12.01.2021

What is an alternative investment company or partnership?

Dawid Stalmach
ASI

An alternative investment company (or partnership)—abbreviated to “ASI” in Polish—is a vehicle for operating an alternative investment fund has been functioning in the Polish legal system since 2016. This form of collective investment has been introduced through amendments to the Polish Law on Investment Funds. It is a convenient scheme of collective investment that entails certain tax benefits.

Definition

According to the legal definition contained in the Law mentioned above, an alternative investment company (partnership) is one of the forms of operating an alternative investment fund, different from a specialist open-ended investment fund and a closed-ended investment fund.

An ASI may be operated in various legal forms. The said Law provides that an ASI may be a commercial company (a private limited company or a joint-stock company), a societas Europaea, a limited partnership, or a limited joint-stock partnership. This means that an ASI is not a “separate” organizational form in itself—it is operated as one of the well-established companies and partnerships, which facilitates carrying out investment activities in a regulated manner.

Areas of operation of an alternative investment company or partnership

According to the Polish Law on Investment Funds and the Management of Alternative Investments Funds, the object of the operations of an ASI is to gather assets from a number of investors in order to place them in the interest of these investors, in accordance with a specific investment policy.

Gathering assets from investors may take a various forms; usually, this is done simply by means of the investors making a contribution to the ASI. Examples of gathering funds include shareholders covering the newly created shares in a private limited company or limited partners making contributions to a limited partnership in return for all of the rights and obligations in the partnership.

Placing assets in the interest of investors means investing the gathered funds. For instance: acquiring shares in a company manufacturing industrial machines or taking up newly created shares in a gaming company. Placing assets should be in line with the adopted investment policy.

Importantly, gathering assets and investing (placing) them has to be the sole object of the operations of an ASI, with some exceptions provided for in the said Law. This means that an ASI cannot combine investment operations with other business operations.

The manager of an alternative investment company or partnership

Every ASI has to have a manager. As the name suggests, the manager manages the ASI, including at least its investment portfolio and risks. In practice, this means running the ASI’s affairs. Consequently, the manager performs a function similar to an investment fund management company. However, the manager is subject to much less stringent regulations.

If the ASI has the form of a commercial company (a private limited company or a joint-stock company) or a societas Europaea, the ASI is also its own manager. This means that the function of the manager is in fact performed by the management board of the ASI. Consequently, there is unity between the ASI and the manager of the ASI. This is referred to as an “internally managed ASI.” The entire structure is encapsulated in one company.

When can a general partner be a manager?

If an ASI is a limited partnership or a limited joint-stock partnership, the manager of the ASI is the general partner. The general partner is the partner whose liability for the partnership’s obligations is unlimited. In this case, only a commercial company may be the general partner. For instance: a limited partnership operates as an ASI; its sole general partner is a private limited company; the private limited company is the ASI’s manager that manages the ASI, including at least its investment portfolio and risks.

In this structure, the limited partnership gathers assets from investors (partners make contributions to the partnership) and makes investments (the partnership takes up shares in other companies or partnerships). In turn, the private limited company runs the affairs of the ASI, which includes e.g. deciding whether to carry out the given investment. Here, the ASI is separate from the ASI’s manager. This is known as an “externally managed ASI.” The entire structure requires at least two entities. One advantage of this structure is the possibility of incorporating a number of ASIs with various or identical investment policies that will have a single manager. This allows for high flexibility in carrying out various projects.

Alternative investment company or partnership and investment police

An “investment policy” is mentioned several times above. This requires clarification. An investment policy means the general framework for placing the gathered assets. In turn, making specific investment decisions should be understood as an implementation of the ASI’s investment policy. Importantly, the fact of there being no written investment policy does not mean that the given company or partnership is not an ASI. What counts is the general nature of the ASI’s operations.

Recent developments

When this article was being written, the register maintained by the Polish Financial Supervision Authority included over 200 ASI managers and approx. 200 ASIs. As mentioned above, an external ASI manager may manage more than one ASI. One should expect that these numbers will grow. Firstly, because the market is getting accustomed to this type of entities and secondly, because there are certain tax benefits. This is related to the fact that ASIs are exempt from the income tax if specific requirements are met. And this plays a role in the case of limited partnerships, which have recently been taxed.

 

Do you have a question concerning ASIs? Contact our team that specializes in this area.

Contact

Konieczny, Wierzbicki
Kancelaria Radców Prawnych sp.p.
Warszawa

ul. Piękna 15 lok. 34

+48 12 3957161

kancelaria@kwkr.pl

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