Loan funds are currently very attractive for institutional investors
Loan funds are in demand because under Solvency II, investments in debt funds are treated as “debt investments” due to the look-through approach, and thus the capital adequacy requirements are more favorable than for equity investments, depending on the design of the underlying debt instruments. In addition, the investment ordinance to which pension funds and pension funds are subject has also been opened up to investments in loan funds. Finally, there is a practical aspect: In the current low-interest environment, investors are looking for attractive investment opportunities. These can also be debt investments.
Closed-end loan funds have become possible in the first place because of the new environment. Previously, the issuance of loans by funds failed due to the requirement to obtain a license under banking supervision law. A fund could never acquire such a permit because the requirements for a fund manager could not be met. The new regulations clarify that a banking license is not required for closed-end EU funds with only professional (and semi-professional) investors.
The taxation of loan funds and their investors depends on the legal form of the fund vehicle. In the case of German funds, one possible option is a partnership, e.g., a partnership with a partner. a closed-end investment limited partnership. The tax consequences are likely to be more favorable for a domestic partnership if it is asset-managing (i.e., not “commercial”) in the tax sense: final withholding tax for private investors; no German tax return obligations for non-German investors. Such asset-managing status should be achievable for loan funds — taking into account the investment strategy of a “typical” loan originating fund.
The management of funds organized as partnerships (AIF) has so far been subject to VAT in Germany — unlike in most other EU member states. The fact that this violates European law has long been warned and was recently confirmed by the ECJ ruling of December 9, 2015. In our opinion, as a result of the ruling, Germany is “obliged” to extend the aforementioned VAT exemption to all investment assets, i.e. also to loan funds. Whether and in what form this will take place is one of the most exciting tax issues at present.
On the other hand, loan funds may qualify as investment funds within the meaning of the Investment Tax Act. Following the entry into force of the Investment Tax Act on January 1, 2018, a distinction will probably have to be made between so-called public investment funds and special investment funds. The former will then presumably be subject to a new, non-transparent taxation regime. Accordingly, although the Fund itself is subject to tax on certain income from German sources. However, interest income at the fund level should generally be tax-exempt and only (fully) taxed at the investor level. The so-called investment tax transparency principle will continue to apply to special investment funds, although it will be heavily modified as of 2018.
Patricia Volhard, LL.M.
Private funds, fund structuring, supervisory law
With P+P since 2005, attorney at law in international law firm in Frankfurt and Paris (1999 — 2005). Admitted to the bar in Frankfurt in 1999 and as Avocat à la Cour in Paris in 2000. Law studies in Saarbrücken, Frankfurt a. Main, Strasbourg, studies at the LSE, London School of Economics and Political Science (LL.M. Banking and Finance 1999).
Dr. Peter Bujotzek, LL.M.
Private funds, tax law
Specialization: private equity fund structuring, investment law and investment tax law. Mr. Bujotzek has been with P+P since 2008. Legal clerkship in Duisburg, Düsseldorf and New York (2006–2008). Research assistant at the Institute for International Business Law at the University of Münster (2004–2006).