CHAPTER II: MARKETING AND LISTING / 第二章：税务和上市
1. MARKETING 销售
1.1 Marketing to European professional investors / 向欧洲专业投资者销售
RAIFs benefit from a passport allowing the AIFM to market the RAIF’s shares, units or partnership interests to professional investors (as defined in the AIFMD) within the EU, through a regulator-to- regulator notification regime.
The benefit of the foregoing procedure is currently limited to AIFMs established in the European Union. At a later stage, subject to an opinion and positive advice from the European Securities and Markets Authority, the EU Commission may decide to extend the passport to non-EU AIFMs which may then, subject tocompliance with all AIFMD requirements, also manage RAIFs and benefit of thepassport.
1.2 Marketing to other well-informed investors / 销售给其他消息灵通的投资者
The marketing of RAIFs outside or within Europe to well-informed investors which do not qualify as professional investors requires compliance with the local placement rules of each country where such marketing is done.
1.3 Closed-ended RAIFs / 封闭性RAIF基金
Closed-ended RAIFs and RAIFs not investing in accordance with the principle of risk spreading (see Chapter III Section 1.2 below) may in addition be subject to the provisions of the Prospectus Law36 in the case where they intend tocarry out a public offering or admission to trading of their shares or units.
If they do not benefit from one of the exemptions provided for by the Prospectus Law, they might have to prepare a prospectus within the meaning of the Prospectus Law. In practice, however, most of the concerned RAIFs will benefit from an exemption in that respect.
36"Prospectus Law" refers to the Law of 10July 2005 on prospectuses for securities, as amended.
2. LISTING / 上市
A RAIF may apply for listing of its shares on the Luxembourg Stock Exchange («LSE») provided that it complies with the requirements of the LSE and in particular with the requirement that the shares are freely negotiable.
Assurance would be needed, however, that trading on the exchange does not permit non-eligible investors to become shareholders of a RAIF.
There is no prohibition in Luxembourg against a RAIF seeking a listing on any other stock exchange.
CHAPTER III: TAXATION / 第三章：税务
1. TAXATION OF THE RAIF RAIF / 相关税务
1.1 General tax regime / 一般税务制度
RAIFs are exempt from Luxembourg income and wealth taxes.
RAIFs are subject to an annual subscription tax (taxe d’abonnement) charged at an annual rate of 0.01% based on the total net assets of the RAIF, valued at the end of each calendar quarter.
RAIF 须缴纳年度认购税(taxe d'abonnement )，税率为0.01％，基于每个季度末估值的RAIF 总净资产。
The RAIF Law exempts from the subscription tax (i) the assets invested in other Luxembourg based UCIs, SIFs and RAIFs subject to the subscription tax, (ii) certain institutional cash funds, (iii) microfinance funds and (iv) pension pooling funds.
Individual compartments and classes which are reserved to pension schemes may also benefit from the subscription tax exemption.
1.2 Optional alternative tax regimefor RAIFs investing in risk capital / 投资风险资金的RAIF的选择性税务制度
A different tax regime applies for RAIFs set up under the form of a limited company which state in their constitutive documents that their sole objectiveis to invest their funds in securities representing risk capital and that theyare subject to the provisions of the specific article of the RAIF Law37which provides for this alternative tax regime. The tax regime intended here isthe same as that currently applicable to SICARs. As is the case for SICARs, these RAIFs do not need to spread the investment risk which means that the diversification requirements set forth in Chapter I Section 2.2 of this Memorandum do not apply to such RAIFs.
Becausea RAIF is obliged to mention specifically in its constitutive documents that it will invest exclusively in risk capital and that the relevant Article of the RAIF Law is applicable, there can be no uncertainty as to which tax regime will apply. Where a RAIF is created with multiple compartments, it is only the RAIFin its entirety, all compartments combined, which may be subject to thisalternative tax regime. It is not possible, therefore, for some compartments of a RAIF to be subject to the subscription tax regime and for other compartments to be subject to the alternative tax regime.
The RAIF Law specifies that risk capital investment means the direct or indirect provision of funds to entities with a view to their launch, development or their listing on a stock exchange. This text is identical in the definition of the same concept in Article 1(2) of the SICAR Law38. Similarly to the latter, the RAIF Law does not include further clarification on the concept of investment in risk capital. In the context of SICARs, the CSSF, being the competent authority for approving and supervising SICARs, issued its Circular 06/241 which further clarifies this concept. It is therefore this text that the RAIFs and/or their representatives and the RAIF’s auditor may draw from to interpret the concept of investment in risk capital.
The auditor of a RAIF must draw up a report to certify that, during the relevant accounting period, the RAIF has complied with the capital risk investment policy. This report must be transmitted to the Direct Tax Administration. This method of control has been introduced to ensure compliance with the requirement to invest exclusively in securities representing risk capital whereas, unlike SICARs, the CSSF does not supervise RAIFs or compliance with the provisions which are the basis of the alternative tax treatment.
RAIFs with this alternative tax regime are subject to general corporation taxes in Luxembourg at ordinary rates. However, any income derived from securities that represent risk capital held by the RAIF, as well as any income from the sale, contribution or liquidation thereof, are fully tax exempt. Income derived fromassets held pending their investment in risk capital (i.e. liquid assets) does not constitute taxable income provided such assets are invested in risk capital assets within 12 months.
37Article 48 of the RAIF Law.
38"SICAR Law" refers tothe Law of 15 June 2004 relating to the investment company in risk capital, as amended.
2. TAXATION OF THE INVESTORS IN ARAIF / 对RAIF基金投资者征税
Distributions made by a RAIF to investors as well as any payment of proceeds made upon the redemption of RAIF units, shares or partnership interests are not subject to Luxembourg withholding tax. Non Luxembourg-resident investors in a RAIF, not acting via a Luxembourg permanent establishment, will not be taxed in Luxembourg on any income or capital gains they derive from their units, shares or partnership interests in a RAIF.
3. VAT / 增值税
Management services provided to a RAIF are exempt from Luxembourg VAT. This exemption covers the provision of portfolio management services, investment advisory services and certain administrative services. Mere technical services are however not exempt from VAT, nor are supervision and control services supplied by a depositary to the RAIF. Depositary services, however, can benefit from a reduced VAT rate of 14%.
4. INTERNATIONAL TAX ASPECTS / 国际税务方面
RAIFs subject to the general tax regime and set up as a limited company should benefit, in the same as UCIs, from a certain number of tax treaties concluded by Luxembourg.
RAIFs subject to the optional regime and set up as a limited company are considered as tax resident in Luxembourg for domestic and for treaty purposes.
RAIFs, which have been established as an FCP, a common limited partnership or as an SLP, are regarded as fully tax transparent for Luxembourg tax purposes and may therefore enable the investors to claim the benefits of the tax treaties.
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