Luxembourg had an eventful political year in 2013: Mr Jean-Claude Juncker, head of the government for nearly 19 years has now been replaced with Mr Xavier Bettel from the liberal party, historical opponent to the former ruling party. The new Luxembourg Government has released its programme, which includes positive tax measures and, more generally, contains encouraging messages for Luxembourg as a competitive location for business.
In the meantime, the 2013 budget has been extended by a few months in order to give the incoming Government enough time to vote on a new budget. It can therefore be expected that no Luxembourg tax measure will be adopted by year end and generally speaking, due to the change in government, the legislative activity is pretty much quiet.
Still there is a lot of activity at other levels. The recasts of the EU Merger and Parent Subsidiary Directives are in the process of being implemented into Luxembourg law. The introduction of a minimum corporate income tax in Luxembourg law has an impact on the computation of the net wealth tax reduction and more precisely on the limitations applicable to the net wealth tax reduction rules, which the tax authorities have now clarified. The VAT authorities released a circular confirming the VAT exemption of risk management services rendered to investment funds. Luxembourg courts are getting busier on exchange of information in tax matters. On the regulatory side, the Supervisory Authority of the Financial Sector clarified the impact of the implementation of the AIFM Directive on Luxembourg securitization vehicles.
Things are moving at international level as well: the European Commission has proposed amendments to the EU Parent Subsidiary Directive with a view to preventing the use of hybrid instruments.
Let us take the opportunity of this newsletter to thank you all for the interest, support and dedication with which you have followed our activities over the past year and wish you the best for 2014.
The Atoz team
- TAX NEWS
- Luxembourg Government reveals business friendly programme
- Tax authorities clarify the impact of the minimum CIT on the NWT reduction rules
- VAT – Circular confirms VAT exemption applicable to risk management services rendered to investment funds
- Luxembourg implements recast of EU Merger and Parent-Subsidiary Directives
- Update on Luxembourg exchange of information case-law
- European Commission wishes to amend EU Parent-Subsidiary Directive to stop the use of hybrid instruments
- Securitization and AIFMD exemptions
- ATOZ NEWS
- The latest international developments in the field of investment management
- ATOZ at the ALFI Leading Edge conference
- ATOZ Chair for European & International Taxation
- TAXAND NEWS
The new Luxembourg Government has released its programme, which includes positive tax measures and, more generally, contains encouraging messages for Luxembourg as a competitive location for business.
Even if these are only announcements that will have to pass through the legislative process, many of the measures reflect a strong willingness of the Government to make sure that Luxembourg remains a competitive jurisdiction within and outside the EU. The Government wants to make sure that Luxembourg will keep on attracting new investments and will take the necessary steps to motivate existing investors to keep Luxembourg as their jurisdiction of choice in the future.
Luxembourg has over the last years run deficits and incurred government debt, although both at very modest levels by international standards. In order to restore budgetary stability, the Government will prioritise cost reduction and growth, instead of increasing tax rates. In addition, compliance deadlines will be tightened and self-assessment will be introduced in order to accelerate collection of taxes.
Tax policy will be guided by the objective of creating confidence in a stable, predictable system. The only tax the Government intends to increase is VAT, where the rate will, as expected, be increased to compensate the future loss in VAT revenues in the E-commerce sector. The Government has committed to make sure that the Luxembourg VAT rate will remain the lowest in the EU however.
The Government announced it will seek to attract headquarters of international groups, upgrading the intellectual property tax system, the parent subsidiary exemption regime, transfer pricing and substance rules, while making sure that Luxembourg is in line with all EU and OECD standards. A regime of notional interest deduction is also planned to stimulate businesses to increase their equity funding.
The Government intends also to make sure that the Luxembourg legal and tax system in place is improved in such a way that it is in line with the needs and expectations of the market place and investors. 2 measures illustrate this: the Government announced that Luxembourg will formalise its ruling/advance tax agreement (“ATA”) practice, which should make the ATA system more efficient. In addition, in order to be aware of the needs of the market place, the Government will establish an advisory committee of tax experts which will make concrete proposals in order to adapt the tax system to the needs of businesses/investors.
As far as the financial sector is concerned, the good news is that, contrary to what has been reported occasionally, the subscription tax due by Undertakings in Collective Investment, be they Alternative Investment Funds (“AIFs”), Undertakings for Collective Investment in Transferable Securities (“UCITS”) or Specialised Investment Funds (“SIFs”), will not be increased. Finally, the favourable carried interest regime which was introduced recently within the scope of the AIFM Directive, is planned to be extended to all new investment funds set up in Luxembourg. Net Wealth Tax for individuals will not be reintroduced.
Luxembourg will remain against the introduction of a Financial Transaction Tax at the level of the EU but may agree to introduce one if this is done at global level.
To conclude, the new Luxembourg Government has released an ambitious programme with a lot of positive tax measures, which are welcome. Even though it remains to be seen how the tax measures will be implemented in practice, they reflect a clear aim to make sure that Luxembourg remains competitive.
For further information, please contact Keith O’Donnell at keith [dot] odonnell [at] atoz [dot] lu or Samantha Merle at samantha [dot] merle [at] atoz [dot] lu ().
Luxembourg tax law allows Luxembourg Companies and Luxembourg Permanent Establishments (“PE”) of foreign companies to reduce the amount of Net Wealth Tax ("NWT") due to the extent they meet certain requirements. These requirements include among others the allocation of a certain amount of retained earnings to a dedicated NWT reserve in the accounts and the keeping of this NWT reserve during at least 5 years. The amount of the reduction of NWT is however limited: it can neither exceed the amount of Corporate Income Tax ("CIT") due, nor (since the introduction of a minimum CIT in Luxembourg) can it exceed the amount of minimum CIT that would be due based on the minimum CIT rules. To clarify what it means in practice, the tax authorities have released a Circular.
What are the conditions to get a NWT reduction?
The Circular expands on the formal conditions regarding the filing of the request to benefit from the NWT reduction. It further indicates what the tax authorities expect in terms of content in the tax return in order for them to check whether the conditions to benefit from the NWT reduction are met during the 5 year period.
The Circular further explains the 2 cumulative limitations to the NWT reduction, the second limitation having been introduced following the implementation of the minimum CIT:
- 1st limitation: the NWT reduction cannot be higher than the CIT due,
- 2nd limitation: the NWT reduction cannot be higher than the minimum CIT that the Company would be subject to, based on the minimum CIT rules. In this respect the Circular confirms that this 2nd limit applies to all Companies, whether they are or not effectively subject to the minimum CIT. In other words, the limitation applies both to Companies subject to the minimum CIT and companies subject to a higher amount of CIT.
What happens if the Company is liquidated before the 5 year period elapses?
Based on the wording of the NWT reduction rules, as provided by §8a NWT Law, it was so far understood, even though not clearly stated, that since the NWT reserve has to be kept during a time period of 5 years in order to benefit from the NWT reduction, a liquidation of the Company within the 5 years would mean that the conditions for the NWT reduction would not be met and that the NWT would become due.
The Circular confirms that despite the recent case law according to which §8a NWT Law does not require that the Luxembourg resident Company which opted for the NWT reduction remains subject to the Luxembourg NWT during 5 years following a transfer of seat from Luxembourg to another EU Member State, the liquidation of the Company before the 5 year time period elapses still means that the conditions for the NWT reduction will not be met.
There is however an exception in case of restructuring: in case of merger, absorption or demerger before the 5 year period elapses, there is no negative NWT consequence (i.e. the NWT does not become due) at the level of the "disappearing" Company to the extent the reserve is taken over and kept during the remaining time period by one of the other group companies.
What happens if the reserve is not kept during 5 years?
The Circular illustrates with an example what happens in case the reserve is not kept during the required time period (reserve distributed before the 5 year period elapses).
What about a Luxembourg PE of foreign Companies?
Since Luxembourg PEs of foreign companies can benefit as well from a NWT reduction, the Circular explains and clarifies the formal requirements in this specific situation.
What happens in case of tax consolidation?
The rules in case of tax consolidation were already explained in the former Circular L.I.R. n° 164bis/1 of 2004. The new Circular specifies however what will happen given the additional limitation as regards the minimum CIT.
While Luxembourg Companies may consolidate for CIT purposes, there is no such tax consolidation for NWT purposes. So, in case of tax consolidation, the reduction of NWT is not granted up to the amount of minimum CIT which would be due based on the minimum CIT rules by each of the consolidated companies if there would be no tax consolidation. The Circular provides an example to illustrate the application of this rule.
Finally, the Circular states that it is up to the group to decide at the level of which consolidated Company the allocation to the NWT reserve will be made. It means that one consolidated Company A may decide, if the other consolidated Company B has not enough retained earnings, to allocate a part of its retained earnings to a NWT reserve on behalf of Company B. The Circular illustrates this with an example.
The Circular is positive in the sense that it clarifies, by means of examples, the practical application of the amended NWT deduction rules. It is therefore a useful tool for tax payers. In addition, it brings some clarification on aspects which were debatable so far, such as the liquidation of the Luxembourg Company within the 5 year time period.
For further information, please contact Samantha Merle at samantha [dot] merle [at] atoz [dot] lu (email@example.com)
Following the amendment of the Luxembourg VAT legislation to include Alternative Investment Funds (AIFs) in the list of entities eligible to receive VAT exempt management services, a new Circular has been published by the Luxembourg VAT Authorities providing additional details on the services benefiting from this (n°723ter dated November 7, 2013). This information is of prime importance since investment funds have in principle no VAT deduction right on their costs.
Following the implementation of the AIFM directive, AIFMs are required to ensure portfolio management as well as risk management functions. It had been clarified in the past that portfolio management services must be considered as VAT exempt management services. Circular n°723ter now confirms that risk management services also fall within the scope of the VAT exempt management services.
According to the AIFM Law, one of these two functions may be delegated by the AIFMs. In order to apply the VAT exemption on delegated risk management services, the criteria previously set out by the European Court of Justice (Abbey National case C-169/04 and GfBK C-275/11) remain applicable. Based on the Abbey National case, the application of the VAT exemption to delegated services requires that these services, viewed broadly, form a distinct whole, and are specific to, and essential for, the management of those funds. These conditions were made clearer by the Advocate General in the recent GfBk case (Newsletter of December 2012).
This circular is welcome as it confirms the attractivity of Luxembourg for investment funds. Despite this positive confirmation, we however remind you that the drafting of risk management agreements must be given the utmost level of attention. A VAT review is imperative to ensure the application of the VAT exemption.
For further information, please contact Christophe Plainchamp at christophe [dot] plainchamp [at] atoz [dot] lu ()
Luxembourg is currently implementing into its internal law a set of 3 EU Directives: the "recasted" EU Merger Directive (2009/133), the "recasted" EU Parent-Subsidiary Directive (recast) (2011) as well as the Directive 2013/13/EU on the adapted tax directives for the accession of Croatia.
The 2 recasted Directives are mostly consolidated versions of the various amendments that have been made over the past years to the EU Parent-Subsidiary and Merger Directives. These amendments have each been implemented into Luxembourg law. The implementation of these recasted Directives is therefore to be seen more as a formalisation of the various amendments which happened in the course of the past years rather than as a real change from a tax point of view. Still the Luxembourg law had to be amended since reference has now to be made to the new Directives.
As far as the EU Directive 2013/13/EU is concerned, it aims at adapting the direct and indirect tax Directives following the accession of Croatia to the EU.
Regarding the EU Parent-Subsidiary Directive, the Luxembourg tax authorities had already released a circular in March 2012 in order to clarify that all references made to the parent-subsidiary Directive in its former version (90/435/UE) had now to be understood as a reference to the new version of the Directive (2011/96/UE). The latest version of this Directive had therefore already been implemented in practice even though not formally. In addition, the list of entities benefitting from the parent-subsidiary regime or participation exemption regime has been amended in order to be in line with the latest version of the Directive and to take into account Croatia.
For further information, please contact Samantha Merle at samantha [dot] merle [at] atoz [dot] lu ()
Exchange of information on tax matters is making the news in the political and fiscal global environment and has become a highly sensitive topic: countries considered not aligning with the international trends are being looked at with a jaundiced eye. As illustrated by the OECD peer review of July 2013, compliance with the international standards is not only assessed on the basis of the legal and regulatory framework but also on the basis of domestic case law. The concept of foreseeable relevance is a key issue in judicial proceedings. Luxembourg courts tend to declare null procedures of exchange of information implemented by the Luxembourg tax authorities on request of their foreign counterparts, arguing in most cases that the condition of foreseeable relevance is not met (as reflected in our previous newsletters on these topics). In its above-mentioned peer review, the OECD recommended Luxembourg to amend its interpretation of the concept of foreseeable relevance, this interpretation being too restrictive on the basis of the international standards. The OECD also recommended Luxembourg to ensure that the confidentiality of the information contained in the request is adequately protected.
A recent case law seems to be applying the recommendations of the OECD in these matters (Administrative Court, September 19th, 2013, n°33119C).
The facts are quite straightforward. Upon request of their French counterparts, the Luxembourg tax authorities instructed a Luxembourg bank to provide information on a Luxembourg bank account held by a French resident, under fiscal investigation in France. The French tax authorities suspected him to have received funds on this account from French companies, also under fiscal investigation.
The lower court declared null the injunction of the Luxembourg tax authorities on the ground that it was not reproducing the exact content of the initial request issued by the French tax authorities. Applying a now well-established case law, the higher court overturned this judgment: in the light of the international standards, the content of the initial request has to be considered as privileged information and the Luxembourg tax authorities do not need to provide the holder of information or the tax payer with a full copy of the request (same case law). The request is to be disclosed to the taxpayer at a later stage only, i.e. in the course of the proceedings. It is worth noting that during the disputes, the state representative to the court explicitly referred to the OECD peer review report to ground this solution.
The disputes went quite naturally on with the condition of foreseeable relevance. As reminded by the Court, this condition requires in a first stage that the request relates to one or several specific taxation cases or to given taxpayers. The information requested has to be of foreseeable relevance for the taxation of this specific situation. In the case at hand, the taxpayer was clearly identified, the suspected transactions realized with the French companies were described and the French taxpayer was clearly identified as being closely related to the French companies (via the shareholding and management structures). The Court concluded that the description made of the taxation case was clear enough to evidence the potential existence of payments received by the French individual. The information requested was therefore relevant for the taxation of this taxpayer under French personal income tax.
In the case at hand, the facts were straightforward, and the existence of income potentially hidden by the taxpayer was easily and clearly demonstrated. The case did not leave room for doubts: the information requested was foreseeably relevant.
In most cases however, fund flows are more difficult to track and it is therefore more difficult for the requesting authorities to evidence the potential existence of hidden income. In a case law issued a few days later (Administrative Court, September 24th, 2013 33118C), the Court considered the condition of foreseeable relevance as not met since the French tax authorities failed to demonstrate the connection between the information requested and the taxation of the taxpayer under investigation. Is this interpretation unduly restrictive in the light of international standards? The Global Forum on Transparency and Exchange of Information recently declared Luxembourg as non-compliant in respect of the implementation of the standards on transparency and exchange of information. One might wonder if this classification is not “excessively harsh” to quote the Luxembourg ministry of Finance. In July 2013, the OECD peer review concluded that despite some deficiencies, “Luxembourg does exchange a considerable amount of information and does so in a timely manner”. As a reaction to its negative rating, Luxembourg reaffirmed its commitment “to moving forward with transparency and the exchange of information for tax purposes, while ensuring that legal requirements and the protection of privacy are fully respected” (Luxembourg Ministry of Finances, 19 November 2013).
For further information, please contact Samantha Merle at samantha [dot] merle [at] atoz [dot] lu ()
The European Commission has proposed amendments to the EU Parent-Subsidiary Directive (2011/96/EU) which aim, according to the Commission, at significantly reducing tax avoidance in the EU. The Proposal updates the anti-abuse provisions of the Directive and makes sure that hybrid loan arrangements will no longer benefit from tax exemptions in future. The Commission wants the EU Member States to implement these amendments by the end of 2014.
The proposal of the European Commission includes the 2 following amendments:
Dividend exemption not applicable in case of hybrid instrument
The first proposed amendment deals with so-called hybrid instruments. Hybrid instruments are instruments which are given a different tax qualification by 2 different jurisdictions: the jurisdiction of source (jurisdiction of the subsidiary) qualifies for example the instrument as a debt instrument and treats therefore the payment made under this instrument as a tax deductible interest payment. The jurisdiction of the Parent Company qualifies the instrument as capital investment and treats therefore the payment received by the Parent Company as a dividend which can benefit from a tax exemption under certain conditions. There is therefore a mismatch in the tax treatment, which can create a situation of so-called double non-taxation, i.e. no taxation in neither of the 2 jurisdictions involved.
To avoid this situation of double non-taxation, the European Commission proposes to amend the EU Parent-Subsidiary Directive in such a way that if a payment made is tax deductible in the EU Member State of the subsidiary, it will have to be taxed by the EU Member State of the Parent Company. In other words, the EU Parent Company will only be able to get a dividend exemption under the participation exemption regime of the Directive if the payment made by its EU subsidiary is not tax deductible in the jurisdiction of the subsidiary.
Adoption of a common anti-abuse rule
The second proposed amendment to the Directive updates the anti-abuse provision in the Parent Subsidiary Directive i.e. the safeguard against abusive tax practices. In line with the Commission’s Recommendation on Aggressive Tax Planning, the Proposal requires the EU Member States to adopt a common anti-abuse rule which allows them to ignore artificial arrangements used for tax avoidance purposes and ensure that taxation takes place on the basis of real economic substance.
The Proposal has to be approved by each of the EU Member States before the Directive can effectively be amended. At this stage, it is therefore still unsure whether the measures described above will be implemented in their current form. It is certain however, that since the measures proposed would only affect EU Member States while no such restriction would apply outside of the EU, the initiative could hand a competitive advantage to companies based outside the EU. We will follow closely the developments of the proposal and will update you on any significant changes.
For further information, please contact Samantha Merle at samantha [dot] merle [at] atoz [dot] lu ()
The issue at stake is the qualification of an entity as “securitization special purpose entity” (SSPE)” (and therefore determining whether it is exempt from the application of the Law of 12 July 2013 on alternative investment fund managers (hereafter the AIFM Law)), as opposed to qualifying as an “alternative investment fund” (AIF) (and therefore being subject to the AIFM Law). The focus should particularly be in respect of the securitization vehicles (SV) subject to the Luxembourg Law of 22 March 2004 on securitization (the Securitization Law), for which the scope of activities is broader than the one set out for securitization special purpose entities in the AIFM Law.
The CSSF’s approach in the current version of its FAQs on Securitization is to list the vehicles which qualify as AIFs, provided they meet the criteria set forth therein, and therefore are excluded from the scope of the AIFM Law. In addition, the CSSF further details the conditions that a vehicle must meet in order to qualify as a “securitization special purpose entity”, and thus fall outside the scope of the AIFM Law. In case a vehicle does not qualify as an SSPE, then it can potentially qualify as AIF, if it meets the inherent criteria.
According to the CSSF FAQ on Securitization, the following entities do not qualify as AIFs, and are therefore exempt from the application of the AIFM Law:
- (i) a “securitization special purpose entity”, such as referenced in the AIFM Law and defined in the Regulation (EC) No 24/2009 of the European Central Bank (the ECB Regulation) – being an entity securitizing credit risks, and including a vehicle issuing collateralized loan obligations;
- (ii) a securitization vehicle that issues only debt instruments, whether or not, and independently of its qualification as an SSPE; the reason behind this exemption lies in the European Commission interpretation of an AIF as being an entity issuing a security representing an “ownership interest” in it;
- (iii) a securitization vehicle that is not managed according to an “investment policy” within the meaning of ESMA’s Guidelines on key concepts of the AIFMD, whether or not, and independently of its qualification as a SSPE.
The CSSF defines a “securitization special purpose entity”, for the purpose of determining the impact of the AIFM Law, as being an entity whose sole purpose is to carry out one or several securitization operations within the strict meaning of the ECB Regulation.
According to the ECB Regulation, “securitization” means a “transaction or scheme whereby an asset or pool of assets is transferred to an entity that is separate from the originator and is created for or serves the purpose of the securitization and/or the credit risk of an asset or pool of assets, or part thereof, is transferred to the investors in the securities, securitization fund units, other debt instruments and/or financial derivatives issued by an entity that is separate from the originator and is created for or serves the purpose of the securitization […]”.
The CSSF seeks further directions in the Guidance Note of the ECB on the definitions of ‘financial vehicle corporation’ and ‘securitization’ under the ECB Regulation (the Guidance Note) in order to determine whether an activity constitutes a securitization operation or not, considering that, in the latter case, the vehicle carrying out such activity would qualify as an AIF, if the criteria set forth in the AIFM Law are met.
According to the Guidance Note, the following entities do not qualify as “securitization special purpose entity” on the ground that their activity does not constitute a securitization operation, and therefore are likely to fall within the scope of the AIFM Law, provided they fulfill the AIF conditions:
- (i) the securitization vehicles acting as “first lenders”, originating new loans, being the vehicles that securitize credits that they grant themselves – they disqualify due to the fact that they are not purchasers nor transferees of asset(s) and credit risk(s) ; and
- (ii) the securitization vehicles that offer a synthetic exposure to non-credit related assets (such as equities, commodities, indices), and for which the transfer of the credit risk is only accessory to its principal activity – whereas the SPPE must carry on securitization as its principal activity.
|First lenders (originating loans themselves, no transfer/purchase of assets nor credit risks)||SV securitizing credit risks (SSPE)|
|Vehicles offering synthetic exposure to non-credit related assets||SV issuing only debt instruments|
|SV not managed according to an investment policy|
Each securitization entity bears the responsibility of performing a new self-assessment in the light of the CSSF FAQ in order to determine whether it is exempted or not from the application of the AIFM Law. Our qualified dedicated team would be pleased to conduct this analysis.Finally, it is worth noting that the CSSF reserves the right to amend its comments, approach and interpretation according to future discussions and/or clarifications around the topic of the shadow banking, on one hand, and the EU developments concerning the AIFMD subjects, on the other hand. We are also closely monitoring and analysing these discussions.
For any further information, please contact our AIFMD team at aifmd [at] atoz [dot] lu ().
ATOZ was hosting the LPEA’s latest breakfast event "Update on the Latest International Developments in the Field of Investment Management" on Friday December 13th 2013 with special guest speaker, Mr Jean-Marc Goy, Counsel for the International Affairs, Commission de Surveillance du Secteur Financier (CSSF).
In addition to a general update on the latest developments of the Investment Management industry, Mr Goy’s presentation focused on
- the international activities of the Commission de Surveillance du Secteur Financier (CSSF) in the field of investment management, among others at the level of European Securities and Markets Authority (ESMA),
- developments concerning the Alternative Investment Fund Managers Directive (AIFMD), and
- Developments concerning the directive on undertakings for collective investment in transferable securities (UCITS).
For additional information and content related to the briefing please contact Samantha Merle at samantha [dot] merle [at] atoz [dot] lu ()
ATOZ was pleased to participate in the ALFI Leading Edge conference on 17 December 2013 on the evolving taxation agenda and its impact on the Asset Management Industry.
Keith O’Donnell, Managing Partner of ATOZ joined a roundtable discussion on the impact on Luxembourg and the current tax climate change.
The conference was also a good opportunity to hear and exchange views with experts on
- EU Savings Directive - Automatic Exchange of Information
- FATCA - Latest updates and where do we stand with implementation?
- Value-Added Tax («VAT») - Practical Insight
- Financial Transaction Tax («FTT»)
- Cross-Border Tax Reporting - Practical Implications
- Interactive Workshop - Setting-up a Luxembourg ManCo
For additional information and content related to the conference, please contact Keith O’Donnell at keith [dot] odonnell [at] atoz [dot] lu
The ATOZ Chair for European and International Taxation at the University of Luxembourg and the University of Linz are delighted to announce the conference on Landmark decisions in direct tax jurisprudence for January 23rd, 2014.
This conference will explore the history, impact, and potential for further development of the CJEU’s and the EFTA Court’s landmark decisions relating to direct taxation. The presentations, to be delivered by leading practitioners and academics in the field, will explain the background, legal framework, and arguments leading up to the various decisions as well as their impact on subsequent Court decisions. Attention will be paid to the Court’s initial reasoning and any shading or nuancing thereof in the case law built thereon. Moreover, each presentation will explore the strengths and weaknesses of the Courts’ reasoning and potential developments. Finally, additional commentary will be offered by current or former CJEU and EFTA Court Judges, Advocates General, members of the EU Commission, and members of domestic courts.
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