The Luxembourg Council of State has issued its opinion dated 29 April 2014 on the bill of law to introduce in Luxembourg the private foundation (the “Bill”). It has raised certain issues and suggested certain amendments to the Bill:

  • On the civil law aspects of the Bill, the Council of State noted that the private fondation is a sui generis legal entity which has nothing to do with the philantropic foundation exept its name. The Council of State suggested the lawmaker to deepen the nature and characteristics of the private foundation as a patrimonial entity. Going into more details, the Council of State noted that the private foundation should acquire its legal personality as from the date of its creation through the execution of its incorporation deed in the presence of a notary and also noted that a private foundation could not be formed post-mortem. Further, the Council of State also pointed out that the Bill was silent on the articulation of the institution of a private foundation with certain public policy provisions applicable to the portion of an estate that is reserved to legal heirs.
  • On the tax aspects of the Bill, the Council of State raised a certain number of technical issues with respect to registration duties as well as to income tax and municipal business tax.

We therefore expect that the draft bill be substantially modified before its vote. The entry into force of the new form of the private foundation cannot be anticipated with certainty at this stage, althrough it is the common intention of the government and of the industry players that it becomes available as soon as it is technically possible.

The description of the Luxembourg Private Foundation Bill can be found here.