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How Will Regs, Taxes Impact ETFs?

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With the number and variety of ETFs rapidly increasing, and total assets under management at an all-time high, ETFs have earned an extra level of scrutiny from regulators globally, according to PwC.

A new report from PwC looks at how regulations and taxes are shaping the future of ETFs.

The growth and innovation of ETFs have already been shaped by the regulatory and tax environment, for better and worse.

According to the PwC 2016 Global ETF Survey, which drew global responses from more than 65 ETF managers, sponsors and service providers, almost 90% believe that regulations and taxes have had either a significant or moderate impact on ETF growth and innovation.

“Given that minimizing tax impact is a central selling point for many ETFs, sponsors will have to shape their product offerings according to the tax structures of specific markets,” PwC states. “They’ll also have to understand, and adapt to, unfamiliar regulatory regimes.”

Regulations

In the United States, there continues to be growing interest in periodically disclosed active ETFs, or also known as “nontransparent active” ETFs. The Securities and Exchange Commission (SEC) is evaluating different periodically disclosed active ETF models.

Among U.S. respondents in the PwC 2016 Global ETF Survey, 43% see the approval of periodically disclosed active ETFs as being most impactful to the U.S. ETF industry.

According to PwC, the growth and innovation of ETFs could be “significantly impacted” with the approval of one or more of the proposed periodically disclosed active ETF models.

(The NextShares exchanged-traded managed funds, which were approved in 2015, are “not an ETF as currently defined” and thus weren’t considered for this report, a PwC spokesperson said.)

Another regulation that PwC examines in the report is the Labor Department’s fiduciary rule. While the rule’s implementation has been delayed, the Securities and Exchange Commission is also drafting a proposed fiduciary standard rule.

According to PwC, the Labor rule has already benefited ETFs and will likely continue to do so as many advisors have shifted allocations to low-cost investment products.

Another U.S. regulatory pressure that PwC examines is increased compliance and disclosure requirements.

In October 2016, the SEC finalized the “reporting modernization rule,” which enhances the SEC’s ability to collect, analyze and monitor portfolio composition, returns, as well as provide more detailed information about derivatives. Part of this rule includes a new form (N-CEN) that will require ETFs to provide details on their exchange listing, listing of authorized participants and activity, information about creation units, and transaction fees.

According to PwC, the cost to establish controls and procedures to comply with these new disclosure requirements will increase for ETFs.

The SEC has adopted a new liquidity risk management program requirement for mutual funds and ETFs — which is another regulatory pressure that PwC looks at in its report.

According to PwC, ETFs will be required to adopt a written liquidity risk management program designed to manage and assess liquidity risks, including the effectiveness of ETF arbitrage, authorized participant activity and the composition of creation and redemption baskets.

Taxes

According to PwC, recent years have seen an unprecedented level of change from a tax perspective, both in terms of local legislative updates and broader reform of the global tax landscape.

“ETFs are not beyond the reach of such changes and many have had — and will continue to have — an impact on the tax outcomes and structural development of ETF products,” according to PwC.

Looking at the United States specifically, the report address how developments in tax legislation can have an impact on foreign-domiciled ETF products gaining exposure to the U.S.

“For example, the Dividend Equivalent rules introduced under the HIRE Act, effective as of January 2017, have impacted synthetically replicating ETFs outside of the United States by bringing payments under swaps referencing U.S. equities into the change to U.S. withholding tax (at rates of up to 30%) for the first time, subject to limited carve-outs,” PwC states.

According to PwC, ETF sponsors with non-U.S. domiciled products gaining exposure to underlying U.S. equity strategies through swaps and other derivative instruments need to evaluate the structure of their funds and commercial arrangements.

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