Practical Tax Considerations Arising From Trends in European Fund Structuring

A developing theme over recent years has been the extent to which current fund structures will continue to achieve the aim of minimizing tax leakage. This theme has largely emanated from coordinated action of the Organisation for Economic Co‑Operation and Development and E.U. member states to tackle and prevent perceived tax avoidance and treaty abuse. As a result, it is now important to carefully consider not only whether the economic substance of a fund structure can withstand scrutiny from a tax perspective, but also whether it will continue to minimize tax leakage in the future. In a guest article, Will Smith and Caleb McConnell, partner and associate, respectively, at Sidley Austin, address a number of the important changes to the international tax framework that have affected the tax planning involved in fund structuring. In addition, the authors provide practical points to consider for a European fund structure in light of these international tax changes. For analysis of other tax issues, see “Sidley Panel Discusses Operational and Tax Challenges of Hybrid Funds” (May 23, 2019); “How Fund Managers May Deploy Opportunity Zone Funds to Defer and Partially Eliminate Capital Gains” (Apr. 18, 2019); and “France Welcomes Foreign Asset Managers With Softened Tax Treatment of Carried Interest” (Dec. 6, 2018). For additional commentary from Smith and McConnell, see “How the E.U. Tax-Haven Blacklist May Affect Private Funds Formed in Blacklisted Jurisdictions” (Nov. 2, 2017); and “Recent Tax Developments May Make U.K. Limited Companies More Favorable Than U.K. LLPs for U.S. Fund Managers” (Apr. 20, 2017).

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