Subscription made by the User is made at the sole risk of the User. By making a subscription, the User expressly declares that it is aware that it is participating to the fundraising of a Project, which carries certain risks. The Sponsor does not perform any verification of the suitability or appropriateness of the subscription made by the User with the experience, knowledge, financial situation and investment objectives of the said Bondholder.
Users who contemplate subscribing to a Project shall take into consideration – in addition to the information contained in other documents such as a prospectus – the risk factors mentioned below. Each risk factor may have a negative impact on the Project, the Sponsor’s activity and its financial situation (including financial income).
The list of risk factors below is not exhaustive. Foxstone hereby recommends that the User consults a legal, financial and/or tax advisor within its tax jurisdiction before subscribing to a Project.
B. GENERAL RISKS
B.1 Risks linked to the Sponsor (counterparty risk)
The Sponsor can get into financial difficulties, making it incapable of payment of the interests and reimbursement of the nominal (credit and default risks).
B.2 Risks linked to the real estate
The Sponsor owns real estate. Therefore, the User is indirectly (i.e. through the Sponsor) exposed to the risks linked to an investment in real estate such as attractiveness of the location, real estate market, interest rate fluctuations, at local, Swiss and international levels.
The Sponsor‘s recurring revenues consists essentially in rental incomes which are used by the Sponsor to comply with its obligations as Sponsor. The rental revenues may decrease in the future based on several factors such as the reduction of the rent due to supply and demand, the reduction of the interests rate or other factors. The non-payment by one or several tenants of his/her rent under the lease agreement for one or several months as well as the vacancy rate affect the Sponsor’s solvency and its ability to pay interests and/or reimburse the. The wording used in the lease agreements – including as it relates to rent indexing (indexation des loyers) – may be unclear, incomplete or subject to interpretation so that the Sponsor cannot enforce a rental income’s claim (or not fully) under the lease agreement.
Valuation of the real estate
The valuation of a real estate depends on numerous factors and is made on hypothesis based on past values and performances as well as observations of the market subject notably to subjectivity in the estimated valuation. Therefore, the estimated valuation of a real estate may vary. The estimated valuation happens at a specific date whereas the real estate sale’s price is determined depending on supply and demand at the time of a contemplated sale. Therefore, one shall take into consideration that the estimated value at a specific day does not correspond to the real estate sale’s price.
Force majeure’s and natural disasters’ events such as earthquakes, storms, war or terrorist events or sabotage may negatively affect the value of a real estate property, and therefore the Sponsor’s solvency and its ability to pay interests and/or reimburse the nominal to the Bondholders.
Environmental Protection Act
Swiss law provides for specific regulation on polluted sites according to the Environmental Protection Act of October 7, 1983, and its implementing ordinance on polluted sites of August 26, 1998, which requires specific measures to be undertaken in presence of a polluted site. In such circumstances, renovations may be necessary, which can affect the Sponsor’s solvency and its ability to pay interests and/or reimburse the nominal to the Bondholders.
Unexpected or expected renovations or other repairs on the real estate property may affect the Sponsor’s solvency and its ability to pay interests and/or reimburse the nominal to the User.
Legislative developments and re-classification
In Switzerland, real estate investment is regulated by federal, cantonal and communal regulations and laws in the areas of tenancy, land use planning, construction, environment, purchase, tax and purchase of real estate by persons living abroad (Federal Act on acquisition of real estate by persons abroad of December 16, 1983), which may change in the future.
In particular, the land use planning may be re-classified, which can affect the value of the real estate property. The real estate property can also be subject to compulsory expropriation in case specific conditions are met (in particular prevailing public interest).
B.3 Risks linked to bonds (in case of a subscription in bonds)
Non-listed bonds and real estate are both limited liquidity markets. Bonds are not subject to an organized secondary market. Therefore, in particular there is no guarantee whatsoever that User who subscribe to bonds finds an investor interested in buying one or several bonds.
The price at which a bond may be sold is subject to several factors – such as the interest rate’s volatility and the Sponsor’s financial situation – that can negatively affect it.
Absence of guarantee
The bonds have no collateral or other kinds of guarantee whatsoever. In particular, there is no mortgage or other guarantee on the real estate to the benefit of the Users.
The investors interested in acquiring one or several bonds should take advice from a tax advisor – including in their jurisdiction – prior to such acquisition.
SWISS TAXATION FACTORS
The information set forth below is a general summary and is not exhaustive. It does not take into account any special circumstances of any particular investor. This summary is based on the tax laws, regulations and regulatory practices of Switzerland which are subject to change (or subject to changes in interpretation), possibly with retroactive effect. User, in particular potential investors, are strongly advised to consult with their own legal and tax advisors in light of their particular circumstances as to the Swiss and foreign (if applicable) tax laws, tax regulations and regulatory practices of the tax administrations that could be relevant for them in connection with their investment. Indeed, Foxstone does not provide tax advice. Any Users shall remain liable for its tax obligations (or any other legal obligations) associated with the investment it makes. Foxstone shall not accept any liability in this respect.
Applicable in case of an investment in bonds
A.1 Swiss Federal Withholding Tax on bonds (applicable in case of an investment in bonds
Swiss Federal Withholding Tax of 35% is levied on interests and all other income derived from bonds issued by a person domiciled in Switzerland. The bonds’ issuer will deduct Swiss Federal Withholding Tax on interest payments and remit the tax to the Swiss Federal Tax Administration. If the respective requirements are met, the bondholder residing in Switzerland or a foreign resident company who holds bonds through a Swiss permanent establishment is entitled to a full refund usually by way of tax credit against the income tax for the Swiss withholding tax whereas a bondholder who is not resident in Switzerland may be entitled to claim a full or partial refund of the Swiss withholding tax by virtue of the provisions of an applicable double taxation treaty, if any, concluded between Switzerland and the country of residence of such bondholder.
A.2 Income Taxation on Principal or Interest
Under current Swiss tax law, individuals resident in Switzerland who hold bonds in their private wealth and who receive payments of interest on bonds are required to include such payments in their personal income tax return and will be taxable on any net taxable income (including the payments of interest on the Bonds) for the relevant tax period.
Swiss-resident individual taxpayers who hold bonds as part of Swiss business assets (including individuals, who for income tax purposes, are classified as “professional securities dealers” for reasons of, inter alia, frequent dealing and leveraged investments in securities) and Swiss-resident corporate taxpayers and corporate taxpayers resident abroad holding bonds as part of a Swiss permanent establishment or a fixed place of business in Switzerland, are required to recognize the payments of interest on bonds in their income statement for the respective tax period and will be taxable on any net taxable earnings for such period.
Payments of interest and repayment of principal to a bondholder who is a non-resident of Switzerland and who, during the current taxation year, has not engaged in trade or business through a permanent establishment or fixed place within Switzerland to which the bonds are attributable and who is not subject to income taxation in Switzerland for any other reason will not be subject to any Swiss federal, cantonal or communal income tax.
A.3 Wealth Taxation of the Bond
If Bonds are part of the wealth of an individual on December 31st of the relevant tax year, they are subject to cantonal and communal wealth tax, computed on the fair market value. There is non additional wealth taxation at federal level.
A.4 Swiss Stamp Tax
The issuance of bonds is exempt from Swiss Issuance Stamp Tax and Swiss Transfer Stamp Tax.
A subsequent transfer or sale is subject to Swiss Transfer Stamp Tax, currently at the rate of 0.15% of the consideration paid, provided that one of the parties to the transaction or one of the intermediaries is a Swiss securities dealer (as defined in the Swiss Federal Stamp Tax Act). Some exceptions provided by the Swiss Federal Stamp Tax Act may apply.
- Applicable to other investments (including bonds, but also direct investment in real estate)
A natural person carrying out real estate transactions may be considered to exercise an independent lucrative activity (professional trader of real estate). This tax classification is carried out using indicium such as, in particular, the systematic or planned nature of the steps taken, the frequency of real estate transactions, the close relationship between the transaction carried out and the taxpayer’s professional activity, the duration of possession of the real estate and the usage of the proceeds from the sale or the use of foreign funds. The affectation of a real estate to the taxpayer’s commercial wealth (and hence the recognition of an independent lucrative activity) implies a different tax treatment with regards to the direct taxes and the social insurance. In light of the above, each concrete situation must be examined on a case-by-case basis.