Treaties Offer Fund Managers Means to Reclaim Overpayments but Require Updating to Keep Pace With the Market

Due to the inability of some foreign governments to determine beneficial owner identities, many funds undertaking cross-border investments lose more money in tax payments than strictly required by law. Governments have attempted to ameliorate this problem by adopting bilateral tax reclamation treaties with other governments, but this has proved a partial solution at best. Treaty-making is stymied in the U.S. Congress and some foreign legislative bodies, and instances of fraud – including a massive scandal costing the nation of Denmark billions – have soured some to the very idea of tax reclamation. In many instances, the variety and complexity of investment vehicles add further layers of difficulty and opacity to the process. Nevertheless, tax reclamation can be indispensable for funds and investors to regain money that rightfully belongs to them. To help readers understand the myriad issues involved in cross-border tax payment and reclamation, the Hedge Fund Law Report has interviewed Len Lipton, managing director of tax reclamation service provider GlobeTax, and this article presents his insights. For earlier commentary from Lipton on this topic, see “How Can Hedge Funds Recoup Overwithholding of Tax on Non-U.S. Source Interest and Dividends?” (Sep. 12, 2013). For more on tax issues affecting private funds, see “How Managers Can Structure Direct Lending Funds to Minimize U.S. Tax Consequences to Foreign and U.S. Tax-Exempt Investors: ‘Season and Sell’ and Blocker Structures (Part One of Two)” (May 18, 2017).

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