Tax Compliance for Foreign Private Equity Funds

In the Anglo-Saxon world, private equity has been an economically significant asset class for quite some time and, consequently, there is also many years of practical experience in the structuring of and tax compliance for private equity funds.

In Germany, on the other hand, there are still no uniform tax regulations for private equity funds. The long-standing practice of the tax authorities, mainly in Bavaria, was summarized in December 2003 in a BMF letter on the "Income Tax Treatment of Venture Capital Funds and Private Equity Funds", dealing in particular with the distinction between asset management and commercial operations. Subsequently, the MoRaKG ("Act on the Modernization of the Framework Conditions for Equity Investments") and the introduction of the German Venture Capital Act ("WKBG") - in addition to the Private Equity Decree applicable from then on - created further sets of regulations, some of which govern taxation in different ways. In the meantime, state aid proceedings have been initiated in Brussels against key elements of the WKBG.

The BVK even considers the attempt to advance the framework conditions for private equity in Germany with the MoRaKG and the WKBG to have failed. For this reason, the BVK also submitted a (renewed) proposal on September 3, 2009 for the creation of a capital market framework for the regulation of private equity in Germany in the legislative period 2009 to 2013, so that Germany can catch up again with international competition in private equity funds. In particular, the goal already agreed in the 2005 coalition agreement - to provide the market with a uniform private equity law - should finally be intensively pursued by creating an independent capital market law for private equity or by further developing existing laws.