We structure funds both onshore and offshore for German institutional investors, including both the legal implementation of fund concepts as well as the due diligence for regulated investors. We implement fund structures and provide both legal and tax support. We have decades of experience in advising regulated investors on their specific regulatory requirements.
Our Experience:
- Advisory and consulting services for a German fund sponsor on the setup of a Luxembourg RAIF investing in the US for professional and semi-professional investors
- Legal and tax advice regarding vehicle choice of a Luxembourg investment platform for a German pension scheme
- VAT advice concerning cross-border distributor structure for a Luxembourg RAIF
- Legal requirements on cross-border delegation regarding portfolio management
- Advising a Luxembourg FCP with German investors regarding characterization as Reverse Hybrid pursuant to ATAD II
News
Funds and Products
April 15, 2021
beinformed: Transition of ATAD 1 and ATAD 2 into German law – more than 15 months after the first draft, the Federal Government's bill follows
The (EU) 2016/1164 Directive dated July 12, 2016, and the (EU) 2017/952 Directive dated May 29, 2017 (EU Anti-Tax Avoidance Directives or ATAD 1 and ATAD 2), should already have been enacted into national law respectively by December 31, 2018, pursuant to Article 11 ATAD 1, and ... (more)
March 29, 2021
Article by bepartners on the Circular for Special Investment Funds in the periodical "Die Unternehmensbesteuerung"
The law journal "Die Unternehmensbesteuerung" has published an article written by our partner Carsten Bödecker on the Circular to the Investment Tax Act for Special Investment Funds. Carsten Bödecker highlights certain aspects of the circular for Special Investment Funds dated October 29, ... (more)
January 21, 2021
beinformed: Ministry of Finance publishes draft to strengthen Germany as a fund location
The draft bill of the German Federal Ministry of Finance encloses both mandatory and additional measures. First of all, the implementation of the EU directive on the cross-border distribution of undertakings for collective investment (keyword: pre-marketing) and the implementation of ... (more)
We provide legal and tax advice on financing issues arising in connection with real estate credit financing and structured hybrid financing. We also advise on asset-based finance and project finance.
Our Experience:
- Legal and tax due diligence of an investment in aircraft financing for a debt fund
- Legal structuring of a hybrid financing instrument under Solvency II principles
- Legal structuring of a hybrid financing instrument under the German Investment Ordinance for German insurance companies
- Tax and insurance regulatory advice on the acquisition of an Italian solar park via a promissory note or debenture bond.
- Financing structures of multi-tiered Luxembourg Real Estate Funds
- Legal and tax due diligence of a syndicate participation of a credit fund
News
Finance
June 28, 2018
beinformed: German Finance Ministry issues draft letter on the German Investment Tax Act 2018
The German Federal Ministry of Finance published a new draft letter on the application of the Investment Tax Act 2018. In our beinformed we shed some light on the following points: Partial exemption and duties of investors, eligible exchanges and ... (more)
March 8, 2017
Top Tax Firm: Finance & Insurance
According to the business magazine FOCUS, Bödecker Ernst & Partner is one of Germany's top tax firms for 2017. The editorial team assessed this on the basis of a survey of more than 9,000 tax advisors and auditors asking which ... (more)
June 21, 2016
beinformed: Factor’s liability for the VAT in a factored debt
The German Federal Tax Court has decided in its judgement dated December 16, 2015 that a factor’s liability for the VAT in a factored debt does not cease with the surrender of the proceeds of the debt collection to the original ... (more)
Real Estate and M&A
What we do
We advise on all legal and tax issues in connection with real estate. We advise real estate funds regulated under the German Investment Code as well as foreign non-regulated funds on the structuring of domestic and foreign acquisitions.
Our Experience:
- Tax advice on the transfer of a direct investment of a German pension fund (Versorgungswerk) in a German real estate special fund (Immobiliensondervermögen) into a real estate pooling vehicle of such pension fund in the legal form of a German investment limited partnership (Investmentkommanditgesellschaft)
- Advising on the allocation of real estate transfer tax on German real estate to a Luxembourg sub-fund
- Assessing the risk of active entrepreneurial management as part of the investor’s due diligence of a German real estate fund
- Regulatory and tax consulting services for a fund sponsor on establishing a Luxembourg AIF as an asset pooling vehicle for a German corporation under public law
- VAT consulting on investment advisory services to a Luxembourg alternative investment fund investing in German real estate
- Legal and tax due diligence of a US real estate fund for a German occupational pension scheme (Versorgungswerk) including side-letter negotiations
- Structuring of a Luxembourg AIF for German institutional investors investing in US real estate
News
Real Estate and M&A
May 26, 2015
Capital preservation of foundations under German Investment Code
Could distributions of closed-end real estate funds violate the duty of capital preservation (Vermögenserhaltungspflicht)? - A new interpretation under the German Investment Code (KAGB) In the 1/2013 edition of the journal Stiftungsmanagement Alexander Skowronek explained why distributions of closed-end real ... (more)
May 13, 2015
Revised French-German double tax treaty signed
Germany and France recently signed an amending protocol to the existing double tax treaty. Unexpectedly, the taxation of capital gains from the sale of shares in real estate investment companies has been changed. Under the existing treaty, such capital gains ... (more)
March 30, 2015
beinformed: Investment fund characterisation negated by entrepreneurial activity
In order to enjoy the investment fund privilege as opposed to being treated as an ordinary investment vehicle, such fund has to refrain from entrepreneurial activity. This is of the utmost importance for private equity funds holding a majority interest ... (more)
We advise corporate treasurers on capital investments in connection with cash and investment management.
We will gladly provide you with further references.
Our Experience:
- Advice on a liquidity portfolio investment in a fund vehicle investing in supplier's short-term credits (Supply Chain Finance)
- Advice on outsourcing/covering of pension liabilities
- Advice on tax treatment of hedging instruments
- Advice on tax accounting of income from investment funds and special-investment funds pursuant to the German Investment Tax Act 2018 and processing of such income in the annual tax returns of institutional investors
- Advice on tax issues in securitization projects
News
Treasury
January 20, 2023
beinformed: 2022 Annual Tax Act – Amendments to the Investment Tax Act
The 2022 Annual Tax Act, which was passed by the German Federal Council (Bundesrat) on 16 December 2022 (Federal Law Gazette I 2022, 2294), will also result in amendments to the German Investment Tax Act. The aim of the amendments is ... (more)
April 15, 2021
beinformed: Transition of ATAD 1 and ATAD 2 into German law – more than 15 months after the first draft, the Federal Government's bill follows
The (EU) 2016/1164 Directive dated July 12, 2016, and the (EU) 2017/952 Directive dated May 29, 2017 (EU Anti-Tax Avoidance Directives or ATAD 1 and ATAD 2), should already have been enacted into national law respectively by December 31, 2018, pursuant to Article 11 ATAD 1, and ... (more)
September 23, 2019
beinformed: German Federal Fiscal Court on "van Caster and van Caster": Amended section 6 of the German Investment Tax Act 2004 on lump sum taxation does not violate EU law
Whether the lump-sum taxation in accordance with section 6 of the German Investment Tax Act 2004 (GITA 2004) violates EU or constitutional law in the absence of the tax bases in accordance with section 5 of the GITA 2004 has ... (more)
Institutional Investors
What we do
We advise pension funds, insurance companies and other institutional investors on tax and regulatory issues on their investments.
Our Experience:
- Advisory and consulting services on the setup of a Luxembourg Specialized Investment Fund (SIF) in the legal form of an S.C.S. for bundling a German insurance company's capital investments (review and revision of legal documentation, e.g. S.C.S. Agreement, Offering Memorandum of the fund, AIFM Agreement, Depository Agreement, Register and Transfer Agency Agreement, Domicilation Agreement etc.)
- Legal advice regarding liability risk for a member of an advisory committee in an English limited partnership
- Advice on pooling of capital investments in Luxembourg and German vehicles for several insurance companies in connection with the asset classes of infrastructure, real estate and private equity
- Development of a renewable energy concept under tax and investment law for a master fund structure of German pension schemes of the liberal professions
- Advising a pension fund on the VAT status regarding collection of pension contributions
News
Insurance
October 22, 2024
beinformed: Financing for the Future Act II - Planned amendments to the German Investment Tax Act
On August 27, 2024, the draft bill for a Financing for the Future Act II (Zweites Zukunftsfinanzierungsgesetz - ZuFinG II) was published. The almost 210-page draft also contains fundamental changes to the German Investment Tax Act, which the Federal Ministry of ... (more)
July 15, 2024
beinformed: Overdue - Infrastructure Quota in the Investment Regulation
In late June, the Federal Ministry of Labour and Social Affairs and the Federal Ministry of Finance published the ministerial draft of a Second Act to Strengthen Occupational Pensions. Among other things, it provides for amendments to the Regulation on ... (more)
February 14, 2024
beinformed: Final application decree on the Foreign Tax Act reduces the administrative burden of add-back declarations
At the end of last year, the Federal Ministry of Finance published the application decree on the CFC Act. There is positive news to report: (1) Investors, for whom the attributed income does not trigger a tax liability, do not ... (more)
International Taxation
What we do
We advise on cross-border investments and the structuring of international funds.
Our Experience:
- Tax due diligence for an investment in a real estate fund under Luxembourg ATAD 2/DAC 6
- Tax and legal (insurance regulatory) structuring of a Luxembourg real estate fund investing in US real estate
- Tax Due Diligence for an investment of a German Pension Fund in Japanese residential properties via a Luxembourg AIF
- Tax advice for a Luxembourg holding concerning an exemption procedure pursuant para. 50d Income Tax Act
- Determining the place of management upon cross-boarder outsourcing of portfolio management
- Advice on the qualification of a German professional pension scheme as a specified widely held entity under Qualified Investor Rules of an Managed Investment Trust investing in Australien real properties
- Examination of the application of German CFC rules to a Luxembourg acquisition and financing structure in US real properties for the German branch of a European insurance group
News
International Taxation
February 14, 2024
beinformed: Final application decree on the Foreign Tax Act reduces the administrative burden of add-back declarations
At the end of last year, the Federal Ministry of Finance published the application decree on the CFC Act. There is positive news to report: (1) Investors, for whom the attributed income does not trigger a tax liability, do not ... (more)
August 11, 2023
beinformed: Growth Opportunities Act - Planned changes for real estate funds
On July 14, 2023, the draft bill for an act to strengthen growth opportunities, investments and innovations as well as tax simplification and tax fairness (Growth Opportunities Act) was published. The draft for this omnibus bill, which is just under 280 ... (more)
July 5, 2023
beinformed: Minimum taxation – From GLoBe to Pillar 2 to the German Minimum Tax Act! What does it mean for investors and investment funds?
On March 21, 2023, the German Federal Ministry of Finance published a discussion draft for a law to implement the Directive to ensure a global minimum taxation of multinational groups and large domestic groups in the Union (Mindestbesteuerungsrichtlinie-Umsetzungsgesetz). In this beinformed ... (more)
Compliance for Funds
What we do
We advise investment companies, financial service providers and foreign funds on all legal and tax compliance.
Our Experience:
- Defining the role of an AIFM as compared to that of a general partner of an investment management company under the AIFMD and German Investment Code
- Supervising and monitoring the audit of several foreign real estate and private equity funds
- FATCA support, e.g. classification of investment products, and related legal advice
- Eligibility of shareholder loans as an investment pursuant § 285(3) sentence 2 of the German Capital Investment Code and criteria of the 50 % threshold of § 285(3) sentence 2 of the German Capital Investment Code
- Second Review of a Tax Structure Report for German institutional investors in a Luxembourg-based alternative investment fund with investments in the Asia-Pacific region
- Advised management companies, portfolio managers and investment advisors on marketing and authorization requirements and procedure (with or without application of the EU passport regime, including notification procedures)
News
Compliance for Funds
October 22, 2024
beinformed: ZuFinG II - New approach for EEG investments in real estate funds
On August 22, 2024, the Federal Ministry of Finance published the draft bill for a Second Act on the Financing of Future-Proof Investments (Zweites Zukunftsfinanzierungsgesetz – ZuFinG II). The aim is to enable real estate funds to supplement their real estate ... (more)
October 22, 2024
beinformed: Financing for the Future Act II - Planned amendments to the German Investment Tax Act
On August 27, 2024, the draft bill for a Financing for the Future Act II (Zweites Zukunftsfinanzierungsgesetz - ZuFinG II) was published. The almost 210-page draft also contains fundamental changes to the German Investment Tax Act, which the Federal Ministry of ... (more)
February 14, 2024
beinformed: Final application decree on the Foreign Tax Act reduces the administrative burden of add-back declarations
At the end of last year, the Federal Ministry of Finance published the application decree on the CFC Act. There is positive news to report: (1) Investors, for whom the attributed income does not trigger a tax liability, do not ... (more)
