Qualifying investor alternative investment fund explained

Qualifying Investor Alternative Investment Fund or QIAIF is a Central Bank of Ireland regulatory classification established in 2013 for Ireland's five tax-free legal structures for holding assets. The Irish Collective Asset-management Vehicle or ICAV is the most popular of the five Irish QIAIF structures, it is the main tax-free structure for foreign investors holding Irish assets. A QIAIF constitutes an alternative investment fund (AIF) under the Alternative Investment Fund Managers Directive (AIFMD) and is required to appoint an alternative investment fund manager (AIFM). The AIFM may be either an EU manager or a non-EU manager.^[1]

In 2018, the Central Bank of Ireland expanded the Loan Originating QIAIF or L–QIAIF regime which enables the five tax-free structures to be used for closed-end debt instruments. The L–QIAIF is Ireland's main debt–based BEPS tool as it overcomes the lack of confidentiality and tax secrecy of the Section 110 SPV. It is asserted that many assets in QIAIFs and LQIAIFs are Irish assets being shielded from Irish taxation. Irish QIAIFs and LQIAIFs can be integrated with Irish corporate base erosion and profit shifting ("BEPS") tax tools to create confidential routes out of the Irish tax system to Ireland's main Sink OFC, Luxembourg.

In March 2019, the UN identified Ireland's "preferential tax regimes" for foreign funds on Irish assets as affecting the human rights of tenants in Ireland.

Features

Irish QIAIFs are subject to the EU Alternative Investment Fund Managers Directive 2011 (“AIFMD”) which lays out detailed rules on the process of constructing (e.g. diversification, leverage), managing (e.g. AIFM approved managers), and marketing (e.g. qualifying investors) of QIAIFs in Europe. However, the following are considered the most important features specific to Irish QIAIFs:^{[2] [3] [4]}

As at 2016, €435 billion in alternative assets were held in Irish QIAIFs. Ireland is the fourth-largest domicile for Alternative Investment Funds ("AIF") in the EU with 9.9% of the €4.4 trillion EU AIF market, behind Germany (31.7%), France (21.3%) and Luxembourg (13%).^[4] It is asserted that a material amount of QIAIF assets (or AIF assets) are Irish assets being shielded from Irish taxation.

ICAV

Each of the five QIAIF legal wrappers have attributes designed for different uses. However, outside of entities that need the specific attributes of a trust law (and will use the Unit Trust QIAIF), or can only use a full company structure (and will use a VCC QIAIF), the ICAV is expected to be the dominant QIAIF wrapper.

• ICAV (or Irish Collective Asset-management Vehicle). Launched in 2014 for U.S. investors to avoid both U.S. tax and Irish tax on Irish investments; ICAVs became the most popular Irish structure for avoiding Irish taxes on Irish assets;^[5] ICAVs meet the U.S. “check-the-box” entity criteria (i.e. the ICAV is shielded from U.S. tax); ICAV filings are confidential to the Central Bank (e.g. no public CRO filings; ICAV governance rules are the weakest of all wrappers and having their own legal identity exempts them from some aspects Irish and EU company law; ICAVs are shown to be superior tax avoidance wrappers to the Cayman Island SPCs,^[6] and there are provisions to migrate from Cayman/BVI wrappers;^[7] most new Irish QIAIFs are structured as ICAVs.^[8]
• Variable Capital Company ("VCC") (or Investment Company or PLC). An Irish company subject to Irish and EU company law; must have asset diversification; cannot "check-the-box" for U.S. investors (which makes it ineffective for U.S. investors holding Irish assets compared to an ICAV); requires substantive governance procedures and reporting requirements; required to file public CRO accounts (and can be scrutinised by the Irish financial media); the VCC is less popular since the introduction of ICAVs in 2014 and is rarely used for new Irish QIAIFs.^{[3] [8]}
• Unit Trust. Dates from 1990 and offers similar features to the ICAV (e.g. U.S. "check-the-box" functionality, no risk spreading, light governance); unlike an ICAV, it cannot be self-managed and must have an AIFM; Irish trust law has complex tax planning features (e.g. separation of legal and beneficial ownership) which are attractive to individual investors and specific jurisdictions (e.g. U.K. and Japan).^[3]
• Common Contractual Fund ("CCF"). Established in 2003 for pensions funds to comingle, or pool, assets but maintain full legal segregation of the assets; it is an unincorporated body with no legal identity whose existence is the contract between its investors and the manager; the Irish equivalent of the fonds commun de placement ("FCF") structure in Luxembourg.^{[9] [10]}
• Investment Limited Partnership ("ILP"). Primarily aimed at private equity–type structures with a General Partner ("GP")/Limited Partner ("LP") system; dates from the 1994 Investment Limited Partnerships Act; like a unit trust or CCF, the ILP is a contract and not a separate legal identity; the ICAV is more popular for private equity funds in Ireland.^[11]

L-QIAIF

Ireland is considered by some academic studies to be a major tax haven, and offshore financial centre, with a range of base erosion and profit shifting ("BEPS") tools.^[12] Ireland's main debt–based BEPS tool was the Section 110 SPV. However, Irish public tax scandals in 2016 concerning the use of this BEPS tool – involving artificial Irish children's charities – by U.S. distressed funds, assisted by the leading Irish tax-law firms, to avoid billions in Irish taxes damaged its reputation (see Section 110 abuses).^[12]

In late 2016, the Central Bank of Ireland began a consultation process to upgrade the little-used L–QIAIF regime.^{[13] [14]} In February 2018, the Central Bank of Ireland changed its AIF "Rulebook" to allow L–QIAIFs to hold the same assets that Section 110 SPVs could own. However, the upgraded L-QIAIFs offered two specific improvements over the Section 110 SPV which make L–QIAIFs a superior Debt–based BEPS tool:^{[15] [16]}

Three months after the Irish Central Bank updated its AIF "Rulebook", the Irish Revenue Commissioners issued new guidance in May 2018 on Section 110 SPV taxation which would further reduce their attractiveness as a mechanism to avoid Irish taxes on Irish assets.^[17] In June 2018, the Central Bank of Ireland reported that €55 billion of U.S.-owned distressed Irish assets, equivalent to almost 25% of Irish GNI*, moved out of Section 110 SPVs.^{[18] [19] [20]} The L-QIAIF, and the ICAV wrapper, in particular, is expected to become an important structure for managing Irish tax on Irish assets in a confidential manner.^[21]

Ireland has Irish Real Estate Funds (IREFs) for holding direct Irish property which are not tax-free, their holdings relate to Irish quoted REITs (e.g. Green REIT plc), and insurance assets. The investments by US distressed debt funds in Irish property are via loan acquisitions and thus use L-QIAIFs.^{[19] [21]} In addition, foreign investors in Irish property can still use the L-QIAIF by holding via structured loans domiciled abroad, thus also avoiding Irish taxes in a confidential manner.^{[22] [23]}

Abuses

See also: Ireland as a tax haven.

The QIAIF regime has contributed to making the International Financial Services Centre (IFSC) one of the largest fund domiciling and shadow banking locations in Europe.^[12] Many asset managers, and particularly alternative investment managers, use Irish QIAIF wrappers in structuring funds. However, fund structuring is a competitive market and other corporate tax havens such as Luxembourg offer equivalent products. It is asserted that many of the assets in Irish QIAIFs are Irish assets, and particularly from the sale of over €100 billion in distressed assets by the Irish State from 2012–2017.^{[24] [25] [26]}

Irish QIAIFs have been used in tax avoidance on Irish assets.^{[27] [28] [29] [30]} It transpired that the regulator of Irish QIAIFs, the Central Bank of Ireland, was paying rent to a U.S. entity using an Irish QIAIF ICAV to avoid Irish taxes on the rent.^[31] Irish QIAIFs have been used to circumvent international regulations,^[32] on avoiding tax laws in the EU and the U.S.^{[33] [34]} Irish QIAIFs can be combined with Irish corporate BEPS tools (e.g. the Orphaned Super–QIF), to create confidential routes out of the Irish corporate tax system to other tax havens such as Luxembourg,^[35] the main Sink OFC for Ireland.^{[36] [37] [38]}

QIAIFs link Ireland's strength as a corporate-focused tax haven, with the world's largest corporate BEPS tools,^[39] to more traditional tax haven type activities (why Cayman SPCs are re-domiciling as Irish ICAVs).^[40] The launch of the Irish ICAV was widely covered, and praised, by the leading offshore magic circle law firms, the largest of which, Maples and Calder, claimed to have been one of its chief architects.^[41]

The ability of foreign institutions to use QIAIFs and the ICAV wrapper, to avoid Irish taxes on Irish assets, has been linked to the bubble in Dublin commercial property, and by implication, the Dublin housing crisis.^{[42] [43] [12]} Despite Dublin's housing crisis, and issues of housing affordability, foreign landlords (also called "cuckoo funds") operate in Ireland on a tax-free basis.^[24] It is asserted that property development, and over-inflation of property prices via tax incentives, are favoured historical economic strategies of the two main Irish political parties, Fianna Fáil and Fine Gael.^[44]

This risk of QIAIFs was highlighted in 2014 when Central Bank of Ireland consulted the European Systemic Risk Board ("ESRB") after initial, and unsuccessful, lobbying by IFSC tax-law firms to expand the L–QIAIF regime, so as to remove Irish taxation from Irish loan investments.^[45]

In March 2019, the UN Special Rapporter on housing, Leilani Farha, formally wrote to the Irish Government on behalf of the UN, regarding its concerns regarding "preferential tax laws" for foreign investment funds on Irish assets which were compromising the human rights of tenants in Ireland.^{[46] [47]}

In April 2019, Irish technology entrepreneur Paddy Cosgrave launched a Facebook campaign to highlight abuses of QIAIFs and L-QIAIFs, stating: "The L-QIAIF runs the risk of being a weapon of mass destruction".^{[12] [48]}

See also

• Corporation tax in the Republic of Ireland
• Matheson (law firm)
• Maples and Calder
• Offshore magic circle
• Ireland as a tax haven

External links

• QIAIF Guidance Central Bank of Ireland
• Central Bank of Ireland: AIF Rulebook March 2018

Notes and References

1. Web site: Qualifying Investor Alternative Investment Fund (QIAIF) Meaning &… . Mason Hayes Curran . 16 February 2024 . en.
2. Web site: A guide to Qualifying Investor AIFs. 2015. Dillon Eustace.
3. Web site: Establishing a Qualifying Investor AIF in Ireland. October 2017. Matheson (law firm).
4. Web site: QIAIFs – Ireland's Regulated Alternative Fund Product. November 2015. KPMG Ireland.
5. News: ICAV structure rivals Section 110s in popularity, say Central Bank stats. Irish Independent. Concerns have been raised that ICAVs, which are fully exempt from tax on income and profits, are being used by foreign and domestic investors to avoid paying tax on rental income in this country.. 31 July 2016.
6. Web site: IRISH FUNDS ASSOCIATION: ICAV Breakfast Seminar New York. Irish Funds Association. November 2015. 16. ANDREA KELLY (PwC Ireland): "We expect most Irish QIAIFs to be structured as ICAVs from now on and given that ICAVs are superior tax management vehicles to Cayman Island SPCs, Ireland should attract substantial re-domiciling business. 1 July 2018. https://web.archive.org/web/20171202122946/https://files.irishfunds.ie/1447891863-NY-Nov-2015.pdf. 2 December 2017. dead.
7. Web site: Conversion of a BVI or Cayman Fund to an Irish ICAV. William Fry Law Firm. 1 October 2015.
8. Web site: The ICAV: Irish Collective Asset-management Vehicle. The ICAV is now the most popular QIAIF in Ireland and set up take over from the Investment Company. A&L Goodbody Law Firm. March 2014.
9. Web site: Pension Pooling and Asset Pooling in Ireland: Establishing a Common Contractual Fund in Ireland. Matheson (law firm). March 2017.
10. Web site: CCFs and Asset Pooling. Dillon Eustace Law Firm. 2010.
11. Web site: Establishing a Private Equity Fund in Ireland. Matheson (law firm). March 2017.
12. News: Ireland is a tax haven — and that's becoming controversial at home. Aidan Regan. Washington Post. 25 April 2019. 25 April 2019.
13. Web site: CENTRAL BANK OF IRELAND: Enhancements to the L-QIAIF regime announced. Matheson (law firm). 29 November 2016.
14. Web site: Update on Changes to Loan Originating Qualifying Investor AIF Regime. Author Cox Law Firm. December 2016.
15. Web site: Irish Loan Originating Funds (L–QIAIFs): An Introduction. William Fry Law Firm. February 2018.
16. Web site: Central Bank of Ireland publishes notice of intention to amend the requirements for Loan Origination Qualifying Investor AIF. Dillon Eustace Law Firm. February 2018.
17. Web site: Section 110: entitlement to treatment. Revenue Commissioners. May 2018.
18. News: Tax-free funds once favoured by 'vultures' fall €55bn: Regulator attributes decline to the decision of funds to exit their so-called 'section 110 status'. Irish Times. 28 June 2018. Mark Paul. Regulator attributes decline to the decision of funds to exit their so-called ‘section 110 status’. 26 April 2019.
19. Web site: Vulture funds in new move to slash tax bills and escape regulation. Jack Horgan-Jones. Sunday Business Post. 29 July 2018. 26 April 2019. Fianna Fáil claims that funds have discovered a "new nirvana". Documents also reveal new strategy to avoid regulation..
20. News: Seen & heard: Tax avoiding Vulture funds and TransferMate's deal with ING . Irish Times. Michael McAleer. 29 July 2018. 19 April 2019. Vulture funds are putting in place new strategies to avoid tax and regulation, the Sunday Business Post reports. Citing a letter from Fianna Fail TD Stephen Donnelly to the Minister for Finance, it says the funds have moved substantial sums from the controversial Section 110 companies and into other entities called L-QIAIFs (loan-originating qualifying alternative investment funds). These do not file public accounts..
21. Web site: New loan origination QIAIF regime - finally a viable option?. 9 May 2018. 19 April 2019. However, the new rules combined with the strong legal and regulatory environment in Ireland, the settled and transparent requirements applicable to L-QIAIFs and the fast track authorisation process have already attracted increasing interest in L-QIAIFs among asset managers.. Gayle Bowen. Aongus McCarthy.
22. Web site: Alternative Investment Funds 2018: Chapter 21 IRELAND. Dillon Eustace Law Firm. 2018. 28 April 2019. Brian Kelliher. Sean Murray.
23. Web site: Lending to Irish Regulated Funds. Author Cox Law. Kathleen Garrett . Sarah Cunniff . Ruth Lillis. QIAIFs are not permitted to carry on a trading business, with the exception of private equity and venture capital funds, but can establish a property fund structure. This structure consists of a Property Holding Company (“PropCo”) which is established as a subsidiary of the QIAIF. An Operating Company (“OpCo”) is also often established and a declaration of trust over the shares in favour of the QIAIF is common. As a result, the OpCo gets the benefit of a tax exemption for QIAIFs..
24. News: How big landlords in Ireland minimise their tax bills on rental properties. Irish Times. 12 June 2019. 12 June 2019. Fiona Redden.
25. News: Fears over tax leakage via investors' ICAV vehicles. Internal Department of Finance briefing documents reveal that officials believe there has been “extremely significant” tax leakage due to investors using special purpose vehicles.. Sunday Times. 26 February 2017.
26. Web site: How foreign firms are making a killing in buying Irish property. The Irish Collective Asset-management Vehicle was a nifty little tax structure introduced last year. Designed to primarily facilitate the transfer of U.S. funds into Dublin, it allows foreign investors to channel their investments through Ireland while paying no tax.. Irish examiner. 22 August 2016.
27. News: There are yet more Irish laws that allow foreign property investors to operate here tax-free. Certain funds in operation here are seeing foreign property investors paying no tax on income. The value of property owned in these QIAIFs is in the region of €300 billion.. Cianan Brennan. TheJournal.ie. 10 September 2016.
28. News: Kennedy Wilson firm pays no tax on its €1bn Irish property assets with QIAIFs. Irish Independent. 6 August 2016.
29. News: Clerys owner exploits tax avoidance loophole: Majority of shuttered Dublin store owned by collective asset vehicle (ICAV). Irish Times. 4 October 2016. Icavs were introduced last year following lobbying by the funds industry, to tempt certain types of offshore fund business to Ireland. It has since emerged, however, that the structures have been widely utilised to avoid tax on Irish property..
30. Web site: Nothing to see here. Broadsheet.ie. 18 April 2016.
31. News: Central Bank landlord a vulture fund paying no Irish tax using a QIF, says SF. Irish Independent. 28 August 2016.
32. News: Tax 'trickery' in Ireland: A safe haven you can bank on. Ireland is a wonderful, special country in many ways. But when it comes to providing foreigners with lax financial regulation or tax trickery, it is a goddamned rogue state. Irish Times. 29 May 2013.
33. News: 'Strong evidence' Ireland aiding EU banks' tax-avoidance schemes. "The massive profitability levels of European banks in Ireland suggests that large profits may be reported in Ireland as a tax-avoidance strategy,". Irish Independent. 28 March 2017.
34. News: Irish 'tax haven' benefits from offshore asset shifts, reports New York Federal Reserve. "The massive profitability levels of European banks in Ireland suggests that large profits may be reported in Ireland as a tax-avoidance strategy,". Irish Independent. 13 May 2018.
35. Web site: Ireland:Selected Issues. 20. Figure 3. Foreign Direct Investment - Over half of Irish outbound FDI is routed to Luxembourg. International Monetary Fund. June 2018.
36. Web site: Ireland as a location for Distressed Debt: Orphaned Super QIF Example. Davy Stockbrokers. 2014.
37. Web site: Irish SPV Taxation. Irish withholding tax on transfers to Luxembourg can be avoided if structured as a Eurobond. Grant Thornton. 30 September 2015.
38. Web site: Mason Hayes and Curran:Silver Linings from Ireland's Financial Clouds with QIAIFs and Section 110 SPVs. Mason Hayes & Curran Law. May 2016.
39. News: Ireland is the world's biggest corporate 'tax haven', say academics. New Gabriel Zucman study claims State shelters more multinational profits than the entire Caribbean. Irish Times. 13 June 2018.
40. Web site: Irish Collective Asset-management Vehicle (ICAV) and Cayman SPCs. Across our global funds practice, we see many ICAVs being set up as parallel funds to the Cayman Islands and British Virgin Islands structures for managers looking to offer leading offshore and onshore fund solutions to their investors. We have advised on some pairing of onshore and offshore vehicles in combined structures.. Maples and Calder. 2016.
41. Web site: The ICAV – Maples and Calder Checks the Box. Since then we have retained our position as the leading Irish counsel on ICAVs and to date have advised on 30% of all ICAV subfunds authorised by the Central Bank, which is nearly twice as many as our nearest rival. . Maples and Calder. March 2016.
42. News: Tax breaks for commercial property will fuel bubble. They'll do this by making commercial property investment, mainly by large foreign landlords, entirely tax-free. This will drive up commercial rents, suppress residential development, put Irish banks at risk, and deprive the State of much-needed funds.. Irish Independent. 6 November 2016.
43. Web site: Finance Bill Could Turn Commercial Property Bubble into next Crash. Stephen Donnelly T.D.. 6 November 2016.
44. News: How bankers brought Ireland to its knees. Financial Times. 15 May 2010. David Gardner. 25 April 2019.
45. Web site: Loan Origination QIAIFs – Central Bank Consults. ESRB: Nonetheless, if not subject to adequate macro and micro–prudential regulation, this activity could grow rapidly and introduce new sources of financial stability risk. It could also raise the financial system’s vulnerability to runs, contagion, excessive credit growth and pro-cyclicality.. Dillon Eustace Law Firm. 14 July 2014.
46. News: UN says Ireland applies 'preferential tax laws' to vultures funds and it 'cannot continue'. TheJournal.ie. Christina Finn. 27 March 2019. 29 March 2019. A UN SPECIAL Rapporteur on housing has sent a letter to the Irish government noting that they have facilitated housing financing through “preferential tax laws and weak tenant protections among other measures”..
47. News: Threat to tax 'cuckoo funds' as FG feels the heat on housing crisis. Irish Independent. Kevin Doyle . Donal O'Donovan. 19 April 2019. 19 April 2019. The funds pay no corporation tax, no income tax and no capital gains tax in most cases..
48. News: Paddy Cosgrave, a weird press conference and €1,000 cash in brown envelopes. The Sunday Times. Gavin Daly. 21 April 2019. 26 April 2019.