[Federal Register Volume 76, Number 162 (Monday, August 22, 2011)]
[Notices]
[Pages 52363-52367]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-21323]


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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 29755; File No. 812-13862]


Tortoise Power and Energy Infrastructure Fund, Inc. and Tortoise 
Capital Advisors, L.L.C.; Notice of Application

August 16, 2011.
AGENCY: Securities and Exchange Commission (``Commission'').

ACTION: Notice of application under section 6(c) of the Investment 
Company Act of 1940 (``Act'') for an exemption from section 19(b) of 
the Act and rule 19b-1 under the Act.

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Summary of Application: Applicants request an order to permit a 
registered closed-end investment company to make periodic distributions 
of long-term capital gains with respect to its common stock as 
frequently as monthly in any taxable year, and as frequently as 
distributions are specified by or in accordance with the terms of any 
outstanding preferred stock that such investment company may issue.

Applicants: Tortoise Power and Energy Infrastructure Fund, Inc. (the 
``Company'') and Tortoise Capital Advisors, L.L.C. (the ``Investment 
Adviser'').

Filing Dates: The application was filed on January 25, 2011, and 
amended on May 27, 2011, and August 15, 2011.

Hearing or Notification of Hearing: An order granting the application 
will be issued unless the Commission orders a hearing. Interested 
persons may request a hearing by writing to the Commission's Secretary 
and serving applicants with a copy of the request, personally or by 
mail. Hearing requests should be received by the Commission by 5:30 
p.m. on September 9, 2011, and should be accompanied by proof of 
service on applicants, in the form of an affidavit or, for lawyers, a 
certificate of service. Hearing requests should state the nature of the 
writer's interest, the reason for the request, and the issues 
contested. Persons who wish to be notified of a hearing may request 
notification by writing to the Commission's Secretary.

ADDRESSES: Secretary, Securities and Exchange Commission, 100 F Street, 
NE., Washington, 20549-1090; Applicants, 11550 Ash Street, Suite 300, 
Leawood, KS 66211.

FOR FURTHER INFORMATION CONTACT: Christine Y. Greenlees, Senior 
Counsel, at (202) 551-6879, or Mary Kay Frech, Branch Chief, at (202) 
551-6821 (Division of Investment Management, Office of Investment 
Company Regulation).

SUPPLEMENTARY INFORMATION: The following is a summary of the 
application. The complete application may be obtained via the 
Commission's website by searching for the file number, or for an 
applicant using the Company name box, at http://www.sec.gov/search/search.htm, or by calling (202) 551-8090.

Applicants' Representations

    1. The Company is a closed-end management investment company 
registered under the Act and organized

[[Page 52364]]

as a Maryland corporation.\1\ The Company's investment objective is to 
provide a high level of current income, with a secondary objective of 
capital appreciation. The Company's common stock is listed on the New 
York Stock Exchange. As of December 31, 2010, the Company had not 
issued any preferred stock. Applicants believe that the common 
stockholders of a Fund are generally conservative, distribution 
sensitive investors who wish to have a predictable and consistent 
distribution stream.
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    \1\ The Company is the only closed-end investment company that 
currently intends to rely on the order. Applicants request that the 
order also apply to each registered closed-end investment company 
that in the future is advised by the Investment Adviser (including 
any successor in interest) or by an entity controlling, controlled 
by, or under common control (within the meaning of section 2(a)(9) 
of the Act) with the Investment Adviser (such investment companies, 
together with the Company, the ``Funds''). Any Fund that relies on 
the order in the future will comply with the terms and conditions of 
the application and will satisfy each of the representations in the 
application, except that such representations will be made in 
respect of actions by the board of directors of such future Fund at 
a future time. A successor in interest is limited to entities that 
result from a reorganization into another jurisdiction or a change 
in the type of business organization.
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    2. The Investment Adviser, a Delaware limited liability company, is 
registered under the Investment Advisers Act of 1940 (the ``Advisers 
Act''). The Investment Adviser acts as investment adviser to the 
Company. Any Investment Adviser to a Fund will be registered under the 
Advisers Act.
    3. Applicants state that on June 22, 2009, the board of directors 
(the ``Board'') of the Company, including all of the directors who are 
not ``interested persons'' of the Company as defined in section 
2(a)(19) of the Act (the ``Independent Directors''), reviewed 
information regarding the purpose and terms of a proposed distribution 
policy, the likely effects of such policy on the Company's long-term 
total return (in relation to market price and net asset value (``NAV'') 
per common share) and the relationship between the Company's 
distribution rate on its common stock under the policy and the 
Company's total return (in relation to NAV per share). Applicants state 
that the Independent Directors also considered what conflicts of 
interest the Investment Adviser and any affiliated persons of the 
Investment Adviser and the Company might have with respect to the 
adoption or implementation of such policy. Applicants further state 
that after considering such information, the Board, including the 
Independent Directors, approved a distribution policy with respect to 
the Company's common stock (the ``Distribution Policy'') and determined 
that such Policy is consistent with the Company's investment 
objective(s) and in the best interests of the Company's common 
stockholders.
    4. Applicants state that the purpose of the Distribution Policy is 
to permit the Company to distribute over the course of each year, 
through periodic distributions as nearly equal as practicable and any 
required special distributions, an amount closely approximating the 
total taxable income of the Company during such year and, if so 
determined by its Board, all or a portion of the return of capital paid 
by portfolio companies to the Company during such year. Applicants note 
that under the Distribution Policy, the Company would distribute to its 
respective common stockholders a fixed monthly amount that may be 
adjusted from time to time. Applicants further state that the minimum 
annual distribution rate would be independent of the Company's 
performance during any particular period, but would be expected to 
correlate with the Company's performance over time. Applicants explain 
that except for extraordinary distributions and potential increases or 
decreases in the final dividend periods in light of the Company's 
performance for the entire calendar year and to enable the Company to 
comply with the distribution requirements of subchapter M of the 
Internal Revenue Code of 1986 (``Code'') for the calendar year, each 
distribution on the common stock would be at the amount then in effect.
    5. Applicants state that the Board has adopted policies and 
procedures under rule 38a-1 under the Act that are reasonably designed 
to ensure that all notices required to be sent to Company stockholders 
pursuant to section 19(a) of the Act, rule 19a-1 under the Act, and 
condition 4 below (each a ``19(a) Notice'') comply with condition 2.a. 
below, and that all other written communications by the Company or its 
agents regarding distributions under the Distribution Policy include 
the disclosure required by condition 3.a. below. Applicants state that 
the Board also has adopted policies and procedures that require the 
Company to keep records that demonstrate its compliance with all of the 
conditions of the requested order and that are necessary for the 
Company to form the basis for, or demonstrate the calculation of, the 
amounts disclosed in its 19(a) Notices. Any future Fund would adopt 
similar policies and procedures before relying on the requested relief.

Applicants' Legal Analysis

    1. Section 19(b) of the Act generally makes it unlawful for any 
registered investment company to make long-term capital gains 
distributions more than once every twelve months. Rule 19b-1 under the 
Act limits the number of capital gains dividends, as defined in section 
852(b)(3)(C) of the Code (``distributions''), that a fund may make with 
respect to any one taxable year to one, plus a supplemental ``clean 
up'' distribution made pursuant to section 855 of the Code not 
exceeding 10% of the total amount distributed for the year, plus one 
additional capital gain dividend made in whole or in part to avoid the 
excise tax under section 4982 of the Code.
    2. Section 6(c) of the Act provides that the Commission may, by 
order upon application, conditionally or unconditionally exempt any 
person, security, or transaction, or any class or classes of persons, 
securities or transactions, from any provision of the Act, if and to 
the extent that the exemption is necessary or appropriate in the public 
interest and consistent with the protection of investors and the 
purposes fairly intended by the policy and provisions of the Act.
    3. Applicants state that one of the concerns underlying section 
19(b) and rule 19b-1 is that stockholders might be unable to 
differentiate between frequent distributions of capital gains and 
dividends from investment income. Applicants state, however, that rule 
19a-1 effectively addresses this concern by requiring that a separate 
statement showing the sources of a distribution (e.g., net investment 
income, net short-term capital gains, net long-term capital gains and/
or return of capital) accompany any distributions (or the confirmation 
of the reinvestment of distributions) estimated to be sourced in part 
from capital gains or capital. Applicants also state that the same 
information is included in the Company's annual reports to stockholders 
and similar information is included on its IRS Form 1099-DIV, which is 
sent to each common and any preferred stockholder receiving 
distributions during a particular year (including stockholders who have 
sold shares during the year).
    4. Applicants further state that the Company will make the 
additional disclosures required by the conditions set forth below, and 
has adopted compliance policies and procedures in accordance with rule 
38a-1 under the Act to ensure that all required 19(a) Notices and 
disclosures are sent to stockholders. Applicants argue that by

[[Page 52365]]

providing the information required by section 19(a) and rule 19a-1, and 
by complying with the procedures adopted under the Distribution Policy 
and the conditions listed below, the Company's stockholders would be 
provided sufficient information to understand that their periodic 
distributions are not tied to the Company's net investment income 
(which for this purpose is the Company's taxable income other than from 
capital gains) and realized capital gains to date, and may not 
represent yield or investment return. Applicants also state that 
compliance with the Company's compliance procedures and condition 3 set 
forth below will ensure that prospective stockholders and third parties 
are provided with the same information. Accordingly, applicants assert 
that continuing to subject the Company to section 19(b) and rule 19b-1 
would afford stockholders no extra protection.
    5. Applicants note that section 19(b) and rule 19b-1 also were 
intended to prevent certain improper sales practices, including, in 
particular, the practice of urging an investor to purchase shares of a 
fund on the basis of an upcoming capital gains dividend (``selling the 
dividend''), where the dividend would result in an immediate 
corresponding reduction in NAV and would be in effect a taxable return 
of the investor's capital. Applicants submit that the ``selling the 
dividend'' concern should not apply to closed-end investment companies, 
such as the Company, that do not continuously distribute shares. 
According to applicants, if the underlying concern extends to secondary 
market purchases of stock of closed-end funds that are subject to a 
large upcoming capital gains dividend, adoption of a periodic 
distribution plan actually helps minimize the concern by avoiding, 
through periodic distributions, any buildup of large end-of-the-year 
distributions.
    6. Applicants also note that common stock of a closed-end fund 
often trades in the marketplace at a discount to the fund's NAV. 
Applicants believe that this discount may be reduced if the fund is 
permitted to pay relatively frequent dividends on its common stock at a 
consistent rate, whether or not those dividends contain an element of 
capital gain.
    7. Applicants assert that the application of rule 19b-1 to a 
distribution policy actually could have an undesirable influence on 
portfolio management decisions. Applicants state that, in the absence 
of an exemption from rule 19b-1, the implementation of a periodic 
distribution plan imposes pressure on management (a) not to realize any 
net long-term capital gains until the point in the year that the fund 
can pay all of its remaining distributions in accordance with rule 19b-
1, and (b) not to realize any long-term capital gains during any 
particular year in excess of the amount of the aggregate pay-out for 
the year (since as a practical matter excess gains must be distributed 
and accordingly would not be available to satisfy pay-out requirements 
in following years), notwithstanding that purely investment 
considerations might favor realization of long-term gains at different 
times or in different amounts. Applicants thus assert that by limiting 
the number of capital gain distributions that a fund may make with 
respect to any one year, rule 19b-1 may prevent the efficient operation 
of a periodic distribution plan whenever that fund's realized net long-
term capital gains in any year exceed the total of the periodic 
distributions that may include such capital gains under the rule.
    8. Applicants also assert that rule 19b-1 may cause fixed regular 
periodic distributions under a periodic distribution plan to be funded 
with returns of capital \2\ (to the extent net investment income and 
realized short-term capital gains are insufficient to fund the 
distribution), even though realized net long-term capital gains 
otherwise could be available. To distribute all of a fund's long-term 
capital gains within the limits in rule 19b-1, the Company may be 
required to make total distributions in excess of the annual amount 
called for by its Distribution Policy, or to retain and pay taxes on 
the excess amount. Applicants thus assert that the requested order 
would minimize these effects of rule 19b-1 by enabling the Funds to 
realize long-term capital gains as often as investment considerations 
dictate without fear of violating rule 19b-1.
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    \2\ Returns of capital as used in the application means return 
of capital for financial accounting purposes and not for tax 
accounting purposes.
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    9. Applicants state that Revenue Ruling 89-81 under the Code 
requires that a fund that has both common stock and preferred stock 
outstanding designate the types of income, e.g., investment income and 
capital gains, in the same proportion as the total distributions 
distributed to each class for the tax year. To satisfy the 
proportionate designation requirements of Revenue Ruling 89-81, 
whenever a fund has net realized long-term capital gains with respect 
to a given tax year, the fund must designate the required proportionate 
share of such capital gains to be included in common and preferred 
stock distributions. Applicants state that although rule 19b-1 allows a 
fund some flexibility with respect to the frequency of capital gains 
distributions, a fund might use all of the exceptions available under 
the rule for a tax year and still need to distribute additional capital 
gains allocated to the preferred stock to comply with Revenue Ruling 
89-81.
    10. Applicants assert that the potential abuses addressed by 
section 19(b) and rule 19b-1 do not arise with respect to preferred 
stock issued by a closed-end fund. Applicants assert that such 
distributions are fixed or determined in periodic auctions by reference 
to short-term interest rates rather than by reference to performance of 
the issuer, and Revenue Ruling 89-81 determines the proportion of such 
distributions that are comprised of the long-term capital gains.
    11. Applicants also submit that the ``selling the dividend'' 
concern is not applicable to preferred stock, which entitles a holder 
to no more than a periodic dividend at a fixed rate or the rate 
determined by the market, and, like a debt security, is priced based 
upon its liquidation value, dividend rate, credit quality, and 
frequency of payment. Applicants state that investors buy preferred 
shares for the purpose of receiving payments at the frequency bargained 
for, and do not expect the liquidation value of their shares to change.
    12. Applicants request an order under section 6(c) of the Act 
granting an exemption from section 19(b) of the Act and rule 19b-1 
under the Act to permit the Company to distribute periodic capital gain 
dividends (as defined in section 852(b)(3)(C) of the Code) as often as 
monthly in any one taxable year with respect to its common stock and as 
frequently as distributions are specified by or in accordance with the 
terms of any outstanding preferred stock that the Company may issue.

Applicants' Conditions

    Applicants agree that any order of the Commission granting the 
requested relief will be subject to the following conditions:
    1. Compliance Review and Reporting. The Fund's chief compliance 
officer will: (a) report to the Fund's Board, no less frequently than 
once every three months or at the next regularly scheduled quarterly 
Board meeting, whether (i) the Fund and its Investment Adviser have 
complied with the conditions of the order, and (ii) a material 
compliance matter (as defined in rule 38-1(e)(2) under the Act) has 
occurred with respect to such conditions; and (b) review the adequacy 
of the policies and procedures adopted

[[Page 52366]]

by the Board no less frequently than annually.
    2. Disclosures to Fund Stockholders.
    a. Each 19(a) Notice disseminated to the holders of the Fund's 
common stock, in addition to the information required by section 19(a) 
and rule 19a-1:
    i. Will provide, in a tabular or graphical format:
    (1) The amount of the distribution, on a per share basis, together 
with the amounts of such distribution amount, on a per share basis and 
as a percentage of such distribution amount, from estimated: (A) Net 
investment income; (B) net realized short-term capital gains; (C) net 
realized long-term capital gains; and (D) return of capital or other 
capital source;
    (2) The fiscal year-to-date cumulative amount of distributions, on 
a per share basis, together with the amounts of such cumulative amount, 
on a per share basis and as a percentage of such cumulative amount of 
distributions, from estimated: (A) Net investment income; (B) net 
realized short-term capital gains; (C) net realized long-term capital 
gains; and (D) return of capital or other capital source;
    (3) The average annual total return in relation to the change in 
NAV for the 5-year period (or, if the Fund's history of operations is 
less than five years, the time period commencing immediately following 
the Fund's first public offering) ending on the last day of the month 
ended immediately prior to the most recent distribution record date 
compared to the current fiscal period's annualized distribution rate 
expressed as a percentage of NAV as of the last day of the month prior 
to the most recent distribution record date; and
    (4) The cumulative total return in relation to the change in NAV 
from the last completed fiscal year to the last day of the month prior 
to the most recent distribution record date compared to the fiscal 
year-to-date cumulative distribution rate expressed as a percentage of 
NAV as of the last day of the month prior to the most recent 
distribution record date. Such disclosure shall be made in a type size 
at least as large as and as prominent as the estimate of the sources of 
the current distribution; and
    ii. Will include the following disclosure:
    (1) ``You should not draw any conclusions about the Fund's 
investment performance from the amount of this distribution or from the 
terms of the Fund's Distribution Policy'';
    (2) ``The Fund estimates that it has distributed more than its 
income and net realized capital gains; therefore, a portion of your 
distribution may be a return of capital. A return of capital may occur, 
for example, when some or all of the money that you invested in the 
Fund is paid back to you. A return of capital distribution does not 
necessarily reflect the Fund's investment performance and should not be 
confused with `yield' or `income' ''; \3\ and
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    \3\ The disclosure in this condition 2(a)(ii)(2) will be 
included only if the current distribution or the fiscal year-to-date 
cumulative distributions are estimated to include a return of 
capital.
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    (3) ``The amounts and sources of distributions reported in this 
19(a) Notice are only estimates and are not being provided for tax 
reporting purposes. The actual amounts and sources of the amounts for 
tax reporting purposes will depend upon the Fund's investment 
experience during the remainder of its fiscal year and may be subject 
to changes based on tax regulations. The Fund will send you a Form 
1099-DIV for the calendar year that will tell you how to report these 
distributions for Federal income tax purposes.'' Such disclosure shall 
be made in a type size at least as large as and as prominent as any 
other information in the 19(a) Notice and placed on the same page in 
close proximity to the amount and the sources of the distribution.
    b. On the inside of the front cover of each report to stockholders 
under rule 30e-1 under the Act, the Fund will:
    i. Describe the terms of the Distribution Policy (including the 
fixed amount or fixed percentage of the distributions and the frequency 
of the distributions);
    ii. Include the disclosure required by condition 2.a.ii.(1) above;
    iii. State, if applicable, that the Distribution Policy provides 
that the Board may amend or terminate the Distribution Policy at any 
time without prior notice to Fund stockholders; and
    iv. Describe any reasonably foreseeable circumstances that might 
cause the Fund to terminate the Distribution Policy and any reasonably 
foreseeable consequences of such termination.
    c. Each report provided to stockholders under rule 30e-1 under the 
Act and each prospectus filed with the Commission on Form N-2 under the 
Act, will provide the Fund's total return in relation to changes in NAV 
in the financial highlights table and in any discussion about the 
Fund's total return.
    3. Disclosure to Stockholders, Prospective Stockholders and Third 
Parties.
    a. The Fund will include the information contained in the relevant 
19(a) Notice, including the disclosure required by condition 2.a.ii. 
above, in any written communication (other than a communication on Form 
1099) about the Distribution Policy or distributions under the Policy 
by the Fund, or agents that the Fund has authorized to make such 
communication on the Fund's behalf, to any Fund stockholder, 
prospective stockholder or third-party information provider;
    b. The Fund will issue, contemporaneously with the issuance of any 
19(a) Notice, a press release containing the information in the 19(a) 
Notice and file with the Commission the information contained in such 
19(a) Notice, including the disclosure required by condition 2.a.ii. 
above, as an exhibit to its next filed Form N-CSR;
    c. The Fund will post prominently a statement on its (or the 
Investment Adviser's) Web site containing the information in each 19(a) 
Notice, including the disclosure required by condition 2.a.ii. above, 
and will maintain such information on such Web site for at least 24 
months.
    4. Delivery of 19(a) Notices to Beneficial Owners. If a broker, 
dealer, bank or other person (``financial intermediary'') holds common 
stock issued by the Fund in nominee name, or otherwise, on behalf of a 
beneficial owner, the Fund: (a) Will request that the financial 
intermediary, or its agent, forward the 19(a) Notice to all beneficial 
owners of the Fund's shares held through such financial intermediary; 
(b) will provide, in a timely manner, to the financial intermediary, or 
its agent, enough copies of the 19(a) Notice assembled in the form and 
at the place that the financial intermediary, or its agent, reasonably 
requests to facilitate the financial intermediary's sending of the 
19(a) Notice to each beneficial owner of the Fund's shares; and (c) 
upon the request of any financial intermediary, or its agent, that 
receives copies of the 19(a) Notice, will pay the financial 
intermediary, or its agent, the reasonable expenses of sending the 
19(a) Notice to such beneficial owners.
    5. Additional Board Determinations for Funds Whose Common Stock 
Trades at a Premium.
    If:
    a. Each Fund's common stock has traded on the stock exchange that 
they primarily trade on at the time in question at an average premium 
to NAV equal to or greater than 10%, as determined on the basis of the 
average of the discount or premium to NAV of the Fund's common stock as 
of the close of each trading day over a 12-week rolling period (each 
such 12-week

[[Page 52367]]

rolling period ending on the last trading day of each week); and
    b. The Fund's annualized distribution rate for such 12-week rolling 
period, expressed as a percentage of NAV as of the ending date of such 
12-week rolling period, is greater than the Fund's average annual total 
return in relation to the change in NAV over the 2-year period ending 
on the last day of such 12-week rolling period; then:
    i. At the earlier of the next regularly scheduled meeting or within 
four months of the last day of such 12-week rolling period, the Board, 
including a majority of the Independent Directors:
    (1) Will request and evaluate, and the Investment Adviser will 
furnish, such information as may be reasonably necessary to make an 
informed determination of whether the Distribution Policy should be 
continued or continued after amendment;
    (2) Will determine whether continuation, or continuation after 
amendment, of the Distribution Policy is consistent with the Fund's 
investment objective(s) and policies and is in the best interests of 
the Fund and its stockholders, after considering the information in 
condition 5.b.i.(1) above; including, without limitation:
    (A) Whether the Distribution Policy is accomplishing its 
purpose(s);
    (B) The reasonably foreseeable material effects of the Distribution 
Policy on the Fund's long-term total return in relation to the market 
price and NAV of the Fund's common stock; and
    (C) The Fund's current distribution rate, as described in condition 
5.b. above, compared with the Fund's average annual taxable income or 
total return over the 2-year period, as described in condition 5.b., or 
such longer period as the Board deems appropriate; and
    (3) Based upon that determination, will approve or disapprove the 
continuation, or continuation after amendment, of the Distribution 
Policy; and
    ii. The Board will record the information considered by it, 
including its consideration of the factors listed in condition 
5.b.i.(2) above, and the basis for its approval or disapproval of the 
continuation, or continuation after amendment, of the Distribution 
Policy in its meeting minutes, which must be made and preserved for a 
period of not less than six years from the date of such meeting, the 
first two years in an easily accessible place.
    6. Public Offerings. The Fund will not make a public offering of 
the Fund's common stock other than:
    a. A rights offering below NAV to holders of the Fund's common 
stock;
    b. An offering in connection with a dividend reinvestment plan, 
merger, consolidation, acquisition, spin-off or reorganization of the 
Fund; or
    c. An offering other than an offering described in conditions 6.a. 
and 6.b. above, provided that, with respect to such other offering:
    i. The Fund's annualized distribution rate for the six months 
ending on the last day of the month ended immediately prior to the most 
recent distribution record date, expressed as a percentage of NAV per 
share as of such date,\4\ is no more than 1 percentage point greater 
than the Fund's average annual total return for the 5-year period 
ending on such date; \5\ and
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    \4\ If the Fund has been in operation fewer than six months, the 
measured period will begin immediately following the Fund's first 
public offering.
    \5\ If the Fund has been in operation fewer than five years, the 
measured period will begin immediately following the Fund's first 
public offering.
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    ii. The transmittal letter accompanying any registration statement 
filed with the Commission in connection with such offering discloses 
that the Fund has received an order under section 19(b) to permit it to 
make periodic distributions of long-term capital gains with respect to 
its common stock as frequently as twelve times each year, and as 
frequently as distributions are specified by or determined in 
accordance with the terms of any outstanding preferred stock as such 
Fund may issue.
    7. Amendments to Rule 19b-1. The requested order will expire on the 
effective date of any amendment to rule 19b-1 that provides relief 
permitting certain closed-end investment companies to make periodic 
distributions of long-term capital gains with respect to their 
outstanding common stock as frequently as twelve times each year.

    For the Commission, by the Division of Investment Management, 
under delegated authority.
Elizabeth M. Murphy,
Secretary.
[FR Doc. 2011-21323 Filed 8-19-11; 8:45 am]
BILLING CODE 8011-01-P