Guggenheim Equal Weight Enhanced Equity Income Fund and Guggenheim Funds Investment Advisers, LLC; Notice of Application, 69143-69147 [2013-27478]

Agencies

• SECURITIES AND EXCHANGE COMMISSION

[Federal Register Volume 78, Number 222 (Monday, November 18, 2013)]
[Notices]
[Pages 69143-69147]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-27478]


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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 30780; File No. 812-14151-04]


Guggenheim Equal Weight Enhanced Equity Income Fund and 
Guggenheim Funds Investment Advisers, LLC; Notice of Application

November 12, 2013.
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 outstanding common 
shares as frequently as monthly in any one taxable year, and as 
frequently as distributions are specified by or in accordance with the 
terms of any outstanding preferred shares that such investment company 
may issue.

Applicants:  Guggenheim Equal Weight Enhanced Equity Income Fund (the 
``Initial Fund'') and Guggenheim Funds Investment Advisers, LLC (the 
``Adviser'').

FILING DATES:  The application was filed on April 22, 2013, and amended 
on September 25, 2013.

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 December 6, 2013, 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: Elizabeth M. Murphy, Secretary, Securities and Exchange 
Commission, 100 F Street NE., Washington, DC 20549-1090; Applicants, c/
o Michael K. Hoffman, Skadden, Arps, Slate, Meagher & Flom LLP, Four 
Times Square, New York, NY 10036.

FOR FURTHER INFORMATION CONTACT: Bruce R. MacNeil, Senior Counsel, at 
(202) 551-6817, or Daniele Marchesani, Branch Chief, at (202) 551-6821 
(Division of Investment Management, Exemptive Applications Office).

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

Applicants' Representations

    1. The Initial Fund is a closed-end management investment company 
registered under the Act and is organized as a Delaware statutory 
trust.\1\ The investment objective of the Initial Fund is to provide a 
high level of risk adjusted total return with an emphasis on current 
income by investing primarily in common stocks and utilizing a call 
option writing strategy. The Initial Fund's common shares are currently 
listed on the New York Stock Exchange, a national securities exchange 
as defined in section 2(a)(26) of the Act. The Initial Fund and any 
Future Fund may issue preferred shares. Applicants believe that closed-
end fund investors may prefer an investment vehicle that provides 
regular current income through fixed distribution policies.
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    \1\ Applicants request that any order issued granting the relief 
requested in the application also apply to each existing of future 
registered closed-end investment company advised by the 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 Adviser that decides in the future to 
rely on the requested relief (``Future Fund'' and together with the 
Initial Fund, the ``Funds''). The Initial Fund and the Adviser are 
referred to collectively as ``Applicants''. Any Future Fund that may 
rely on the order will satisfy each of the representations in the 
application. All existing registered closed-end investment companies 
currently intending to rely on the order have been named as 
Applicants. A successor in interest is limited solely to the entity 
that results from a reorganization into another jurisdiction or a 
change in the type of business organization.
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    2. The Adviser is registered under the Investment Advisers Act of 
1940 (``Advisers Act'') and serves as the investment adviser to the 
Initial Fund. A Fund's portfolio may be managed by one or more 
investment sub-advisers (each a ``Sub-Adviser''). Any Sub-Adviser to a 
Fund will be registered as an investment adviser under the Advisers Act 
or not subject to registration.
    3. Applicants state that, prior to a Fund's implementing a 
distribution

[[Page 69144]]

policy (``Distribution Policy'') in reliance on the order, the board of 
trustees (the ``Board'') of the Fund, including a majority of the 
trustees who are not ``interested persons,'' of such Fund as defined in 
section 2(a)(19) of the Act (the ``Independent Trustees''), will 
request, and the Adviser will provide, such information as is 
reasonably necessary to make an informed determination of whether the 
Board should adopt a proposed Distribution Policy. In particular, the 
Board and the Independent Trustees will review information regarding 
the purpose and terms of a proposed Distribution Policy; the likely 
effects of such policy on such Fund's long-term total return (in 
relation to market price and its net asset value (``NAV'') per common 
share); the expected relationship between such Fund's distribution rate 
on its common shares under the policy and the Fund's total return (in 
relation to NAV per share); whether the rate of distribution would 
exceed such Fund's expected total return in relation to its NAV per 
share; and any foreseeable material effects of such policy on such 
Fund's long-term total return (in relation to market price and NAV per 
share). The Independent Trustees will also consider what conflicts of 
interest the Adviser and the affiliated persons of the Adviser and each 
such Fund might have with respect to the adoption or implementation of 
the proposed Distribution Policy. Applicants state that, only after 
considering such information will the Board of a Fund, including the 
Independent Trustees, approve a Distribution Policy and in connection 
with such approval will determine that the Distribution Policy is 
consistent with a Fund's investment objectives and in the best 
interests of the Fund's common shareholders.
    4. Applicants state that the purpose of a Distribution Policy, 
generally, would be to permit a Fund to distribute over the course of 
each year, through periodic distributions in relatively equal amounts 
(plus any required special distributions), an amount closely 
approximating the total taxable income of such Fund during such year 
and, if so determined by its Board, all or a portion of returns of 
capital paid by portfolio companies to such Fund during the year. Under 
the Distribution Policy of a Fund, such Fund would distribute to its 
respective common shareholders a fixed monthly percentage of the market 
price of such Fund's common shares at a particular point in time or a 
fixed monthly percentage of NAV at a particular time or a fixed monthly 
amount, any of which may be adjusted from time to time. It is 
anticipated that under a Distribution Policy, the minimum annual 
distribution rate with respect to such Fund's common shares would be 
independent of a Fund's performance during any particular period but 
would be expected to correlate with a Fund's performance over time. 
Except for extraordinary distributions and potential increases or 
decreases in the final dividend periods in light of a Fund's 
performance for an entire calendar year and to enable a Fund to comply 
with the distribution requirements of Subchapter M of the Internal 
Revenue Code (``Code'') for the calendar year, each distribution on the 
Fund's common shares would be at the stated rate then in effect.
    5. Applicants state that prior to implementing a Distribution 
Policy in reliance on the order, the Board of a Fund will adopt 
policies and procedures pursuant to rule 38a-1 under the Act (``Section 
19 Compliance Policies'') that: (a) are reasonably designed to ensure 
that all notices required to be sent to a Fund's shareholders pursuant 
to section 19(a) of the Act, rule 19a-1 thereunder and condition 4 
below (each a ``19(a) Notice'') include the disclosure required by rule 
19a-1 under the Act and by condition 2(a) below, and that all other 
written communications by the Fund or its agents regarding 
distributions under the Distribution Policy include the disclosure 
required by condition 3(a) below; and (b) require the Fund to keep 
records that demonstrate its compliance with all of the conditions of 
the order and that are necessary for such Fund to form the basis for, 
or demonstrate the calculation of, the amounts disclosed in its 19(a) 
Notices.

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 
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, in relevant part, that the 
Commission may exempt any person, security, or transaction from any 
provision of the Act or any rule under the Act if and to the extent 
that such 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 the one of the concerns leading to the 
enactment of section 19(b) and adoption of rule 19b-1 was that 
shareholders might be unable to distinguish 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 distributions (or the confirmation of the 
reinvestment thereof) estimated to be sourced in part from capital 
gains or capital be accompanied by a separate statement showing the 
sources of the distribution (e.g., estimated net income, net short-term 
capital gains, net long-term capital gains and/or return of capital). 
Applicants state that similar information is included in the Funds' 
annual reports to shareholders and on the Internal Revenue Service Form 
1099-DIV (``Form 1099-DIV''), which is sent to each common and 
preferred shareholder who received distributions during a particular 
year (including shareholders who have sold shares during the year).
    4. Applicants further state that each of the Funds will make the 
additional disclosures required by the conditions set forth below, and 
each of them will adopt the Section 19 Compliance Policies to ensure 
that all required 19(a) Notices and disclosures are sent to 
shareholders. Applicants state that by providing the information 
required by section 19(a) and rule 19a-1, the Distribution Policy, the 
Section 19 Compliance Policies, and the conditions listed below will 
help ensure that each Fund's shareholders are provided sufficient 
information to understand that their periodic distributions are not 
tied to the Fund's net investment income (which for this purpose is the 
Fund's taxable income other than from capital gains) and realized 
capital gains to date, and may not represent yield or investment 
return. Accordingly, Applicants assert that continuing to subject the 
Funds to section 19(b) and rule 19b-1 would afford shareholders no 
extra protection.
    5. Applicants note that section 19(b) of the Act and rule 19b-1 
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

[[Page 69145]]

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 Funds, which do 
not continuously distribute shares. According to Applicants, if the 
underlying concern extends to secondary market purchases of shares of 
closed-end funds that are subject to a large upcoming capital gain 
dividend, adoption of a periodic distribution plan may help minimize 
the concern by avoiding, through periodic distributions, any buildup of 
large end-of-the-year distributions.
    6. Applicants also note that the common shares of closed-end funds 
often trade in the marketplace at a discount to their NAV. Applicants 
believe that this discount may be reduced if the Funds are permitted to 
pay relatively frequent dividends on their common shares at a 
consistent rate, whether or not those dividends contain an element of 
long-term capital gains.
    7. Applicants assert that the application of rule 19b-1 to a 
Distribution Policy actually could have an inappropriate influence on 
portfolio management decisions. Applicants state that, in the absence 
of an exemption from rule 19b-1, the adoption of a periodic 
distribution plan imposes pressure on management (i) 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 (ii) 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 assert that by 
limiting the number of capital gain dividends that a Fund may make with 
respect to any one year, rule 19b-1 may prevent the normal and 
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 force the 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 would be available. To distribute all of a Fund's long-term 
capital gains within the limits in rule 19b-1, a Fund may be required 
to make total distributions in excess of the annual amount called for 
by its periodic distribution plan or to retain and pay taxes on the 
excess amount. Applicants assert that the requested order would 
minimize these anomalous 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 seeks to qualify as a regulated investment 
company under the Code and that has both common shares and preferred 
shares 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 realized a long term capital gain with respect to a 
given tax year, the fund must designate the required proportionate 
share of such capital gain to be included in common and preferred share 
dividends. 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 shares 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 
shares issued by a closed-end fund. Applicants assert that such 
distributions are either fixed or are 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 shares, 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 the provisions of section 19(b) of the Act 
and rule 19b-1 thereunder to permit each Fund 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 in respect of its common 
shares and as often as specified by or determined in accordance with 
the terms thereof in respect of its preferred shares.

Applicants' Conditions

    Applicants agree that, with respect to each Fund that adopts a 
Distribution Policy in reliance upon the order, the order 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 Adviser have complied with 
the conditions of the order and (ii) a material compliance matter (as 
defined in rule 38a-1(e)(2) under the Act) has occurred with respect to 
such conditions; and (b) review the adequacy of the policies and 
procedures adopted by the Board no less frequently than annually.
    2. Disclosures to Fund Shareholders.
    (a) Each 19(a) Notice disseminated to the Fund's common 
shareholders, 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 common share basis, 
together with the amounts of such distribution amount, on a per common 
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 common share basis, together with the amounts of such cumulative 
amount, on a per common share basis and as a percentage of such 
cumulative amount of distributions, from estimated: (A) net investment 
income; (B) net realized

[[Page 69146]]

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 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 front cover of each report to shareholders 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 shareholders; 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 shareholders 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 Shareholders, Prospective Shareholders 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 
Distribution Policy by the Fund, or agents that the Fund has authorized 
to make such communication on the Fund's behalf, to any Fund 
shareholder, prospective shareholder 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 will 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; and
    (c) The Fund will post prominently a statement on its (or the 
Adviser's) Web site containing the information in each 19(a) Notice, 
including the disclosure required by condition 2(a)(ii) above, and 
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 
shares 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 Shares 
Trade at a Premium.
    If:
    (a) The Fund's common shares have 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 shares 
as of the close of each trading day over a 12-week rolling period (each 
such 12-week 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 Trustees:
    (1) will request and evaluate, and the 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

[[Page 69147]]

consistent with the Fund's investment objective(s) and policies and is 
in the best interests of the Fund and its shareholders, 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 shares; 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. A Fund will not make a public offering of the 
Fund's common shares other than:
    (a) a rights offering below NAV to the Fund's common shareholders;
    (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,\4\ expressed as a percentage of NAV 
per share as of such date, 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 shares 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 shares 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 provide relief permitting certain closed-
end investment companies to make periodic distributions of long-term 
capital gains with respect to their outstanding common shares as 
frequently as twelve times each year.

     For the Commission, by the Division of Investment Management, 
under delegated authority.
Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2013-27478 Filed 11-15-13; 8:45 am]
BILLING CODE 8011-01-P