WSJ has a feature on SEC allowing some funds with fund-of-funds structure (TDFs, others?) to EXCLUDE BDC ERs from fund ERs.
Idea seems to encourage funding for young startups funded through business development companies (BDCs).
But why just BDCs?
There is concern that once an exception is created for BDCs, other exceptions may follow - private-equity/credit, etc. Then, the fund ERs may become misleading or unreliable. Supporters say that the info would still be in the prospectuses, but how many read those? And fund related websites may just report misleading headline ERs, not true ERs. Watch how this is handled by Morningstar (M*), Yahoo Finance, Portfolio Visualizer (PV), TestFol, MFO Premium (MFOP), etc.
Right now, fund brokerage costs are not included in ERs - they are now found only in fund SAIs, not in prospectuses.
Leverage, shorting and derivatives related costs are included in ERs - may be CEFs, leveraged ETFs and Pimco will lobby to change that.
https://www.wsj.com/finance/investing/congress-thinks-hiding-fund-fees-is-good-for-you-0e12c541?mod=mhp
Comments
The second line of Zweig's piece reads: "A bill passed by the House and pending in the Senate would authorize portfolios often used in retirement accounts to skip reporting the expenses of certain funds they may invest in." There is nothing in the bill that is specific to retirement accounts; this was thrown in to agitate not to enlighten.
On to the main question: what should be counted as fund expenses?
I think most people agree that direct expenses incurred by the fund should be counted. Manager salaries, paying to keep the lights on, brokerage fees (not currently counted), borrowing costs regardless of use (including borrowing costs to short securities).
Most people seem to feel that some indirect fees should not be counted. Such as Warren Buffet's salary (if a fund owns BRK), even though people may view the company as a conglomerate or holding company. How about Fernando Fernandez's compensation at Unilever?
Moving on to BDCs, Zweig writes that "Being regulated as funds gives BDCs special tax privileges". Just like REITs. Zweig is concerned that BDC expenses might not be counted with mutual fund acquired expenses. Just like REITs today. And just like REITs their special tax privileges extend to being treated as pass-through entities.
While the current bill proposal deals only with BDCs, it's still curious that he didn't say anything about how it would merely harmonize BDCs with REITs. Especially since OBBB just made the "special tax privileges" of BDCs even closer to REITs' by giving them the same 20% deduction (Section 199A) that REITs have.
https://www.akingump.com/en/insights/tax-insights/tax-bills-section-199a-expansion-would-boost-bdcs
If one is going to count some indirect (acquired securities) expenses as fund costs, then where and why does one draw the line? Why don't we include REITs? Conversely, why should we count any indirect costs? They're explicitly excluded from the financial statements precisely because their impact is already reflected in the portfolio's performance.
Yogi suggests that many investors don't read even summary prospectuses. If we go down that path to the lowest common denominator, then why worry about this at all? Many people just look at performance, d**n the expenses. In which case this whole discussion is moot.
REITs can be organized as corporation, trust or association and don't fall under 1940 ICA. In that respect, REITs held in a fund are similar to other stocks held. Interestingly, many REITs do provide OERs, but those aren't used in the fund ERs.
So, BDC and REITs may have similarities for investors, but they have different business structure, so they have different treatments by SEC.
The Bill would indeed create an exception for an entity (BDC) under 1940 ICA. I don't know if SEC can just tinker with its own rule(s) - i.e. defining/listing ICA entities exempt from its fund ER rule.
Isn't the point of publishing ERs in a prospectus to inform investors?
but they have different business structure, so they have different treatments by SEC.
They usually do not fall under the Investment Company Act of 1940 because of what they hold, not because of their structure. (If they hold enough securities, they will be subject to the Act.)
https://www.troutman.com/insights/reits-investment-structures-and-investment-company-status/
In any case, this says how REIT fees come to be excluded from AFFEs (acquired fund fee expenses). But it doesn't justify their exclusion. If there's a rationale for REIT fees to be excluded, the same rationale would seem to apply to BDCs. Conversely, if Zweig or others believe that BDC expenses should be included, that same belief would seem to apply to REITs.
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Warning - the remainder is legal gobbledegook of interest primarily to geeks.
BDCs are RICs (registered investment companies) under 1940 ICA (Invest company Act). https://www.investor.gov/introduction-investing/general-resources/news-alerts/alerts-bulletins/investor-bulletins/publicly-traded-business-development-companies-bdcs-investor-bulletin
This election applies to tax regulations, not expense reporting regulations: https://www.blueowlcapitalcorporation.com/about-blue-owl-capital-corp/what-is-a-bdc
See also: 12 USC § 1820a(d)(6) (registered investment company), Westlaw Glossary (RIC - regulated investment company), 26 USC § 851(a) (tax code definition of regulated investment company, BDC special clause).
SEC Final Rule 33-8713 (2006) p. 40 is what creates the AFFE requirement. It applies to all investment companies, not just ones registered under the '40 Act. Form N-1A instruction 3(f)(i)
So what's an investment company? 15 U.S. Code § 80a-3(a)(1)
BDCs fit this definition even though they're not registered investment companies. But then, so can SPACs (pre-acquisition). Yet their costs aren't counted in AFFEs. Robert Jackson and Joh Morely, SPACs as Investment Funds, Wharton (July 14, 2022)
SEC position on SPACs as subject to '40 Act ("it depends")
https://corpgov.law.harvard.edu/2024/03/05/final-rules-on-spac-ipos-and-de-spacs/
REITs, BDCs, SPACs. From an investor perspective, what's the difference? And fundamentally, should any indirect costs be explicitly reported, especially if they aren't included (except implicitly) in financial reports?