.S. securities laws, other than to suggest that they speak to an experienced securities lawyer.  This advice leads to conflicting opinions among lawyers, and makes it difficult for everyone involved in the EB-5 investment market to know exactly what they are required to do in order to comply with these registration requirements under U.S. securities laws. Continue reading →

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On August 27, 2012, the California Department of Corporations adopted a new Rule 206.204.9, which was intended to encourage capital investment in private investment funds by providing an exemption from investment adviser registration requirements for the managers of these funds. However, the new Rule imposes so many new requirements that it may be a shock to managers of many private investment funds, particularly real estate related investment funds. This article describes what types of private investment funds are subject to the new Rule, what requirements apply under the new Rule, and some of the special issues that affect funds that invest in real estate assets as a result of this new Rule.

The new Rule applies to “private fund advisers”. The new Rule provides that “private fund advisers” are exempt from registration as investment advisers under California law if they comply with the restrictions and requirements of the Rule. Private fund advisers are persons who provide advice solely to one or more “qualifying private funds,” which are defined as funds that qualify for the exclusion from the definition of an investment company under one or more of sections 3(c)(1), 3(c)(5) and 3(c)(7) of the Investment Company Act of 1940. In order to determine if a manager of an investment fund is required to comply with the new Rule, the manager first has to determine if the manager is an adviser to a “qualifying private fund.” Continue reading →