Category: 3. Business

Pension funds—among the world’s largest asset owners—play a unique role in the financial sector’s climate transition. Given their long investment horizons, they are particularly exposed to both transition and physical climate risks that threaten asset values and returns.

Unlike other institutional investors, which often focus on short-term performance, pension providers have a fiduciary duty to address long-term systemic issues and act in their beneficiaries’ best interests. In many jurisdictions, this obligation includes setting credible climate targets, implementing internal changes to strategy, governance, and process, and actively supporting the decarbonization of the real economy.

Pension funds’ role in financing the climate transition is drawing sharper focus as the limits of public finance become clearer amid volatile markets, fiscal constraints, and rising climate risks. At the same time, sustainability disclosure rules and fiduciary standards are evolving across jurisdictions, creating both opportunities and uncertainty for long-term investors.

To reach their full potential for climate action, pension funds need support to overcome policy fragmentation, which continues to hinder their progress. Weak regulatory frameworks that prioritize short-term financial returns at the expense of long-term interest make it difficult for funds to integrate climate objectives into their own investment strategies and mandates with external managers.

This report presents an analysis of data from Climate Policy Initiative’s Net Zero Finance Tracker (NZFT) to explore the progress for the climate transition of 594 pension funds based in OECD countries, together representing USD 22.5 trillion in assets managed or owned. The report charts these funds’ progress across the three dimensions of Targets, Implementation, and Impacts to identify where pension funds are making meaningful progress and where further action is needed.

Key Takeaways

1. Pension funds are ramping up climate targets and implementation

Funds improved their target-setting, most notably for mitigation, with more detailed specifications of baselines and the sectors and asset classes covered. However, significant gaps remained in 2024, particularly for climate investment targets.

2. Pension funds remain materially exposed to fossil fuels

Tracked pension funds’ energy portfolios are concentrated in companies expanding their fossil fuel operations. Analysis of 96 entities with USD 310 billion invested in the energy sector found that expansionist fossil fuel companies  account for 55% (USD 169 billion) of their energy holdings, and non-expansionist companies account for 8% (USD 24 billion), the other 38% was in clean energy. The activities of expansionist companies are misaligned with the International Energy Agency’s net-zero scenario.

3. Climate-aligned pension funds match or surpass financial peers

NZFT data indicates that once funds start embedding climate into their governance and investment processes, they tend to score as highly, or higher, on climate-related indicators than other tracked financial institutions. In addition, pension funds tend to have larger clean technology exposures within their energy portfolios, with 38%, compared to just 26% of other financial entity types.

4. Targets, implementation measures, and transition plans matter

NZFT data show that these elements are more than symbolic commitments: they are associated with measurable shifts in portfolio allocation. Funds that have adopted climate targets, implementation measures, and transition plans hold a higher share of clean energy than those that have not.

5. Robust, mandatory policy frameworks are essential to embedding climate goals in pension fund strategies

Pension funds have stronger targets and implementation where they have clear regulatory guidance, such as in the Netherlands, Denmark, and the UK. Meanwhile, fragmented or voluntary regimes leave funds less able to act on climate change. Regulators must move from permitting climate action to requiring it, explicitly clarifying climate risk management as part of fiduciary duty.

6. The relationship between pension funds and asset managers is key to driving climate change

The world’s largest pension funds are uniquely positioned to drive climate impact at scale by influencing their asset managers. European funds consistently outperform peers on stewardship policies and disclosure, while many in North America and Asia lag, often due to legal or political constraints on ESG integration. Pension funds are steering delegated capital toward net zero by tightening engagement and mandate terms (including climate-aligned voting), terminating mandates when managers fall short, or reallocating/internalising assets to increase direct control and reduce risk.

Recommendations

The report also outlines recommendations to guide policymakers, asset owners/managers, pension funds, and civil organizations in maximizing pension fund climate investments, summarized as follows:

.

Please see the report for full findings and recommendations:

Read the full report here

Explore the NZFT Platform

TOYOTA GAZOO Racing (TGR) plans to exhibit at Tokyo Auto Salon 2026^*1 to be held at Makuhari Messe (in Chiba City, Japan) for three days from January 9 to 11, 2026. TGR’s booth at the event will showcase TGR’s new GR GT and GR GT3 flagship models, as well as other vehicles and vehicle parts. The exhibition is to take place at Makuhari Messe’s North Hall alongside Daihatsu Motor Co., Ltd., Toyota Industries Corporation, and others, as Toyota Group members come together to boost excitement at Tokyo Auto Salon 2026. Chairman Akio Toyoda, aka Master Driver Morizo, is scheduled to appear at a media-only press conference planned for live-streaming^*2 to the general public on January 9 starting at 9 a.m.

The GR GT and GR GT3, which world premiered on December 5, are to mark their first reveal to the general public by being exhibited at Tokyo Auto Salon 2026. As part of the event, both models are scheduled for demo runs on January 10.

Additionally, during the event’s three days, TGR plans to hold talk sessions featuring various personalities, as well as other vehicle demo runs. Detailed information on exhibited items, the talk sessions, the demo runs, and others can be found on the following special website.
https://toyotagazooracing.com/eventexhibition/tokyoautosalon/

Fairfield City Council, on behalf of the event organiser is placing a public notice in accordance with section 5 of the Roads Regulation 2018 for Canley Heights RSL Sub-Branch – 2026 ANZAC Day March and Commemoration Service.

A temporary moving road closure on Humphries Road from King Park to Canley Heights RSL Club Cenotaph on Saturday 25th April 2025 (between 6.45am – 7.15am approximately) is proposed.

Should you wish to make a submission regarding the temporary moving road closure, please email your comments to trafficandtransport@fairfieldcity.nsw.gov.au or mail them to Council at PO Box 21, Fairfield NSW 1860 by Wednesday 16 January 2026. Please include your street address and the reference number 12/03616 in any reply you provide.

Should you have any further enquiries regarding this matter, please contact Mr Sameer Kabir, Council’s Traffic Engineer on 02 72 622 410.

Client Alert  |  December 15, 2025

The Proposed Regulations would make major changes to existing law and, if finalized, could significantly alter the terms on which many foreign governments invest in the United States.

On December 12, 2025, the IRS and Treasury issued final regulations (the “Final Regulations”) and a notice of proposed rulemaking (the “Proposed Regulations”) regarding the taxation of investments in the United States by foreign governments.

The Final Regulations finalize, with some changes, regulations proposed in 2011 and 2022 that address when a foreign government is engaged in a commercial activity and when an entity is a controlled commercial entity with respect to a foreign government.  The Proposed Regulations would make major changes to existing law and, if finalized, could significantly alter the terms on which many foreign governments invest in the United States.  Accordingly, this alert discusses the Proposed Regulations first, then discusses the Final Regulations.

EXECUTIVE SUMMARY

Proposed Regulations

• Effective Control Defined
  • Facts and circumstances analysis of whether a foreign government controls operational, managerial, board-level, or investor-level decisions.
  • Veto rights over key decisions can create effective control; mere consultation rights do not.
  • Interests are aggregated across controlled entities and integral parts of the same foreign government.
• New Rules For When Debt Acquisition Is Commercial Activity
  • More restrictive framework for determining whether debt investments constitute commercial activity.
  • Two new safe harbors for registered offerings and certain secondary market acquisitions.
  • If outside safe harbors, facts-and-circumstances test applies; negotiation or structuring involvement likely gives rise to commercial activity, particularly if no accompanying equity investment.

Final Regulations

• Commercial Activity Defined
  • No special exclusion for fee income from funds.
  • Selling partnership interests and investing in certain derivatives generally not commercial activity.
• USRPHC Rule Eliminated for Non-U.S. Corporations.  Removes per se commercial activity rule for all non-U.S. corporations.

• Qualified Partnership Interest Exception
  • Applies broadly to partnership interests meeting four conditions:
    • Minority ownership and no effective control.
    • Limited liability.
    • No authority to contract on partnership’s behalf.
    • No day-to-day management and operational control rights.
  • Safe harbor for non-managing partner interests of not more than 5 percent with limited liability and no authority to contract.
• Other Highlights
  • Inadvertent commercial activity exception retained with longer, 180-day cure period.
  • Annual controlled commercial entity test confirmed with clarifications.

Effective Dates

• Proposed Regulations: apply after finalization.
• Final Regulations: effective for tax years beginning on or after December 15, 2025, with elective retroactive application.

Discussion

I. Proposed Regulations

A. Definition of Effective Control

Section 892 generally provides an exemption from taxation for certain U.S.-source income earned by foreign governments; however, the exemption does not apply to income received by or from (or from the disposition of) any entity that is engaged in commercial activities anywhere in the world and in which the foreign government holds a controlling interest or an interest that gives it “effective control” of the entity.[1]

Neither the Code nor prior Treasury regulations define “effective control,” although temporary Treasury regulations issued in 1988 provide that this term includes relationships other than ownership, such as commercial relationships and the ability to influence an entity’s activities through control of a critical input or regulatory approvals.[2]  The Proposed Regulations would define effective control and describe the relationships that can create effective control.

Under the Proposed Regulations, effective control is determined based on all facts and circumstances and looks to whether the foreign government holds control over operational, managerial, board-level, or investor-level decisions of the entity.[3]  Mere consultation rights over these decisions do not result in effective control.[4]  For this purpose, interests that can constitute effective control include equity interests, debt interests, voting rights (including the power to appoint directors or managers and to veto decisions), contractual rights (including shareholder agreements), business relationships (including business relationships with other interest holders), and regulatory authority.[5]

1. Examples of Effective Control

Examples in the Proposed Regulations illustrate these principles and can be summarized as follows:

• Minority interest; no control or veto rights not effective control. A foreign government that holds a minority equity interest in an entity without any contractual or local law right to appoint a majority of the entity’s directors, any power to compel or veto an action, or any business relationship that creates influence over the entity does not have effective control of the entity.  This is the case even if the foreign government is a party to an investment agreement that establishes criteria for what types of investments the entity can make or the foreign government discusses acquisitions and sales of property as a member of the entity’s investment committee (so long as the foreign government has no right to approve or execute the acquisitions and sales).
• Power to appoint or dismiss manager is effective control. By contrast, a foreign government that has the power to appoint or dismiss the person responsible for managing the entity’s operations has effective control of the entity.
• Veto rights may be effective control. Veto rights over certain actions may result in effective control over the entity, although the Proposed Regulations do not provide an exhaustive list of which veto rights alone (or in combination) result in effective control.[6]  Notably, one example concludes that veto rights over dividend distributions, capital expenditures, sales of new equity interests, and the operating budget, taken together, result in effective control.
• Certain creditor rights can result in effective control. A foreign government can also have effective control even if it is solely a creditor of the entity if the credit agreement imposes sufficient restrictions on the entity’s capital transactions and the foreign government has sufficient veto rights.

2. Aggregation Rule

The preamble to the Proposed Regulations also indicates that the effective control analysis aggregates interests of the same foreign government, even if two different controlled entities of the same foreign government are managed separately or are not aware of each other’s rights with respect to the relevant entity.  The IRS and Treasury requested comments on when controlled entities should not be aggregated because they are functionally independent.

B. New Rules for Debt Investments

The exemption under section 892(a)(1) does not apply to income derived from commercial activities and a “controlled entity” of a foreign government that is engaged in commercial activities anywhere in the world is not eligible for the section 892 exemption.  Under regulations proposed in 2011 (the “2011 Proposed Regulations”), investments in “loans” are not commercial activities unless those loans are “made by a banking, financing, or similar business.”[7]

The Proposed Regulations would establish an alternative, seemingly more restrictive, framework for determining whether the origination or other acquisition of debt constitutes commercial activity, composed of two narrow safe harbors and a general facts-and-circumstances test.[8]

1. Acquisition of Debt Safe Harbors

The two safe harbors are:

• Registered offerings. An acquisition of debt in an offering registered under the Securities Act of 1933 is not commercial activity if the underwriters are not related to the acquirer.[9]
• Qualified secondary market acquisitions. An acquisition of debt traded on an established securities market is not commercial activity if (a) the acquirer does not acquire the debt from the issuer, (b) the acquirer does not participate in the negotiation of the terms or issuance of the debt, and (c) the acquisition is not from a person that is under common management or control with the acquirer, unless that person acquired the debt as an investment (and not a commercial activity).[10]

2. Acquisition of Debt Facts-and-Circumstances Test; Examples

If a debt acquisition does not satisfy one of the safe harbors, a facts-and-circumstances test applies to determine if the acquisition is a commercial activity.  The non-exclusive set of factors include:

1. whether the acquirer solicited prospective borrowers or held itself out as willing to make debt investments;
2. whether the acquirer materially participated in negotiating or structuring the terms of the debt;
3. whether the acquirer is entitled to compensation that is not treated as interest for U.S. federal income tax purposes;
4. the form of the debt and the issuance process (including whether the debt is a bank loan or privately placed);
5. the share of the borrower’s debt issuance acquired by the acquirer relative to the percentages acquired by other purchasers;
6. the percentage of equity in the debt issuer held or to be held by the acquirer;
7. the value of that equity relative to the amount of the debt acquired; and
8. if the debt is deemed to be acquired in a debt-for-debt exchange as a result of a significant modification, whether there was, at the time of the acquisition of the original unmodified debt, a reasonable expectation, “based on objective evidence,” that the original unmodified debt would default.

An example in the Proposed Regulations indicates that even one debt financing could constitute commercial activity if a foreign government that did not own equity in the borrower offered to make a loan and structured and negotiated the loan’s terms.  On the other hand, another example suggests that providing debt financing directly to an 80 percent-owned entity may not be commercial activity.  In that example, the loan does not give rise to commercial activity even though the foreign government’s representatives structured the terms of the loan, because the foreign government did not hold itself out as a lender, owned a substantial percentage of the issuer’s equity, and acquired an amount of debt ($50 million) that was “not significant” relative to the value of the foreign government’s equity interest in the issuer ($80 million).[11]

In addition, the examples make clear that, in the case of a debt restructuring, being a member of a creditors’ committee that materially participates in negotiating the restructuring causes the resulting deemed debt acquisition to be commercial activity.  However, merely being represented by a creditors’ committee does not necessarily cause a debt acquisition to constitute commercial activity.

Foreign governments seeking to make debt investments should carefully consider the impact of these Proposed Regulations, including the risks of affirmatively seeking debt investment opportunities, acquiring debt in entities in which the foreign government has no existing equity investment, and serving on creditors’ committees.

C. Effective Date of Proposed Regulations

The Proposed Regulations described above generally would apply to taxable years beginning on or after the date that they are finalized.

II. Final Regulations

A. Defining Commercial Activity

As described above, the benefits of section 892 are not available for income derived from a “commercial activity” or to a controlled entity of a foreign government that is engaged in commercial activities.  The 2011 Proposed Regulations generally defined commercial activities to include all activities conducted for the current or future production of income or gain, regardless of where the activity is conducted, the purpose or motivation for conducting the activity, and whether the activity constitutes a trade or business for other purposes of the Code.[12]  The Final Regulations finalize the 2011 Proposed Regulations in this respect with the following changes and observations:

1. Fee income does not receive special treatment. In the preamble to the Final Regulations, the IRS and Treasury rejected a comment recommending an exception from commercial activity treatment for certain fees received as a passive investor in a private equity or private credit fund.  The preamble leaves open the possibility that the commercial activities of a fund sponsor may be attributed to a foreign government investor from the investor’s interest in a partnership or “on the basis of agency” and notes that this applies “without regard to whether the foreign government actually or constructively receives or otherwise shares in income labeled as a fee.”
2. Selling partnership interests generally does not give rise to commercial activity. The Final Regulations provide that merely holding a partnership interest or selling the interest (for the foreign government’s own account and other than as a dealer) is not, by itself, a commercial activity.[13]
3. Investments in certain derivatives generally are not commercial activity. The Final Regulations provide that certain specified derivatives qualify as “financial instruments,” which do not generally give rise to a commercial activity.[14]

B. USRPHCs: Elimination of Per Se Commercial Activity Rule for Non-U.S. Entities

Under temporary regulations from 1988, a foreign corporation that is a United States real property holding corporation (“USRPHC”)[15] is per se treated as engaged in commercial activity and thus not entitled to benefits under section 892.[16]  Because of this rule, non-U.S. controlled entities of foreign governments had to carefully monitor their direct and indirect investments in U.S. real estate to ensure they were not USRPHCs.[17]

The Final Regulations eliminate entirely the per se commercial activities rule for all non-U.S. USRPHCs.  This welcome change in the Final Regulations eliminates the burden of foreign governments having to continuously monitor whether their controlled entities are USRPHCs.

C. The Final Regulations Revise and Clarify the Qualified Partnership Interest Exception

Generally, the commercial activities of a partnership are attributed to its partners.[18]  However, under the 2011 Proposed Regulations, an entity that is not otherwise engaged in commercial activities will not be deemed to be engaged in commercial activities solely because it holds an interest as a limited partner in a limited partnership.[19]  The Final Regulations adopt this exception, with several notable revisions and clarifications, including introducing the term “qualified partnership interest” and adding a new requirement that the holder of a qualified partnership interest not have control over the relevant partnership, and adding a safe harbor for certain partnership interests that constitute not more than five percent of the partnership’s capital or profits as further described below.[20]

1. Qualified partnership interest not limited to limited partnerships; four requirements. The Final Regulations clarify that the exception applies to any interest in an entity classified as a partnership for U.S. federal income tax purposes that meets four requirements (a “qualified partnership interest”) and not exclusively to an entity organized as a limited partnership under State law.[21]
2. The first three requirements—limited partner interests. The first three requirements are consistent with the rights of limited partners under state law (and were present in the 2011 Proposed Regulations), namely, that the holder of the partnership interest: (i) does not have personal liability for claims against the partnership; (ii) does not have the right to enter into contracts or act on behalf of the partnership; and (iii) does not have the right to participate in the management and conduct of the partnership’s business.[22]

   The Final Regulations helpfully clarify that participating in the “management and conduct of a partnership’s business” refers to rights to participate in day-to-day management or operations and does not include rights to monitor and protect an investor’s capital investment in the partnership.  Permissible monitoring rights include oversight and supervision rights in the case of major strategic decisions such as admission or expulsion of a partner; hiring or firing key strategic personnel; amendment of the partnership agreement; dissolution, merger, or conversion of the partnership; unusual and non-ordinary course deviations from previously determined investment parameters; extending the term of the partnership’s governing agreement; and disposition of all or substantially all of the partnership’s property outside the ordinary course of the partnership’s activities.

3. The fourth requirement—minority ownership and no effective control. Importantly, the Final Regulations add a fourth requirement: that the holder of the partnership interest not have effective control of the partnership or own 50 percent or more of the value or voting interests of the partnership.[23]  As a result, a foreign government that holds 50 percent or more of the interests in an entity classified as a partnership or that has effective control over such entity cannot rely on the qualified partnership interest exception to avoid the attribution of commercial activity from a partnership.
4. Aggregation of Interests. The Final Regulations also specify that when a foreign government holds multiple interests in a partnership (directly or indirectly) through one or more entities qualifying for benefits under section 892, all of the entities’ interests in the partnership are aggregated for purposes of the qualified partnership interest exception (and if any of the interests do not qualify for the exception, none of the foreign government’s other interests in the partnership can qualify).[24]  This concept is similar to the aggregation principle for purposes of the effective control analysis in the Proposed Regulations described above.
5. Safe harbor. The Final Regulations include a safe harbor that treats a partnership interest as a qualified partnership interest if the holder (i) has limited liability, (ii) does not possess the legal authority to bind or act on behalf of the partnership, (iii) does not directly or indirectly own more than five percent of a partnership’s capital or profits interests, and (iv) is not a managing member or managing partner of the partnership.[25]
6. Tiered partnerships. The Final Regulations also address application of the qualified partnership exception between tiers of partnerships and provide that an upper-tier partnership that holds a qualified partnership interest in a lower-tier partnership is not attributed the lower-tier partnership’s commercial activities.[26]

D. Inadvertent Commercial Activity Exception

The 2011 Proposed Regulations allow an entity to avoid being treated as a controlled commercial entity if the failure to avoid commercial activity is reasonable, the commercial activity is promptly cured, and certain record maintenance requirements are met.[27]  The Final Regulations adopt this exception with minimal changes.[28]

E. Annual Controlled Commercial Entity Test

Finally, the Final Regulations adopt the rule in the 2011 Proposed Regulations that status as a controlled commercial entity applies for the entire taxable year if an entity engages in commercial activities at any time during that year.[29]  The Final Regulations adopt this approach, but clarify that (i) the relevant taxable year is the taxable year of the entity engaging in the commercial activity, (ii) if the taxable year of an entity that is engaged in commercial activity terminates in connection with its acquisition by another entity controlled by the same foreign government, the acquiring entity will be treated as conducting commercial activity in the taxable year of the acquiring entity in which the acquisition occurs, and (iii) an entity’s activities during its immediately preceding tax year will be taken into account to the extent they are relevant in characterizing the entity’s activities in the current tax year.[30]

F. Effective Date of Final Regulations

The Final Regulations generally apply to tax years beginning on or after December 15, 2025.  However, taxpayers generally may apply the Final Regulations to prior open tax years if the taxpayer and its affiliates apply the Final Regulations, in their entirety, to all such taxable years beginning before December 15, 2025.

[1] Section 892(a)(2)(B).  Unless indicated otherwise, all “section” references are to the Internal Revenue Code of 1986, as amended (the “Code”), all “Treas. Reg. §” and “Temp Treas. Reg. §” references are to the Treasury regulations promulgated under the Code (or to the Final Regulations to be promulgated), and all “Prop. Treas. Reg. §” references are to the 2011 Proposed Regulations, the 2022 Proposed Regulations, or the 2025 Proposed Regulations (each as defined in this alert).

[2] Temp. Treas. Reg. § 1.892-5T(c)(2).  Although these temporary Treasury regulations use the term “effective practical control,” the Proposed Regulations and the Final Regulations replace the term “effective practical control” with the term “effective control” to be consistent with section 892(a)(2)(B)(ii).

[3] Prop. Treas. Reg. § 1.892-5(c)(2).

[4] Id.

[5] Id.

[6] The IRS and Treasury request comments on when veto rights should not be treated as giving a foreign government effective control of an entity.

[7] Prop. Treas. Reg. § 1.892-4(e)(1)(iii).  The 2011 Proposed Regulations do not define a banking, financing, or similar business.

[8] The preamble to the Proposed Regulations explains that the determination of whether the acquisition of debt is commercial activity is made without regard to whether the debt acquisition is a trade or business for other U.S. federal income tax purposes.

[9] For this purpose, relatedness is determined under sections 267(b) and 707(b).

[10] For this purpose, whether debt is publicly traded on an established securities market is determined under Treas. Reg. § 1.7704-1(b).

[11] Prop. Treas. Reg. § 1.892-4(c)(1)(ii)(D)(3)(ii) (Ex. 2).

[12] Prop. Treas. Reg. § 1.892-4(d).

[13] Treas. Reg. §1.892-4(c)(1)(i) and (2).  The IRS and Treasury declined to change the rule in Treas. Reg. § 1.892-3T(a)(2) and (3) that gain from the disposition of a partnership interest is not exempt from tax under section 892 on the basis that this change was beyond the scope of the Final Regulations.  90 F.R. 57,904.

[14] Treas. Reg. § 1.892-3(a)(4)(i).  The specified derivatives are those described in Prop. Treas. Reg. § 1.864(b)-1(a).  The regulations also provide that holding non-functional currency does not give rise to commercial activity.

[15] Generally, a USRPHC is any corporation if the value of its direct and indirect interests in U.S. real property represents at least 50 percent of the aggregate value of its real property (both U.S. and non-U.S.) and business assets.

[16] Temp. Treas. Reg. § 1.892-5T(b)(1).

[17] Temp. Treas. Reg. § 1.892-5T(b)(1).  The regulations proposed in 2022 (the “2022 Proposed Regulations”) introduced an exception to the 1988 per se rule—corporations that are USRPHCs solely by reason of their direct or indirect ownership in one or more other corporations that are not controlled by the foreign government would no longer be treated as per se engaged in commercial activity.  Because, under the Final Regulations, foreign corporations are no longer subject to the per se rule, the exception in the 2022 Proposed Regulations for certain foreign corporations is unnecessary and was not included in the Final Regulations.  However, investors currently relying on the exception in the 2022 Proposed Regulations may continue to do so.

[18] Temp. Treas. Reg. § 1.892-5T(d)(3).

[19] Prop. Treas. Reg. § 1.892-5(d)(5)(iii)(A).

[20] Treas. Reg. § 1.892-5(d)(5)(iii)(B).  The Final Regulations specify that “control” for this purpose is within the meaning of Treas. Reg. § 1.892-5(a)(1) (and accordingly the test is 50 percent of vote or value or effective control, as described above).

[21] Id.  The Final Regulations use the term “qualified partnership interest” rather than “interest as a limited partner in a limited partnership” to clarify the broader application of this exception to any entity that is classified as a partnership for U.S. federal income tax purposes.

[22] Prop. Treas. Reg. § 1.892-5(d)(5)(iii)(A).

[23] Treas. Reg. § 1.892-5(d)(5)(iii)(B). 

[24] Treas. Reg. § 1.892-5(d)(5)(iii)(B)(2)(iii).

[25] Treas. Reg. § 1.892-5(d)(5)(iii)(C).

[26] Treas. Reg. § 1.892-5(d)(5)(iii)(D).

[27] Prop. Treas. Reg. § 1.892-5(a)(2).  The cure period in the 2011 Proposed regulations is 120 days and is extended to 180 days in the Final Regulations.

[28] Notably, the IRS and Treasury declined to add a safe harbor for an entity that obtains a tax opinion or legal advice with respect to commercial activities, which certain commenters had requested.  The preamble provides that obtaining a tax opinion or legal advice does not supersede the need for employees of the entity (or of its controlling entity) to use reasonable efforts to establish and follow procedures for avoiding commercial activity.

[29] Prop. Treas. Reg. § 1.892-5(a)(3).

[30] Treas. Reg. § 1.892-5(a)(3)(i).

The following Gibson Dunn lawyers prepared this update: Matt Donnelly, Kathryn Kelly, Yara Mansour, Ray Noonan, Eric Sloan, Edward Wei, and Dan Zygielbaum.

Gibson Dunn lawyers are available to assist in addressing any questions you may have regarding these regulations. To learn more about these issues or discuss how they might impact your business, please contact the Gibson Dunn lawyer with whom you usually work, the authors, or any member of the firm’s Tax and Tax Controversy and Litigation practice groups:

Tax:
Dora Arash – Los Angeles (+1 213.229.7134, darash@gibsondunn.com)
Sandy Bhogal – Co-Chair, London (+44 20 7071 4266, sbhogal@gibsondunn.com)
Michael Q. Cannon – Dallas (+1 214.698.3232, mcannon@gibsondunn.com)
Jérôme Delaurière – Paris (+33 (0) 1 56 43 13 00, jdelauriere@gibsondunn.com)
Anne Devereaux* – Los Angeles (+1 213.229.7616, adevereaux@gibsondunn.com)
Matt Donnelly – New York/Washington, D.C. (+1 212.351.5303, mjdonnelly@gibsondunn.com)
Benjamin Fryer – London (+44 20 7071 4232, bfryer@gibsondunn.com)
Evan M. Gusler – New York (+1 212.351.2445, egusler@gibsondunn.com)
James Jennings – New York (+1 212.351.3967, jjennings@gibsondunn.com)
Kathryn A. Kelly – New York (+1 212.351.3876, kkelly@gibsondunn.com)
Brian W. Kniesly – New York (+1 212.351.2379, bkniesly@gibsondunn.com)
Pamela Lawrence Endreny – Co-Chair, New York (+1 212.351.2474, pendreny@gibsondunn.com)
Kate Long – New York (+1 212.351.3813, klong@gibsondunn.com)
Gregory V. Nelson – Houston (+1 346.718.6750, gnelson@gibsondunn.com)
Benjamin Rapp – Munich/Frankfurt (+49 89 189 33-290, brapp@gibsondunn.com)
Jennifer Sabin – New York (+1 212.351.5208, jsabin@gibsondunn.com)
Eric B. Sloan – Co-Chair, New York/Washington, D.C. (+1 212.351.2340, esloan@gibsondunn.com)
Edward S. Wei – New York (+1 212.351.3925, ewei@gibsondunn.com)
Lorna Wilson – Los Angeles (+1 213.229.7547, lwilson@gibsondunn.com)
Daniel A. Zygielbaum – Washington, D.C. (+1 202.887.3768, dzygielbaum@gibsondunn.com)

Tax Controversy and Litigation:
Saul Mezei – Washington, D.C. (+1 202.955.8693, smezei@gibsondunn.com)
Sanford W. Stark – Chair, Washington, D.C. (+1 202.887.3650, sstark@gibsondunn.com)
C. Terrell Ussing – Washington, D.C. (+1 202.887.3612, tussing@gibsondunn.com)

*Anne Devereaux, of counsel in the firm’s Los Angeles office, is admitted to practice in Washington, D.C.

© 2025 Gibson, Dunn & Crutcher LLP.  All rights reserved.  For contact and other information, please visit us at www.gibsondunn.com.

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Notes:
Anglo American is a leading global mining company focused on the responsible production of copper, premium iron ore and crop nutrients – future-enabling products that are essential for decarbonising the global economy, improving living standards, and food security. Our portfolio of world-class operations and outstanding resource endowments offers value-accretive growth potential across all three businesses, positioning us to deliver into structurally attractive major demand growth trends.

Our integrated approach to sustainability and innovation drives our decision-making across the value chain, from how we discover new resources to how we mine, process, move and market our products to our customers – safely, efficiently and responsibly. Our Sustainable Mining Plan commits us to a series of stretching goals over different time horizons to ensure we contribute to a healthy environment, create thriving communities and build trust as a corporate leader. We work together with our business partners and diverse stakeholders to unlock enduring value from precious natural resources for our shareholders, for the benefit of the communities and countries in which we operate, and for society as a whole. Anglo American is re-imagining mining to improve people’s lives.

Anglo American is currently implementing a number of major structural changes to unlock the inherent value in its portfolio and thereby accelerate delivery of its strategic priorities of Operational excellence, Portfolio simplification, and Growth. The sale of our steelmaking coal and nickel businesses and the separation of our iconic diamond business (De Beers) continue to progress and once completed, will focus Anglo American on its world-class resource asset base in copper, premium iron ore and crop nutrients.

www.angloamerican.com

Group terminology
In this document, references to “Anglo American”, the “Anglo American Group”, the “Group”, “we”, “us”, and “our” are to refer to either Anglo American plc and its subsidiaries and/or those who work for them generally, or where it is not necessary to refer to a particular entity, entities or persons. The use of those generic terms herein is for convenience only, and is in no way indicative of how the Anglo American Group or any entity within it is structured, managed or controlled. Anglo American subsidiaries, and their management, are responsible for their own day-to-day operations, including but not limited to securing and maintaining all relevant licences and permits, operational adaptation and implementation of Group policies, management, training and any applicable local grievance mechanisms. Anglo American produces group-wide policies and procedures to ensure best uniform practices and standardisation across the Anglo American Group but is not responsible for the day to day implementation of such policies. Such policies and procedures constitute prescribed minimum standards only. Group operating subsidiaries are responsible for adapting those policies and procedures to reflect local conditions where appropriate, and for implementation, oversight and monitoring within their specific businesses.

Disclaimer
This document is for information purposes only and does not constitute, nor is to be construed as, an offer to sell or the recommendation, solicitation, inducement or offer to buy, subscribe for or sell shares in Anglo American or any other securities by Anglo American or any other party. Further, it should not be treated as giving investment, legal, accounting, regulatory, taxation or other advice and has no regard to the specific investment or other objectives, financial situation or particular needs of any recipient.

Forward-looking statements and third party information
This document includes forward-looking statements. All statements other than statements of historical facts included in this document, including, without limitation, those regarding Anglo American’s financial position, business, acquisition and divestment strategy, dividend policy, plans and objectives of management for future operations, prospects and projects (including development plans and objectives relating to Anglo American’s products, production forecasts and Ore Reserve and Mineral Resource positions) and sustainability performance related (including environmental, social and governance) goals, ambitions, targets, visions, milestones and aspirations, are forward-looking statements. By their nature, such forward-looking statements involve known and unknown risks, uncertainties and other factors which may cause the actual results, performance or achievements of Anglo American or industry results to be materially different from any future results, performance or achievements expressed or implied by such forward-looking statements.

Such forward-looking statements are based on numerous assumptions regarding Anglo American’s present and future business strategies and the environment in which Anglo American will operate in the future. Important factors that could cause Anglo American’s actual results, performance or achievements to differ materially from those in the forward-looking statements include, among others, levels of actual production during any period, levels of global demand and product prices, unanticipated downturns in business relationships with customers or their purchases from Anglo American, mineral resource exploration and project development capabilities and delivery, recovery rates and other operational capabilities, safety, health or environmental incidents, the effects of global pandemics and outbreaks of infectious diseases, the impact of attacks from third parties on our information systems, natural catastrophes or adverse geological conditions, climate change and extreme weather events, the outcome of litigation or regulatory proceedings, the availability of mining and processing equipment, the ability to obtain key inputs in a timely manner, the ability to produce and transport products profitably, the availability of necessary infrastructure (including transportation) services, the development, efficacy and adoption of new or competing technology, challenges in realising resource estimates or discovering new economic mineralisation, the impact of foreign currency exchange rates on market prices and operating costs, the availability of sufficient credit, liquidity and counterparty risks, the effects of inflation, terrorism, war, conflict, political or civil unrest, uncertainty, tensions and disputes and economic and financial conditions around the world, evolving societal and stakeholder requirements and expectations, shortages of skilled employees, unexpected difficulties relating to acquisitions or divestitures, competitive pressures and the actions of competitors, activities by courts, regulators and governmental authorities such as in relation to permitting or forcing closure of mines and ceasing of operations or maintenance of Anglo American’s assets and changes in taxation or safety, health, environmental or other types of regulation in the countries where Anglo American operates, conflicts over land and resource ownership rights and such other risk factors identified in Anglo American’s most recent Annual Report. Forward-looking statements should, therefore, be construed in light of such risk factors and undue reliance should not be placed on forward-looking statements. These forward-looking statements speak only as of the date of this document. Anglo American expressly disclaims any obligation or undertaking (except as required by applicable law, the City Code on Takeovers and Mergers, the UK Listing Rules, the Disclosure Guidance and Transparency Rules of the Financial Conduct Authority, the Listings Requirements of the securities exchange of the JSE Limited in South Africa, the SIX Swiss Exchange, the Botswana Stock Exchange and the Namibian Stock Exchange and any other applicable regulations) to release publicly any updates or revisions to any forward-looking statement contained herein to reflect any change in Anglo American’s expectations with regard thereto or any change in events, conditions or circumstances on which any such statement is based.

Nothing in this document should be interpreted to mean that future earnings per share of Anglo American will necessarily match or exceed its historical published earnings per share. Certain statistical and other information included in this document is sourced from third party sources (including, but not limited to, externally conducted studies and trials). As such it has not been independently verified and presents the views of those third parties, but may not necessarily correspond to the views held by Anglo American and Anglo American expressly disclaims any responsibility for, or liability in respect of, such information.

©Anglo American Services (UK) Ltd 2025.  ^™ and ^™ are trademarks of Anglo American Services (UK) Ltd.

Legal Entity Identifier: 549300S9XF92D1X8ME43

Client Alert  |  December 15, 2025

While having no immediate impact on ISS and Glass Lewis, the Executive Order heightens the regulatory scrutiny of and pressure on proxy advisory firms’ practices and on the actions of their clients.

On December 11, 2025, President Trump signed an Executive Order[1] directing the Securities and Exchange Commission (SEC), Federal Trade Commission (FTC) and Department of Labor (DoL) to take various actions “to end the outsized influence of proxy advisors that prioritize radical political agendas over investor returns.”[2] The Executive Order specifically calls out Institutional Shareholder Services (ISS) and Glass, Lewis & Co. (Glass Lewis) and alleges that that they “control more than 90 percent of the proxy advisor market.”

Rationale for the Executive Order

The Executive Order’s stated aims are to “increase oversight of and take action to restore public confidence in the proxy advisor industry, including by promoting accountability, transparency, and competition.” The cited reasons for increasing oversight include that ISS and Glass Lewis are both “foreign-owned,” have “enormous influence over corporate governance matters” and “regularly use their substantial power to advance and prioritize radical politically-motivated agendas.” The Executive Order also notes that the practices of ISS and Glass Lewis “raise significant concerns about conflicts of interest and the quality of their recommendations.”

Actions Directed by the Executive Order

The Executive Order directs the SEC to take the following actions with respect to proxy advisors:  (a) review all rules, regulations, guidance, bulletins, and memoranda relating to proxy advisors and consider revising or rescinding any that are inconsistent with the purpose of the Executive Order, especially to the extent that they implicate diversity, equity and inclusion (DEI) or environmental, social and governance (ESG) policies; (b) enforce the Federal securities laws’ anti‑fraud provisions with respect to material misstatements or omissions contained in proxy advisors’ proxy voting recommendations; (c) assess whether to require proxy advisors whose activities fall within the scope of the Investment Advisers Act of 1940 (IAA) to register as Registered Investment Advisers;[3] (d) consider requiring proxy advisors to provide increased transparency on their recommendations, methodology, and conflicts of interest, especially regarding DEI and ESG factors; and (e) analyze whether and when a proxy advisor serves as a vehicle for investment advisers to coordinate and augment their voting decisions with respect to a company’s securities such that they form a group for purposes of Sections 13(d)(3) and 13(g)(3) of the Securities Exchange Act of 1934 (the “Exchange Act”).

The Executive Order also directs the SEC to:  (a) consider revising or rescinding all rules, regulations, guidance, bulletins, and memoranda relating to shareholder proposals, including SEC Rule 14a-8, that are inconsistent with the purpose of the Executive Order; and (b) examine whether the practice of Registered Investment Advisers engaging proxy advisors to advise on (and following the recommendations of such proxy advisors with respect to) non-pecuniary factors in investing, including DEI and ESG factors, is inconsistent with their fiduciary duties.

The Executive Order directs the FTC, in consultation with the Attorney General, to: (a) review ongoing state antitrust investigations into proxy advisors and determine if there is a probable link between conduct underlying those investigations and violations of Federal antitrust law; and (b) investigate whether proxy advisors engage in unfair methods of competition or unfair or deceptive acts or practices that harm U.S. consumers.[4]

The Executive Order directs the DoL to take appropriate actions to: (a) revise its regulations and guidance regarding the fiduciary status of individuals who manage, or (like proxy advisors) advise those who manage, the rights appurtenant to shares held by plans covered under the Employee Retirement Income Security Act of 1974 (ERISA), including proxy votes and corporate engagement, consistent with the policy of the Executive Order; (b) act to strengthen the fiduciary standards of pension and retirement plans covered under ERISA, including by assessing whether proxy advisors act solely in the financial interests of plan participants and the extent to which any of their practices undermine the pecuniary value of the assets of ERISA plans; and (c) enhance transparency concerning the use of proxy advisors, particularly regarding DEI and ESG investment practices.

The Executive Order is the Latest Salvo Aimed at Proxy Advisors

The Executive Order is the latest in a series of regulatory, legislative and legal initiatives directed at the policies and practices of proxy advisory firms. Other recent examples include:

• Texas legislation seeking to impose certain requirements on proxy advisory firms, which legislation is subject to ongoing litigation;[5]

• Florida’s attorney general filing a lawsuit against ISS and Glass Lewis alleging that both firms misled Florida consumers, abused their dominance over the shareholder-voting market, and “weaponized” their influence to impose an ideological agenda on American companies and Florida retirees in violation of Florida’s consumer protection and antitrust laws.[6]

• Congressional action, including proposed legislation seeking to regulate proxy advisors[7] and institutional investors’ use of the proxy advisors’ services,[8] as well as hearings in the U.S. House of Representatives titled “Exposing the Proxy Advisory Cartel: How ISS and Glass Lewis Influence Markets”[9] and “The Proxy Advisor Duopoly’s Anticompetitive Conduct”;[10]

• several state attorneys general sending letters to ISS and Glass Lewis requesting information regarding the firms’ priorities relating to climate and DEI, and accusing the firms of prioritizing nonpecuniary goals over companies’ financial performance;[11]

• several state attorneys general subsequently announcing investigations into whether ISS and Glass Lewis violated various states’ consumer protection statutes by making misleading representations regarding their consideration of ESG and DEI factors;[12] and

• the FTC investigating whether ISS and Glass Lewis violated antitrust laws through their business of guiding shareholder votes on contentious topics.[13]

Proxy Advisor Responses

Responses by proxy advisors to the rising tide of federal and state-level scrutiny and actions provide insight into how they will likely address the impacts of the Executive Order.  For example, proxy advisors challenged a new Texas state law that subjects the firms to extensive public and directed disclosure obligations when their recommendations or services are deemed to be based on alleged non-financial factors.[14] The proxy advisors may adopt a similar posture in response to regulatory actions that emerge from the Executive Order.

Additionally, in response to the enhanced scrutiny they are facing, proxy advisors recently announced changes to their benchmark policies and proxy voting recommendations.  For example, Glass Lewis is moving away from its standard voting guidelines to instead offer more customized voting frameworks for its institutional clients.  Similarly, ISS updated its proxy voting guidelines for meetings after February 1, 2026, to (among other changes) move away from generally recommending votes “for” environmental and social shareholder proposals to a case-by-case assessment and recommendation. It is likely that proxy advisors will continue to strategically and preemptively evolve their business models in response to the rulemaking actions that emerge from the Executive Order.

What’s Next?

While having no immediate impact on ISS and Glass Lewis, the Executive Order heightens the regulatory scrutiny of and pressure on their practices and on the actions of their clients. Although rule amendments and enforcement investigations will take time before having any impact and face other hurdles,[15] the Executive Order’s call for agencies to revise or rescind guidance, bulletins, and other interpretations that are inconsistent with the rationale and objectives of the Executive Order opens the possibility for additional near-term pronouncements that could further scramble what already will be a unique proxy season. Among other things, we expect the SEC staff to revisit the guidance in Staff Legal Bulletin No. 20,[16] which provides Staff guidance about investment advisers’ responsibilities in voting client proxies and retaining proxy advisory firms and the availability and requirements of two exemptions to the federal proxy rules for proxy advisory firms.  Similarly, much of the practice around shareholder proposals under Rule 14a-8 is founded on Commission and Staff interpretive guidance and, as Commissioner Uyeda recently observed, internal Staff memorandum.[17]

There may also be near-term effects on proxy advisors’ clients, which could impact public companies’ shareholder engagement strategies during the 2026 proxy season. While most large institutional investors do not rely on the proxy advisors’ voting recommendations (whether or not they subscribe to the firms’ analyses), and instead operate under their own voting policy guidelines, these firms increasingly are passing voting decisions through to the beneficial owners, and remain cautious while engaging with portfolio companies in order to protect their Schedule 13G passive investor status. Other institutional investors that follow or rely heavily on the proxy advisors’ voting recommendations may alter their voting practices out of concern of being viewed as part of a Section 13(d) group.[18] Those institutional investors might change their voting practices, at least to the extent that in the past they automatically or by default voted in line with a proxy advisor’s recommendation promptly after the recommendation was issued, and some may be less inclined to follow a proxy advisor’s voting recommendation, particularly in the context of “vote no” campaigns or proxy contests that target incumbent directors. As a result, public companies may be less able to forecast voting outcomes, placing a greater premium on companies clearly and concisely communicating their perspective on matters being put to a vote, both through their proxy statements and through on-going shareholder engagement.

[1] The White House, Protecting American Investors from Foreign-Owned and Politically-Motivated Proxy Advisors (Dec. 11, 2025).

[2] The White House, Fact Sheet: President Donald J. Trump Protects American Investors from Foreign-Owned and Politically-Motivated Proxy Advisors.

[3] ISS is currently registered as an investment adviser, and Glass Lewis recently announced its intention to also register.  See Glass Lewis, A Personal Commitment to Change Proxy Voting Practices (Nov. 25, 2025).

[4] Such acts or practices include “(i) conspiring or colluding, explicitly or implicitly, to diminish the value of consumer investments (including pensions and retirement accounts); (ii) failing to adequately disclose conflicts of interest; (iii) providing misleading or inaccurate information; (iv) undermining the ability of consumers to make informed choices; or (v) otherwise engaging in conduct that violates the antitrust laws.”

[5] See Gibson Dunn, Texas Court Blocks Enforcement of New Texas Proxy Advisor Law Against ISS and Glass Lewis (Aug. 30, 2025) (August 2025 Alert).

[6] See Office of the Attorney General, State of Florida, Attorney General James Uthmeier Sues Proxy Advisory Giants for Deceiving Investors and Manipulating Corporate Governance (Nov. 20, 2025).

[7] See H.R. 4098, the Stopping Proxy Advisor Racketeering Act, which would prohibit proxy advisors from providing proxy voting advice while facing a “conflict of interest.”

[8] See H.R. 3402, which would require “institutional investment managers” that use proxy advisors to disclose the percentage of their votes on shareholder proposals that are consistent with proxy advisors’ recommendations and explain how they consider such recommendations in making voting decisions. For institutional investment managers with at least $100 billion in assets under management, the bill would also require an economic analysis of each shareholder proposal on which they cast votes inconsistent with the recommendations of boards composed of a majority of independent directors.

[9] Hearing held by the U.S. House Committee on Financial Services, Subcommittee on Capital Markets on April 29, 2025. See, e.g., Testimony of Elizabeth Ising Before the U.S. House Committee on Financial Services, Subcommittee on Capital Markets.

[10] Hearing held by the U.S. House Committee on the Judiciary, Subcommittee on the Administrative State, Regulatory Reform, and Antitrust on June 25, 2025.

[11] Sean D. Reyes, Utah Att’y Gen., et al., Letter to Gary Retelny, President & Chief Exec. Officer, ISS, and Kevin Cameron, Exec. Chairman, Glass, Lewis & Co. (Jan. 17, 2023).

[12] See, e.g., Office of the Attorney General, State of Texas, Attorney General Ken Paxton Investigates Proxy Advisors Glass Lewis and ISS for Misleading Public Companies to Push Radical Agenda (Sept. 16, 2025).

[13] See Wall Street Journal, Proxy Advisers ISS and Glass Lewis Are Facing Antitrust Probes (Nov. 12, 2025).

[14] See August 2025 Alert.

[15] Of note is the need to consider the ability of the SEC to regulate proxy advisors under the Exchange Act in light of the July 1, 2025, ruling by the U.S. Court of Appeals for the D.C. Circuit that proxy voting advice issued by proxy advisory firms does not constitute a “solicitation” under the Exchange Act. ISS v. SEC, 142 F.4th 757 (D.C. Cir. 2025), available at https://media.cadc.uscourts.gov/opinions/docs/2025/07/24-5105-2123183.pdf.

[16] Staff Legal Bulletin No. 20, Proxy Voting Responsibilities of Investment Advisers and Availability of Exemptions from the Proxy Rules for Proxy Advisory Firms (June 30, 2014).

[17] Comm’r. Mark T. Uyeda, Remarks at the 2025 Institute for Corporate Counsel (Dec. 3, 2025)

[18] Id. (stating that “funds and asset managers using [proxy voting advisory businesses] for voting decisions may have formed a group for purposes of Section 13(d)(3) or Section 13(g)(3) of the Securities Exchange Act”).

The following Gibson Dunn lawyers prepared this update: Elizabeth Ising, Mellissa Duru, Julia Lapitskaya, Ronald Mueller, Aaron Briggs, and Nathan Marak.

Gibson Dunn’s lawyers are available to assist with any questions you may have regarding the SEC’s announcement, or federal securities laws and regulations more generally. Please contact the Gibson Dunn lawyer with whom you usually work, the authors, or any of the following leaders and members of the firm’s Securities Regulation & Corporate Governance, Administrative Law & Regulatory, or Antitrust & Competition practice groups:

Securities Regulation & Corporate Governance:
Aaron Briggs – San Francisco (+1 415.393.8297, abriggs@gibsondunn.com)
Mellissa Campbell Duru – Washington, D.C. (+1 202.955.8204, mduru@gibsondunn.com)
Elizabeth Ising – Washington, D.C. (+1 202.955.8287, eising@gibsondunn.com)
Thomas J. Kim – Washington, D.C. (+1 202.887.3550, tkim@gibsondunn.com)
Brian J. Lane – Washington, D.C. (+1 202.887.3646, blane@gibsondunn.com)
Julia Lapitskaya – New York (+1 212.351.2354, jlapitskaya@gibsondunn.com)
Ronald O. Mueller – Washington, D.C. (+1 202.955.8671, rmueller@gibsondunn.com)
Michael A. Titera – Orange County (+1 949.451.4365, mtitera@gibsondunn.com)
Geoffrey E. Walter – Washington, D.C. (+1 202-887-3749, gwalter@gibsondunn.com)
Lori Zyskowski – New York (+1 212.351.2309, lzyskowski@gibsondunn.com)

Administrative Law & Regulatory:
Eugene Scalia – Washington, D.C. (+1 202.955.8673, escalia@gibsondunn.com)

Antitrust & Competition:
Kristen C. Limarzi – Washington, D.C. (+1 202.887.3518, klimarzi@gibsondunn.com)
Michael J. Perry – Washinton, D.C. (+1 202.887.3558, mjperry@gibsondunn.com)

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