How the E.U. Tax-Haven Blacklist May Affect Private Funds Formed in Blacklisted Jurisdictions

Due to be finalized in late 2017, the European Commission (EC) has proposed a “tax‑haven blacklist” that could have significant implications for current fund structures that contain entities with a connection to “blacklisted” jurisdictions. The initiative is expected to be used as a tool by the E.U. to combat perceived tax evasion and tax avoidance globally. For information on the U.K.’s approach to combatting tax evasion, see “U.K. Proposes Legislation to Impose Criminal Liability on Companies and Partnerships Whose Employees and Other Agents Facilitate Tax Evasion (Part One of Two)” (Feb. 23, 2017); and “How U.S. Private Fund Managers May Avoid Running Afoul of Proposed U.K. Legislation Criminalizing the Facilitation of Tax Evasion (Part Two of Two)” (Mar. 2, 2017). A jurisdiction’s inclusion on the blacklist may also result in E.U. Member States collectively imposing counter-measures against the jurisdiction, potentially including denial of tax deductions or tax exemptions; and imposition of additional withholding taxes. In a guest article, Will Smith and Caleb McConnell, partner and associate, respectively, at Sidley Austin, review the status of the compilation of the blacklist, the criteria being used by the EC to determine which countries to include on the blacklist and the consequences to countries that are eventually included on the blacklist, as well as to funds formed in blacklisted jurisdictions. For additional insights from Smith on tax matters, see “Recent Tax Developments May Make U.K. Limited Companies More Favorable Than U.K. LLPs for U.S. Fund Managers” (Apr. 20, 2017); and our two-part series “U.K. Disguised Fee Rules May Result in Increased U.K. Taxation of Investment Fees to Individuals Affiliated With Hedge Fund Managers”: Part One (Apr. 16, 2015); and Part Two (Apr. 23, 2015).

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