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Monday, April 2, 2007

NY Times: Taxing Private Equity

Interesting editorial in today's New York Times:  Taxing Private Equity:

In the world of private equity, “2 and 20” is a formula for making money. The mavens of the industry — venture capitalists and buyout specialists — generally collect a management fee of 2% of the assets they manage and a performance fee equal to 20% of any profits. With hundreds of billions of dollars flowing through the 2-and-20 structure, the megabucks pile up quickly. High fees, however, are only one reason that private equity lives by “2 and 20.” Another is low taxes.

Partners in private equity ventures treat their performance fees as capital gains — in other words, like profits on the sale of a stock — and thus pay tax on the fees at a rate of 15%, about the lowest in the tax code. According to federal partnership tax rules, that’s legal. But the rules were developed before private equity became the force it is today, and mainly with small business and real estate partnerships in mind. Some lawmakers — notably Senator Max Baucus, the Democratic chairman of the Finance Committee, and Senator Charles Grassley, the committee’s top Republican — have begun to question whether those rules should apply to private equity.

Adding grist to lawmakers’ skepticism is a recent paper [Two and Twenty: Taxing Partnership Profits in Private Equity Funds] by Victor Fleischer, an associate professor at the University of Colorado Law School. Mr. Fleischer makes several arguments against treating performance pay as capital gain, starting with the increasingly huge sums that private equity firms raise from tax-exempt investors, like pension funds and endowments....

The deeper question in all this is whether capital gains — which are currently taxed at less than half the top rate of ordinary income — should continue to be so lavishly advantaged. The answer there is no. Today’s preferential rate for capital gains is excessive, with no mechanism in the tax code to ensure that it is not overused. Excessively favoring one form of income over another encourages wasteful gamesmanship, creates inequity and crowds out other ways to foster risk-taking. Tackling the too-easy tax terms for private equity is a good way for Congress to begin addressing that bigger issue.

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