Certificates Of Residence For Funds

Circular L.G. – A. n°61 issued on February 12th 2015 (hereafter the "Circular") by the Luxembourg tax authorities (hereafter the "LTA") aims at clarifying their position with regards to the issuance of certificates of residence for undertakings for collective investments (hereafter "UCIs") as well as the specific procedure to be followed depending on the type of UCIs and the relevant country requesting the certificate of residence.

A certificate issued by the LTA only reflects the position of the LTA with regards to the residence and qualification of a UCI under a specific double tax treaty. This unilateral position may not be shared by the other treaty country.

In the Circular, the LTA sets out three different types of certificates of residence.

The LTA sets out three different types of certificates of residence (an example of each is provided in the appendices to the Circular) that it issues depending on certain criteria detailed below.

The first type of certificate of residence (hereafter the "Type 1 Certificate") is issued in cases where:

the Luxembourg UCI is an incorporated UCI (i.e. either a UCITS or a SIF incorporated as a SICAV or a SICAF in accordance with the law of December 17th 2010 or the law of February 13th 2007 respectively); a double tax treaty between Luxembourg and the other country is in force; and the double tax treaty applies to UCIs. The determination whether the double tax treaty applies to UCIs can be based either on:

an express consent by the other country; a clear provision in the respective double tax treaty (as understood by the LTA); or the LTA's interpretation of the double tax treaty in the absence of a specific provision. The second type of certificate of residence (hereafter the "Type 2 Certificate") is issued for unincorporated UCIs, i.e. FCPs, in cases where the relevant double tax treaty includes:

a specific provision that assimilates FCPs to an individual for the purpose of the double tax treaty; or a provision that includes all UCIs irrespective of their form (whether incorporated or unincorporated) in the definition of resident. In order for the LTA to issue a Type 1 Certificate or a Type 2 Certificate, a request has to be filed with the tax office "Sociétés 6" together with a certificate from the CSSF that the UCI is...