Funds


What we do

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 fund sponsor on the setup of a Luxembourg private equity fund of funds for professional and semi-professional investor (advice on, review and revision of fund documentation and service provider agreements)
  • Legal and tax due diligence for several German insurance companies and pension funds for investments in real estate funds, infrastructure funds and private equity funds
  • Analysis of VAT treatment of cross-border administration services for Luxembourg RAIF and SIF fonds. In particular focus on assessment of the VAT exemption provision of Sec. 4 (8) (b) German VAT Tax Act.
  • Legal and Tax Due Diligence of an Australian real estate fund for the Luxembourg pooling vehicle of a German occupational pension scheme (Versorgungswerk) including the implementation of an Australian holding vehicle and side letter negotiations
  • Qualification of a domestic AIF as a real estate company for an investment by a German special AIF with non-variable investment conditions

News


Funds and Products
June 29, 2020

After the Federal Ministry of Finance already discussed a first partial draft with the associations in December 2019, last week a new partial draft for the long-awaited amendment to the Circular on the German Investment Tax Act of May 21, ... (more)

June 5, 2020

This year too our partners Dr. Carsten Bödecker and Harald Kuhn contributed to the third edition of "The Comparative Legal Guide to Public Investment Funds 2020", which was published on April 9, 2020. You can find the article on the ... (more)

March 26, 2020

In spring, many companies, including investment companies, are planning their ordinary shareholders' meeting. The safety measures taken in order to avoid a spreading of the COVID-19 pandemic, especially restrictions on gatherings of people, partly have significant effects on the ability ... (more)

Finance


What we do

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 21, 2016

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)

March 1, 2016

The govern­ment draft of the Act im­ple­men­ting UCITS V pro­vided that open-ended funds were per­mitted to re­struc­ture and pro­lon­gate pre­viously ac­quired loans. How­ever, the Ger­man open-ended special AIFs were ex­clu­ded from that ge­ne­ral per­mission. The Finan­cial Committee of the Ger­man Bundes­tag ... (more)

February 29, 2016

We are de­ligh­ted to announce that Legal 500 Ger­many recog­nizes Bö­decker Ernst & Part­ner as a “Leading Firm” for tax. The “very high level of ex­per­tise and un­der­stan­ding of the needs of the clients”, of both name part­ners, Carsten Bö­decker and ... (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 structuring advice for the acquisition of a majority stake in a Portuguese property holding company for a German tax-exempt investor via its Luxembourg regulated investment vehicle
  • 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
December 6, 2019

In its judgement of May 22nd, 2019 (I R 11/19) the German Federal Tax Court decided that in certain cases the German controlled foreign company (CFC) taxation may violate EU law. The judgement concerned controlled-company income from invested capital (so called Zwischeneinkünfte mit ... (more)

August 13, 2019

On July 31st, 2019, the German federal government published its bill amending the Real Estate Transfer Tax Act. In particular, the draft contains new regulations for the long-discussed tightening of the taxation of share deals with the real estate transfer tax. ... (more)

November 26, 2018

Most of the recently enacted German double tax treaties include a clause for real estate-rich companies in the article on capital gains. Under this clause, capital gains from the alienation of shares deriving more than 50 percent of their value from ... (more)

Treasury


What we do

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
September 23, 2019

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)

September 4, 2019

In late July, the German federal government published a draft bill on additional tax incentives for electromobility and amendments to other tax provisions. It is basically the omnibus law to be adopted every year (previously referred to simply as the ... (more)

May 3, 2019

Open-ended real estate funds, which experienced liquidity difficulties in the wake of the financial market crisis and ultimately had to be wound up as a result, have permanently stopped issuing and redeeming their shares. They are therefore referred to as ... (more)

Insurance


What we do

We advise insurance companies and other regulated 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.)
  • Tax and legal advice for a loan-issuing debt fund
  • 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
  • Legal due diligence of a Luxembourg infrastructure fund for a German health insurance company
  • Tax advice on structuring of a Luxembourg fund vehicle for German foundations

News


Insurance
June 29, 2020

After the Federal Ministry of Finance already discussed a first partial draft with the associations in December 2019, last week a new partial draft for the long-awaited amendment to the Circular on the German Investment Tax Act of May 21, ... (more)

January 8, 2020

On December 10, 2019, the German Ministry of Finance published a first draft of a reform of its controlled foreign corporation (CFC) taxation. Even though Germany had already implemented CFC taxation in 1972, a reform was necessary because the existing ... (more)

December 16, 2019

The European Court of Justice ruled (ECJ 13 November 2019 – C-641/17) that the definitive withholding tax levied on German dividends received by foreign pension funds infringes the principle of the free movement of capital (Article 63 of the Treaty on the Functioning of ... (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
  • Guidance and support for claims for unlawfully levied withholding tax in Germany and other European countries
  • 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
  • Determination of the application of the double tax treaty between Luxembourg and the United States to a Luxembourg securisation vehicle
  • Structuring of a Luxembourg AIF for German institutional investors investing in US real estate

News


International Taxation
January 8, 2020

On December 10, 2019, the German Ministry of Finance published a first draft of a reform of its controlled foreign corporation (CFC) taxation. Even though Germany had already implemented CFC taxation in 1972, a reform was necessary because the existing ... (more)

December 13, 2019

On November 29, 2019, the so-called Annual Tax Act 2019 passed the German Bundesrat (upper house) and is expected to be enacted before the end of this year. The Act introduces, inter alia, the requirement to capitalise fund structuring costs, ... (more)

December 6, 2019

In its judgement of May 22nd, 2019 (I R 11/19) the German Federal Tax Court decided that in certain cases the German controlled foreign company (CFC) taxation may violate EU law. The judgement concerned controlled-company income from invested capital (so called Zwischeneinkünfte mit ... (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
  • Regulatory analysis of an investment pool (German Capital Investment Code, German Banking Act)
  • Changes to the ManRegs of Lux FCP SIF to meet requirements for "Spezial-Investmentfonds 2018"
  • 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
June 29, 2020

After the Federal Ministry of Finance already discussed a first partial draft with the associations in December 2019, last week a new partial draft for the long-awaited amendment to the Circular on the German Investment Tax Act of May 21, ... (more)

March 26, 2020

In spring, many companies, including investment companies, are planning their ordinary shareholders' meeting. The safety measures taken in order to avoid a spreading of the COVID-19 pandemic, especially restrictions on gatherings of people, partly have significant effects on the ability ... (more)

January 8, 2020

On December 10, 2019, the German Ministry of Finance published a first draft of a reform of its controlled foreign corporation (CFC) taxation. Even though Germany had already implemented CFC taxation in 1972, a reform was necessary because the existing ... (more)