Impact Of Pillar Two At The Fund Manager Level – New York Office Snippet

Loyens & Loeff NY regularly posts ‘Snippets' on a range of EU tax and legal topics. This Snippet discusses the potential impact of Pillar Two (𝐏𝟐) at the fund manager level.
Luxembourg Tax

Loyens & Loeff NY regularly posts 'Snippets' on a range of EU tax and legal topics. This Snippet discusses the potential impact of Pillar Two (𝐏𝟐) at the fund manager level.

P2 applies to consolidated groups with annual revenues exceeding €750M. For this purpose, a group consists of all entities that are included on a line-by-line basis in the consolidated financial statements of the ultimate parent entity (𝐔𝐏𝐄).

In Lux fund structures, there can be two separate P2 groups: (1) the fund manager group (𝐅𝐌𝐆) and (2) the fund structure group. In this Snippet, we focus on the FMG with a US sponsor as UPE.

If consolidation takes place within the FMG (which is certainly not always the case), the group may include the GP, the management company, the investment adviser and possibly carry and co-investment vehicles. The FMG is only in scope of P2 if the consolidated revenues of the UPE of the FMG exceed € 750M. Such revenues could include the management fee, the carried interest that is allocable to the FMG and returns received on co-investments made by the FMG.

An example of a situation where an FMG that consolidates is in scope of P2. The revenues of the FMG are as follows for two consecutive years:

  • 2% management fee calculated over assets under management of $30B: $600M.
  • Return of 8% on co-investment of € 1.5B (5% GP commitment over AUM of $30B): $120M.
  • Carried interest revenues of $1.5B (10% allocable to the FMG / 90% to individual managers): $150M.

The revenues of $870M of FMG exceed (the USD equivalent of) € 750M and, hence, the FMG is in-scope of P2. P2 contains an exemption for excluded entities (𝐄𝐄). An EE is not subject to top-up tax (𝐓𝐓). Qualifying investment funds and their SPVs should generally qualify as EE, but entities belonging to the FMG usually cannot qualify as EE.

The next question is whether the FMG is subject to TT under P2. This could for instance be the case in the following situation: An in-scope FMG has a US UPE with, inter alia, a Luxembourg GP (𝐋𝐮𝐱 𝐆𝐏) and a Cayman Islands investment adviser entity (𝐂𝐚𝐲𝐂𝐨) as subs. Another entity in the FMG pays an advisory fee of 100 to CayCo that is not subject to tax in the Cayman Islands. Under P2, TT needs to be collected in an amount equal to the difference between 15% (the minimum P2 tax) and the ETR of 0% in the Cayman Islands (i.e., 15 of TT is due). The US (UPE jurisdiction) has the priority right to levy TT under the income inclusion rule (IIR), but the IIR does not apply in this example because the UPE is located in the US. That means that, as from 2025, Luxembourg (Lux GP jurisdiction) will collect TT in the amount of 15 under the undertaxed-profits rule (UTPR), which functions as a secondary rule.

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.

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