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Date de publication: 12 oct. 2012
Auteur: Y B
Noter cette article :

La Commodity Futures Trading Commission a publié un document issu de sa division Swap Dealer sur les problèmes de contrôle d'orientation et d'interprétation relatifs aux "Equity REITs" et aux fonds communs de créances.

Résumé :

This is in response to your correspondence, dated September 4, 2012, to the Division of Swap Dealer and Intermediary Oversight (“Division”) of the Commodity Futures Trading Commission (“Commission”). You request an interpretation of the definition of “commodity pool” under Section 1a(10) of the Commodity Exchange Act (“CEA”), such that real estate investment trusts (“REITs”) that hold income-producing real estate and engage in real estate management activities, including leasing and maintaining real estate, providing a variety of tenant services, and developing and redeveloping real estate (“equity REITs”) are not within the statutory definition of “commodity pool.”

In support of your request for interpretative guidance, you provide information about the operations of equity REITs, as well as information about the restrictions imposed on REITs through the Internal Revenue Code (“IRC”). You state that the Internal Revenue Service (“IRS”) has defined the term equity REIT to be a REIT whose primary source of income is not derived from mortgage interest or fees. You further state that the defining characteristic of equity REITs is that they acquire and develop their own properties and must primarily operate these properties rather than immediately reselling them. Because of the requirements that equity REITs hold, develop, and operate real estate, you argue that equity REITs are not commodity pools, but rather, operating companies.

In support of your position that equity REITs are operating companies, you state that several other entities consider equity REITs to be operating companies. According to your letter, these entities include Standard & Poor’s and the North American Industry Classification System, which is maintained by the U.S. Department of Commerce to classify businesses for data collection, analysis, and publication. Additionally, you cite an IRS revenue ruling recognizing that a REIT may engage in an active business or trade because “it is permitted to perform activities that can constitute active and substantial management and operational functions with respect to rental activity that produces income qualifying as rents from real property.”

You state that the use of derivatives by equity REITs is limited to activities that support its primary focus of real estate ownership and operation through a reduction in the cost of capital when financing a purchase.8 You state that this limited use of derivatives is further enforced through the IRC. First, at least 75 percent of the equity REIT’s annual gross income must be derived from certain qualifying real estate related sources, including, but not limited to, interests in real property, gains from the sale of non-dealer property.9 Second, the IRC requires that at least 95 percent of an equity REIT’s annual gross income must consist of items that would satisfy the 75 percent test plus other passive income such as interest and dividends.

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