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Sebi may Tighten P-Note Rules to Block Black Money Route to D St

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India's market regulator is said to be considering more stringent rules for participatory notes as part of efforts to check the flow of black money into stock markets. Previous moves to intensify scrutiny of the instruments, which afford a greater degree of anonymity than other avenues of investment, have alarmed investors into pulling their money out or threatening to do so.
The Securities and Exchange Board of India (Sebi) is now looking to make it mandatory to collect `know your client' (KYC) details of participatory note (P-Note) holders and is likely to take a decision to this effect at its board meeting scheduled for May 20, said people familiar with the matter. Experts said the move is likely to help hasten the eventual phasing out of participatory notes altogether. The regulator has also proposed that offshore derivative instruments (ODIs) be transferred only to subscriber entities eligible to invest in them as per Indian regulations. Sebi didn't respond to queries from ET.
According to proposals contai ned in a note from Sebi to the finance ministry, P-Note issuers should put in place a procedure for compliance with anti-money laundering (AML) norms and customer due diligence of ODI subscribers, which means Indian KYC norms will be applicable to offshore subscribers, said the people cited above. This follows recommendations by the special investigation team (SIT) on black money appointed by the Supreme Court. There is currently no need to report details of P-Note holders.
Sebi has also proposed that issuers should be required to identify and verify those who hold P-Notes in excess of a predefined threshold ­ 25% in the case of companies and 15% for partnership firms or trusts.
According to the note, the KYC review should be carried out based on the risk classification assigned to the subscriber entities -every year for high-risk ones and every three years for low-risk ones.
“The proposals are aimed at bringing much greater transparency in terms of the end-beneficiary of the shareholding. This is a direct fallout of the controversy surrounding the Panama Papers and earlier recommendations of SIT for black money,“ said PR Ramesh, senior securities lawyer.“There is a lot of pressure on regulators globally to act against benami shareholders or those holding shares indirectly and round-tripping of money to and from various tax havens.“ P-Notes have been under the tax department's scanner due to their opaque nature. They play an important role in Indian markets, accounting for Rs 2.23 lakh crore of holdings by foreign institutional investors (FIIs) on March 31­2.28% of India's market capitalisation.
Investor anxiety will give way to the eventual demise of the instrument amid the closing of loopholes in the India-Mauritius tax treaty, experts said.
“There may be some initial panic-selling by P-Note holders if this is true,“ said Nirmal Jain, chairman, IIFL Holdings. “However, this could be a good move for the long term as the P-Note concept itself will slowly disappear after the amendments in Mauritius treaty and only those genuine in vestors will come directly to invest in India.“ Other Sebi proposals include the transfer of ODIs being carried out only after obtaining the prior consent of issuers or transferred only to subscribers eligible to invest in them. Currently, ODIs can be transferred to any entity regulated by the relevant overseas regulatory authority.
If the proposals are accepted by the Sebi board, it will put the onus on the foreign portfolio investor (FPI) registered with Sebi through custodians in the case of ODI issuance, experts said.
“Obligation will also be cast upon the custodian (designated depository participant) entrusted to carry out the KYC requirements,“ said a custodian at a leading foreign bank. “This may raise the level of disclosures to a very high level unlike in the past where such disclosures could have been done away with merely by giving certain declarations.“ “I think this is just the beginning of the end to the so-called P-Note issue and going forward we are likely to see a much bigger clampdown. Foreign investors should brace for a higher rule-based regime,“ he added.
The SIT had wanted Sebi to have information on the final beneficial owners of P-Notes and other offshore derivative instruments. It had insisted that the final owner should be an individual rather than a company after concerns were raised that some of the money coming into the stock markets via P-Notes could be unaccounted wealth re-routed as foreign investment. The team had also raised concerns over the transferable nature of P-Notes, making the final beneficiary difficult to trace.
In July last year, the government ruled out any hasty decision over P-Notes for fear of an adverse impact on the investment climate and promised extensive talks with Sebi and the Reserve Bank of India before arriving at a decision.
The Economic Times New Delhi,13th May 2016

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