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Jenny Wheater (ed.) - Tax-efficient Private Fund Structuring

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Jenny Wheater (ed.) Tax-efficient Private Fund Structuring
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The structuring of a private equity fund affects its ultimate return. A poorly structured fund or investment can cause tax leakage for investors and create undue burden for members of the management team who receive carried interest. Private Equity Internationals new publication, Tax-Efficient Private Fund Structuring, is a comprehensive and highly practical guide on tax planning for private equity funds established in the UK, investing in UK assets or having limited partners based in the UK, with input from relevant key jurisdictions in Europe. Edited by Jenny Wheater of Duane Morris, with lead contribution by SJ Berwin, this guide systematically identifies and analyses the tax issues at the fund level, the fund manager level and investor concerns. Importantly, new regulations such as FATCA and the proposed financial transaction tax (FTT), both of which demonstrate the rapid globalisation of tax law generally, are discussed. This 192-page publication is an essential reference for every private equity professional with dealings in the second largest private equity market in the world.Find out how to efficiently structure your fund for optimal returns: Familiarise yourself with fund structures and developments in the UK, France, Germany, Luxembourg, the Netherlands and SpainInform yourself of changing approaches to carried interest in the UK, France, Germany, Spain and SwedenAcquire insight into how value-added tax impacts fundsCompare the advantages of using holding companies in Cyprus, Gibraltar, Ireland, Luxembourg and the Netherlands to minimise tax leakagePrepare yourself for FATCA (or the relevant IGA) and the FTT and how they will impact your fundsLearn more about the latest thinking on treaty relief and corporate residence issuesDiscover how new regulatory imperatives are changing the tax planning landscape

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TAX-EFFICIENT PRIVATE FUND STRUCTURING A practitioners guide for the UK and - photo 1

TAX-EFFICIENT
PRIVATE FUND
STRUCTURING

A practitioners guide for the UK and Europe

Edited by

Jenny Wheater, Duane Morris LLP

Published in September 2013 by
PEI
6th Floor
140 London Wall
London EC2Y 5DN
United Kingdom

Telephone: +44 (0)20 7566 5444
www.peimedia.com

2013 PEI

ISBN 978-1-908-783-25-7
eISBN 978-1-908-783-44-8

This publication is not included in the CLA Licence so you must not copy any portion of it without the permission of the publisher.

All rights reserved. No parts of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means including electronic, mechanical, photocopy, recording or otherwise, without written permission of the publisher.

Disclaimer: This publication contains general information only and the contributors are not, by means of this publication, rendering accounting, business, financial, investment, legal, tax, or other professional advice or services. This publication is not a substitute for such professional advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified professional adviser. Neither the contributors, their firms, its affiliates, nor related entities shall be responsible for any loss sustained by any person who relies on this publication.

The views and opinions expressed in the book are solely those of the authors and need not reflect those of their employing institutions.

Although every reasonable effort has been made to ensure the accuracy of this publication, the publisher accepts no responsibility for any errors or omissions within this publication or for any expense or other loss alleged to have arisen in any way in connection with a readers use of this publication.

PEI editor: Wanching Leong
Production editor: Julie Foster

Printed in the UK by: Hobbs the Printers (www.hobbs.uk.com)

About the editor

Jennifer (Jenny) Wheater is a partner in the tax practice at Duane Morris LLP where she works in the London office.

Jenny focuses on the tax aspects of a wide range of issues and maintains a broad practice so as to offer a more complete and rounded service to clients. She has significant experience in structuring various forms of investment funds, including the tax implications of holding companies and the requirements of successfully establishing and running these entities to ensure tax goals are achieved. Jenny has also advised carried interest holders on optimal structures through which to hold their carry and has devised tax-efficient ways of conducting fund deals. In the secondaries sphere, Jenny has considered options in relation to possible UK stamp duty issues on secondary transactions.

Jenny also advises extensively on value-added tax (VAT) issues, both in relation to fund structures and in a wider context, sometimes involving specific areas impacting international clients such as electronically supplied services.

Jenny has considerable breadth of knowledge on tax issues pertaining to employment. She frequently assists clients in applying the UKs employment related securities regime, which impacts carried interest holders in funds, as well as many others. Jenny has recently developed a special interest in internationally mobile executives and how their situations can be managed so as to minimise tax for both employer and employee.

In addition to a UK bachelors degree in law from Durham University, Jenny has a master of laws in US taxation from Georgetown University and is admitted to practice in both England and Wales, as well as in New York. Noted in Chambers Global as a dualqualified lawyer, Jenny is particularly familiar with UK/US cross-border tax issues and regularly advises clients on such matters, including the establishment of UK operations, the application of the UK/US double tax treaty and, recently, in the area of the Foreign Account Tax Compliance Act (FATCA) and its related intergovernmental agreement with the UK.

Jenny is a member of the British Venture Capital Association (BVCA) Tax Committee and is a frequent speaker and writer on UK tax issues. She was a speaker at the 2012 BVCA Tax Legal and Regulatory Summit on FATCA and spoke on the topic of fund structuring issues at the Lexis-Nexis Private Equity Transactions & Tax Conference in May 2013. Jenny sits on the editorial board of Business Law International, an IBA publication. In this capacity, she has authored several articles, including an update on the potential impact of FATCA on the fund industry in 2012.

Picture 2

Author biographies

Christophe Baert is a Paris-based senior associate in the private equity department of Proskauers Paris office and a member of the private investment funds group at Proskauer LLP.

Christophe has over 12 years of experience as a legal adviser to the private equity industry advising private equity fund managers, institutional investors and founders of portfolio companies. Double-skilled on fund formation and private equity transactions, Christophes practice covers a broad range of issues including fund formation and all associated matters (structuring French management companies, fund investments, carried interest, co-investment arrangements, etc.), as well as venture capital, capital growth transactions and secondary transactions.

Christophe has a DJCE and a DEA de droit priv from the University of Poitiers. He is admitted to the bar in France.

Raphal Bra is a partner in the tax department at SJ Berwin LLP in Paris. His expertise is focused on tax matters, in particular on investment fund structures, both French and foreign (FCPR, partnership, SICAR, FIS, SAS) for various assets (private equity, real estate funds, infrastructure funds). In this context, he also assists funds on how to implement investment schemes or incentive plans for their management teams.

He is also involved in the tax structuring of numerous acquisitions of companies, leveraged buyouts, real estate investments, restructurings and refinancings for investment funds and industrial groups. Additionally, Raphal has extensive experience in tax litigation and tax audits.

Raphal began his career at Cleary Gottlieb Steen & Hamilton (20022007) in New York, and then joined the tax department of SJ Berwin, Paris in May 2007. He became a partner in May 2011.

Raphal is a graduate of the University Paris II Panthon Assas (DESS-DJCE in Business Law, 2000) and of Harvard Law School (LLM and International Tax Program Certificate, 2002). He also holds a degree from the Institut dEtudes Politiques of Paris (Public Affairs, 1997).

Raphal has been a member of the New York Bar and of the Paris Bar since 2003. His native language is French and he is fluent in English.

Michiel Beudeker is a tax adviser and a member of the international tax practice group at Loyens & Loeff in Amsterdam, the Netherlands. He advises multinationals, banks and private equity funds on inter alia international financing transactions, corporate restructurings, fund formations, holding and financing structures and transfer pricing. He also focuses on transactions between the Netherlands and Belarus, Estonia, Latvia and Lithuania. Further, Michiel is a member of the corporate restructuring & insolvency team.

Michiel is a member of the International Fiscal Association (IFA) and of the Dutch Association of Tax Advisers (NOB) and he frequently lectures and publishes on various taxation matters. Michiel worked in the London office from 2008 through 2011.

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