IFM12210 - Offshore Funds: Definition of an offshore fund: introduction

Characteristics based definition

The definition of an offshore fund is based on characteristics. The relevant legislation is at S354-S363 TIOPA 2010. S355 makes it clear that an ‘offshore fund’, whatever its legal form, must be a ‘mutual fund’. That term is defined at section 356. Sections 360 and 361 state that in the case of umbrella arrangements and arrangements with more than one class of interest respectively it is the sub-fund or class of interest that is to be considered rather than the main arrangements. For example, umbrella arrangements could consist of sub-funds some of which come within the definition of an offshore fund and some that do not (this might typically be the case where one or more of the exclusions from the definition apply to a particular sub-fund(s) - see IFM12260).

Meaning of mutual fund

In considering whether particular arrangements are a mutual fund it is necessary to consider all agreements and understandings which might form part of the basis for any contract or entity. In other words, “arrangements” has a wide meaning and is not limited to, for example, the legal documents establishing a fund. Arrangements refers to the documents, undertakings and agreements constituting a particular entity. In a ‘fund of funds’ or other multi-tiered structure, including those headed by fully transparent entities such as limited partnerships, it is necessary to consider each set of arrangements independently of the others in the structure. So, for example, a limited partnership cannot be viewed as being part of any other ‘arrangements’ and thus forming part of an ‘offshore fund’. However, if the terms on which making an investment in the underlying entities are communicated to investors or potential investors in documentation or marketing material relating to a top-level entity (for example, a partnership agreement that makes it clear that underlying companies will be wound up by a certain date) then, in a case where the top-level entity is in a position to control any underlying entity, those terms are relevant to determining whether the underlying entity itself is an offshore fund.

Requests for advice

HMRC is not able to provide an up-front clearance service confirming whether or not a particular set of arrangements comes within the definition of an offshore fund. It will often be clear that a particular set of arrangements either does or does not come within the definition, but HMRC recognise that will not always be the case. If, after having considered the guidance in this manual in relation to all of the facts, there is material uncertainty as to whether particular arrangements are within the definition, then HMRC will provide an opinion, unless it is considered that the request does not come within published guidelines. Although this is not a formal clearance service, enquirers should consider the guidance concerning clearance requests available on gov.uk, including the circumstances in which HMRC will and will not provide an opinion. Queries should be sent at least 28 days in advance if the matter is material to whether or not to proceed with marketing to UK investors, and should be addressed to HMRC’s Collective Investment Schemes Centre.