The U.S. Securities and Exchange Commission (SEC) requires investment advisers to private investment funds and other regulated financial firms to file certain reports on a periodic basis. The SEC, along with investors and financial professionals, use the information filed to evaluate advisers, monitor ownership of public companies and provide transparency. We’d like to remind U.S.-based investment advisers of certain upcoming regulatory filing requirements.
Dates for the diary
- Tuesday, February 14, 2023 – The deadline for filing initial Schedule 13Gs, an amendment to a previously filed Schedule 13G, an initial Form 13F or a 13F for the period ending December 31, 2022, or an annual update to a previously filed Form 13H
- Friday, March 31, 2023 – The deadline for filing the annual updating amendment to Form ADV for registered investment advisers and exempt reporting advisers whose fiscal year ends in December
Schedule 13G filing
Schedule 13G and the longer form Schedule 13D are referred to as “beneficial ownership reports.” A Schedule 13G (or a Schedule 13D) filing may be required if your firm (including, in the aggregate, shares owned by all private funds, general partners and/or managers of general partner entities) acquires 5% or more of a publicly traded security.
Many firms are able to file the short form Schedule 13G because they are considered passive investors, qualified institutional investors or exempt investors. Firms that are not seeking to acquire, influence or control the issuer of the publicly traded security and that own less than 20% of the issuer can file for a Schedule 13G exemption, specifically:
- Rule 13d-1(c) – Passive investors that have not acquired the security with the intent nor effect of influencing control over the issuer or not directly or indirectly the beneficial owner of 20% or more of the security. Investor must file within 10 days
- Rule 13d-1(b) – Institutional investors that acquire securities and not with intent nor with effect of influencing control of the issuer. Investor must file within 45 days of the end of the year in which they acquired more than 5% and within 10 days of the end of the month in which they acquired more than 10%
- Rule 13d-1(d) – Exempt investors are persons holding more than 5% of an equity security who are not subject to or whose acquisitions are exempt from Section 13(d). Investor must file within 45 days of the calendar year in which they acquired more than 5%
Qualified institutional investors holding 5% of more of an issuer’s securities, i.e. Rule 13d-1(b) filers, are required to file an initial Schedule 13G or Schedule 13G amendment no later than February 14, 2023.
It is important to remind firms that the SEC proposed amendments in 2022 to accelerate the filing deadlines for Schedule 13G and Schedule 13D. IQ-EQ will continue to monitor the proposed amendments. If adopted, the new rules will significantly change the beneficial ownership disclosure obligations.
An initial Section 13F filing is required by any investment adviser trading $100,000,000 of Section 13(f) Securities as of the last trading day of any month in 2022. The official list of Section 13(f) Securities is available on the SEC’s website and is updated on a quarterly basis.
Initial and existing 13F filers should be aware that in June 2022, the SEC adopted rules and form amendments to Form 13F. All Form 13F reports filed after January 3, 2023 must use the updated Form 13F. Updates to the filing include:
- Includes a checkbox on the Summary Page of an institutional investment manager’s public Form 13F report to better indicate when confidential treatment is being requested
- Requires an investment adviser to report additional identifiers, if any; i.e. Central Registration Depository number, SEC file number
- Updates Form 13F Confidential Treatment Instructions 2.d. (harm) and 2.e. (period of confidential treatment requested)
- Adds the option to use a Financial Instrument Global Identifier (FIGI) for a reported security in addition to, but not instead of, its CUSIP number
- Simplifies the rounding conventions of Form 13F to require that the dollar values reported be rounded to the nearest dollar (rather than to the nearest one thousand dollars)
If your firm has not previously filed a Form 13H with the SEC, you are required to file an initial Form 13H if your firm had aggregate transactions in exchange-listed securities equal to or greater than: (i) 2 million shares or $20 million during any calendar day, or (ii) 20 million shares or $200 million during any calendar month.
If your firm meets this “large trader” test, your firm needs to report such status with the SEC on a Form 13H promptly after reaching such trading level (under normal circumstances, within 10 days of such transaction) and may voluntarily file a Form 13H ahead of crossing such threshold.
Current 13H filers are required to file an annual update no later than February 14, 2023; however, large traders that are required to file an amended Form 13H for the quarter ending December 31, 2022 may file a joint amended and annual update no later than January 10, 2023.
An annual updating amendment to Form ADV is required to be filed with the SEC within 90 days of the end of a firm’s fiscal year. Most firms have a December 31 fiscal year-end, which will require the annual updating amendment to be filed no later than Friday, March 31, 2023.
Private fund advisers should also be reminded that each client must receive a copy of the firm’s Form ADV Part 2A or a summary of any material changes from the last Form ADV Part 2A filing.