Loyens & Loeff New York regularly posts 'Snippets' on a range of EU tax and legal topics. This Snippet discusses the impact of Pillar Two (𝐏𝟐) on documentation governing Luxembourg investment funds and investors' subscriptions.
In prior Snippets of this P2 series, we explored the potential impact of P2 on certain fund structures. For fund sponsors and investors alike, it is important to anticipate on potential P2 top-up tax exposure and ensure proper allocation of any such tax. For that reason, Luxembourg fund documentation typically includes the following:
A P2 tax disclosure in the Private Placement Memorandum or Offering Memorandum. Whilst the degree of detail varies on the market, it has become standard to include a P2 tax disclosure which provides a high-level summary of the rules and indicates that investment funds and their subsidiaries are not automatically carved out from P2.
Questions related to P2 in the subscription agreement or an annex thereto. Whilst there is no harmonized market practice yet, we recommend at least asking whether the investor is part of a consolidated group that is in scope of P2 and, if so, whether the investor's interest in the fund will be consolidated by such group on a line-by-line basis. The answers to those questions allow the fund sponsor to identify a potential application of P2 rules before onboarding the investors.
The Luxembourg fund's limited partnership agreement (𝐋𝐏𝐀) and the subscription agreement contain a provision permitting the general partner to ask more questions if needed to allow the fund to meet its tax filing and tax compliance obligations, which would also include any P2-related obligations.
The potential 'tax allocation' of any P2 leakage at fund (or lower-tier) level to the relevant investor(s) is usually sufficiently covered by the general tax allocation clause in the Luxembourg fund's LPA, such that there is no need for a specific P2 provision. Pursuant to such clause, that tax allocation is often at the discretion of the Luxembourg fund's general partner. This can be reinforced through a statement in the subscription agreement and/or confirmations in a side letter.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.