The present Royal Decree introduces a number of changes to the regulation of the law 35/2003, 4 November, collective investment institutions, approved by the Royal Decree 1309 / 2005, of 4 November, as well as three regulations of the taxation field: the regulation of the tax on the income of non-residents, approved by the Royal Decree 1776 / 2004 , July 30; Regulation of the tax, approved by the Royal Decree 1777 / 2004, of 30 July, and the regulation of the tax on physical persons income, approved by Royal Decree 439/2007 of 30 March.
The main objective of this Royal Decree is twofold. On the one hand is intended to solve some problems raised by the impact of the financial crisis on the assets of collective investment institutions. On the other hand necessary improvements that allow greater flexibility in the performance of these investment figures, without undermining investor protection.
The current financial crisis has impacted negatively on the assets which are part of the heritage of a great number of collective investment institutions, well because these assets have become illiquid, well because in the current market conditions, they are difficult to assess. For these reasons, and given the current complex situation, it is necessary to introduce an alternative to the final settlement of a collective investment institution and to the fact that the exceptional situation in which they find themselves part of its assets, in combination with the obligations imposed by the regulations in terms of subscriptions and redemptions, will result in the closure of such collective investment institution.
This alternative is the creation of collective investment institutions or special purpose compartments, known internationally as "side pockets", where the assets affected by the exceptional situation that hampers their valuation and decreases its liquidity will be staying. Thus, the institution of collective investment or original compartment you can continue managing normally, while the institution of collective investment or special purpose compartment is subject to a special scheme for rating, liquidity, subscriptions and redemptions, among other issues, allow an orderly liquidation of its assets.
On the other hand, as we have mentioned, a number of amendments are introduced in the regulation of the law 35/2003, 4 November, collective investment institutions aimed at making more flexible the operation of collective investment institutions, thus achieving greater efficiency in financial markets, to a reduction in the level of protection to the investor. Some of these measures are mainly the following: allows to operate with "Exchange-traded funds», better known as ETF, in the form of variable capital investment companies; be more flexible character real estate collective investment undertakings investment regime, including listed companies's investment in the housing market among the assets that can materialize their investments; certain limits to the investments that have to comply with objectives of profitability guaranteed investment funds are flexible and the regime of transparency of the commissions is improved.
Additionally it should be noted with some of the changes set forth in Royal Decree approaching the system of delegation of the management companies of collective investment companies of investment services, collected in the Royal Decree 217/2008, of 15 February, on the legal regime of service companies of investment and other entities that provide investment services and amending the regulation partially of Law 35/2003, 4 November, collective investment institutions, approved by the Royal Decree 1309 / 2005 of 4 November. This will prevent that the management companies for collective investment institutions that are authorised for the provision of certain services of investment, have to attend different rules when it comes to delegate functions to another entity.
Finally, changes to tax regulations are exempt from the obligation to practice retention or payment on account of income derived from transmissions or redemptions of shares representing the capital or assets of investment funds quoted or listed index variable capital investment companies.
By virtue, on the proposal of the Minister of economy and finance, according to the Council of State and after deliberation by the Council of Ministers of June 4, 2010, I have: first article. Modification of the regulation of the law 35/2003, 4 November, collective investment institutions, approved by the Royal Decree 1309 / 2005 of November 4, which approves the regulation of the law 35/2003, 4 November, collective investment institutions, and adapts the tax regime of collective investment undertakings.
The regulation of the law 35/2005, of 4 November, collective investment institutions, approved by the Royal Decree 1309 / 2005 of November 4, which approves the regulation of the law 35/2003, 4 November, collective investment institutions, and adapts the tax regime of collective investment undertakings is to be re-worded as follows : One. Article 5(1) is drawn up in the following way: «1. the IIC management companies and depositaries may receive funds commissions management and storage, respectively, and the management companies of IIC may receive of the participating committees for subscription and repayment.» In the brochure the way of calculation, the maximum limit of the commissions referred to each of the classes, commissions actually going to apply, and the beneficiary of its collection both compartment must pick up. «Further in the event the IIC management company (hereinafter, SGIIC) reserves the possibility of establishing agreements of returning to unit-holders of charges levied such circumstances should be included in the prospectus of the funds, together with the criteria to be followed for the practice of such returns.»
Two. New wording is given to paragraph 1 of the third paragraph of article 5.3: «1st failing to fund the Commission's management on results only in those periods in which the net asset value is superior to any other previously reached in years in which there is a Commission on results. The maximum net asset value reached by the Fund will link to the SGIIC for periods of at least three years.»
3. A new wording is given to article 5.10 and two paragraphs 12 and 13 are added to article 5: '10. When a mutual fund investing in another collective investment institution (hereinafter IIC) that is managed by the same SGIIC or by a company belonging to the same group, management commissions accumulated and supported directly or indirectly by their participants shall not exceed the percentage fixed for that purpose by the prospectus of the Fund within the limits of this article. The percentage of management fees accumulated and indirectly supported by investment in other IIC, in accordance with the preceding paragraphs, shall be calculated according to the amount effectively supported in relation to heritage invested in these IIC.
Also, this investment fund may not support commissions of subscription and refund of the IIC in which they invest when they are managed by their same SGIIC or by a company belonging to the same group. Funds that invest a substantial proportion of its assets in other IIC must be in the prospectus the maximum management fees and depositary level that can support either directly or indirectly, expressed as a percentage on the heritage of the IIC and on capital invested in these assets.'
«(12. Los fondos de inversión podrán soportar comisiones de intermediación que incorporen la prestación deel servicio de análisis financiero sobre inversiones, a que se refiere el artículo 63.2.e) (Law 24/1988, of July 28, the stock market, provided that siempre que asi as well listed in the prospectus of the Fund and the following requirements are met: to) analysis service shall constitute original thought and propose meaningful conclusions» , which are not obvious or public domain, derived from the analysis or data processing.
(b) that service must be linked with the investment aim of investment fund and help improve decision-making on investment.
(c) the annual report of the institution referred to in article 17 of law 35/2003, 4 November, collective investment institutions, should collect detailed qualitative information so that investors have knowledge of the costs of the analysis service existence.
(d) the managers shall provide procedures of selection of intermediaries in order to ensure their duty to act for the benefit of participants, properly manage the conflicts of interest that may arise in relation to the above costs, as well as to ensure the best possible result in the execution of operations. Also, procedures must include at least annual review of commissions paid to intermediaries.
13. the Minister of economy and finance and, with its express clearance, the National Commission of the stock market will dictate the other provisions necessary for the development of this article.»
Four. A new paragraph 4 is added to article 7: '4. Shall apply the delegation of functions regime established in article 68 to investment companies whose management, administration and representation is not entrusted to a SGIIC».
5. New wording is given to the second and third subparagraphs of article 14.2: «when the modification of the regulation of management or, where appropriate, brochure may entail a substantial shift in the policy of investment or the policy of distribution of results, the replacement of the management company or the depositary, the delegation of the management of the portfolio of the institution in another entity the transformation, merger or demerger of the bottom or compartment; or the establishment or elevation of the commissions, must be communicated to participants prior to its entry into force, at least for a month. The entry into force of these modifications will occur at the time of registration of the amendment of the regulation of management or, where appropriate, of the update of the explanatory brochure. The change of control of the SGIIC, once made and notified to the CNMV, shall be communicated to participants within the period of ten days.
Whenever there is a reimbursement or costs or discounts associated with the Commission, participants may choose the period of one month from the date of publication, or remission of communications participants if this is later, for the refund or transfer of its shares, total or partial, without deduction of Commission for reimbursement or spend some «, the net asset value that corresponds to the date of the last day of the month of information.»
6. (Added two new letters j) and k) to article 18.1, with the following wording: «j) "Quoted investment fund" and its acronym "Quoted FI".
«("k) quoted index variable capital investment company" and its acronym "Index quoted SICAV".»
7. Gives new wording to article 33.3: «3. Once dissolved the Fund, the liquidation period will open and the right to reimbursement and subscription of shares will be suspended. The SGIIC, with the assistance of the depositary, act as liquidator and proceed with the greatest diligence and in the shortest time possible to alienate the Securities and assets of the Fund and to meet and receive the credits. Once carried out these operations, develop the corresponding financial statements and will determine the fee that corresponds to each participant.
In relation to credits to meet, unpaid refunds requested by the participants, whose net asset value applicable refers to a date prior to the publication of the agreement of dissolution shall be considered as credit balances of the Fund.
Before the preparation of the financial statements, the liquidator may distribute cash retrieved on the disposal of equities and assets of the Fund, in respect of payments on account, on a proportional basis among all the partners of the Fund, provided that they have been satisfied all creditors or allocated the amount of their overdue loans. When there are not past-due loans, previously ensure payment.
The financial statements shall be verified in the manner provided in the Act and this regulation. The balance sheet and the profit and loss account shall be published in the «Official Gazette» and one of the newspapers with the largest circulation of the place of domicile of the SGIIC.
After the period of one month from the date of its publication while claims have been made, shall be the allocation of heritage among the participants. Quota not claimed within the period of three months shall be entered on deposit in the General case of deposits and will be available to their rightful owners.
In the case that there had been claims, it is will that provide the judge or competent court and they may make deliveries to participants on concept of provisional liquidation.
Once the total distribution of heritage, the SGIIC and the depositary will request the cancellation of seats concerning the Fund in the register of the CNMV that corresponds and, where appropriate, in the register.»
8. Gives new wording to paragraph e) of article 36.1: 'e) deposits in credit institutions to view or may become liquid, with a maturity not exceeding twelve months, provided that the credit institution has its head office in a Member State of the European Union or in any Member State of the OECD subject to prudential supervision.'
9. New wording is given to paragraph 5 of article 36.1. j): «5 shares and shares of venture capital entities regulated by law 25/2005, 24 November, regulating institutions of venture capital and their management companies, as well as similar foreign entities».
10. A new wording is given to the penultimate paragraph of point (d)) of article 38.2: "in these cases, investment in shares or debentures of the same issuer may reach 20 per cent of the assets of the IIC. This limit may be extended to 35 percent, when there are exceptional causes markkinoille and always make note in the brochure and all advertising for the promotion of the IIC.»
Eleven. A paragraph is added to article 38(4): «Moreover, may not invest in shares or shares of a same IIC above 25% of the volume in circulation of shares or shares of this. Not be subject to this limit those regulated IIC in article 45 whose investment policy is based on the investment in a single fund.»
12. A new wording is given to article 38.6: '6. «(Sin perjuicio de la excepción prevista en el primer párrafo deel apartado 2.b), the sum of investments in assets and financial instruments referred to in paragraph (c)) paragraph 2 issued by an issuer, in front of him positions in derivatives and deposits that the IIC has in that entity may not exceed 35% of the assets of the IIC.»
13. A fourth subparagraph shall be added to article 39.3 and amending article 39.4: «3. Total exposure to market risk associated with derivative financial instruments shall not exceed the net worth of the IIC. Total risk exposure ' means any current or potential obligations that may result from the use of derivative financial instruments, which will include the short sales.
The premiums paid for the purchase of options, are well isolated, hired well embedded in structured transactions, in no case shall exceed 10 per cent of the assets of the IIC.
The IIC that carry out a management aimed at the achievement of a concrete goal of profitability that has been guaranteed to the institution by a third party shall not be subject to the limits laid down in this section.
In addition will not be applicable the limit of 10 per cent previously reported to the IIC that carry out a management aimed at the achievement of a concrete goal of profitability.
4 exposure to the underlying asset market risk associated with the use of derivative financial instruments should be taken into account to comply with the limits of diversification in paragraphs 2, 3, 6, 7 and 8 of article 38. Derivative instruments are excluded for this purpose, whose underlying is an index stock or bond that complies with the requirements established in article 38.2. d), interest rates, rates of change, currency, financial ratios, volatility, as well as any other underlying the CNMV determined by present similar characteristics to the previous ones.
They are not subject to the limits laid down in this section the IIC that carry out a management aimed at the attainment of the specific objective of profitability that has been guaranteed to the institution by a third party.»
Fourteen. Added a new letter c) article 42.1: «c) (in case of IIC to replicate or reproduce a particular stock index or fixed-income referred to in article 38.2. d), the abolition of the 20% limit may be extended to 35% for a single issuer provided come justified by exceptional causes markkinoille.»
15. ((43.a item is changed), b) and n): «to) the shares or participations in these IIC must subscribe or purchase is through a minimum outlay initial 50,000 euros. The previous requirement shall not apply to participate to them having the condition of professional clients as they are defined in article 78 bis.3 of law 24/1988, of July 28, the stock market.
(b) they may be only marketing activities to which refers article 2.1 of the Act when aimed at professional clients as defined in article 78 bis.3 of law 24/1988, of 28 July, the stock market."
"(n) with prior to the subscription or acquisition of shares or of shares of these IIC, the investor must point in writing that know the risks inherent in the investment. The fulfilment of this obligation shall be without prejudice of respect at all times, by these IIC, the rules of conduct laid down in the Act, this regulation and its implementing rules.
The requirement of the document stating in writing the previous consent shall not be applicable to professional clients as they are defined in article 78 bis.3 of law 24/1988, of July 28, the stock market. Nor will it be enforceable document when there are contracts of discretionary portfolio management authorized to invest in this type of IIC which include equivalent to the cited document warnings."
Sixteen. Amending article 44.1. to):
«a) will need to invest at least 60 by 100 of his heritage in IIC's free investment refers to which the previous article constituted in Spain and IIC foreign similar either domiciled in countries belonging to the European Union or OECD, either whose management has been entrusted to a management company subject to supervision with residence in a country belonging to the European Union or the OECD.»
Seventeen. Added a new article 45 bis with the following wording: «article 45 bis.» IIC and special purpose compartments.
1. where in exceptional circumstances relating to the financial instruments in which you have invested an IIC, the issuers or markets, is not possible the appraisal or sale at its fair value of these instruments; such assets represent more than 5% of the assets of the IIC, and caused serious losses in terms of equity for the interests of unit-holders or shareholders, the management company or the investment, with the knowledge of the depositary company, you can split the original IIC transferring the assets affected by these circumstances resulting from newly created an IIC or compartment , of the same legal form, which shall consist exclusively of such assets.
For the estimation of the percentage referred to in the preceding paragraph, the management company or the investment company may have recourse to the last known valuation of the affected assets or any other generally accepted valuation technique.
2 the unit-holders or shareholders of the original IIC in the timing that the circumstances mentioned in the previous paragraph, will be in proportion to their investment in the original IIC shares or shares of the IIC or resulting special purpose compartment.
3. the creation of the IIC or special purpose compartment will be subject to prior notification to the CNMV, for the purpose of registration in the appropriate register and indeed relevant consideration under the terms of article 28. Also this creation communicate in writing to the unit-holders or shareholders, with an indication of the causes that led to the creation of the IIC or special purpose compartment and the conditions governing the same.
4 the IIC or resulting special purpose compartment shall be governed by the provisions applicable to the IIC or compartments, except: to) they will not apply the rules on investments contained in section 1 of chapter I of title III.
(b) they must have a minimum equity according to article 46 of the regulation.
(c) the calculation of the net asset value will be made with the periodicity of the IIC or original compartment. Where it is not possible to calculate the net asset value, justify such circumstance in the periodic public information.
(d) once created, the IIC or resulting from special purpose compartments not may issue new shares or shares. The designation of an account to perform the refund should apply for to the unit-holders or shareholders or repurchase, or an IIC to perform transfers, of their shares or participations, in accordance with the provisions of this article.
(e) when they disappear totally or partially the circumstances referred to in paragraph 1 above, shall be with greater diligence to the sale of the assets and the proportional distribution of the resulting liquidity among all investors of the IIC or compartment resulting special purpose, through the repayment or repurchase of the number of holdings or actions that corresponds.
(f) commissions or discounts for reimbursement not be set. With regard to management fees, deposit and other expenses which refers article 5.11, only vest and cleared when the IIC or resulting special purpose compartment has enough liquidity. Commissions management and deposit will be laid down in the original IIC maximum limit.
(g) no prospectus shall be required.
(h) the creation of the IIC or resulting special purpose compartment will not result in the right of separation in article 14.2.
(i) in the IIC reports should include information on the circumstances that led to the creation of the IIC or resulting special purpose compartment, as well as information on the net asset value available, perspectives on future developments of integral values in this IIC or resulting compartment and any other information deemed of interest.
5. the SICAV whose shares are admitted to trading on exchanges of values or other regulated markets or multilateral systems of stock trading, may not create special purpose compartments must necessarily adopt the figure of IIC and may not apply for the admission to trading on stock exchanges or other regulated markets or multilateral systems of securities trading.
6. the transfers regime established in article 28 of law 35/2003, 4 November, collective investment institutions, may apply to refunds of the shares representative of the IIC or special purpose resulting compartments holdings.
7 it won't apply to the IIC or special purpose resulting compartments regime transformation, merger and scission contained in articles 25, 26 and 27 of law 35/2003, 4 November, collective investment institutions.
«8. Once satisfied the refunds or carried out buy-backs or transfers of investors, will be the extinction of the IIC or compartment resulting special purpose, which shall be communicated to the CNMV for your annotation in the corresponding registry.»
Eighteen. The title of article 49 is modified with the following wording: «article 49. Exchange-traded investment funds and SICAV index listed companies.»
Nineteen. Amending article 49.2. a), b) and (c)): "to) obtain the approval of the National Commission of the stock market, in accordance with the procedure laid down in article 10 of the law. When the decline in the Fund in the corresponding register of the National Commission of the stock market, you void the admission to trading on stock exchange of their shares.
(b) comply with the special rules of article 52.1. Will not be required, at the time of its admission to trading, that the minimum number of participants is laid down in article 3. The Constitution of funds before notary and registration in the register will be optional.
"((c) that the aim of the investment policy is playing an index which fulfils the conditions laid down in article 38.2. d) as well as any underlying expressly authorizing the National Commission of the stock market."
20. Add a new paragraph 8 in article 49, with the following wording: «(8. Son SICAV índice cotizadas aquellas sociedades de inversión colectiva de capital variable que cumplan lo dispuesto en los apartados anteriores con las siguientes especialidades: a) not will be payable, at the time of its admission to trading, that the minimum number of shareholders is laid down in article 6 of this regulation.»
(b) paragraphs 3 to 6 of article 52 shall not to apply or articles 53 and 54 of this regulation.
(c) when the index SICAV is self-managed, all references in this article to the SGIIC is be deemed to refer to the Board of Directors of the SICAV.
(d) it shall not apply to the shares of its capital stock the procedure for transfer of shares referred to in article 28 of the Act.»
Twenty-one. Article 51.2 is modified with the following wording: «2. the shares will be sold and shall repurchased by society itself through at least one of the procedures laid down in the three following articles.» In the case of the listed index SICAV it shall apply provisions of article 49 of this regulation.»
Twenty-two. Amending article 56.1. to): «to) the completed real estate investments. Shall be included in this letter the following investments, with a limit of maximum set of 15 per cent on the heritage of the IIC: 1 investment in a society whose asset is constituted mainly by real estate, provided that the acquisition of that is in order to dissolve it in within six months from your date of purchase and the property is subject to lease from this.
2 investments in entities of lease of dwellings referred to in chapter III of title VII of the text revised from corporation tax law, approved by Royal Legislative Decree 4/2004, of 5 March.
3rd investment in a society whose asset is constituted mainly by real estate, as long as real estate are subject to lease.
4th investment in listed joint-stock companies of investment in the real estate market referred to in law 11/2009, of 26 October, which regulates the quoted anonymous companies of investment in the real estate market, provided that they do not have shares in the capital or assets of other real estate IIC.
5 other IIC investment real estate, always in the Fund rules or the statutes of the society whose holdings or actions is expected to acquire not authorized to invest more than 10 per cent of the assets of the institution in the units or shares of other IIC. In addition, rules on investment regime, prevention of conflicts of interest, debt and real estate valuation shall be similar to those included in this chapter."
Twenty-three. Article 60.1 is modified:
«1. real estate investment companies invest at least 80 percent of the annual average monthly balances of its assets in real estate under the terms of article 56.» «The rest of the asset may have it invested in the securities admitted to trading on stock exchanges or other markets or organized trading systems referred to in article 36.»
Twenty-four. A new paragraph 5 is added to article 63, with the following wording: once started the process of liquidation of the Fund, the management fee that can perceive the SGIIC as remuneration for their services to the Fund may not exceed 1.5%» the heritage of the Fund during the first year, 1 percent during the second year, and 0.5 percent from the third year. During the period of liquidation of the Fund, the SGIIC not entitlement Committee on management on results.
(b) the periodic public information should include a detailed reference on the sale of the real estate portfolio of the IIC process. In particular, please let for each period of the stage of completion of the sales process, developed sales, sold real estate detail actions, the price of sale, contacted investors and the bids received. Additionally, the annual report will include a summary of the sales process in the entire exercise and a reference to the prospects of sales for the following year.
(c) the depositary of the Fund should verify the performance of the SGIIC in the liquidation process is carried out with maximum diligence to liquidate the Fund in the shortest time possible, ensuring that each sales has done for the benefit of the participants and market conditions. "Such verification will be reflected in an annual report that will be available to the National Commission of the stock market."
Twenty-five. A new wording is given to article 68.
«1. the delegation of functions by the management companies of IIC shall not limit or decrease your responsibility for the fulfilment of the obligations laid down in the regulations in relation to the delegated activities.» In no event may occur a delegation involving the SGIIC becomes an entity of instrumental or empty of content.
2. the SGIIC shall establish appropriate procedures of control of the activity of the entity in which the delegation occurs. When the SGIIC and the entity in which occurs the delegation belong to the same group, that must be carried out its ability to control the entity and to influence his performance.
The SGIIC may give at any time further instructions to the entity in which occurs the delegation and may revoke the delegation, with immediate effect, where it is in the interest of investors.
SGIIC never may delegate functions to third parties when it decreases its ability to internal control.
3 the delegation of functions must satisfy the following conditions: to) does not imply a delegation of responsibility for part of the senior management or the Board of Directors.
(b) you can alter relationships and obligations of the SGIIC with its clientele.
(c) they may not removed or changed the conditions that must be satisfied the SGIIC to receive and retain the authorization by the existence of a delegation agreement.
The management companies of IIC shall take the necessary measures to ensure that: 1 the third delegate: i) it has the competence, capacity and any authorization which, if any, required by law to perform functions or services delegates in reliable and professional way.
(ii) performs effectively delegated services. To this end, the SGIIC shall establish measures to assess their level of compliance.
III) oversees the implementation of delegated functions correctly and adequately manage the risks associated with the delegation.
(iv) the SGIIC communicates any occurrences that may affect significantly the performance effectively and in accordance with the applicable regulations of the delegated functions.
(v) it cooperates with the CNMV in all matters relating to the activities delegated to it.
VI) protects all confidential information referred to the SGIIC and their customers.
2nd take appropriate measures when it appears that the third can not perform the functions effectively and in accordance with the applicable regulatory provisions.
3rd account with the experience necessary to effectively monitor the delegated functions and to properly manage the risks associated with such delegation.
4th may terminate the contract of delegation when necessary without detriment to the continuity and quality in the provision of services to customers.
5 their auditors and competent authorities have effective access to the data relating to the delegated activities and dependencies of the third delegatee. In addition, the SGIIC shall ensure that the competent authorities can effectively exercise the right of access.
6 herself and the third produced, apply and maintain an emergency plan for the recovery of data in the event of disasters and periodically check computer security mechanisms, when this is necessary in view of the function or delegate service.
4. the delegation agreement should be formalized in a written contract in which materialize the rights and obligations of the parties.
Between the clauses of the contracts or agreements that formalize the delegation, should expressly include commitment to the entity that receives the delegation of facilitating and enabling the work of supervision, where appropriate, the CNMV understand necessary in its headquarters.
The SGIIC must make available the CNMV upon this request, the information that is necessary for the monitoring of the implementation of the delegated activities.
5 brochures of the IIC should collect explicitly the existence of delegations and detail its scope.
6. institutions in which the management companies of IIC carry out delegations shall be subject to the regime of related operations in the terms established in article 67 of the law and article 99 of this regulation.
7 will require prior authorisation from CNMV the delegation by the management companies of IIC in one or several entities of the activity of management of assets, which will be subject to the following requirements: to) the agreement or agreements of delegation referred to in paragraph 4 shall be registered in the corresponding register of the CNMV in accordance with the procedure provided for in the Act and this regulation to amendments to the bylaws and regulations.
((b) the entity has delegated the management of assets must be necessarily another SGIIC or those other authorised entities, in accordance with the provisions of articles 64 and 65 of the law 24/1988, of 28 July, market values, to perform in Spain the investment services provided for in article 63.1. d) of the Act.
(c) the CNMV may establish the requirements that have to fulfill the contracts of delegation of the management of assets that shall ensure the continuity in the management of the assets so that those are not determined by the mere substitution of the SGIIC, except that agreeing to such substitution is also decided of the entity that manages by delegation all or part of the assets of the institution.
(d) in the case of a delegation of the management of the assets in a foreign entity, this must be domiciled in a Member State of the OECD, be subject to prudential supervision and guarantees similar to those required to the management companies of IIC Spanish. In addition, there must be a bilateral agreement between the CNMV and the authority that has mandated equivalent functions in the State in which is situated the institution, in accordance with article 91 of the law 24/1988, of 28 July, securities markets, covering the supervision and inspection in this matter, or obligation of cooperation among agencies supervisors in application of Community legislation.
(e) in the case of a delegation of the management of the assets of an investment fund, the authorization of the delegation will confer to holders of the investment fund the right to reimbursement of its shareholdings without Commission or discount for the refund or charge under the terms of article 12(2) of the law and article 14.2 of these regulations.
8. the delegation of the functions of internal control, namely internal audit, compliance, and management of risks as well as the functions relating to the administration of the IIC, must be communicated prior to that to be effective by the SGIIC to the CNMV for incorporation into the registry of the SGIIC.
9. in no case you can delegate the management of assets, internal control functions, i.e. internal audit, compliance and management of risk or management functions of the IIC in the depositary, with the exception of the keeping of the register of shareholders, expected in the 5th paragraph, letter b) of the article 64 and the provisions of article 84 , or any other entity whose interests come into conflict with those of the SGIIC or investors. It is not possible to delegate these functions to the same entity in which the depositary has delegated the functions which entrusted you the rules governing IIC.»
Twenty-six. New wording is given to article 74:
«Article 74. General fund of guarantee of investors.
The SGIIC must adhere to general investors guarantee fund in the event that perform investment services, except with regard to the provision of the service of investment advice. Accession must be prior to the start of the activity. In any case, will be applicable as provided in the Royal Decree 948/2001, of 3 August, on compensation for investors, and its development provisions."
Twenty-seven. A new wording is given to article 97.1: «1. It shall apply to the persons and entities listed in the previous article title IV on the rules of conduct applicable to those who provide investment services of the Royal Decree 217/2008, of 15 February, on the legal regime of the companies of other entities providing investment services and investment services and by partially amending the regulation of law 35/2003 , 4 November, collective investment institutions, approved by the Royal Decree 1309 / 2005 of 4 November. To the management companies of IIC, carrying out the activity of marketing of shares and participations of IIC by them managed and, where appropriate, of other IIC, provisions will be of application in chapter III of title IV of the Royal Decree 217/2008»
Second article. Modification of the regulation of the tax on the income of non-residents, approved by Royal Decree 1776 / 2004, of 30 July.
New wording is given to article 10.3. to), 3rd «3rd income derived from transmissions or redemption of shares representing the capital or assets of collective investment institutions, except from the units or shares in the funds and companies regulated by article 49 of the regulation of the law 35/2003, 4 November, collective investment institutions «, approved by the Royal Decree 1309 / 2005 of 4 November.»
Third article. Modification of the regulations of the tax of companies, approved by the Royal Decree 1777 / 2004, of 30 July.
Paragraph is modified and) article 59 in the following terms: «and) income derived from reimbursement or transmission of shares or shares in the funds and companies regulated by article 49 of the regulation of the law 35/2003, of collective investment institutions, approved by the Royal Decree 1309 / 2005 of 4 November.»
Fourth article. Modification of the regulation of the tax on physical persons income, approved by Royal Decree 439/2007 of 30 March.
The regulation of the tax on the Renta de las Personas Físicas, approved by Royal Decree 439/2007, March 30 is amended as follows: one. Amending article 75.3. i) in the following terms: ' i) capital gains derived from the reimbursement or transmission of the units or shares in collective investment institutions, when, in accordance with article 94 of the tax law, not appropriate their computation, as well as those arising from the reimbursement or transmission of shares or shares in the funds and companies regulated by article 49 of the regulation of law 35/2003» «, 4 November, collective investment institutions, approved by the Royal Decree 1309 / 2005 of 4 November.»
Two. New wording is given to the fourth additional provision, with the following wording: «fourth additional provision. Shares in exchange-traded mutual funds and stocks of listed index variable capital investment companies.
The regime of deferral provided for in article 94.1. to) .second paragraph of physical persons income tax act will not be applicable when transmission or refund or, where applicable, the subscription or acquisition is aimed at representative holdings of the heritage listed investment funds or shares in the companies of the same type referred to in article 49 of the regulation of law 35/2003 «, 4 November, collective investment institutions, approved by the Royal Decree 1309 / 2005 of 4 November.»
Sole repeal provision. Repeal legislation.
They are hereby repealed many rules of equal or lower rank is contrary to the provisions of this Royal Decree and article 24.3 of the order of the Ministry of economy and finance, of 24 September 1993, on funds and real estate investment companies.
First final provision. Modification of the Royal Decree 926/1998, 14 may, which regulates securitization of assets and the management companies of securitisation funds funds.
Article 2.2. ª, 1st, of the Royal Decree 926/1998, 14 may, which regulates the funds of securitization of assets and the management companies of securitisation funds is worded as follows: «the assignor both 1st and, where appropriate, the transmitter of values created for incorporation into a securitisation Fund, must be provided at the time of the establishment of the Fund in General of» at least, audited accounts for the last 3 years. The audit report of the last year should be opinion and may not contain a denial of opinion or adverse opinion limitations on the scope or other caveats which, according to, the CNMV, may affect the assets to titulizar. This requirement may be exempted by the CNMV when the transferor entity is recent.»
Second final provision. Entry into force.
This Royal Decree shall enter into force the day following its publication in the "Official Gazette".
Given in Madrid, June 7, 2010.
JUAN CARLOS R.
The second Vice-President of the Government and Minister of economy and finance, ELENA SALGADO MÉNDEZ