APAC Monthly Private Wealth Legal Developments – May 2021

Welcome to Herbert Smith Freehills' monthly private wealth industry updates in Asia.

Every month we survey ten Asian jurisdictions for legal developments concerning trust and estate planning which are of interest to the private wealth industry, and provide a succinct summary in a table format.  The jurisdictions covered in the update are Hong Kong, Singapore, China, Taiwan, Japan, India, Malaysia, Indonesia, Thailand and the Philippines. We hope that these updates will prove to be a useful resource to keep private clients, business people, and lawyers abreast of legal updates in the region.

Hong Kong

Legislative amendments provide tax concessions for carried interest distributed by eligible private equity funds

The Inland Revenue (Amendment) (Tax Concessions for Carried Interest) Bill 2021 has now been passed by the Legislative Council of Hong Kong, and the Inland Revenue Ordinance has been amended correspondingly.  The amendments (among other things) enable concessionary tax treatment to be applied to eligible carried interest received by, or accrued to, qualifying carried interest recipients on or after 1 April 2020.

Singapore

New MAS-industry group on asset management and fund domiciliation

The Monetary Authority of Singapore has announced a new partnership with the private sector which will focus on asset management. The Singapore Funds Industry Group, the result of this partnership, will identify emerging industry trends and formulate strategies to develop the asset management ecosystem.

Japan

Licensing exemptions for foreign asset managers

The Suga Cabinet has submitted a bill which proposes:

1. exemptions from Type II broker-dealer and investment management registration for fund operators of certain partnership-type funds operating under certain conditions; and
2. an up to five-year registration moratorium for foreign fund managers registered with a foreign authority who have foreign investors only and who satisfy certain eligibility requirements.

Carried interest to be taxed on pass-through basis

The Japanese Financial Services Agency has announced that carried interest partnership profit distributions received by individual fund managers in relation to certain partnership agreements will be taxed on a pass-through basis and treated as the income of the fund managers in accordance with the distribution ratio as stated in that partnership agreement.

India

Court considers effect of "most favoured nation" clause on withholding tax on dividends  The Delhi High Court considered a "most favoured nation" clause in the India-Netherlands tax treaty which stated that if India entered into a tax treaty on a later date concerning particular matters with a third country which is an OECD member, a similar benefit should be accorded between India and the Netherlands.  India's tax treaties with some third countries provided for a lower withholding tax rate on dividends than in the India-Netherlands tax treaty.  The Court determined that this meant that those lower rates should apply between India and the Netherlands as well, although those third countries had become OECD members only after the execution of the India-Netherlands tax treaty.

Malaysia

SCM releases revised guidelines on the conduct of directors

The Securities Commission Malaysia has released revised guidelines on the conduct of directors of listed corporations and those corporations' subsidiaries. The amendments include the provision of guidance highlighting the rationale for establishing a group governance framework and the fundamental elements expected in such a framework.

Thailand

SECT consults on unitholder data collection of mutual funds

The Securities and Exchange Commission of Thailand is seeking feedback on the amendment of regulation and draft regulations on unitholder data collection of mutual funds, with comments requested by 26 May 2021.

Philippines

AML rules to extend to tax evasion and real estate

The Filipino Anti-Money Laundering Act has been amended such that real estate developers and brokers, offshore gaming operators, and all financing and lending companies in the Philippines must now register with the Filipino anti-money laundering regulator and must report suspicious transactions.  Further, tax evasion involving a sufficiently large sum now falls within the legislative scope of money laundering reporting and enforcement.

The contents of this document are for reference purposes only. Some of the information comes from public sources and this may not be comprehensive, accurate or up to date; where we have relied on third party information and sources, this has not been verified by us. The document does not constitute legal advice, and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action based on this publication, and any facts in this document should be checked for your specific circumstances at the time you wish to use or refer to them.