We recently referred to the changes brought about by Law 16/2013 of
29 October, which introduced the possibility of marketing Spanish
investment funds by using omnibus accounts, implementing a system
similar to that applied in other neighbouring countries.
The use of omnibus accounts enables investments in a Spanish
Collective Investment Scheme to appear in the register of shareholders
of the fund manager under the name of the distributor, who acts on
behalf of its clients, the ultimate investors. The use of omnibus
accounts will facilitate cross-selling of investment funds among
different distributors, thus maintaining the identity of the ultimate
investor confidential.
In this context, the recently approved Royal Decree 960/2013 of 5
December ("Royal Decree 960/2013") develops and
specifies the distributor’s withholding and information obligations.
In particular, according to Royal Decree 960/2013, the distributor in
whose name the shares are registered, on behalf of the investors, will
be required to make the relevant tax withholdings or payments on account
attributable to the final investor, thus replacing the management
company as withholding agent. As the distributor is the only entity that
has information about the final beneficial owner of the shares of the
collective investment Schemes, it will also have to comply with the
reporting obligations to the tax authorities.
These reporting, calculation and payment of withholdings obligations
will always be based on the data contained in the internal registries of
the distributor, with no obligation for the distributors to provide
information on the identity of the final investors to the management
company, thus preserving the confidentiality sought by the use of
omnibus accounts. Meanwhile, the managing entity must maintain a general
registry with the aggregate global position of those distributors acting
on behalf of third parties.
Finally, Royal Decree 960/2013 provides a special rule for
determining the taxable amount subject to withholding tax or payment on
account applicable to redemptions made by an investor who had
simultaneously maintained participations in the same investment fund
through two or more distributors.
The reform entered into force on 7 December 2014.
