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EU Funds Market Faces Tax Barriers

September 2010 - Tax & Private Client. Legal Developments by Hassans.

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An industry research report published jointly by the European Fund and Asset Management Association (EFAMA) and KPMG?s European Investment Management practice shows that there are significant tax complications in the new Undertakings for Collective Investment in Transferable Securities (UCITS IV) Directive that prevent the achievement of a harmonized European funds industry.

The report identifies critical tax issues and numerous examples of discrimination and inefficiencies across the 27 European Union (EU) member states.

The report notes that the UCITS IV Directive, to be implemented by member states by July 2011, offers considerable scope for re-structuring fund management operations in the EU. The directive introduces six efficiency measures, which could make the European fund industry more competitive and attractive to investors. However, the report concludes that the directive does not deal with critical tax reforms required to enable effective use of the efficiency measures of the directive.

The EFAMA and KPMG make a number of recommendations to resolve the tax barriers preventing an efficient single market:

  • Fund Mergers: Under UCITS IV it will be possible to carry out cross-border mergers of UCITS funds. Certain member states currently tax fund mergers at the investor level, which leads to a situation where investors would pay taxes on unrealized gains. In order to make UCITS IV a success, the report recommends that fund mergers should be carried out in a tax-neutral manner at the fund and investor level.
  • Management Company Passport: UCITS IV will make it possible to establish a UCITS fund in one member state which could be managed from another member state. In this respect, the main issue is that in certain member states, the management of a fund cross border could lead to a fund becoming tax resident (and therefore liable for tax) in the Management Company?s state of residence. The report recommends that the fund should only be taxable in the country where the fund is established or registered, even if its Management Company is resident elsewhere.
  • Master-Feeder Fund Structure: under UCITS IV, a Feeder fund will be allowed to invest its assets in another fund, a Master Fund. As it currently stands, certain member states levy withholding taxes on cross-border dividend distributions to foreign Feeders, or impose tax on redemptions in the country where the Master Fund is located. The report recommends that there should not be tax leakage between the Master and Feeder fund in order for the Master?Feeder structures to become a reality and offer investors a cost effective product.

The EFAMA and KPMG?s European Investment Management practice recommend the adoption of a tax Directive at EU level that would remove the tax barriers of UCITS IV being fully effective. In particular, it should provide for: tax neutrality of fund mergers; uniform rules governing the tax residency of funds and the place of incorporation and registration; and tax neutrality on the flow of cash between Master and Feeder funds. In the absence of a directive, the report suggests that each member state take the appropriate measures at national level in order to resolve the remaining tax obstacles.

Peter De Proft, Director General of the EFAMA, said: ?UCITS IV offers great opportunities to the funds industry and is another important step towards a single European market. EFAMA welcomes the six efficiency measures, but in the interests of the funds industry, and particularly its investors, it urges individual member states to resolve these important tax issues. Otherwise, there is a risk that the objectives of UCITS IV will not be achieved and that the funds industry will not be able to make full use of all the efficiency measures.?