RegAlert2005-03-08
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SEC Division of Investment Management staff letter: The Goldman Sachs Group, Inc.
The Office of Chief Counsel determines that The Goldman Sachs Group, Inc.'s deferred compensation plan and any associated rabbi trust are not required to register as investment companies under the Investment Company Act of 1940 because Goldman Sachs, rather than the plan or trust, is the issuer of the plan interests. The staff further states it would not recommend enforcement action against Section 3(c)(1) and Section 3(c)(7) funds designated as performance benchmarks, provided these funds do not treat plan participants as beneficial owners or owners of their securities. This position relies on representations that Goldman Sachs remains the sole beneficial owner of securities purchased to hedge obligations, participants are general unsecured creditors, and the plan was not formed for the purpose of investing in specific funds.
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March 8, 2005
RESPONSE OF THE OFFICE OF CHIEF COUNSEL DIVISION OF INVESTMENT MANAGEMENT
Our Ref. No. 200264850 The Goldman Sachs Group Inc. File No. 132-3
Your letter dated March 2, 2005 requests our concurrence that The Goldman Sachs Group, Inc. ("Goldman Sachs") deferred compensation plan (the "Plan") described in your letter is not required to register as an investment company under the Investment Company Act of 1940 (the "1940 Act"). Your letter also requests our assurance that we would not recommend enforcement action to the Commission under Section 7(a) of the 1940 Act against funds that are excepted from the definition of "investment company" by Section 3(c)(1) of the 1940 Act (a "3(c)(1) fund") and Section 3(c)(7) of the 1940 Act (a "3(c)(7) fund"), which the Committee (as defined below) designates as performance benchmarks, if the 3(c)(1) and 3(c)(7) funds do not treat the Plan participants as the beneficial owners and owners of their securities for purposes of Sections 3(c)(1) and 3(c)(7) of the 1940 Act, respectively. FACTS
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