SEC Division of Investment Management staff letter: Wm. S. Barnickel & Company — SEC — US

. .-~~'_" '".r.
1 NOV 1~94

Our Ref. No. 94-345-CC

WI. S. Barnickel &
RESPONSE THE FFICE OF CHIEF COUNSEL Company
DIVIS I ON INVESTMNT MAAGEMENT File No. 132 - 3 Your letter of June 8, 1994 requests our assurance that we

would not recommend enforcement action to the Commission if, as

more fully described in your letter, (1) WI. S. Barnickel &

Company (the "Company") and the William S. Barnickel Trust (the

"Trust") include only the transferors of certain interests in the

Trust, and not the recipients of those interests, in determining

the numer of beneficial owners of the Company and the Trust for

purposes of Section 3 (c) (1) of the Investment Company Act of 1940

(the "1940 Act"); and (2) the Company disregards two trusts

established for the benefit of various members of the Lehmnn family (the "Lehmnn Trusts") for purposes of determining the numer of beneficial owners of the Company.

You state that the majority of the Company's assets consists

of a substantial block of shares of a publicly traded corporation. The Company has three shareholders - - the Trust and the two Lehmann Trusts. The Trust owns 90% of the common stock

of the Company, which is the Trust's sole asset. The Lehmnn

Trusts collectively own the remaining 10% of the Company's common

stock. You state that certain of the Trust's beneficial owners

have transferred their interests in the Trust by will, or by

donation to a charitable organization exempt from taxation under

Section 501 (c) (3) of the Internal Revenue Code of 1986

("Charitable Organization"), and that others may do so in the future.
You ask the staff to confirm that the Trust and the Company,

respectively, may include only the transferors of interests by

will or by donation to Charitable Organizations, and not the

recipients of those interests, for purposes of calculating the

owners under Section 3 (c) (1). The staff has

stated previously that it would not recommend enforcement action

if a company treated persons receiving shares by operation of

will and their testator as a single beneficial owner for purposes

numer of beneficial

of Section 3 (c) (1). 1/ Similarly, the staff agreed not to recommend enforcement action when the same company proposed to

treat a donor to Charitable Organizations and the recipients of

the donated shares as a single beneficial owner. ~/

1/ Commodities Corporation (pub. avail. June 7, 1991).

~/ Id. Of course, a sale to any person or a gift to a person

other than a Charitable Organization would not be treated as

an involuntary transfer, and the transferees would have to

be counted as beneficial owners for purposes of Section 3(c)(1).

You alsb ..ask whether the Company and the Trust can apply this princîpleto' transfers that occurred before 1980. In 1980,

Congress adopted Section 3 (c) (1) (B) of the 1940 Act which authorized the Commission to adopt rules to address situations

where an issuer that is not making and does not intend to make a

public offering "may have outstanding securities beneficially

owned by more than one hundred persons simply because of

transfers which are neither within the issuer's control nor are voluntary on the part of the present beneficial holder." '1/ Congress stated in enacting Section 3 (c) (1) (B) that barring the issuer from relying on Section 3 (c) (1) when involuntary transfers of interests have occurred and when the issuer has never publicly

offered its securities would not further the purposes of the 1940

Act. ~/ We believe that it would be consistent with the purposes

of Section 3 (c) (1) if the Company counts only the transferors of

interests by will or by charitable donation, and not the

recipients of those interests, for transfers that occurred both

prior to and subsequent to the adoption of Section 3 (c) (1) (B) .
You also ask whether the Company can disregard the Lehmnn

Trusts for purposes of counting the numer of its beneficial

owners because all of the beneficiaries of the Lehmnn Trusts are

also beneficiaries of the Trust. The staff has previously stated that for purposes of the 100-investor limit in Section 3 (c) (1) , companies may avoid double counting of beneficial owners, because " (t) he relevant inquiry . . . is whether ultimately there are 100 or fewer individuals who have an economic interest in the

investment company." ~/ Consistent with this position, the staff

would not obj ect if the Company counts individual beneficiaries

of its shareholder trusts once, even if an individual owns

interests in more than one trust.

Accordingly, we would not recommend enforcement action to

the Commission, if, as described above, the Company and the Trust

count only the transferors of interests by will or by donation to

Charitable Organizations, and not the recipients of those interests, as beneficial owners for purposes of Section 3 (c) (1) . Further, we believe that the Company may disregard the two

Lehmann Trusts and treat each beneficial owner of the Trust and

the Lehmnn Trusts as a single holder of the Company's

'1/ H.R. Rep. No. 1341, 96th Cong., 2d Sess. 36 (1980).

4/ Id.

~/ Nemo Capital Partners, L.P. (pub. avail. July 28, 1992).

outstanding securities. This position is based on the facts and

representations in your letter; any different facts or

representations may require a different conclusion.

~WÁ- lIt. &4/1. ana M. Cayne J Attorney .

BRYAN CAVE

WASINGTO. D.C.
WGEL. CARNIA
.N YORK NE YORK
ONE METROPOLITAN SQUARE
211 NORTH BROADWAY, SUITE 3600
IRVINE. CAFORNIA
SANTA MONICA CAFORNIA
OVERLAND PARK. KANSAS
PHENIX ARIZONA
KA CR. MISURI ST. LOUIS. MISSOURI 63102-2750 LONDON. ENGLAND RIYAD, SAUDI ARBIA (314) 259-200 FRNKFRT AM MAN. GERMANY R. RANDALL WANG FACSIMILE: (314) 259-2020

(314) 258-2148
REeD S.E.C.
'JUN 9 '994

007
¿
'_. Investment Company Act of 1940/

1:.:. 19icI ...~~_.~(c)(I)

Office of Chief Counsel fct1on , ~O )()) ~
Division of Investment Management ;;.:.d'.~ ':;'~11(' --..=-__ Securities and Exchange Commission ~:.i;tH."lbiHtY'. 11- / q i ;-...~ 450 Fifth Street, N. W. . .",v..,.--,..~,~_.:....~''' ,, 'i _., Washington, D.C. 20549 '- ~...,~..--~..,'-, ,.,..."".._v.... ., '",. " Re: Wm. S. Barickel & Company: Wiliam S. Barickel Testamenta Trust Ladies and Gentlemen:
This letter is submitted on behalf of our clients, Wm. S. Baickel & Company, a Missouri corpration (the "Company"), and the Wiliam S. Baickel Trust, a Missouri testaenta trst (the "Trust"). We respetfully request a determination, bas on the facts set

fort herein, that the staf of the Division of Investment Management (the "Staf") wil not recmmend any enforcement action to the Securities and Exchange Commission (the "Commìssion") under the Investment Company Act of 1940, as amended (the "1940 Act"), in the circumstaces described below and in accordance with Section 3(c)(I) of the 1940 Act, if:
(1) The Company and the Trust continue to treat beneficial ownership of all of the interests in the Trust as beneficial ownership by one person, except for interests which were acquired by "volunta" trsfer, for purpses of

caculating the current number of beneficial owners of the Company and the Trust. Alternatively, if the Staf does not agree with ths view, we respetfully request confirmation that the Staf wil not recmmend any enforcement action if only those new, post-1979 beneficiares of the Trust who recived their interests in "volunta" trsfers are added to the number of beneficial owners at the end of 1979 for purpses of caculatig the current number of beneficial owners of the Company and the Trust. (2) The Company disregards the Lehmann Trusts (as defmed below) for purpses of counting the number of beneficial owners of the Company,

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since al of the beneficiares of the Lehman Trusts are also beneficiares of the Trust.

(3) The Company and the Trust contiue to treat beneficial ownership of interests in the Trust which are subseuently trsferred by wi, or

otherwse by reon of death, as beneficial ownership, in each ca, by one person, for purpses of determnig the tota number of beneficial owners of the Company and the Trust. (4) The Company and the Trust contiue to treat beneficial ownership of interests in the Trust which ar subseuently donate to Public Charties (as derined below) as beneficial ownership, in each ca, by one person, for purpses of determing the tota number of beneficial owners of the Company and the Trust. Background in 1923 pursuat to the Last Wil and Testaent of Willams S. Baickel dated August 1, 1921 (the "Wil"), wherein Mr. Backel established a trst covering all his rea and personal propert for the benefit of cert beneficiares. The Wil The Trust was formed

provided for self-perptuating trstees and state that the trst would termnate upon the death

of his daughter.

At the time of execution of the Wil, the Company was organ in the form of a parership in which Mr. Backel had a 9/10 interest and John S. Lehman had a 1/10

interest. However, the Wil authori the trstes to incorprate the parership business at

their discretion. The parership was incorprate as The Paceo Corpration on March 22, 1922 and chaged its name to Wm. S. Backel & Company on May 22, 1923. Tody, the assets of the Trust consist solely of 7,920 shares (90%) of the common stok of the Compay and are managed by a corprate trst company and an individua as cotrstes of the Trust. The remaig 880 shares are held by the sae trst compay as trste of two trsts for the benefit of varous members of the Lehman famly (the "Lehman Trusts"). The two Lehmann Trusts were create pursuant to the Indenture of Trust of John S. Lehman date July 8, 1959. On the death of the sole income beneficiar, the John S. Lehmann Trust was divided into two separte unequa shares: 3/4 to be held in furter trst for a son, and 1/4 to be held in trst for a nephew. Base on the circumstaces of these individuas, the Lehman Trusts both ca for

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eventu distrbution of the assets to the chidren of the nephew. These chidren, lie the son and nephew, are also beneficiaes of the Trust. The assets of the Company consist primary of a substatiàl block of shares of common stock of a publicly trded corpration, which represent a substatial majority of the value of the Company's assets. The remaig assets consist of oil and gas interests, a diverse portolio of publicly trded securities and tempora cah equivalents. Mr. Baickel's Wil provided that 1/3 of the income from the Trust was to be paid to his daughter, during her life; 1/6 to one of his sisters, durig her life; 1/6 to his other sister, during her life; and 1/3 to be divided among a number of other individuas or their heirs. Pursuant to the terms of the Wil, the income otherwise payable to his sisters bee payable to his daughter, upon their deaths. Upon the death of his daughter, the income otherwise

payable to her was to be paid to her children until the youngest of her children reached age 21, at which point the Trust was to cee, and the estate divided among the children. Mr.

Backel's daughter recntly died. As her children had already reached age 21, the Trust is now required to terminate and its assets distrbuted. Distrbution of the assets may not tae place for some time, however, as the trstees of the Trust are addressing and seking to resolve a number of business, ta and other concerns.

The remainder beneficiares of the 2/3 interest of the daughter are her four children. The beneficiares of the remaining 1/3 interest are 91 other individuas reciving income distrbutions from such 1/3 interest. Most of these individuas currently reciving Trust income recived their interest through intestate or testate succession. However, a smal number of these individuas received their interests through saes of trst income interests by previous beneficias. Cert holders of interests in the Trust want to trsfer their interests in circumstaces that may result in the Trust, and therefore the Company, having more than 100 beneficial owners. First, a number of holders wish to trsfer their interests by wil. Secnd, certn holders may want to donate shares to organzations exempt from taation under Section

501(c)(3) of the Internal Revenue Code of 1986 ("Public Charties"). Thd, other holders wish

to trsfer their interests by gift or in a sae trsaction. In each of the fist two instaces, the Company and the Trust wish to confirm that they may treat a donatig or trsferrng beneficial

owner and his or her multiple donees or trsferees of interests in the Trust as one beneficial owner of seurities for purpses of the 100 beneficial owner rule contaed in Section 3(c)(1) of the 1940 Act. Additionaly, we also wish to confirm that the Trust and the Company may rely on the application of the "involunta trsfer" rule contaned in Section 3(c)(I)(B) of the

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1940 Act in caculatig the number of beneficial owners of the Company and the Trust, in order to ensure continued quafication as a "private investment company" following a gift or sae

trsaction.
Disusion
It is our view that both the Company and the Trust would quafy for the "private investment company" excetion under the 1940 Act by vire of having fewer than 101

beneficial owners. Furter, it is our view that, by virtue of the "involunta trsfer" rule contaned in Section 3(c)(1)(B) of the 1940 Act, there are currently fewer than 30 beneficial and no beneficial owners counte for the two Lehmann Trusts, makg a tota of fewer than 30 beneficial owners of the Company for purpses of the 100 beneficial owners of the Trust,

owner rule. Alternatively, if the "involunta trsfer" rule is determned only to apply

beginning in 1980 (i.e., the effective date of Section 3(c)(1)(B)), it is our view that there are only 63 beneficial owners of the Trust, and no beneficial owners counte for the two Lehmann Trusts, makg a tota of 63 beneficial owners of the Company for purpses of the 100 beneficial owner rule. Additionally, it is our view that any future trsfers by wil or to Public Charties nee not be "counte" for purpses of complying with the 100 beneficial owner limit. A. Investent Companies - Generaly. We have assumed, for purpses of

this letter, that both the Company and the Trust constitute "investment companes" for purpses of the 1940 Act. The Company holds a substatial block of shares of the common stok of a publicly trded compay, which represent a substatial majority of the value of the Company's assets. The remaig assets consist of oil and gas interests, a diverse portolio of publicly trded seurities and tempora cah equivalents. The Trust holds 7,920 shares (90%) of the

common stock of the Company. Section 3(a) of the 1940 Act defines the term "investment

company" to mea any issuer which:
(1) ¡SOI holds itslf out as being engaged primary, or proposes to engage primarly, in the business of investig, reinvestig, or

trding in seurities; or
(3) is engaged or proposes to engage in the business of investig,

reinvestig, owning, holding, or trding in seurities, and owns or

proposes to acquire investment seurities having'a value exceing 40 pe centrm of the value of such issuer's tota assets (exclusive

BRYAN CAVE

Division of Investment Maagement

of Government seurities and cah items) on an unconsolidate basis.
Section 3(a) also derines the term "investment seurities" to mea al seurities
except "(A) Government seurities, (B) seurities issued by employees' seurities compaes, and (C) seurities issued by majority-owned subsidiares of the owner which are not investment companies. II We have assumed, for purpses of this lettr, that the common stock of the Company and the interests of beneficiares in the Trust constitute "seurities". B. Private Investent Company. The "private investment company" exception is contaned in Section 3(c)(I)(A) of the 1940 Act, and imposes only two requirements: first, that the issuer's securities may not be beneficialy owned by more than 100 persons and, seond, that the issuer may not be makng or contemplatig a public offerig of seurities. Currently, thee trsts together hold 100% of the common stock of the Company. The Trust holds 90% of the common stock. The two Lehmann Trusts hold 7 1/2% and 2 1/2% staes, respetively, in the Company. All the beneficiares of the Lehmann Trusts are also

beneficiares of the Trust. Generaly, an entity that holds an ownership interest in a company

that is subject to the 100 beneficial owner test of the 1940 Act wil itslf be counte as the direct

beneficial owner of the company, rather than the individuas holding ownership interests in the entity. However, paragraph (A) of Section 3(c)(I) contans an "attbution" provision, pursuat

to which a private investment company is required to count as beneficial owners of its seurities the holders of seurities (other than short-term paper) of any entity which owns 10% or more of the votig seurities of the private investment company. The attbution rule, though, is not applied if the value of all seurities owned by the entity covered by the attbution provisions does not exce 10% of the assets of such entity. l' !! Cf Nemo Capital Partrs, L.P. (July 28, 1992) (prmttng countig of individuas rather than multiple trsts with overlapping, although not identica, beneficiares, stating

lithe relevant inquir is whether ultimately there are 100 or fewer beneficiares who have an ecnomic interest in the investment company") and Hand Place Investmnt Partrship (July 19, 1989) (noting possibilty that paTership formed for purpse of investment would be looked through for purpse of countig individua parers as

beneficial owners).

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We have assumed tht the Trust, which holds a 90% interest in the Company, wi be subject to the attbution rule and thus each beneficiar wil be counte in the 100 beneficial

owner caculation. If the "involunta trsfer" rule (described below) does not apply, there

would currently be 98 beneficiares under the Trust. Since al the beneficiaes of the Lehman Trusts are beneficiares of the Trust, it is our view, as discusse in Section D below, that no beneficiares would be counte for the two Lehman Trusts, makg a tota of 98 beneficial owners of the Company for purpses of the 100 beneficial owner rule. If the "involunta

trsfer" rule does apply, there would currently be fewer than 30 beneficial owners of the Trust

and no beneficial owners of the two Lehmann Trusts, makng a tota of fewer than 30 beneficial owners of the Company for purpses of the 100 beneficial owner rule. Alternatively, if the "involunta trsfer" rule is determined only to apply beginning in 1980, it is our view that

there would currently only be 63 beneficial owners under the Trust and no beneficial owners counted for the two Lehmann Trusts, makng a tota of 63 beneficial owners of the Company for purpses of the 100 beneficial owner rule.

c. Involuntary Transfer Exceptin. In 1980, Congress amended Section

3(c)(I) in order to provide an exception for the calculation of the number of "beneficial owners" in the case of certn "involunta trsfers." The exception appes in pargraph (B) of Section

3(c)(I), as follows:

Beneficial ownership by any person who acquires seurities or interests in securities of an issuer described in the first sentence of this paragraph shall be deemed to be beneficial ownership by the person from whom such trsfer was made, pursuat to such rules and regulations as the Commission shall prescribe as necssa or appropriate in the public interest and consistent with the protetion of investors and the purpses fairly intended by the policy and provisions of this title, where the trsfer was cause by legal separtion, divorce, death, or other involunta event. The House dra the amendment to aid an "investment company which is not makng and does not presently propose to make a public offering of its seurities (but) may have its outstading seurities beneficially owned by more than 100 persons simply beuse of the present trsfers which are neither withn the issuer's control nor are volunta on the par of

beneficial holder." H.R. Rep. No. 1341, 96th Cong, 2d Sess., at 36-37 (1980), reprinted in 1980 U.S.C.A.N. (94 Stat.) 4800, 4818-19.

BRYAN CAVE

Division of Investment Maement

Although the Commission has not adopte any rules pursuat to

Secon 3(c)(I)(B), the Division of Investment Management has issued two no-action lettrs indicatig that the -involunta trsfer" doctre may be invoked in order to disregard such

trsfers. In Commities Corporation (June 7, 1991), the Staf tok a no-action position with respet to the treatment of persons reciving seurities of an issuer by operation of wil and their testator as a single shareholder. Additionally, the staf took a no-action position with respet to the treatment of Public Charties reciving seurities of an issuer and their donatig

shareholder as a sigle shareholder. Simiarly, in Boston Ventres Limited Partrship

(August 5, 1992), the Staf took a no-action position with respet to including only the number of trsferors of ce limite parership interests, and not the number of recipients, in

counting the tota number of beneficial owners for purpses of the 1940 Act. In that ca, the

deaths of two individuals resulte in the termination of two parerships that, in turn, distrbute

the interests to multiple beneficiares. In both letters, the Staf acknowledged that the

Commission has not adopted any rules under Section 3(c)(I)(B) but proced to grat no-action

relief on the basis that it would be consistent with the Congressional intent for the issuers to

beneficial owners contiue to include only the number oftransferors in caculating the number of

trsferees). Compare Trivest Special Situions Fund 1985, L.P.
(and disregard the number of

(July 13, 1989) (rejecting request to disregard the termination of a pension plan due to changes in its ta treatment under the Internal Revenue Code and the resultig distrbution of seurities

of the issuer, where termination was deemed not involunta simply becuse it bece economicaly disadvantaeous). In the cae of the Trust, substatially al the beneficiares of the Trust have

received their interests by meas of intestate or testate succession, Le., as a result of the death of the predecssor beneficiar. Although many of the holders recived their interests prior to the effective date of Section 3(c)(I)B) in 1980, there appes to be no policy rean for requirg

the Company and the Trust to count those holders who recived their interests though involunta trsfer simply beuse the trsfers tok place prior to the effective date of pagraph (B) of Section 3(c)(1). In adopting ths provision, Congress recgnize that cert

tys of involunta trsfers of seurities in which an issuer was not involved or had no control

should not cause an issuer relying on the Section 3(c)(I) exemption to be subject to the 1940 Act. Accordingly, in order to ensure continued quaification as a "private investment compay" following a gift or sae trsation, we respetfully request assurace that the Staf wil not

remmend any enforcement action to the Commission if the Company and the Trust contiue to treat beneficial ownership of the interests in the Trust as beneficial ownership by one person, except for interest which were acquired by volunta trsfer. On this basis, the Company and

the Trust would currntly have fewer than 30 beneficial owners for purpses of the 100

beneficial owner rue.

BRYAN CAVE

Division of Investment Magement

Alternatively, if the Staf does not agree with ths view, in order to ensure contiued quafication as a "private investment company" following a gift or sae trsaction, we resptfully request assurace that the Staf wil not recmmend any enforcement action to

the Commission if only those new, post-1979 beneficiares who recived their interests in beneficiares at the end of 1979 in applying the 100 person rule. At the end of 1979, there were 54 different individuas with a beneficial "volunta" trsfers are added to the number of

interest in the Trust. Due to subseuent trsfers and splittig of Trust interests though

intestate succession, testate succssion and saes of interests, there are currently 98 beneficial owners of the Trust. As a result of the application of the "involunta trsfer" rule, however, there were only nie additional beneficiares added, makng a tota of 63 beneficial owners of

the Trust for purpses of the 100 beneficial owner rule.

D. The Lehmann Trusts. As note above, the Company has thee shareholders: the Trust and the two Lehmann Trusts. The trstee of each of the Lehmann Trusts is the sae corprate trst company, which is also one of the two cotrstes of the Trust. If

the two Lehmann Trusts were treate as one beneficial owner, then they would becme a 10% beneficial owner as to which the "attbution" rules of Section 3(c)(I) would apply. Although the Staff has indicated that the aggregation of trsts with the sae trstee nee only tae place in "speial circumstaces", 1:/ it is our view that the Lehman Trusts should be disregarded for i,i In OSIRIS Management, Inc. (Januar 18, 1984) the Staf indicated that the fact that two trsts have the sae trste does not necessaly mea that the trsts wil be deemed to

be one beneficia owner. OSIRIS was an investment parership with severa trsts as ' limited parers. OSIRS sought an interpretative letter whether those trsts with a common trste would be counte as a single "client" of the genera parer for purpses the Investment Advisers Act of 1940. The Staf found that "(tlhe fact that two or more trsts have the sae trstee would not, of itslf, cause us to treat of Section 203(b)(3) of

the trste as the client. "

In addressing the issue of the status of the trsts under the 1940 Act, an issue not rase by OSIRS, the Staf state that for purpses of Section 3(c)(I), "(iln the absence of spial circumstaces, such as where two or more trsts have identica beneficiares, we

would count eah trst as one beneficial owner even though the sae ban serves as

trste for more than one trst." The OSIRIS lettr has been subseuently cite for the

proposition that only trsts with identica beneficiares or trsts which own more than 10% of an issuers seurities wil be subject to the loòk-though rules. Tyler Capital Fund, L.P.lBessemer Limited Partners (August 28, 1987); Rosenberg Capital

BRYAN CAVE

Division of Investment Maagement

purpses of countig the number of beneficia owners of the Company since all the beneficiaes of the Lehman Trusts are also beneficiares of the Trust. '28, 1992), the Staf supported a broad interpretation of the scope of the attbution rule to avoid double-cuntig of In a recnt lettr, Nemo Capital Partrs, L.P. (July

investors. The Staf state that in applying the 100 beneficial owner rule to intermediar entities which have less than a 10% votig share of the investig entity and which have overlapping but not identical beneficiares, the attbution rule may be applied to avoid double-countig the ultimate beneficial owners of the intermediar entity. In Nemo, 23 individuas held interests in the investing entity through 85 trsts. There was a considerable amount of overlap of

beneficiares of the trsts, but there was no exact duplication. Moreover, none of the trsts owned or would in the future own 10% or more of Nemo. Nonetheless, the Staf looked through the trst entities and counted the unduplicated number of individua beneficiares holding an interest in the Nemo parership. The Staf stated that:
(a)lthough some Trusts have overlapping and not identica beneficiares, we also believe that Nemo would be double counting if it treate each Trust as a separate security holder. The relevant inquiry in these circumstaces is whether ultimately there are 100 or fewer individuas who have an economic interest in the investment company. . . . we believe that, for purpses of determining its status under Section 3( c)(1) , Nemo nee not count each Trust as a separte seurity holder; insted it may count only the tota number of individuals who have a beneficial interest in Nemo either directly or indirectly though the Trusts. Applying the attbution rule to the Nemo parership was advantageous to the investors since it deceaed the number of beneficial owners from 85, which was the number of owners that resulte from counting each individual trst as a beneficial owner. In the ca of the Lehmann Trusts, it is our view that the Nemo lettr should be applied as it would avoid double counting of beneficiares. In Hand Place Investmnt Partrship (July 19, 1989), the Staf note that, although no inquir was made as to doublecountig of an individua parcipating both directly and indirectly in a parership investment vehicle, "£t)he degree of public interest in a fund relying on Section 3(c)(I) is gauged by the Mangement (Februar 18, 1979); and Hand Place'Investmnt Partrship (July 19, 1989).

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number of investors that have an ecnomic interest in and wil be affecte by its performance. " The application of that principle to the Lehman Trusts would reduce the risk of unwarte classification of the Company as an investment compay, since al the beneficiares of the Lehmann Trusts are also beneficiaes of the Trust. Accrdingly, in order to ensure contiued quaification as a "private investment company" followig a gift or sae trsaction, we

resptfully request assurace that the Staf wil not recmmend any enforcement action to the

Commission if the Company disregards the Lehman Trusts for purpses of counting the number of beneficial owners of the Company, so that the Company and the Trust are deemed to have the same number of beneficial owners. E. Prposed Transfers. Certn holders of interests in the Trust want to trsfer their interests in circumstaces that may result in the Trust, and therefore the Company,

having more than 100 beneficial owners. First, a number of holders wish to hold their interests unti death. A number of holders may, in planning their estates, wish to bequeath their interests to surviving famly members or others. Such trsfers would only occur upon the death of such

holders, would not benefit the Company or the Trust at all, and therefore appe to be covered by the "involunta trsfer" rule. We respetfully request assurace that the Staf wil not

recommend any enforcement action to the Commission with respet to the Company or the Trust by virue of their continuing to treat beneficial ownership of each of the interests formerly owned by the deceased holders as beneficial ownership in each cae by one person, for the purpse of

determinig the number of beneficial holders of the Company and the Trust. We believe ths request is consistent with the policy underlying Section 3(c)(l)(B), as well as the positions of the Staf in Commdities Corporation, supra, and Boston Ventres Limited Partrship, supra. Second, certn holders may want to donate interests in the Trust to Public Charties. As discusse in Commdities Corporation, whie such trsfers are volunta on the

par of the holders, we believe the public policy supportg chartable organzations merits

treating donations to the Public Charties in the sae manner that Congress contemplate for trsfers of propert by operation of wil under Section 3(c)(1)(B). We respetfully request

assurace that the Staf wil not recmmend any enforcement action to the Commission with

respet to the Company or the Trust by virte of their contiuing to treat beneficial ownership of each of the interests formerly owned by the donors as beneficial ownership in each ca by one person, for the purpse of determinng the number of beneficial holders of the Company and the Trust.

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Division of Investment Mangement

Conclusion
We respetfully request that the Staf concur with our views expresse herein and provide a no-action letter coverig the matters discusse herein. If for any reason the Star does not agree with our position, we respetfully

request an opportnity to discuss the matter with the Star prior to any writtn response to ths letter. If you have any questions or require additional information, plea ca the undersigned at (314) 259-2149. In accordance with Investment Company Act Release No. 6330 (Janua 25, 1971), we have enclose for filng two additional copies of this letter. An additional copy of this letter is enclosed, which we request that you stap and return to the messenger to evidence your receipt of this filing and its attachments. Respetfully submitt, /'R .J( v...

R. Radall Wang
RRW/lmm
Enclosures