Documenti di Didattica
Documenti di Professioni
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Victor Fleischer
Associate Professor
University of Illinois College of Law
TWO AND TWENTY 2
Victor Fleischer*
*
Associate Professor, University of Illinois College of Law. I am indebted to Alan Auerbach,
Steve Bank, Joe Bankman, Lily Batchelder, Noel Cunningham, Deborah DeMott, Wayne Ga-
zur, Bill Klein, Henry Ordower, Miranda Perry Fleischer, Alex Raskolnikov, Ted Seto, Dan
Shaviro, Kirk Stark, Larry Zelenak, and Eric Zolt for their helpful comments and suggestions.
I thank the participants at the 2006 Junior Tax Scholars Conference, the Tax Section of the
AALS 2006 Annual Meeting, the Agency & Partnership Section of the AALS 2007 Annual
Meeting, the UCLA Tax Policy & Public Finance Colloquium, the NYU Tax Policy & Public
Finance Colloquium, and the Stanford/Yale Junior Faculty Forum for their helpful comments
and suggestions. Lastly, I thank David Kamin for his editorial assistance.
I welcome comments and suggestions at victor.fleischer@gmail.com.
Draft of 8/2/2007
TWO AND TWENTY 3
Draft of 8/2/2007
TABLE OF CONTENTS
Introduction ................................................................................................................. 1
I. The Tax Treatment of Two and Twenty .......................................................... 5
II. Why It Matters Now ......................................................................................... 12
A. Changing Sources of Capital ....................................................................... 13
B. The Growing Use of Carried Interest........................................................ 14
C. Economic Efficiency Concerns ................................................................... 18
III. Deferral ............................................................................................................... 20
A. The Reluctance to Taxing Endowment..................................................... 21
B. Pooling of Labor and Capital Subsidy........................................................ 25
C. Measurement Concerns ................................................................................. 31
IV. Conversion.......................................................................................................... 34
A. Below-Market Salary and Conversion....................................................... 35
B. Compensating Service Partners................................................................... 36
V. The Imputed Income Subsidy ......................................................................... 38
VI. Reform Alternatives ......................................................................................... 39
A. The Status Quo............................................................................................... 41
B. The Gergen/Ordinary Income Method ..................................................... 42
C. The Forced Valuation Method ................................................................... 43
D. The Cost-of-Capital Method....................................................................... 44
E. Talent-Revealing Election ........................................................................... 46
F. Examples.......................................................................................................... 47
G. Policy Recommendation............................................................................... 49
H. Summary......................................................................................................... 50
VII. Conclusion ........................................................................................................ 51
TWO AND TWENTY 1
It’s like Moses brought down a third tablet from the Mount—and it said
‘2 and 20.’
INTRODUCTION
1
As quoted in Neil Weinberg & Nathan Verdi, Private Inequity, FORBES, March 13, 2006.
2
For more general discussion on the financial structure of private equity and venture capital
funds, see Ulf Axelson, Per Stromberg & Michael Weisbach, Why are Buyouts Levered? The
Financial Structure of Private Equity Funds (forthcoming, 2007 draft manuscript on file with
the author); William A. Sahlman, The Structure and Governance of Venture Capital Organiza-
tions, 27 J. FIN. ECON. 473 (1990).
3
See Notice 2005-43, 2005-24 I.R.B. 1221 (May 24, 2005) (describing liquidation value safe har-
bor for purposes of section 83).
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TWO AND TWENTY 2
4
See § 702(b).
5
In both cases, the executive receives the benefit of deferral and conversion into capital gain, while
the employer loses the benefit of a current ordinary deduction for compensation. Because, in the case
of private equity funds, the “employers” are mostly tax-exempt limited partners, the loss of the bene-
fit of a current ordinary deduction in less important than in the context of a corporation issuing ISOs.
6
Congress has limited ISO treatment to options on $100,000 worth of underlying stock,
measured on the grant date, per employee per year. See § 422(d). The capital interests underly-
ing the profits interests of fund managers, by comparison, generally range from $100 million to
several billion dollars. A 20% profits interest is equivalent to an option on 20% of the fund; as-
suming a modest fund size of $100 million and ten annual grants, the available incentive is
about 20 times as large as would be allowed for corporate stock options under the ISO rules.
7
See Victor Fleischer, The Missing Preferred Return, 31 J. CORP. L. 77 (2005).
8
Private investment funds organize as partnerships or LLCs, rather than C Corporations, in
order to avoid paying an entity-level tax that would eat into investors’ returns.
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TWO AND TWENTY 3
tax on their labor income at a low effective rate. While the high pay
of fund managers is well known, the tax gamesmanship is not.
Changes in the investment world – the growth of private equity
funds, the adoption of portable alpha strategies by institutional inves-
tors, the increased capital gains preference, and more sophisticated
tax planning – suggest that reconsideration of the partnership profits
puzzle is overdue.9 Ironically, while the public and the media have
focused on the “excessive” pay of public company CEOs, the evidence
suggests that they are missing out on the real story. Almost nine times
as many Wall Street managers earned over $100 million as public
company CEOs; many of these top-earners on Wall Street are fund
managers.10 And they pay tax on much of that income at a 15% rate,
while the much-maligned public company CEOs,11 if nothing else,
pay tax at a 35% rate on most of their income.
9
See infra Section II.
10
See Steven N. Kaplan & Joshua Rauh, Wall Street and Main Street: What Contributes to
the Rise in the Highest Incomes?, at 3, working paper available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=931280 .
11
See, e.g, Eduardo Porter, More than Ever, It Pays to be CEO, N.Y. TIMES, May 25, 2007 (de-
scribing widening gap between CEO pay and both CEOs and other executives as well as CEOs and
average workers).
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TWO AND TWENTY 4
12
See infra at text accompanying notes xx-xx. Briefly, this approach taxes the service partner’s use
of investors’ capital as if it were an actual loan from the investor to the service partner.
13
But see Chris Sanchirico, The Tax Advantage to Paying Private Equity Fund Managers With
Profit Shares, draft manuscript on file with the author.
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TWO AND TWENTY 5
14
For a more general description, see Sahlman, supra note 2; Ronald J. Gilson, Engineering a
Venture Capital Market: Lessons from the American Experience, 55 STAN. L. REV. 1067 (2003).
For more on the tax considerations that affect the compensation arrangement between fund
managers and investors, see Fleischer, The Missing Preferred Return, supra note 7; Victor
Fleischer, The Rational Exuberance of Structuring Venture Capital Start-ups, 57 TAX L. REV.
137 (2004); Joseph Bankman, The Structure of Silicon Valley Start-Ups, 41 UCLA L. REV.
1737 (1994).
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TWO AND TWENTY 6
Fund Structure
Investment Professionals
Portfolio Companies
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TWO AND TWENTY 7
15
See generally Paul A. Gompers & Josh Lerner, An Analysis of Compensation in the U.S. Venture
Capital Partnership, 51 J. FIN. ECON. 3 (1999); subsequent updates are reflected in Josh Lerner et al.,
Venture Capital & Private Equity: A Casebook 69-75 (3d ed. 2005) (discussing trends in compensa-
tion and staffing levels).
16
See § 61.
17
See supra note 3.
18
See, e.g., Testimony of Treasury Assistant Secretary for Tax Policy Eric Solomon, July 11, 2007
(pointing to valuation problems as motivating Rev. Proc. 93-27 in 1993).
19
See § 83(b).
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TWO AND TWENTY 8
stakes of this choice are fairly low: any conversion or deferral of in-
come, which lowers the executives’ tax bill, is roughly offset by the
conversion or deferral of the corporate deduction for compensation
paid.
20
See Notice 2005-43, 2005-24 I.R.B. 1221 (May 24, 2005) (describing liquidation value safe har-
bor for purposes of section 83).
21
See id.
22
See Diamond v. Commissioner, 492 F.2d 286, 291 (7th Cir. 1974), aff’g 56 T.C. 530 (1971).
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TWO AND TWENTY 9
23
See Victor Fleischer, The Missing Preferred Return, 31 J. CORP. L. 77, 100 (2005), and citations
therein.
24
See Rev. Proc. 93-27, 1993-2 C.B. 343. Rev. Proc. 93-27 spelled out the limits of this safe
harbor. To qualify, the profits interest must not relate to a substantially certain and predictable
stream of income from partnership assets, such as income from high-quality debt securities or a
high-quality net lease, must not be disposed of within two years of receipt, and the partnership
must not be publicly traded. See id. See also Rev. Proc. 2001-43, 2001-2 C.B. 191 (holding that
a profits interest that is not substantially vested does trigger a taxable event when restrictions
lapse; recipients need not file protective 83(b) elections). Rev. Proc. 93-27 defines a capital in-
terest as an interest that would give the holder a share of the proceeds if the partnership’s assets
were sold at fair market value and then the proceeds were distributed in a complete liquidation
of the partnership. See Rev. Proc. 93-27, 1993-2 C.B. 343. A profits interest is defined as a
partnership interest other than a capital interest. See id. The determination as to whether an
interest is a capital interest is made at the time of receipt of the partnership interest. See id.
25
See 70 Fed. Reg. 29675 (May 24, 2005).
26
See Notice 2005-43, 2005-24 I.R.B. 1221, pin (May 24, 2005).
27
See Laura Cunningham, Taxing Partnership Interests Exchanged for Services, 47 TAX. L.
REV. 247, 252 (1991).
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TWO AND TWENTY 10
realization doctrine would even out. Taxable losses are deferred, just
as gains are. Because the GP receives a substantial share of the eco-
nomic gains but only a small share of the fund’s losses (the one to five
percent “skin in the game”), however, the realization doctrine works
to the benefit of GPs.28 In sum, the tax law thus provides a timing
benefit for GPs by allowing deferral on their compensation so long as
the compensation is structured as a profits interest and not a capital
interest in the partnership.29
28
The presence of tax-indifferent LP investors who don’t mind deferring tax losses makes this
deferral much more significant from a revenue standpoint. With taxable LPs, the benefit of the
deferral to the GP as largely or entirely offset by the detriment of the LPs’ deferred deductions.
29
The net result is also more advantageous than parallel rules for executive compensation
with corporate stock. As two commentators have explained, the valuation rules for corporate
stock are more stringent.
The treatment of SP’s receipt of a profits interest under Rev. Proc. 93-27 is significantly better
than the treatment of an employee’s receipt of corporate stock. While the economics of a prof-
its interest can be approximated in the corporate context by giving investors preferred stock
for most of their invested capital and selling investors and the employee "cheap" common
stock, the employee will recognize OI under Code §83 equal to the excess of common stock’s
FMV (not liquidation value) over the amount paid for such stock. In addition, if the common
stock layer is too thin, there may be risk that value could be reallocated from the preferred
stock to the common stock, creating additional OI for the employee.
William R. Welke & Olga A. Loy, Compensating the Service Partner with Partnership Equity:
Code § 83 and Other Issues, 79 Taxes 94 (2001)
30
See § 83(a). If one assumes that a partnership profits interest is property, then a simple read-
ing of § 83 suggests that the GP should be taxed immediately on the fair market value of the
carried interest. It is far from clear, however, that Congress intended this reading when it en-
acted § 83. Cite to legislative history from senate finance committee; Cunningham, supra note
27; New York State Bar Association, Tax Section, Report on the Proposed Regulations and
Revenue Procedure Relating to Partnership Equity Transferred in Connection with the Per-
formance of Services (October 26, 2005).
31
See § 707(a), (c).
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TWO AND TWENTY 11
The tax law therefore treats the initial receipt of the carry as a
non-event, and it then treats later distributions of cash or securities
under the terms of the carried interest as it would any other distribut-
able share of income from a partnership. Because partnerships are
pass-through entities, the character of the income determined at the
entity level is preserved as it is received by the partnership and dis-
tributed to the partners.33 With the notable exception of hedge funds
that actively trade securities, most private investment funds generate
income by selling the securities of portfolio companies, which nor-
mally gives rise to long-term capital gain.34
32
See § 707(c). Arguably, the initial receipt of the carried interest is better characterized as it-
self a guaranteed payment (as it is made before the partnership shows any profit or loss). See
Cunningham, supra note 27, at 267 (“Because the value of a partnership interest received by a
service partner, whether capital or profits, invariably is dependent upon the anticipated income
of the partnership, the mere fact that the right to reversion of the capital has been stripped from
the interest does not convert the property interest represented by the profits interest into a dis-
tributive share of partnership income.”)
33
See § 702.
34
See § 1221 (defining capital asset for purposes of determining capital gains and losses).
35
Imagine a fund that paid its GP entirely with cash bonuses based on performance, and imagine
that the amount of this compensation was $100 over the life of the fund. Assuming a tax rate of 35%
and taxable LPs, the GP would pay $35 of ordinary income, and the LPs would take $35 as an ordi-
nary deduction, leaving a net tax liability of zero. If the LPs are tax-exempt, however, the value of
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TWO AND TWENTY 12
that tax deduction is zero, leaving a net tax liability of $35 between the two parties. Now assume that
instead of cash bonuses, the GP receives only a profits interest which generates $100 in long-term
capital gain. The GP pays tax of $15 (15% of $100) and the LP has no deduction, creating a net tax
liability of $15 between the parties.
36
See, e.g., Cunningham, supra note 27; Leo Schmolka, Taxing Partnership Interests Ex-
changed for Services: Let Diamond/Campbell Quietly Die, 47 TAX L. REV. 287 (1991); Martin
B. Cowan, Receipt of an Interest in Partnership Profits in Consideration for Services: The
Diamond Case, 27 TAX L. REV. 161 (1972); Hortenstine & Ford, Receipt of a Partnership Inter-
est for Services: A Controversy That Will Not Die, 65 TAXES 880 (1987); Sheldon Banoff, Con-
versions of Services Into Property Interests: Choice of Form of Business, 61 TAXES 844 (1983).
37
Subchapter K was enacted in 1954. Even before then, under common law rules, a profits
interest was treated at least as favorably as it us under current law. See NYSBA report, supra
note 30. The Diamond and Campbell cases stirred some uncertainty among the tax bar, but
there was never serious doubt that the grant of a profits interest with uncertain value in ex-
change for future services was a taxable event. The IRS distanced itself from its position in the
Diamond case in a General Counsel Memorandum, see Gen. Couns. Mem. 36,346 (July 23,
1975), providing some certainty on the issue, and later took a more formal position in Revenue Pro-
cedure 93-27.
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TWO AND TWENTY 13
investment world has changed since the days when mortgage broker
Sol Diamond sold his partnership interest for $40,000.38
38
See Diamond v. Commissioner, 492 F.2d 286 (7th Cir. 1974), aff’g 56 T.C. 530 (1971).
39
See infra text accompanying notes xx.
40
See Curtis J. Berger, Whither Partnership Taxation?, 47 TAX L. REV. 105, 110 (1991) (“Partner-
ships of that era were rather simple ventures: the neighborhood hardware store or lumber yard, the
law firm or brokerage house, the band of theatrical angels or the oil and gas syndicate.”)
41
See, e.g., Joint Committee on Taxation, Report of Investigation of Enron Corporation and Re-
lated Entities Regarding Federal Tax and Compensation Issues, and Policy Recommenations (2003),
at 181-241 (discussing gamesmanship issues related to subchapter K).
42
See § 409A.
43
See Joseph Bankman & Ronald J. Gilson, Why Start-Ups, 51 STAN. L. REV. 289, 289-90 (1999)
(discussing cowboy mythology in Silicon Valley culture).
44
See generally David F. Swensen, PIONEERING PORTFOLIO MANAGEMENT: AN UNCONVENTIONAL
APPROACH TO INSTITUTIONAL INVESTMENT (2000), at 100-131 (describing modern approaches to as-
set allocation).
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TWO AND TWENTY 14
45
See id. The shift began with modern portfolio theory and accelerated with the Department
of Labor’s “prudent man” ruling in 1979, which allowed institutional investors to include high-
risk, high-return investments as a part of a diversified portfolio. See 44 Fed. Reg. 37221 (June
26, 1979).
46
In the corporate context, substitute taxation is essential to bringing the tax treatment of de-
ferred compensation close to the economics of the arrangement. Consider your typical corpo-
rate executive who receives non-qualified stock options. Those stock options have economic
value when they are received, yet the executive defers recognition until the options vest. This
deferral is valuable to the executive. But it is costly to the employer, which must defer the cor-
responding deduction. Thus corporate equity compensation is not enormously tax-advantaged
in the usual case. Corporate equity compensation is tax-advantaged if the corporation shorts its
own stock to hedge the future obligation, or if the executive’s marginal tax rate is higher than
the corporation’s marginal tax rate. See David I. Walker, Is Equity Compensation Tax-
Advantaged?, 84 B. U. L. REV. 695 (2004); Merton H. Miller & Myron S. Scholes, Executive
Compensation, Taxes and Incentives (1982); see also Gregg Polsky & Ethan Yale, Reforming
the Taxation of Deferred Compensation, N.C. L. REV. (forthcoming 2007).
47
See Lerner et al., supra note 15, at 76-88 (discussing evolution of private equity fund interemedi-
aries such as funds-of-funds and pension fund consultants or “gatekeepers”).
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TWO AND TWENTY 15
48
Private investment funds (including most funds-of-funds) are engineered to be exempt from
the Investment Company Act of 1940. See Investment Company Act of 1940, §§ 3(c)(1), 3(c)(7).
As a result, the fund managers may be compensated by receiving a share of the profits from the
fund. In contrast, mutual fund managers may not receive a share of the profits, but rather
must be paid a percentage of the assets of the fund (like the management fee in a private equity
fund). See Investment Advisers Act of 1940, § 205. As capital shifts away from mutual funds
into private investment funds, more compensation takes the form of tax-advantaged carry, and
less takes the form of tax-disadvantaged management fees.
49
See Alpha Betting, THE ECONOMIST, Sept. 16, 2006, at 83-84 (discussing demand for alpha strate-
gies).
50
See, e.g., Cunningham, supra note 27, Schmolka, supra note 36.
51
See NYSBA Report, supra note 30.
52
See Axelson et al., supra note 2, at 2. Discussing the problem in the context of the Diamond
and Campbell cases is like drafting stock dividend rules to accommodate Myrtle Macomber.
See Eisner v. Macomber, 252 U.S. 189 (1920). Human stories and judicial opinions make the
problem more accessible for students and scholars, but they can also distort public policy con-
siderations. See also Growing Pains, in Special Report: Hedge Funds, THE ECONOMIST,
March 4, 2006, at 63, 64 (“There are more than 8,000 hedge funds today, with more than $1 tril-
lion of assets under management.”) Between hedge funds, private equity funds, and venture
capital funds, the amount of investment capital flowing through the two and twenty structure
easily exceeds two trillion dollars.
53
In larger funds one does tend to observe a lower management fee. See Kaplan & Lerner,
supra note 15.
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TWO AND TWENTY 16
54
One might ask why, if demand is increasing, supply does not follow. It does, of course –
there are more fund managers than there used to be – but because it takes some time to develop
a reputation, there is a lag. See Douglas Cumming & Jeffrey Macintosh, Boom, Bust & Litiga-
tion in Venture Capital Finance, 40 WILLAMETTE L. REV. 867 (2004).
55
Alpha requires two inputs; the talent of the managers who can create it, and the capital of
investors to implement the strategy. The two parties share the expected returns; investors are
quite rationally willing to share large amounts of the abnormal returns with the fund managers
who create them. See generally Edward Kung & Larry Pohlman, Portable Alpha: Philosophy,
Process & Performance, J. PORT. MGMT., Spring 2004.
56
See Fleischer, The Missing Preferred Return, supra note 7.
57
See Fleischer, The Missing Preferred Return, supra note 7. Buyout funds and many hedge
funds use a hurdle rate, which also increases tax savings compared to a true preferred return.
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TWO AND TWENTY 17
58
See id.
59
Whether the design of the preferred return is explained by tax motivations is a question I take
up elsewhere. Regardless of whether the design is tax-motivated, there is no question that GPs
are maximizing the amount of compensation they receive in carried interest. Nor is there any
question that (with the exception of certain hedge funds) distributions typically give rise to long-
term capital gain. Thus, even if one thinks that tax somehow has no influence on the design of
preferred returns, the tax consequences raise considerations of distributional equity. A large
amount of profits allocated to GPs represents the time value of money, received in exchange for
services, yet it is treated as a risky investment return and afforded capital gains treatment.
60
See Joint Committee on Taxation, Present Law and Analysis Relating to Tax Treatment of Part-
nership Carried Interests, July 10, 2007, at 50..
61
See Jack S. Levin, STRUCTURING VENTURE CAPITAL, PRIVATE EQUITY, AND ENTREPRE-
NEURIAL TRANSACTIONS at 10-13 (2004 ed.).
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TWO AND TWENTY 18
ceipt doctrine will not apply, and future distributions will be re-
spected as distributions out of partnership profits.62
62
See id. at 10-13; see also Wilson Sonsini Goodrich & Rosati, Converting Management Fees
in Carried Interest: Tax Benefits vs. Economic Risks (2001) (on file with the author).
63
Cf. Notice 2005-1 (discussing non-application of 409A to profits interest in a partnership).
64
See Wilson Sonsini, supra note 62.
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TWO AND TWENTY 19
65
As I discuss in more detail later, there may be offsetting positive social externalities that
may justify the disparate treatment of partnership equity. As an initial matter, however, it is
useful to describe the disparity before exploring whether the distortions that follow might none-
theless be justified on policy grounds.
66
For a discussion of section 83 in the portfolio company context, see Victor Fleischer, The Ra-
tional Exuberance of Structuring Venture Capital Start-Ups, 57 TAX L. REV. 137, 167-68 (2003).
67
See § 83(a).
68
See Treas. Reg. § 1.83-7(a).
69
Gain from the sale of incentive stock options are taxed at capital gains rates upon sale of the un-
derlying stock. See §§ 421, 422.
70
See § 422(d).
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TWO AND TWENTY 20
III. DEFERRAL
71
See § 409A; Vanessa A. Scott, Fallacies of Presumption: Unpacking the Impact of the Section
409A Proposed Regulations on Stock Appreciation Rights Issued by Privately-Held Companies, 59
Tax Law. 867, 873-76 (discussing history of § 409A).
72
See Notice 2005-1 at Q-7. The disparity in tax treatment is most important when portfolio com-
panies have low effective tax rates, as with most venture capital-backed start-ups and many underper-
forming or debt-laden companies acquired by buyout shops. For companies with high effective tax
rates, the ability to deduct managerial compensation is more valuable, which makes the corporate
form more attractive.
Some evidence of distortions of the market may be found in the behavior of the key market
participants. In response to labor market pressures, investment banks (which are mostly or-
ganized as corporations) have begun to set up “side” funds to allow their fund managers to re-
ceive a profits interest in funds that invest in portfolio companies so that they, too, can benefit
from the tax treatment of two and twenty. See Andrew N. Berg & Elizabeth Pagel Sere-
bransky, Employee Co-Investment Plans Federal Income Tax and Securities Law Considera-
tions, June 2006, 697 PLI/Tax 353, 357. The investment bank still receives some fees, but the
human capital provided by its employees is taxed at a lower rate.
73
You are airplane rich if you own your own private jet.
74
The issue attracted attention on Capitol Hill and in the media while this paper was circulat-
ing in draft form. See Editorial, “Taxing Private Equity,” NEW YORK TIMES, April 2, 2007 (cit-
ing this paper as “[a]dding grist to lawmakers’ skepticism,” notably Senator Max Baucus, the
Democratic chairman of the Finance Committee, and Senator Charles Grassley, the commit-
tee’s top Republican).
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TWO AND TWENTY 21
sit well with one’s intuitive sense of fair play. These profits interests
have enormous economic value. Tax Notes columnist Lee Sheppard
characterizes Treasury’s proposed regulations as a “massive give-
away.”75
75
See Lee Sheppard, Massive Giveaway in Partnership Compensatory Option Regs, 107 Tax
Notes 1487, June 20, 2005.
76
See, e.g., Cunningham, supra note 27, Schmolka, supra note 36.
77
See infra text accompanying notes xx.
78
See Lawrence Zelenak, Taxing Endowment, 55 DUKE L. J. 1145, 1145-47 (2006).
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TWO AND TWENTY 22
with it. Endowment taxation would, for example, eliminate the tax
advantage of the currently untaxed psychological, status, and identity
benefits of being a law professor – such as the intellectual stimulation
of the job, the joy of teaching, academic freedom, and lifetime job se-
curity. On the margins, an endowment tax scheme would encourage
workers to labor in the sector which the market compensation is high-
est, which in turn allocates labor resources more efficiently, reducing
deadweight loss.
Few tax scholars (if any) support a pure system of taxing en-
dowment.79 There are powerful liberal egalitarian objections to tax-
ing endowment, mostly rooted in the talent-slavery objection. Equal-
ity of opportunity is important, but so too is the autonomy of the most
talented among us.80 Human beings were not created simply to create
wealth or even simply to maximize personal or social utility; the gov-
ernment should play only a limited role in dictating the path they
choose to follow.
79
See generally id; See also Daniel Shaviro, Endowment and Inequality, in TAX JUSTICE: THE
ONGOING DEBATE (Thorndike & Ventry eds., 2002); Kirk J. Stark, Enslaving the Beach-
comber: Some Thoughts on the Liberty Objections to Endowment Taxation, 18 CANADIAN J. L.
& JURIS. 47 (2005); David Hasen, Liberalism and Ability Taxation, (forthcoming); Linda Sugin,
Why Endowment Taxation is Unjust (2007 draft manuscript on file with the author).
80
See, e.g., Liam Murphy & Thomas Nagel, THE MYTH OF OWNERSHIP: TAXES AND JUSTICE
123 (2002); John Rawls, JUSTICE AS FAIRNESS: A RESTATEMENT 158 (2001); David Hasen, The
Illiberality of Human Endowment Taxation (draft manuscript).
Draft of 8/2/2007
TWO AND TWENTY 23
81
See Rebecca S. Rudnick, Enforcing the Fundamental Premises of Partnership Taxation, 22
HOFSTRA L. REV. 229, 232-33 (1993) (“The four major premises of Subchapter K state that …
(3) human capital providers are not taxed on the receipt of interests in profits if they are of
merely speculative value[.]”)
82
See id. at 350.
83
Mark Gergen, Pooling or Exchange: The Taxation of Joint Ventures Between Labor and
Capital, 44 TAX L. REV. 519, 544 (1989).
84
See id. at 544-550.
85
See Stephen Hawking, A BRIEF HISTORY OF TIME, describing an anecdote about an en-
counter between a scientist and a little old lady:
A well-known scientist (some say it was Bertrand Russell) once gave a public lec-
ture on astronomy. He described how the Earth orbits around the sun and how the
sun, in turn, orbits around the centre of a vast collection of stars called our galaxy.
At the end of the lecture, a little old lady at the back of the room got up and said:
"What you have told us is rubbish. The world is really a flat plate supported on the
back of a giant tortoise."
The scientist gave a superior smile before replying, "What is the tortoise standing
on?"
"You're very clever, young man, very clever," said the old lady. "But it's turtles all
the way down!"
Draft of 8/2/2007
TWO AND TWENTY 24
human capital cannot be taxed in most cases, and so, for the sake of
equity, we choose to tax it in no cases.”86
86
See Gergen, Pooling or Exchange, supra note 83, at 550.
87
Gergen, Pooling or Exchange, supra note 83, at 550.
88
See Gergen, Compensating Service Partners, supra note 36.
89
See infra text accompanying notes xx.
Draft of 8/2/2007
TWO AND TWENTY 25
Sole
Proprietorship Partnership Corporation
Easiest Hardest
90
The concern about taxing unrealized human capital could also be addressed through a spe-
cial surtax on income at the point of realization.
91
See, e.g., Schmolka, supra note 36, at 288 (emphasizing special status in the tax law of partners
vs. employees).
92
See Peracchi v. Commissioner, 143 F.3d 487 (9th Cir. 1998), citing Boris I. Bittker & James
Eustice, FEDERAL INCOME TAXATION OF CORPORATIONS AND SHAREHOLDERS, ¶ 2.01[3] .
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93
See, e.g., Cunningham, supra note 27, at 256-57, and citations discussed in Gergen, Pooling or
Exchange, supra note 83, at 527 n.24.
94
Cunningham, supra note 27, at 248.
95
Cunningham, supra note 27, at 256. As an example, Cunningham discusses a partnership
that holds a single asset, a ten year bond with a face amount of $1000 bearing interest at the
rate of 10% a year. The partnership hires a service partner, S, who receives (1) a 25% interest
in both the profits and capital of the partnership, (2) a 65% interest in the partnership capital,
but no profits interest, and (3) a 40% profits interest, but no capital. In each case, the current
fair value of S’s interest is 25%. Yet the tax consequences differ markedly. This result, she ar-
gues, “ignores the economic reality that any given interest in a partnership is composed of some
percentage of the partnership’s capital and the return on capital, or profits.” Separating the
two conceptually, she continues, is a mistake. “The disaggregation of these components of the
interest does not change the fact that each represents a significant portion of the value of the
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partnership’s assets.” Id. at pin. Taxing one while not taxing the other, she concludes, has no
apparent justification.
96
See Cunningham, supra note 27, at 260 (“Where the profits interest is granted in anticipa-
tion of services to be rendered in the future, … taxation of the interest on receipt would violate
the realization requirement and the policy against taxing human capital. This would be incon-
sistent with the basic purpose and structure of subchapter K.”)
97
Id. at 259. Cunningham would therefore limit immediate taxation to cases in which the ser-
vice partner completed all or substantially all of the services to be rendered at the time it re-
ceives its interest in the partnership. See id. at 261.
98
Id. at 259.
99
See Berger, supra note 40, at 110, 161-67 (defining small business for purposes of subchapter K
reform).
100
See Joint Committee on Taxation, supra note 60, at 32-33, 34.
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101
See Cunningham, supra note 27, at 260-61.
102
See Mark P. Gergen, Reforming Subchapter K: Compensating Service Partners, 48 Tax. L.
Rev. 68, 79 (1992); but cf. Noel Cunningham & Deborah H. Schenk, How to Tax the House
that Jack Built, 43 TAX L. REV. 447 (1988) (arguing for accrual taxation when a taxpayer uses
capital on its own behalf).
103
Rudnick, supra note 81, at 354.
104
Rudnick, supra note 81, at 355 & n.528.
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Still, Professor Rudnick is right in that the tax Code tends not
to tax the imputed income from self-created assets. Professor Len
Schmolka, along similar lines, argues that just as one should not be
taxed on the creation of self-created assets until realization occurs in a
market transaction, neither should one be taxed on the creation of
partnership-created assets. One should be taxed only on the income
that those assets actually generate in market transactions.108
105
See Treas. Reg. § 1.83-1; Ronald J. Gilson & David M. Schizer, A Tax Explanation for Con-
vertible Preferred Stock, Harv. L. Rev.
106
See Gilson & Schizer, supra note xx, at pin.
107
See Notice 2005-1 (discussing valuation requirements).
108
See Schmolka, supra note 36, at 294.
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109
See Schmolka, supra note 36, at 297 (emphasis in original). Schmolka stresses that the tax
law draws distinctions analogous to the capital/profits interest distinction all the time, when-
ever it draws a line between property and income from property. For example, the transfer of a
term interest in property yields different tax consequences than transferring a remainder inter-
est. See Schmolka, supra note 36, at 289. The coupon stripping rules of section 1286, he asserts,
“mark the only instance of congressional abandonment of this judicially developed distinction
between property and income from property.” See Schmolka, supra note 36, at 291 n.20.
110
See § 7872.
111
See Schmolka, supra note 36, at 302.
112
See Schmolka, supra note 36, at 308.
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C. Measurement Concerns
113
Under certain assumptions, deferral is a red herring. So long as tax rates are constant and
the employer and employee are taxed at the same rate, deferral is irrelevant, as the increase in
income also gives rise to greater tax on that income later on. In this context, however, the tax
rates are not equivalent, assuming a capital gains preference. The compensation (if one chooses
to view it as such) should be taxed at 35%, but because the character of the income is deter-
mined at the partnership level, the earnings are often taxed at the long-term capital gains rate
of 15%. One could characterize this as a conversion problem, but the opportunity arises only
because we allow the income to be deferred in the first place.
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114
See supra text accompanying notes xx.
115
The cost-of-capital method gets even more complicated when one considers whether the
GP should receive a deduction for the deemed interest payments, or a basis adjustment in its
capital interest. If the imputed loan is characterized as a loan from the LPs, rather than an im-
puted loan from the partnership, it’s possible that no basis adjustment is required. If you bor-
row money to make an investment, and pay interest on the loan, your interest payments are not
added to the cost basis of your investment. The fact that the loan comes from other investors
does not change the analysis. On the other hand, as a cost of making the investment, the GP’s
deemed interest payment should probably be reflected in the tax basis of the asset. In my view,
then, the GP should receive an upward basis adjustment to the extent it recognizes ordinary in-
come, which would reduce its capital gain (or even produce a capital loss) on the back-end.
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IV. CONVERSION
116
For that matter, most consumption tax advocates, at least in academic circles, prefer a pro-
gressive system. An exception to the general consensus in favor of progressivity can be derived
from optimal income tax theory, which suggests an efficiency rationale for declining or flat
marginal rates. See James Mirrlees, An Exploration in the Theory of Optimum Income Taxa-
tion, 38 REV. ECON. STUD. 175, 207 (1971).
117
See, e.g., Noel B. Cunningham & Deborah H. Schenk, The Case For a Capital Gains Prefer-
ence, 48 TAX L. REV. 319 (1993).
118
See § 1 (providing rate structure for individuals).
119
There are four departures from a pure endowment tax base that create potential tax bene-
fits: (1) the ability to choose to work for oneself at a lower salary than one might be able to make
in the market (the self-investment with “pre-tax” dollars); (2) deferral on the receipt on the op-
tion value of “sweat equity,” (3) deferral as the equity value appreciates, and (4) on exit, the op-
portunity to be taxed at capital gains rates on the labor income which has been converted into a
self-created capital asset.
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120
See §§ 1, 701, 1366.
121
See § 11.
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122
I am assuming, for the sake of simplicity, that the increase in value comes from gain that
would be capital in nature, such as an increase in the value of the underlying land, rather than
gain that would be ordinary, such as gains attributable to unrealized receivables or inventory.
See § 1221 (defining capital asset).
123
See Ronald J. Gilson & David M. Schizer, Understanding Venture Capital Structure: A
Tax Explanation for Convertible Preferred Stock, 116 HARV. L. REV. 874 (2003). See also Jesse
M. Fried & Mira Ganor, Agency Costs of Venture Capitalist Control in Startups, 81 NYU L.
REV. 967 (2006). Section 409A has complicated matters somewhat, as aggressive valuations
could be questioned by the government and subjected to an excise tax. Unlike other scholars,
however, I would characterize the problem as not simply one of valuation, but rather a prob-
lem that is inextricably tied in to the fact that the portfolio company’s value depends on the ef-
forts of the entrepreneur. Even if one had a crystal ball about market conditions, regulatory
risk, and all other exogenous factors that could affect the price of the stock, the valuation would
be imperfect unless one also could assess the talent, preferences, and ability of the entrepreneur.
It is useful to identify this valuation problem as one of valuing “entrepreneurial risk” rather
than market risk. Unsystematic market risk can be hedged with the use of financial capital
through diversification or other techniques. Entrepreneurial risk, on the other hand, can be
hedged only through the contribution of human capital. The analysis is fundamentally the
same in the context of partnership profits as in the case of the portfolio company. The liquida-
tion value of the profits interest is zero. The option value is high, but only because the partner
is talented and will put the money to work. Congress has shown a willingness to limit conver-
sion opportunities in the context of the partnership tax rules, such as in § 751 (which forces exit-
ing partners to recognize their share of ordinary income assets held by the partnership, like in-
ventory). I am indebted to Professor Steve Bank for this point about § 751.
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Professor Gergen argues that the decision not to tax the ex-
change of a profits interest for services “arguably compels” taxing al-
locations of profits as compensation. Otherwise, he argues, partners
enjoy “extraordinary privileges” not available to service providers in
other contexts.127 If the partnership’s income is not service-based, the
service partners do not pay social security tax. They never pay tax at
ordinary rates if the allocations represent capital gain, or if they sell
their profits interest to a third party or sell it back to the partnership.
If they receive in-kind compensation, they may pay no tax at all.
124
See Henry Ordower, Taxing Service Partners to Achieve Horizontal Equity, 46 TAX LAW-
YER 19 (1992).
125
See Gergen, Compensating Service Partners, supra note 102.
126
See id. at 103.
127
See id. at 94.
128
See id. at 69.
129
See id.
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Suppose that the fund doubles in value, and (for the sake of
argument) the entire investment return is taxed at 35%. In the case of
the fund manager who took a cash salary and reinvested the proceeds,
her $650,000 investment has doubled in value to $1.3 million; she
pays an additional income tax of $227,500 (35% times her $650,000
gain), leaving her with $1,072,500 in after-tax proceeds. The fund
manager who invested with pre-tax dollars, on the other hand, re-
ceives $2,000,000 on the back end, and pays $700,000 of tax on the
back end (35% times the entire $2 million), leaving her with $1.3 mil-
lion in after-tax proceeds.
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took re-invested after-tax cash with the recipient of the deferred com-
pensation.130
130
See Daniel I. Halperin, Interest in Disguise; Taxing the “Time Value of Money,” 95 Yale L. J.
506, 539-551 (1986). See also Polsky & Yale, supra note xx.
131
See Sanchirico, supra note 13.
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Making the normative case for (or against) such a subsidy and
answering these intrinsically political questions is beyond the scope of
this Article. The best tax design for the taxation of partnership profits
depends not only on one’s preference for an entrepreneurship subsidy,
but also on a dizzying number of other tricky assumptions, including:
o one’s views about distributive justice,
o the role of the tax system in redistributing income,
o whether we take the entity-level tax of publicly-traded corpo-
rations as a given,
o whether we take the tax-exempt status of pension funds and
endowments as a given,
o whether we take the capital gain preference as a given, and at
what rates, and with what holding period,
o whether we take the realization doctrine as a given,
132
See generally Douglas Holtz-Eakin, Should Small Businesses Be Tax-Favored?, 48 NAT’L
TAX J. 387 (1995); William M. Gentry & R. Glenn Hubbard, Tax Policy and Entrepreneurial
Entry, AMER. ECON. REV. 283 (2000); Donald Bruce & Tami Gurley-Calvez, Federal Tax Pol-
icy and Small Business (March 2006 manuscript on file with the author).
133
See Evsey D. Domar & Richard A. Musgrave, Proportional Income Taxation and Risk-
Taking, 58 Q. J. ECON. 388 (1944).
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I offer five alternatives below: (1) the status quo, which allows
both deferral and conversion, (2) the Ordinary Income Method, which
allows deferral but no conversion, (3) the Forced Valuation Method,
(4) the Cost-of-Capital Method, which eliminates deferral but allows
some conversion, and (5) the Talent-Revealing Election, which allows
deferral and conversion only under certain circumstances. I conclude
that a baseline rule treating all carried interest distributions as ordi-
nary income is probably the best alternative.
Some social welfare effects of the status quo are unclear. Cur-
rent law provides a sizable, categorical subsidy for the private equity
industry. This tax subsidy probably lowers the cost of capital for ven-
ture capital-backed startups, which might be good economic policy;
the status quo also benefits private equity more broadly, certain hedge
funds, and disadvantages innovation ventures at publicly-held corpo-
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The status quo has one benefit, which is that the gamesman-
ship that we see is a known quantity. Changing the treatment of a
profits interest in a partnership would create new pressures on the
system. For example, funds might replace profits interests with op-
tions to acquire a capital interest, which is economically equivalent.
The taxation of compensatory partnership options is not entirely set-
tled law, and any of the reform options discussed below would proba-
bly have to be extended to reach compensatory partnership options as
well. Similarly, new funds will have an increased incentive to locate
overseas. To the extent that frictions require the performance of ser-
vices in the United States, however, this concern may be overstated.
Funds that target U.S. portfolio companies rarely perform those ser-
vices from abroad; income derived from work performed in the U.S.
would still be taxed as U.S. source income. Moreover, other jurisdic-
tions that are considered attractive locales for private equity are, like
the U.K., are also considering eliminating the preferential tax rate on
carried interest distributions.134
134
See Carried Away, Leader, THE ECONOMIST, June 7, 2007.
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135
See Gergen, supra note 36.
136
See Gergen, supra note 36, at 103-11.
137
See § 83.
138
See § 7872; supra text accompanying notes xx.
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TWO AND TWENTY 44
come.139 This approach would reduce deferral but allow some con-
version into capital gain.
139
See Diamond v. Commissioner, supra note xx.
140
It is the habit of most tax professionals to depict partnerships as ovals or circles and corpo-
rations as squares or rectangles.
141
See supra note 71.
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the GP, the LPs would charge a market rate of interest on the loan.142
The true market interest rate would be rather high, given the non-
recourse nature of the “loan” and the level of risk involved. Because
the actual cost-of-capital is difficult to know, however, I propose fol-
lowing § 7872’s approach and deeming a normal rate of interest to
have been forgiven.143
142
Arguably, the AFR is far too low an interest rate given the riskiness of the “loan”; similarly,
the entire loan arrangement could be recharacterized as an option. See Joint Committee Re-
port, supra note 60. But we should not dismiss “rough justice” as a plausible goal here in light
of the administrative complexity. Congress could simply choose a higher interest rate (such as
the risk free rate plus several hundred basis points, which would still fall below the true cost of
capital), or it could give the Treasury the legislative authority to determine an appropriate in-
terest rate.
143
See § 7872. The cost-of-capital approach could be extended to other contexts, such as to es-
timate the option value of common stock. Detailed consideration of such an application is be-
yond the scope of this project.
144
Basic Example. Suppose LPs contribute $95 million to a private equity fund, and the GP
contributes $5 million. The GP also receives a two percent annual management fee and twenty
percent carried interest. Assume for the sake of simplicity that all the capital is contributed at
once and is invested in portfolio companies. In Year One, the GP would take two million dol-
lars in management fees. Because the management fees are not contingent, they would be
taxed under 707(c) as if the GP were an employee, just as they are now. The GP would be
taxed $2 million as ordinary income, and the partners would allocate the deduction according
to the terms of the partnership agreement. Next, we account for the cost of capital. Assume a
market interest rate of 6%. Under a cost-of-capital approach, the GP would pay a cost-of-
capital surtax in the amount of $532,000 (8% cost of capital times 20% profits interest times $95
million (the non-GP source of capital) times a 35% tax rate). This amount would be ordinary
income to the GP. The LPs would be allocated a $532,000 deduction according to their per-
centage interests as reflected in their capital accounts (or would capitalize the expense, as ap-
propriate). (Because most LPs are tax-exempt, there is still a net revenue gain to the Treasury.)
The GP would receive an upward basis adjustment, each year, reflecting the cost-of-capital
charge. Any realized gains or losses from the fund’s operations would be allocated as usual.
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E. Talent-Revealing Election
145
See § 83(b).
Draft of 8/2/2007
TWO AND TWENTY 47
a policy of having a default rule that property (and gains from prop-
erty) received in exchange for services is ordinary income unless the
property recipient elects out of deferral to get the reward of conver-
sion if things go well.
F. Examples
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TWO AND TWENTY 48
(4) 20% Carry Cost of Capi- (0.47) $2.59 $7.96 $15.01 $24.17
tal Method
The results show that from the GP’s point of view, the appeal
of the cost-of-capital/loan approach vs. the ordinary income approach
depends on one’s assumptions about the future returns of the fund. If
one expects high returns, the cost-of-capital method is most appealing,
as more gains are taxed at the lower capital gains rate. If one expects
low returns, or returns below the hurdle rate, then the ordinary in-
come method is most appealing, as it avoids early (or even “phantom”)
recognition of income.
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TWO AND TWENTY 49
G. Policy Recommendation
146
I am indebted to Professor Bankman for this insight.
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H. Summary
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VII. CONCLUSION
147
Depending on how narrow policymakers intend the approach to be, the rules could apply
only to partnerships where capital is a “material income producing factor,” cf. § 704(e)(1), or
even just to “investment partnerships” defined as investment companies for purposes of the In-
vestment Company Act of 1940 but for application of the 3(c)(1) or 3(c)(7) exemptions, similar to
the definition in § 743(e)(6) of the Code.
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