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20 EC Tax Rev. 305 (2011)
Liechtenstein Tax Treaties: Ramifications on EEA-WHT Reclaims?

handle is hein.kluwer/ectaxrev0020 and id is 305 raw text is: Forum Liechtenstein Tax Treaties:Ramifications on EEA- WHT Reclaims? Dr Alexander Lindemann, was Head of the European Financial ServicesDesk with PricewaterhouseCoopers Switzerland. Since September 2011, he is Head of Business Development Fund Solutions with Credit Suisse Asset Management Christian Glewwe & Georg Wohigemuth, are Members of the European Financial Services Desk with PricewaterhouseCoopers Switzerland Aim of this article is to examine the possibility for Liechtenstein Investment Funds' to apply for a refund of discriminatory withholding taxes before tax information exchange agreement (TIEA) or a double tax treaty (DTT) was concluded with the respective EU/EEA Member State. In the light of recent tax treaties such as the DTT with Germany just signed, based on decisions made by the European Court of Justice (ECJ) in the recent past, this article is analysing whether the restriction of capital movement between the EU/EEA Member States can be justified in case of Liechtenstein Investment Funds using a tax evasion argumentation. 1 BACKGROUND ON LIECHTENSTEIN'S RECENT TAX TREATIES Since 2005, Liechtenstein has signed more then twenty tax information exchange agreements (TIEAs) and double tax treaties (DTTs) including with Germany, France, the Netherlands, Belgium, Austria, Ireland, Great Britain, and Luxembourg - all of them incorporating Organisation for Economic Cooperation and Development (OECD) Standard according to Article 26 of the OECD Model Tax Convention. Where TIEAs have been signed, in a second step, DTTs are being negotiated.2 Since June 2008, Liechtenstein has been offering to all EU/EEA Member States the OECD Standard in the international cooperation in tax issues under modern bilateral agreements. On 12 March 2009, the Liechtenstein government has widened this offer worldwide and has acknowledged the OECD tax information exchange standard as binding for itself worldwide ('Liechtenstein Declaration'). In addition, Liechtenstein has signed the protocol for the association of Schengen and, as part of this, negotiated a multilateral Anti-Fraud Agreement with the EU/EEA Member States. The Anti-Fraud Agreement is currently going its way through the EU/EEA legislative process and is expected to be implemented during the course of 2011. It provides for administrative assistance in the form of exchange of relevant information in case of tax fraud and similar offences with all twenty-nine EU/EEA Member Liechtenstein Investment Funds mean an investment through an investment company or a collective trusteeship (see Point 2 for more details). 2 Liechtenstein is currently negotiatingtfurther OECD TIEAs and DTTs with Italy, Spain, and Nordic countries (e.g., Finland, Norway, and Sweden). States without backward limitation as well as relevant legal assistance. The agreement will - unlike a directive - enter into force directly without further implementation measures. 2 LEGAL ASPECTS OF COLLECTIVE INVESTMENT UNDERTAKINGS IN LIECHTENSTEIN Collective investment undertakings under the Law of 19 May 2005 on Investment Undertakings (Investment Undertakings Act, IUA) could be carried out mainly through an investment company or a collective trusteeship-' The investment company can be characterized as a corporation with an own legal personality and unlimited duration that can issue and redeem shares at any time. Further, each investor of the investment company is obliged to pay an amount equal to the net asset value (NAV) of their share in the investment company to participate in the profits in relation to the NAV Thus, the investment company could be seen as the Liechtenstein equivalent to a Luxembourg or French Societ& d'Investissement A Capital Variable (SICAV). The collective trusteeship on the other side has no legal personality. The rights of the investor are derived from the thoughts of a trusteeship. Similar to the investment company is the unlimited duration of the collective trusteeship and the participation in the profits in relation to the NAV. Overall, the collective trusteeship is comparable to a Luxembourg or French Fonds Commun de Placement (FCP). 3 Otherwise, a collective investment undertaking could be carried out by bank internal fund assets.

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