For years, open-ended real estate funds have been encountering legal grey areas when it comes to the integration of renewable energies – be it in terms of taxes, supervision or the real estate quota. With the new Location Promotion Act (StoFöG), the legislator wants to eliminate these uncertainties. Tobias Moroni spoke with Dr. Gabriele Lange, Head of Tax at the Institutional Investment Group, about the most important changes.
Tobias Moroni: Hello Gabriele, what have been the biggest uncertainties about open-ended real estate funds so far?
Dr. Gabriele Lange: Photovoltaics had played a role for a long time, but was never conclusively regulated. In particular, it was unclear how the investments are to be classified under supervisory law, whether there is a risk of tax risks (“loss of status”) and whether investments in renewable energies are still to be attributed to the real estate quota.
Tobias Moroni: And now the StoFöG brings clarity?
Dr. Gabriele Lange: Exactly. The legislator has chosen a holistic approach. The KAGB defines for the first time what the management of renewable energies entails. In addition, real estate funds will be allowed to:
- acquire shareholdings in infrastructure project companies of up to 15% of the value of the special fund if they hold or operate renewable energy plants,
- own direct assets such as rooftop PV systems or charging infrastructure.
Tobias Moroni: What does this mean in concrete terms from a tax point of view?
Dr. Gabriele Lange: Very much. In the future, funds will be allowed to operate the systems themselves – not just lease them. However, the income from this active management is taxable at fund level (corporation and trade tax) regardless of the investor’s tax status. This creates competitive neutrality vis-à-vis traditional energy providers. With regard to rental income, everything remains the same, i.e. whether and to what extent the income is subject to taxation depends on the tax status of the fund (Chapter II or Chapter III fund) and the tax status of the investors.
Tobias Moroni: And in terms of insurance regulatory law?
Dr. Gabriele Lange: There are also clarifications there. The Investment Ordinance explicitly states that real estate funds that invest in PV, charging infrastructure or renewable infrastructure project companies will continue to be included in the real estate quota. This is important for the large circle of investment regulation investors.
Tobias Moroni: Your conclusion?
Dr. Gabriele Lange: The StoFöG is a milestone. It brings legal certainty and opens up new leeway for funds. At the same time, it remains a challenge to keep an eye on tax and regulatory details.
