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Pepperdine University School of Law

Monday, May 13, 2013

WSJ: IRS Reviews Private Equity Management Fee Waivers

IRS Logo 2Wall Street Journal:  IRS Eyes a Private-Equity Tax Move, by Mark Maremont:

The IRS is examining the propriety of a tax practice used in some parts of the private-equity industry, in which firms convert management fees into investments that receive more favorable tax treatment, a senior IRS official said at a recent legal conference.

The practice, often called a management-fee waiver or fee-waiver conversion, has been used for years by partners at some of the nation's largest private-equity firms to reduce their taxes, and can involve significant sums. ...

In the main strategy in question, private-equity firms or firm partners voluntarily waive annual or quarterly management fees due to them from investors. Instead, the firms often redirect that fee money to satisfy their own obligations to invest in the funds they manage. That change can turn management fees, currently taxed as ordinary income at federal rates of up to 39.6%, into investments that enjoy capital-gains treatment at lower rates, now starting at 20% for upper-income federal taxpayers....

Proponents have said the strategy is legal, that executives take on risk by redirecting the money into investments and thus should be taxed at lower rates. Some academics have called it aggressive and potentially subject to IRS challenge.

Partly at issue is whether the strategy fits within a 1993 IRS ruling [Rev. Proc. 93-27, 1993-2 CB 343], and whether it potentially triggers a separate law about partnership transactions that would require the income to be taxed at ordinary rates.

Some lawyers say private-equity firms have employed different versions of the tax strategy, along a spectrum ranging from conservative to more aggressive from a tax standpoint.

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Amazing that the IRS has not withdrawn Rev. Proc. 93-27. It was incorrect when issued because it was at odds with section 83. And it remains incorrect today for the same reason.

Posted by: Jake | May 13, 2013 7:02:08 PM