PRIVATE WEALTH MANAGEMENT COMPANIES

Transcription

1 PRIVATE WEALTH MANAGEMENT COMPANIES (SPFs)

2 2 Private Wealth Management Companies (SPFs) TABLE OF CONTENT FOREWORD 3 1. INTRODUCTION 4 2. ACTIVITIES OF AN SPF 2.1 Permitted activities Activities not permitted TAX REGIME 3.1 Taxes payable Double tax treaties LEGAL ASPECTS 4.1 Incorporation Shares Supervision and control...7

3 Private Wealth Management Companies (SPFs) 3 NATIONAL INTERNATIONAL FOREWORD With a proven track record of nearly 60 years in Luxembourg, BDO has developed nationally and internationally recognised expertise. BDO is the independent professional offering the widest array of services in Luxembourg and can also rely on the skills of the BDO international network, which is the 5th auditing, accounting and tax network in the world. The range of services offered by BDO includes: financial engineering accounting expertise tax advice payroll management and legal and corporate social planning internal and external auditing engineering of investment funds and other Luxembourg regulated investment vehicles and their administration IT engineering and development. In permanent contact with an international clientele, the Financial Engineering department offers its experience and skills in the administration of Luxembourg companies as well as in the setting up of ad hoc structures including entities from other jurisdictions. The following services are offered: analysing the opportunity to form a company and choosing its type drafting of the articles and implementation of all of the formalities necessary to form a company bookkeeping, annual accounts, legal formalities, tax and VAT returns liquidation, mergers, demergers and other restructurings. Thanks to its close co-operation with the other member firms of BDO International, the Financial Engineering department is also able to assist in the set up and management of international structures involving multiple jurisdictions. BDO s main strength is primarily based on its human capital, made up of experts from complementary disciplines, which ensures a personalised and high-level service.

4 4 Private Wealth Management Companies (SPFs) ABOLITION OF THE H29 CREATION OF THE SPF 1. INTRODUCTION 1.1 The law of 11 May 2007 on the creation of a Private Wealth Management Company (SPF Société de Gestion de Patrimoine Familial) In its decision of 19 July 2006, the European Commission considered that Luxembourg holding companies created under the law of 1929 benefited from state aid due to reduced charges as a result of this status. Responding to this decision of the European Commission, the Luxembourg government decided to repeal the 1929 holding company regime as at 31 December However, to partially offset the effects of the abolition of the 1929 holding company regime, the Luxembourg legislator created the Private Wealth Management Company in compliance with the European requirements. The purpose of this was to combine adequate taxation with the management flexibility of using a company to manage private wealth.

5 Private Wealth Management Companies (SPFs) 5 2. ACTIVITIES OF A SPF PERMITTED ACTIVITIES 2.1. Permitted activities The principle is to allow the SPF to carry out all activities that an individual is allowed to do. The sole purpose of the SPF is to acquire, hold, manage and dispose of financial instruments, cash and other types of assets Acquisition of an equity stake An SPF is permitted to hold equity stakes provided that it does not interfere in the management of the company in which it holds such stakes. It cannot carry out the role of director on the decision-making bodies of the companies in which it holds such stakes Management of securities An SPF may create, acquire, manage and sell a portfolio of securities (shares, bonds, warrants, stock options, etc.) issued by public or private organisations in Luxembourg or abroad. 2.2 Activities not permitted Commercial activity An SPF is not allowed to conduct any commercial activity of any kind Property An SPF cannot acquire immovable property since direct investment is deemed equivalent to be a commercial activity. However, an SPF is allowed to acquire immovable property indirectly through a subsidiary, provided it is not fiscally transparent Loans and advances The granting of remunerated loans and advances is not allowed, even to a company in which the SPF holds an equity stake. However, the SPF may, on an ancillary basis and strictly without remuneration, make an advance or stand guarantee for the commitments of the company in which it holds an investment Funding An SPF may borrow from a banking institution or a shareholder. There is no maximum debt ratio. However, if debts exceed eight times the amount of the paid-up capital, an additional registry tax (taxe d'abonnement) will be payable (cf 3.1).

6 6 Private Wealth Management Companies (SPFs) BENEFITS GRANTED 3. TAX REGIME 3.1 Tax payable An SPF is exempt from corporate income tax, municipal business tax and wealth tax Annual registry tax (taxe d abonnement) An SPF is subject to an annual registry tax at the rate of 0.25%, subject to a minimum of 100 and a maximum of The tax base is the amount of the paid-up capital plus any existing share premiums. In the year of its formation or liquidation, the SPF is liable to tax at pro rata of the number of days of its existence. The portion of debts that exceeds eight times the amount of the paid-up capital and share premium is included in the tax base for the registry tax. Example (EUR) Share capital: Share premium: VAT Since an SPF cannot have a commercial activity, it will not be subject to VAT Distribution of dividends The distribution of dividends by an SPF to its shareholders is exempt from withholding tax at source in Luxembourg Taxation of savings As paying agent, an SPF must apply a withholding tax at source of 10% on interest payments made to individuals resident in Luxembourg and 20% (up to June 2011 and 35% thereafter) on interest payments made to individuals resident in another European Member State. 3.2 Double tax treaties By virtue of its special tax status, the benefits granted by double tax treaties are not applicable to an SPF. Accordingly, the withholding tax rate on income from overseas is the normal rate applied in the country from which the income originates. Amount of debt: The part of the debt exceeding 8 times the share capital is included in the tax base for the subscription tax: *( ) = Tax base for the registry tax : = Resulting in a tax of * 0.25% = 1 500

7 Private Wealth Management Companies (SPFs) 7 SHAREHOLDING SUPERVISION 4. LEGAL ASPECT An SPF may adopt one of the following legal forms: Société à responsabilité limitée ( Limited Liability Company, LLC - minimum capital of ) Société anonyme ( public limited company - minimum capital of ) Société en commandite par actions ( partnership limited by shares - capital of , at least one limited and one general partner) Cooperative society (société coopérative) organised as a public limited company (société anonyme). The indication of the legal form is to be complemented by the initials SPF or by Société de Gestion de Patrimoine Familial. 4.3 Supervision and control The tax supervision of the SPF is carried out by the Administration de l'enregistrement et des Domaines. This audit is limited to checking facts and data concerning the company s tax status. The domiciliary agent, the statutory auditor or the chartered accountant of the SPF must certify annually, no later than July 31, that: the eligible investor status as defined above has been complied with the SPF complies with the obligations of a paying agent for tax withheld at source on interest payments The director of the Administration de l'enregistrement et des Domaines can decide on the suspension of the SPF s special tax status. It is possible to appeal against decisions made by this body. 4.1 Incorporation The articles of association of an SPF must state that the company is explicitly subject to the provisions of the Luxembourg law of 11 May The exclusive purpose of an SPF is the acquisition, holding, management and disposal of financial assets [...]. 4.2 Shares The shares or corporate units of an SPF are reserved for eligible investors. Eligible investors are: individuals acting in the context of the management of their personal wealth management entities acting solely in the interest of the private wealth (e.g. a trust or a foundation) intermediaries acting on behalf of the above-mentioned eligible investors. Shares issued by an SPF cannot be subject to public offer or be admitted for listing on a stock exchange.

8 For further information, please contact your regular BDO contact person. BDO 2, Avenue Charles De Gaulle Boîte postale 351 L-2013 Luxembourg Tel This publication is intended to provide the general information for the reader. The information contained in this publication may not be exhaustive and BDO cannot be sure that such information is accurate on the date that it is received by the reader or that it will be accurate in the future. BDO cannot therefore give any guarantee regarding the information contained herein and cannot be held liable for errors, omissions, or for the possible effects, results or consequences of the use of this document, which is issued for information purposes only. No reader should act on or refrain from acting on the basis of this publication, which cannot, under any circumstances, be a substitute for professional advice. BDO 2014 BDO Audit and BDO Tax & Accounting, sociétés anonymes incorporated in Luxembourg, are members of BDO International Limited, a UK Company limited by guarantee, and form part of the international BDO network of independent member firms. BDO is the brand name for the BDO network and for each of the BDO Member Firms.