The bill of law number 6595 submitted to the Parliament on 22 July 2013 (the “Bill”) intends to introduce in Luxembourg the private foundation (“fondation patrimoniale”), which has been in development for two years.
The Luxembourg private foundation can be considered as a new wealth management vehicle created with the intention of contributing to the development of the “private banking” practice in Luxembourg. Conversely, the Bill might also be regarded as an instrument created in order to preserve the strength of the wealth management industry, following the government’s decision to abolish bank secrecy by 2015 and to introduce an automatic exchange of information with third party countries.
The Luxembourg private foundation further aims at increasing Luxembourg’s attractiveness, essentially for entrepreneurs, wealthy families, and high net wealth individuals. It will also complete the range of wealth management instruments already in force, such as the private wealth management vehicle (société de gestion de patrimoine familial) and the family office and also be an attractive alternative instrument with which to organise succession planning and preserving family wealth.
The salient features of the Luxembourg private foundation are currently as follows:
- it must be established by a notarized deed, and any subsequent changes made to its incorporation deed will be passed in front of a Luxembourg notary;
- it has the legal personality;
- it is established for a limited or unlimited duration;
- the minimum initial contribution amounts to EUR 50,000 in cash or in kind, and the Luxembourg private foundation can hold any movable or immovable assets;
- it must necessarily have its registered address/office in Luxembourg or, as the case may be, be registered at a professional’s domiciliation company in Luxembourg;
- it is submitted to mandatory registration with the Luxembourg trade and companies register;
- it is composed of a founder, one or several beneficiaries, and one or several directors forming the board of directors in charge of its management;
- the founder, director, and beneficiary may be the same and sole person;
- it cannot perform commercial or financial activities, but is a for-profit vehicle;
- there is a requirement of a supervisory board if (i) there are more than five beneficiaries or (ii) for assets exceeding EUR 20.000.000; and,
- it shall establish annual accounts and shall appoint an external auditor in charge of the control of the accounts in case of a patrimony exceeding EUR 20,000,000.
From an international point of view, the principle of Luxembourg private foundation is broadly comparable to existing vehicles in other countries, such as Germany, Liechtenstein, Belgium, the Netherlands, and England.
In addition, the private foundation globally benefits also from Luxembourg’s technical expertise in the field of wealth management. Its main advantages are as follows:
- it is an orphan entity (no shareholders or members) allowing confidentiality and privacy (no requirements to fill annual accounts with the Luxembourg trade and companies register);
- its structure offers strong legal flexibility;
- it benefits from tax advantages;
- it introduces the “step-up”: a non-resident individual who becomes a Luxembourg tax resident will be authorized to revalue the purchase price of securities he holds at their fair market value with effect as of the migration date. The step-up only applies to substantial shareholdings (more than 10%) and to convertible loans where the taxpayer holds a substantial stake (in the loan’s issuer); and, lastly,
- it carries Luxembourg’s “classic” advantages in terms of legal and taxation stability.
It is expected that the Bill be amended before becoming a law, since some provisions relating to estate and corporate aspects will certainly be discussed during the parliamentary sessions. At the time of the article, the Luxembourg government is still not in place, but its imminent appointment should not have a major impact on the Bill.