Notable Tax Provisions and Circumstances to Weigh to Optimize Treatment of Non‑U.S. and Tax Sensitive Investors (Part One of Two)

Different types of investors (e.g., non‑U.S. investors, tax-exempt investors and sovereign wealth funds) have particular tax profiles and sensitivities that should be taken into account when structuring funds. Strafford CLE Webinars recently hosted a webinar to provide guidance on tax strategies in structuring PE, real estate and private credit funds. The program featured DLA Piper partner Shiukay Hung; Ashurst partner M. Sharon Kim; and Mayer Brown partner JoonBeom Pae. This first article in a two-part series considers some of the major tax provisions that PE sponsors must weigh when forming funds for non‑U.S. and other tax-sensitive investors. The second article will explore typical PE fund structures seen in the market; specific considerations and structures for real estate and credit funds; and unique issues that may arise from subsequent closings and the SEC’s proposed rules on the treatment of GP clawbacks. For further insights from Kim and Pae, see our two-part series: “Importance of Diligencing Transfer Restrictions in Secondaries to Avoid PTP, REIT and Other Negative Issues” (Sep. 29, 2020); and “The Need to Parse Tax Elections, Allocate Taxes and Obtain Withholding Certificates Early in a Secondary Transaction” (Oct. 6, 2020).

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