Articles Tagged with Management Fees

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In the Federal Register for July 23, 2015, the Treasury Department published proposed regulations regarding the circumstances under which partnership allocations and distributions will be treated as disguised payments for services. These proposed regulations are aimed at attempts by investment fund managers to convert ordinary, management fee income into tax-favored long-term capital gains through the use of management fee waivers.

The proposed regulations draw heavily on the legislative history to Internal Revenue Code section 707(a)(2)(A), enacted as part of the Deficit Reduction Act of 1984 (P.L. 98-369), which provides that allocations and distributions to a partner by a partnership will be disregarded and instead treated as disguised payments for services if the performance of such services and the related direct or indirect allocation and distribution, taken together, are properly characterized as a transaction between the partnership and a partner acting other than in his capacity as a member of the partnership.

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Related post: Proposed Treasury Regulations May End Private…

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It has been a common practice of private equity firms to convert their right to receive management fees from the funds they manage into the right to receive profits and distributions from the funds through management fee waiver arrangements.  As a result of these arrangements, the firms achieve a lower tax rate because the profits and distributions they receive in place of the fees usually receive capital gains treatment while the fees would otherwise have generated ordinary income, subject to higher tax rates.  In the proposed regulations, the IRS suggests that these arrangements may be disguised payments for services and result in ordinary income anyways.

While the proposed regulations would be effective when final regulations are published, the IRS has indicated that it believes the principles reflected in the proposed regulations generally reflect Congressional intent—signaling that it may apply these principles to existing arrangements even prior to the adoption of final regulations.

Read the proposed rule in the Federal Register HERE.

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In a letter to SEC Chair Mary Jo White, the Treasurers and Comptrollers of 13 states have urged the SEC to crack down on private equity funds and require better disclosure of expenses to limited partners.

Fees and expenses in the private equity space have in general been a recent focus of the SEC.  In a high-profile case this spring, Kohlberg Kravis Roberts & Co. (KKR) was fined nearly $30 million for misallocating so-called “broken deal” expenses to its flagship private equity funds and none to co-investors.   KKR, however, failed to adopt policies and procedures governing broken deal expense allocations during the period in question, which contributed to a finding of breach of fiduciary duty.  KKR also did not expressly disclose in its funds’ limited partnership agreements and related offering materials that it did not allocate any of the broken deal expenses to co-investors.

The issue that the state Treasurers brought up in their letter to the SEC may be differently motivated. The main complaints of the letter, inadequate expense reporting and opaque calculations of management fee offsets, surfaced shortly after some large state pension funds came under fire for failing to track and providing incorrect reporting of the amount of fees and carried interest paid to the private equity managers they invested with over the course of many years. One of the Treasurers noted that the letter was independently generated following discussions of transparency issues among the Treasurers for more than a year, and not as a result of those criticisms.

The full Treasurers and Comptrollers’ letter to the SEC is available HERE.