U.S. Treasury’s Benchmark TIC SHL Survey and Implications for Investment Managers

In August 2019, the U.S. Department of the Treasury (Treasury) and the Federal Reserve Bank of New York (FRBNY) will conduct a benchmark survey of foreign residents’ holdings of U.S. issuers’ securities. The information will be gathered on Treasury International Capital (TIC) Form SHL (TIC SHL), which is broadly applicable to U.S. issuers (including investment funds) and captures certain data that the U.S. issuers (or their investment managers) are not required to report on the more frequently-collected TIC reports (such as the monthly TIC Form SLT). U.S. investment managers that advise investment funds with foreign-resident investors should consider whether such managers are required to file TIC SHL.

This Dechert OnPoint provides an overview of the TIC SHL reporting requirements and explains how they may apply to investment managers.4

Overview of TIC SHL

TIC SHL is a mandatory benchmark study commissioned by the Treasury and administered by the FRBNY every five years.5 The survey reviews holdings of U.S. securities – including short- and long-term securities and selected money markets instruments – by foreign residents. The survey is part of a series of TIC and related forms6 that are used to: calculate U.S. balance-of-payment data; formulate U.S. international financial and monetary policies; and generate International Monetary Fund statistics.

TIC SHL consists of two parts. Schedule 1 consists mainly of basic identifying information and a summary of the data, if any, reported on Schedule 2. Schedule 2, which is significantly more burdensome, requires detailed security-by-security reporting of foreign holdings of the reporter’s securities.

Who Must Report

Reporting obligations for TIC SHL are triggered in two ways:

1. All U.S.-resident entities that are contacted by the FRBNY are required to file at least Schedule 1, and must file Schedule 2 if they exceed the reporting threshold (discussed below).

2. Any entity that exceeds the specified reporting threshold – regardless of whether or not it is contacted by the FRBNY – must submit both Schedule 1 and Schedule 2.7 The reporting threshold is met if the total value of reportable U.S. securities owned by foreign residents is at least $100 million as of the close of business on June 30, 2019. For purposes of determining whether the threshold has been met, investment managers and other reporters must consolidate all U.S.-resident parts of their organization (including all U.S.-resident branches and subsidiaries),8 as well as any U.S. investment funds they manage.9

Investment managers report on behalf of their own organization (i.e., the investment manager or its parent entity’s shares held by foreign residents) as well as the U.S. investment funds they manage. The TIC SHL instructions define funds broadly to include “all investment vehicles that pool investors’ money and invest the pooled money in one or more of a variety of assets,” and include open- and closed-end funds, money market funds, REITS, investment trusts, index-linked funds, ETFs, hedge funds and common trust funds.10

What to Report

Any shares or similar units issued by U.S. funds (including limited partnership interests) held by non-U.S. residents are within the scope of TIC SHL. However, investment managers do not need to report shares or units of the U.S. investment funds they manage if a U.S.-resident custodian or central securities depository (other than the reporting entity) is used. In addition, investment managers that organize offshore feeder funds to U.S. master funds must report the securities held by the offshore feeder fund, even though the onshore and offshore funds may be affiliated with one another.11

Reporting Dates

If required to file TIC SHL, an entity must submit the report by August 30, 2019, the last business day of August. The report should reflect holdings as of June 30, 2019.

Penalties for Failure to Report

TIC SHL is authorized and required by an Act of Congress. There is potential civil and criminal liability for failure to file timely and accurate reports for any U.S.-resident person or group subject to the reporting requirements. Any U.S.-resident person or group that fails to provide timely and accurate data on TIC SHL may be subject to one or both of: a civil penalty between $2,500 and $25,000; or injunctive relief ordering compliance. Any U.S.-resident person or group that willfully fails to submit any of the information required in the report may be subject to a fine up to $10,000, and, if an individual, may be subject to imprisonment for up to one year, in addition to or instead of the fined amount. Further, officers, directors, employees and agents of any entity with filing obligations, who knowingly participate in such a willful violation, are subject to the same penalties.

Important Considerations for Investment Managers

Although completing TIC SHL can be a burdensome exercise, entities that already file other TIC and related forms (in particular, TIC Form SLT) may be able to leverage existing reporting systems within their organizations. Investment managers are expected to make reasonable efforts to determine the extent to which fund shares are held by foreign-resident investors. In doing so, they should be mindful that the relevant data may be held by one or more third-party service providers (e.g., a transfer agent) and should work with such service providers to compile the reports. However, to the extent that shares are held through omnibus accounts administered by U.S. broker-dealers that serve both U.S. and foreign investors, investment managers need not look through to determine the investors’ residency, but instead may rely on the broker-dealers maintaining the accounts, which should report such holdings on their own TIC SHL filings.

Footnotes

_{1) Survey of Foreign Ownership of U.S. Securities as of June 30, 2019, 84 Fed. Reg. 111 (June 10, 2019).
2) Quinquennial Report to the Federal Reserve Bank of New York, Report of Foreign-Residents’ Holdings of U.S. Securities, Including Selected Money Market Instruments (SHL(2019)). The TIC SHL form and instructions are available at https://www.treasury.gov/resource-center/data-chart-center/tic/Pages/forms-sh.aspx.
3) While a U.S. investment fund is subject to the TIC SHL reporting requirements, the reporting responsibility generally belongs to a U.S. investment manager that advises the investment fund, based on the consolidation rules.
4) For an overview of the other parts of the TIC reporting system and related reporting regimes that may apply to U.S. investment managers or their affiliates, see Julien Bourgeois, Philip Hinkle, and Matthew Barsamian, Foreign Holdings and Transactions with Foreign Persons: Reporting Responsibilities for US Investment Managers and Other Financial Institutions, The Investment Lawyer, Vol. 21, No. 4 (April 2014). 
5) During the years when the benchmark study is not conducted, the Treasury collects data on TIC Form SHLA, which is a survey that requires reporting only by entities that have been contacted by the FRBNY.
6) Related TIC Forms SHC and SHCA are administered every five years and annually, respectively, and collect data on the holdings of foreign securities by U.S. residents. The most recent SHC report was collected in March 2017.
7) In contrast, filing of TIC Form SHLA (an annual version of TIC SHL) is required only if entities have been contacted by the FRBNY.
8) Subsidiary is defined as “a company in which another company (parent) owns 50% or more of the voting securities, or an equivalent interest, or meets the consolidation requirements of U.S. GAAP.”
9) For purposes of the TIC forms, a U.S. resident is defined as “any individual, corporation, or other organization located in the United States, including branches, subsidiaries, and affiliates of foreign entities located in the United States.”
10) Quinquennial Report to the Federal Reserve Bank of New York, supra note 2, at 11-12.
11) Generally, direct investments should not be reported on TIC reports, including TIC SHL. Direct investment is defined as “[i]nvestment in which a resident of one country obtains a degree of influence over the management of a business enterprise in another country … [by] ownership of at least 10 percent of the voting securities of an incorporated business enterprise or the equivalent interest in an unincorporated business enterprise.” However, foreign residents’ investments in U.S. private funds generally do not fall under this exclusion. Such investments must be reported on TIC reports, as long as: (1) the U.S. private fund does not own voting securities of an operating company such that a foreign-resident investor would indirectly own at least 10 percent of the voting securities of the operating company; or (2) if the U.S. private fund is owned indirectly, no operating company exists in the chain of ownership between the foreign-resident investor and the U.S. private fund.}