SEC Lowers More Barriers to Community Capital

SEC Lowers More Barriers to Community Capital

This month has been full of big news. Yes, there was the election, of course. But there was other important news for those interested in community capital. On Monday November 2, 2020 – the day before the election – the Securities and Exchange Commission issued final rules as part of a broad initiative to harmonize the regulatory framework for exempt offerings, i.e. securities offerings that don’t need to be registered with the SEC.

There are a host of exemptions from SEC registration, each for an offering of a particular type, and several of which are discussed in more detail on our Cutting Edge Capital website. The rules for these various offerings evolved in somewhat disjointed ways and had come to look like an uncoordinated patchwork quilt, with significant barriers making those exemptions more difficult to use than they needed to be.

But the SEC’s new rules lower those barriers and will not only make it easier for companies to use some of these exemption strategies, but may also open up avenues for raising capital that might not have been previously available.

The issuing release from the SEC is a rather daunting 388 pages long. The SEC has prepared this fact sheet summarizing the changes. Here are some of the highlights that we think will be most relevant to our clients:

Integration

Though the term sounds technical, integration has been an important concept in securities law for generations. It arises from the fact that each exemption strategy works within a fairly narrow set of circumstances. But what if you want to use two different strategies to reach two different groups of investors? The idea of integration is that two different offerings using two different strategies might be integrated, such that they are treated as one single offering that doesn’t meet the requirements of either intended strategy.

Here’s just one example of the way the integration doctrine worked: A company wants to raise capital under the Rule 506(b) private offering exemption from accredited investors that they personally know in several states, and then conduct an intrastate direct public offering to investors in just one state. If these two offerings are considered to be integrated – as they likely would – the combined offering would’t meet the requirements of either strategy. It wouldn’t meet the requirements of the private offering because the DPO is offered to the public; and it wouldn’t meet the requirements of the intrastate DPO because some of the investments are from other states, and because some of the investors came in before the company got the required regulatory approval for the DPO.

Over the years, courts have developed a five-prong test for when there will be integration, and they seem to always find integration where there are any similarities between the offerings. But going forward, we won’t need to dig into those factors, because here’s the good news: The new rules almost completely eliminate the integration doctrine.

Under the new rules, the focus will simply be on whether the requirements of each strategy have been satisfied. If so, there will be no integration. So, in our example above, if the company is meeting all the requirements for the Rule 506(b) private offering (for example, with no general solicitation), it won’t matter that immediately after that offering is completed the company then launches a direct public offering, with a press release, advertising, and other types of general solicitation.

But lest there be ambiguity about whether there is or isn’t integration in particular situations, the SEC has crafted two important “safe harbors” that can give confidence that two offerings won’t be integrated.

First, a private offering will not be integrated with a subsequent public offering of any kind, as long as they do not overlap in time.

Second, any two offerings that are separated by at least 30 days won’t be integrated, as long as:

  • Investors in a private offering that follows a public offering were not reached through general solicitation; or
  • The company had a substantive relationship with investors prior to commencement of a subsequent private offering.

Our Take: We often work with our clients on strategies involving multiple offerings, such as a private offering followed by a public offering; these new rules will open up more possible combinations of those offerings. It may also allow for two offerings concurrent with each other. For example, under the new rules, it appears that a small charitable loan fund could conduct a public offering under the federal charitable exemption in those states that also have a charitable exemption, while simultaneously conducting a Rule 506(c) offering (allowing general solicitation of a private offering) in those states that don’t have a charitable exemption. This would allow the fund to raise capital from every state in the country at a minimum compliance cost.

Regulation Crowdfunding

Several changes were made to the rules for Regulation Crowdfunding (also known as Reg CF) offerings:

  • The maximum size of offerings has been increased from $1.07 million to $5 million.
  • There is no longer a limit on how much an accredited investor can invest in a Reg CF offering.
  • For non-accredited investors, the per-investor cap is now calculated on the greater of either their annual income or their net worth. (Previously it was based on the lesser of the two.)
  • The SEC has extended for an additional 18 months a special temporary rule that allows for offerings of up to $250,000 without CPA-reviewed financial statements. (Previously, that cap was $100,000.)
  • A special purpose vehicle may now be used as a conduit for investors in a Reg CF offering to simplify the company’s cap table.

Our Take: Taken together, these changes will make it easier for many companies to raise capital under Reg CF, and we expect to see more of these offerings. Whether the increased cap of $5 million will make a difference remains to be seen. Already, most Reg CF offerings do not raise the full $1.07 million they are allowed to raise, so increasing the cap may not help much. However, if these changes lead to greater acceptance of Reg CF within the investing community at large, including institutional investors that have largely stayed on the sidelines so far, we may well see more success with bigger offerings.

Other Offering Limits

The new rules increase the amount that may be raised in two other types of offerings, in addition to Reg CF:

  • Reg A Tier 2: The cap is now $75 million, up from $50 million. (The cap for Tier 1 offerings, which are far less useful because they still require state registration, remains at $20 million.)
  • Rule 504: Often used for multi-state direct public offerings, the cap has been increased from $5 million to $10 million. (And interestingly, it had been increased from $1 million to $5 million just four years ago.)

Communications

Some of the new rules will make it easier for companies to communicate with potential investors, even when conducting or contemplating a private offering that does not allow for general solicitation.

Demo Days

The SEC will now allow companies looking to raise capital to make a presentation at “demo days” following these rules (which will comprise a new Rule 148):

  • The sponsor of the demo day must be a state or local government body, school, angel investor group, incubator, or accelerator. (But note that the list of potential sponsors does not include fund sponsors, venture capital associations, or professional organizations.)
  • The sponsor doesn’t make investment recommendations, get involved in investment negotiations, charge fees for making introductions, or charge attendees anything more than administrative fees.
  • There must be at least two companies presenting at the event.
  • Advertising for the event may not reference any specific offering by companies that will be presenting at the event.
  • At the event itself, the presenting companies can provide only certain basic information about their particular securities offerings.

Significantly, it is not necessary that attendees of an in-person demo day either be accredited or have any pre-existing relationship with either the sponsor or with any of the companies making a presentation; there is no limit on how many may attend in person. However, if the demo day event allows for online participation, it must be limited to online participants who are either:

  • members of the sponsoring organization;
  • individuals that the sponsor believes to be accredited investors; or
  • individuals who were invited to the event because of their experience, as described in any advertising for the event.

Our Take: While demo day and pitch events have become quite common in recent years, we have generally advised our clients to be careful, because many of those events flaunt the securities laws and put the presenting companies at risk. This new rule will give presenting companies confidence that they can make these presentations without worrying about violating securities laws. We expect these demo days to become much more common.

Testing the Waters

One of the challenges many companies face when deciding among different offering strategies is that they have no way of knowing which offering strategy is most likely to succeed, i.e. which target group of investors will most likely invest. And while the rules for Reg A Tier 2 offerings expressly allowed for “testing the waters,” or soliciting interest in an offering, before doing all the legal and other work that Reg A requires, other exemption strategies did not have that option.

The new rules will change all that and will allow a company that has not yet decided on a particular offering strategy to do a generic solicitation of interest – either publicly or privately – from potential investors to help it decide. Here are some guidelines under this new Rule 241:

  • The company must keep copies of the testing-the-waters materials; and if they end up doing a Reg A or Reg CF offering they must file those materials with the SEC.
  • No money can be solicited or accepted while testing the waters.
  • Specific disclosures must be included in the testing-the-waters materials (for example, a statement that indications of interest are non-binding).

This is a limited exemption that only applies to the testing-the-waters. A subsequent offering must still comply with all of the requirements for the chosen strategy. This means that if a company does a public testing-the-waters (i.e. with general solicitation or advertising) and then choses to do a private offering, the company will need to follow the new integration rules described above and ensure that the private offering does not involve general solicitation.

Our Take: This is a big step forward for companies that are weighing different offering strategies. However, the new rules on testing-the-waters expressly do not preempt state laws. This means that – for now at least – state laws may still prohibit testing-the-waters, even if allowed under federal laws. This will require careful analysis of the interplay of state and federal laws.

Rule 506(c) Accredited Investor Verification

Rule 506(c), which arose out of the JOBS Act of 2012, is a variation on the private offering exemption. It allows for general solicitation and advertising; but in exchange, it requires that every investor in the offering be an accredited investors, and it further requires that the company take steps to independently verify the accredited status of every investor.

But what happens if the same investor in a Rule 506(c) offering invests twice, or more often? Does the company need to go through the investor verification process every time the same investor invests? We now have an answer to that question. Under the new rules, once the company does its verification of an investor’s accredited status, it may rely on that verification for up to five years, as long as the company is not aware of any facts suggesting the investor is no longer accredited.

Our Take: Several of our clients have been in this situation, since it is not uncommon for an investor to make multiple investments in the same company, and this additional clarity will be helpful. It will both reduce compliance costs and increase confidence for companies using the Rule 506(c) strategy.

Final Thoughts

We welcome these changes in the federal securities rules, which will not only lower some of the barriers to using the existing exemptions, but also make some of those exemptions more useful and, hence, more likely to be used.

There are a number of other changes in the new Rules that are probably of less importance to our clients, such as financial disclosure requirements for Rule 506(b) offerings with non-accredited investors; and restrictions on the use of Reg A by companies delinquent in their reporting obligations. Note, too, that the new rules described here will be effective sixty days after they have been published in the Federal Register (which probably means some date in January 2021).

Naturally, this summary of the new rules is offered for informational purposes only and should not be taken as legal or investment advice. For more information about Cutting Edge Counsel (including our capital-raising practice group known as Cutting Edge Capital), visit www.cuttingedgecapital.com or email us at info@cuttingedgecapital.com.

Intrastate and Small Fund Exemptions to the 1940 Act: Now Is the Time

Intrastate and Small Fund Exemptions to the 1940 Act: Now Is the Time

Imagine a typical American community in these very untypical times. COVID-19 has taken a heavy toll. Many small businesses have closed — temporarily, it is hoped. Unprecedented numbers of workers have been laid off or furloughed as businesses conserve cash in the face of sharply declining revenues.

But in time, when the shelter-in-place orders are finally lifted and businesses are free to resume operations, everything quickly gets back to normal, right? No. It’s clearly not going to be that simple. Some businesses may be able to quickly ramp up to pre-COVID-19 levels, but others will need a boost.

But in this community we are imagining, something magical starts to happen. The community pools its resources and invests in its own recovery. A community investment fund is established, and anyone in the community can invest in it, from the wealthiest to anyone with a few hundred dollars. Many people invest the full amount of the stimulus check they receive from the government.

This fund then makes investments in local businesses to help them get back up and running and to help them grow. These are mostly equity investments, because that’s what entrepreneurs often need, and that’s the kind of investment that’s often hardest to get. And these equity investments can help entrepreneurs get more traditional loans, which amplifies the potential boost to their business. The fund also makes revenue-sharing investments, which help to ensure a financial return to the fund, while automatically adjusting for the entrepreneur’s cash flow.

This fund isn’t demanding extractive returns, and it isn’t searching for unicorns. But all of its investments offer upside potential, meaning that when the businesses succeed, the fund succeeds. And that upside is shared with its many local investors, because those investors are equity owners in the fund and share in its profits. That helps build wealth for all those local investors, regardless of their economic status. That means investors are incentivized to patronize the businesses in which the fund invests. It’s a win-win.

Except that it can’t happen, not under our existing laws.

Now to be sure, there are several types of community investment funds that can be formed under existing law. And by “community investment fund” we mean a fund that can take investment from anyone in its community, including both accredited and non-accredited investors. At Cutting Edge, we’ve been writing and speaking about these funds for years because they have the potential to dramatically scale up community capital, while the diversification inherent in community investment funds can reduce the risk to investors, which is particularly important with non-accredited (and often unsophisticated) investors. And I’m honored to be on the board of directors of the National Coalition for Community Capital, which has just published a handbook on community investment funds.

The long and short of it is this: There are laws that allow for the formation of charitable loan funds and real estate funds without being burdened by the heavy compliance obligations of the Investment Company Act of 1940. But a simple equity investment fund such as what I described earlier cannot be done economically at a community scale because it will be subject to all of the same compliance burdens that apply to multi-billion dollar mutual funds.

It doesn’t have to be that way. Last September, we wrote to the Securities Exchange Commission (the federal securities regulator) in response to their request for input on streamlining access to exempt offerings. In our letter we argued for two new exemptions from the 1940 Act that would allow for the creation of small community-based funds without having to comply with those heavy compliance obligations of the 1940 Act. You can download the letter here:

Letter to SEC

The first exemption would provide for intrastate funds — that is, funds in which all investors are residents of the same state where the fund is based. This type of fund would have no size limit and would be self-executing, meaning that it would not require the fund to seek permission from the SEC. Such a fund would not need SEC regulation or oversight, because it would be sufficiently regulated at the state level. State securities regulators are in a better position than the SEC to determine whether and to what extent intrastate funds would need to be regulated.

A second new exemption is needed in view of the fact that many communities consist of a metropolitan area that spans two or more states — like Kansas City, Portland, and Washington DC. For those communities, an intrastate fund would not work because it excludes a portion of their community. What those communities need is a small fund exemption, just like the intrastate exemption except that instead of limiting all investors to residents of one state, the fund would be limited by size to $50 million.

We believe these two new exemptions, taken together, would dramatically change the investing landscape in America. Not only would that fund in our hypothetical American city become a reality, but we believe funds like that would, in time, be launched in every community across America. And why not? If given the choice between investing in Wall Street or investing in one’s own community, we can expect that most investors would move at least a significant portion of their investments into their community. All together, we’re talking about moving potentially trillions of dollars out of the financial centers and back to the communities that earned that money and where it can be put to use locally.

We’re not aware that any action has been taken by the SEC in response to our September proposal. But September seems so long ago, after the enormous upheavals brought about by COVID-19. We think the time is now to push for this change in the law. Not only would this put much-needed money in the hands of small businesses everywhere across America, but it would do so without any effort or tax dollars from the federal government and with minimal regulatory oversight at the state level. And this is not a red-versus-blue or conservative-versus-liberal kind of issue. We can all unite together in our support of local communities.

But we’ll have to push for it, because the Investment Company Act is relatively obscure and seldom discussed by policy-makers. Fortunately, the changes we are seeking are not complicated and shouldn’t require more than a single page of text.

There are two ways these changes in the law can come about. The first is through an act of Congress. That sounds daunting, but there has never been a better time than now, when Congress is searching for ways to solve the financial woes of small businesses across the country. We encourage anyone who cares about community capital to reach out to their Senator or Representative about this.

The second approach is to push the SEC, which has the power to create new exemptions on its own, without an act of Congress. We think the SEC may also be amenable to this type change, since the potential benefits are huge, while the burden on the SEC and on taxpayers is negligible, if anything. The challenge is to get this on the radar of the right people at the SEC. Ultimately, we believe the best course of action is to push both Congress and the SEC, and hope that this two-pronged approach will lead to conversations between lawmakers and SEC staff about how to get this done efficiently and effectively.

If we all use whatever connections we have, with regulators or lawmakers, we can make this happen. Now is the time.

Is the IRS About to Make a Huge Mistake That Only Supports the Wealthy?

Is the IRS About to Make a Huge Mistake That Only Supports the Wealthy?

The IRS may be making a huge mistake that only supports the wealthy. (But you can help fix it.)

At Cutting Edge Counsel we stand for fairness and equity. A big part of what drives us is the need to level the playing field between the wealthy and the non-wealthy. We envision an America where everyone can invest, with the same benefits available to all investors regardless of economic status.

So we were very disappointed in a recent IRS release that will lead to the opposite result. We’re talking about some of the tax benefits of investing in a Qualified Opportunity Fund — a new type of fund that is intended to incentivize investment in low-income communities designated as Opportunity Zones, which we wrote about here.

The new tax rules are contained in Subchapter Z of the Tax Cuts and Jobs Act of 2017. Section 1400Z-2 of that new law provides for three tax benefits of investing in a Qualified Opportunity Fund (a QOF): Clause (a) provides for a deferral of tax on rolled-over capital gains until the end of 2026. Clause (b) provides for a 10% or 15% step up in basis for rolled-over capital gains held in a QOF for at least five or seven years by the end of 2026. Clause (c) provides that “any investment” held in a QOF for at least ten years will get a step up in basis to market value upon a sale of the investment. This last benefit is the most valuable of them all.

While the plain language of Section 1400Z-2 says that literally any investment in a QOF, which would include an investment of after-tax capital, can get this last benefit (tax-free capital gains after ten years), the IRS stated in an October 2018 release that this benefit is available only to rolled-over capital gains. The IRS offered no analysis or reasoning behind its statement, which suggests the IRS may have simply mis-read the statute.

This is more than just a technical detail. This is a fundamental reinterpretation of the law in a way that excludes the roughly 95 percent (i.e. non-accredited investors) who may not have capital gains to roll over. As passed by Congress, the law allows for the creation of a true community investment fund that invests in real estate projects in Opportunity Zones. Taking in investment from residents of the very low-income communities that the fund is designed to serve would help to ensure not only that the profits from those projects circulate within the community, but it would also give those residents a voice in the kind of development that happens in their communities. The benefit of tax-free capital gains after ten years in the fund can be a critical factor in attracting these investors.

But this reinterpretation by the IRS changes everything. Bear in mind that, typically, it’s only the wealthiest Americans who have capital gains that can be rolled over into a QOF. From the point of view of a QOF manager, if only the wealthiest investors can enjoy any of the tax benefits of an investment in the QOF, there is no incentive at all to open up the QOF to the less-wealthy residents of those Opportunity Zones.

Hence, under the IRS’ reinterpretation of the law, QOFs will likely be only open to wealthy (accredited) investors; and those wealthy investors will then effectively determine the kinds of development that happens in low-income communities, with no opportunity for the residents of those communities to have a voice or to participate in any way. The outcomes will be very predictable. Overwhelmingly, these wealth-driven funds will invest in so-called “market rate” housing – a euphemism for unaffordable luxury housing that is not intended to serve the residents of those communities but is intended to displace them.

It does not have to be this way; it should not be this way; and the law does not say this! Our firm has written this letter  IRS-Letter-Re-Opportunity-Fund-Tax-Benefit.pdf to the IRS pointing out the apparent error, and we have asked the IRS to clarify that the benefit of tax-free capital gains after ten years in a QOF is available for any investment in the QOF, including investments of any kind of after-tax capital, whether or not an investor is sheltering or eliminating their capital gains taxes. 

But meanwhile, we are making an ask of our community — individuals and organizations. It would be easy for the IRS to ignore one letter from a small law firm based in Oakland that only serves mission-aligned businesses. It would be much more difficult for them to ignore howls of protest from around the country. If you care about leveling the playing field (and if you’ve read this far, you likely do), we strongly encourage you to write to the IRS (addressed to CC:PA:LPD:PR (REG-115420-18), Room 5203, Internal Revenue Service, PO Box 7604, Ben Franklin Station, Washington, DC 20044), or to your Congressperson, to bring this to their attention. While the official comment period for the proposed regulations has closed, we think this is too important to ignore.

And there is urgency to this, because the IRS may be finalizing their QOF regulations at this very moment. Once they have issued final regulations, it will be much harder to get them to back away from their blunder. So the time to act is now. Together, we can make a difference.

 

 

How Any Company Can Have a Positive Impact

How Any Company Can Have a Positive Impact

Over the past couple of decades we’ve heard a lot about “social enterprises,” a term usually applied to companies that are visibly making the world a better place. Those are the good guys, the heroes of our time. We would all like to be one of them, to do something positive for at least our corner of the world.  Yet, not every company is curing cancer, feeding the hungry, or solving some environmental problem. What about the rest of us?

The good news is that regardless of your industry or the product or service you offer, your company can have a positive impact in the world – not just because of what your company is doing, but because of how you do it. But it requires that you challenge some of the conventional wisdom that you may have taken for granted. Here’s how:

  • Re-think your ownership. In the conventional wisdom, a corporation is owned by its shareholders and is solely responsible to its shareholders, with all other considerations being secondary. In fact, whether shareholders can truly be said to “own” a corporation is subject to some legal debate. Individual shareholders do not have the “bundle of rights” that is generally understood to comprise what we call “ownership.”

Some legal scholars argue that a corporation, as a person under the law, cannot be owned by anyone but simply has contractual relationships with shareholders, just as it has contractual relationships with employees, customers, suppliers, lenders, and other constituencies – all of whom in some sense invest in the corporation. In other words, what a stockholder owns is simply stock that confers certain rights, not the corporation itself.

  • Re-think your responsibilities. With an expanded view of a corporation’s owners and investors as including multiple constituencies, it follows that a corporation bears a responsibility to all of those constituencies. A corporation that prioritizes the interests of stockholders at the expense of all others is essentially a predatory corporation: It preys upon its community in order to extract wealth from the community and concentrate that wealth in the hands of its stockholders.

That is not what the law requires. A corporation’s board and management should recognize that the corporation owes a responsibility to all of its constituencies. Since the interests of its various constituencies are not always aligned, it is one of the core duties of a corporation’s board and management to balance all those interests in a way that is fair to all of them and does not unduly burden any of them.

  • Re-think your capital-raising strategy. In the conventional wisdom, a company that isn’t big enough for an IPO must raise capital from banks, angel investors, or venture capital firms. In each case, that involves putting your fate in the hands of a small number of people who already hold wealth and power. And if you succeed, your profits will further bolster their wealth and power.

Instead, you can raise capital from your own community, including the non-wealthy, using “community capital” strategies like crowdfunding, direct public offerings, and community investment funds. Members of your community invest because they want you to succeed, not merely because you offer the highest financial return on their investment. And when you succeed, the profits will continue circulating in your community and will build wealth right where you want it. As a bonus, when the investors of capital are part of the same community as the company’s employees, customers and suppliers, it is easier to balance their interests because at some level they all want the same thing: a peaceful, healthy and thriving local community.

  • Re-think the growth imperative. Our culture’s obsession with growth – at both the micro- and macro-economic levels – is unhealthy and destructive. At the level of the broader economy, it is increasingly clear that an economy cannot continue to grow indefinitely; it will eventually hit limits at which collapse is inevitable. At the level of individual companies, the problem with big companies is that they concentrate wealth, which leads to a concentration of political power that is fundamentally anti-democratic.

We are told that every company should aspire to go big and go global, untethered from community, and opportunistically locating wherever the most profits can be extracted. But if we think of a company as existing to serve its community – including all of the constituencies that make up its community – then it becomes clear that each company should aspire to grow only to the size that will allow it to most effectively serve those constituencies. Growth, then, becomes a means to an end, not the end in itself.

  • Re-think where your money goes. In the conventional wisdom, spending decisions are based on a simple calculus that balances cost against the quality of goods or services. Similarly, investment decisions are based on a balancing of risk and reward. It is often assumed, if rarely articulated, that these decisions are values-neutral.

And yet, none of those decisions are actually values-neutral. Every spending decision, every investment decision, and every choice of a supplier or professional provider is effectively a vote for someone’s set of values. Any company can greatly magnify its positive impact in the world by choosing to do business with others who share a similar commitment to a better world.

It requires that there be an inquiry into the values and social impact of any potential supplier, provider or investment target. That inquiry can become part of a company’s routine decision-making process. For example, before purchasing supplies from a big-box retailer, consider the impact of that retailer on the local economies in which it operates. Before sending legal work to a big law firm, find out whether that firm supports extractive industries at odds with your company’s values such as fossil fuels and weapons manufacturing.

You’ll notice that the changes described here start with changes in our underlying assumptions; and when those changes take root and become widespread, we will have a change in culture. It’s the broader culture that needs to change. But, of course, changes in assumptions and culture are not the end game. Rather, those changes will compel changes in behavior that will lead to a healthier and more equitable world.

When companies across the country recognize their responsibilities to all of their constituencies, when everyone has an opportunity to invest in their own communities, and when the economy is dominated by locally-rooted companies that deploy their resources in a values-conscious way, we will have an economy that is very different from the one we have today, one that is truly sustainable, and with opportunities for everyone to thrive. That is our vision at Cutting Edge Capital.

 

Intrastate and Small Fund Exemptions to the 1940 Act: Now Is the Time

Reimagining the Pooled Income Fund: A Community-Scale Mutual Fund

At Cutting Edge Capital, we think a lot about the possible legal strategies that can advance community capital. There are the often-used (if not well-known) strategies like crowdfunding, direct public offerings, and charitable loan funds. But then there are strategies that have been on the books for decades but have seldom, if ever, been used as a vehicle for community capital. Sometimes innovation isn’t about doing something new, but rather doing something old in an innovative way.

Years ago, I helped a charitable organization set up a pooled income fund (a “PIF”). The idea of a PIF is that a contributor puts money or assets into a trust, where it is pooled with the contributions of other contributors and jointly invested. Income from the investments is distributed to the contributors (and often their spouses or other beneficiaries) for their lifetimes. Upon the death of each life beneficiary, the pro rata value of the fund at that time is removed from the trust and given over to the charity that sponsors the trust. A portion of the amount contributed is tax deductible to the contributor in the year of the original contribution, based on a formula that measures the actuarial value of the remainder interest that will eventually go to the charity.

Many foundations, universities, and other (usually large) charities have established PIFs as a planned giving device. From the point of view of these sponsoring charities, the purpose is to eventually receive the remainder interest upon the death of each contributor, though the charity may have to wait years, and sometimes decades. But with enough contributors in a PIF, it is inevitable that one by one they will pass on over the years, and those assets will come into the charity, as planned.

Meanwhile, the assets of the PIF are typically invested as most charitable assets are – in Treasuries, bond funds, perhaps some socially screened equity funds, but nothing that looks too risky. Big charities are a pretty conservative bunch. From the sponsoring charity’s point of view, the goal is to preserve and grow principal, while generating just enough income to fulfill the promises made to contributors.

So we went to work at this charitable organization, thoroughly researching the topic, developing a plan for how we wanted the PIF to work, and carefully crafting all the necessary legal documents, including a declaration of trust, a contribution agreement, and a disclosure document that explained everything. There was no discussion of using the PIF to make place-based investments – by which I mean investments in small ventures rooted in a local community that could contribute to a healthier and more resilient local economy. But I’ll come back to that in a moment. This PIF, like others, was to invest its assets fairly conservatively. And the charity would take a fee off the top for managing the fund.

When it was all finalized, we put it out there. And it flopped. The feedback was that anticipated annual returns, after deducting the charity’s management fee, just weren’t enough to make it attractive. Ultimately, the PIF attracted only a small handful of contributors before the organization pulled the plug and went through another hassle to unwind the PIF. It seemed like a lot of wasted effort.

Fast-forward to the present. Recently we at Cutting Edge Capital have focused on community investment funds as a critical tool for moving the needle forward significantly toward a more inclusive and equitable society. (We wrote about that here.)

But there are gaps in the legal landscape for community investment funds – a landscape dominated by the Investment Company Act of 1940. That law imposes a heavy regulatory burden on any investment fund that doesn’t qualify for an exemption, a burden so heavy that it is not financially feasible for a community-scale fund.

But, the 1940 Act includes a number of exemptions. It’s fairly simple to set up a charitable loan fund or a community-owned real estate fund, because each of those is exempt from the 1940 Act. However, there is no simple exemption strategy for a fund that makes equity investments in small businesses and is open for investment by the non-wealthy. There are a handful of exemption strategies that could work, but each of those strategies requires a fund to squeeze into a business model that may not align with what is needed.

In that context, we think the humble PIF deserves another look. The PIF fits within the charitable exemption from the 1940 Act because of the charitable remainder component. But even so, it can do what no other type of investment fund can do: It allows any number of investors of any level of wealth to pool their resources into a community-scale fund that can make equity investments in local businesses (along with any other kind of investments), with profits from those investments shared among the investors. No regulatory review is required, because of the securities law exemptions, which makes it efficient to set up. It’s like a local mutual fund without the regulatory burden.

There is, of course, the downside that the investors can’t get their money back because of the charitable remainder element. But that charitable remainder also brings a tax deduction, along with the knowledge that contributions will eventually go to a charitable cause. And depending on how the fund is invested, the years or even decades of income from a PIF may be far more valuable than the remainder interest. If the need arises, that life income stream can be transferred to another beneficiary.

Some may also argue that the assets of a PIF, being in a sense charitable assets, must be invested in a conservative way that does not accommodate the kind of small business equity investments that we are contemplating here. However, this argument is rooted in a false myth that fiduciary standards require charitable assets to be invested for capital preservation or for maximum financial return. While state laws vary, the general rule, as spelled out in the Uniform Prudent Management of Institutional Funds Act, is that charitable funds should be invested in a manner appropriate to the organization’s purpose – which could mean investing in local businesses, even if there is a higher risk of loss. The IRS recently underscored this point in a 2015 release on mission-related investing.

So a PIF can be much more than just a planned giving device that will eventually benefit the charitable sponsors. It can truly be an engine for local economic development that offers the benefits of investment to anyone in the community in an equitable and inclusive way. To date we are not aware of any PIF that is actually being used as a vehicle for community capital – that is, as a way for anyone to invest in the success of local businesses. However, in recent conversations that we’ve had, this idea has sparked significant interest, and we expect to see such a reimagined pooled income fund in action soon. So stay tuned.

Of course, nothing written here should be taken as legal, investment, or tax advice. If you would like to schedule a consultation with one of our principals at Cutting Edge Capital, click here.