United States: Can We Talk?

Last Updated: September 18 2014
Article by Gerald Nowotny

Providing Hedge Fund Managers With The Deferral Of Carried Interest Until Eternity

Overview

The recent passing of Joan Rivers not only requires us to pay tribute to one of the great comedic minds of the last forty-fifty years, but serves as a testimony to professional passion, perseverance and hard work. I will always have images of Joan Rivers in the documentary "A Piece of Work", "schlepping" through airports in small towns very late at night and early in the morning coming home from a performance. My "takeaway"from her legacy is that you should never retire from working and if you love what you do, and then you never need to retire.

In the category of "survivors", you also need to consider the hedge fund and private equity industry and its ability to survive multiple assaults over the last ten years regarding changes in the taxation of carried interest. If there was ever a question whether "money talks", you need to look no further. Just when you thought that private equity and hedge fund managers were gasping for their last breath of carried interest life, they live to fight another day.

If you ever need a lobbying group in Washington, DC., you need the Private Equity Growth Council. You are hard-pressed to find private and equity managers who believe their own Press meaning, managers themselves have a hard time justifying the specialized income treatment for carried interest. At the same time, investment managers are thankful for having favorable tax-treatment that they receive. Under the legal doctrine of All Good Things Must Come to an End, investment managers and their advisors must consider other alternatives.

Someday it may finally change but it has not been business as usual for hedge fund managers since 2008. The addition of IRC Sec 457A effectively ended the ability of investment managers to defer tax recognition of the carried interest in the investment manager's offshore fund. Under IRC Sec 457A, hedge fund managers must repatriate the offshore deferred compensation not later than December 31, 2017. I personally am familiar with stories of hedge fund managers that have over $1 billion of offshore deferred compensation. IRC Sec 457A effectively eliminates the ability of investment managers to enter into deferred compensation arrangements with their offshore funds going forward.

This article introduces an old concept that still has plenty of charm and planning utility. In many respects, this technique is a better planning technique than the existing deferred compensation planning arrangement. After all, deferred compensation arrangements have tax problems, namely income and estate taxation that impose a whopping 70-80 percent "whack" on deferred compensation assets. This article follows up on my earlier article discussing split dollar life insurance as a potentially important tax planning tool for hedge fund managers. The focus of the planning is not on existing deferred compensation which must be repatriated before December 31, 2017, but instead on new carried interest in the offshore fund of hedge fund groups. This planning answers the question, "What do we do now?"

Revenue Ruling 2014- 18

A recent Revenue ruling 2014-18 stated that non-qualified stock option (NSO) and stock appreciation right (SAR) are not subject to IRC Sec 457A. The ruling stated that an offshore hedge fund (a foreign corporation) could grant NSOs and SARs in exchange of services, each with respect to a fixed number of common shares in the offshore fund. The NSO or stock right would have an exercise price equal to the fair market value of the associated common share on the date of the grant.

On one hand we should be happy that professional advisors have something to offer hedge fund managers regarding their incentive compensation in their offshore funds. But before we get too excited, let's look at the overall planning utility of NSOs from the standpoint of integrated income and estate tax planning.

NSOs are a tax inefficient asset in that the deferred compensation is ultimately taxed as ordinary income when exercised and also subject to federal estate taxes as well. The transfer of NSOs for estate planning carries with it an assignment of income problem, i.e. the holder (manager) of the NSOs will remain taxable on the income.

When it is all said and done, the combination of taxes erode approximately 83 percent of the benefit for the NYC-based hedge fund manager. Investment management firms in New Jersey or California are not too far behind if at all. On one hand, the hedge fund manager has the ability to defer current taxes but the ultimately the tax result is the equivalent of having to see the dentist, and proctologist along with receiving a series of vaccinations on the same day. The day of tax reckoning always arrive sooner or later, but it always arrives!

My view is that if professional advisors are able to understand and look at life insurance objectively based upon its tax advantages while minimizing any personal bias, they would conclude that the split dollar arrangement outlined in this article is far more tax efficient that the NSO or SAR strategy.

Split Dollar Overview

Split dollar life is a contractual arrangement between two or more parties to share the benefits of a life insurance contract. In a corporate setting, split dollar life insurance has been used for at least 55 years as a fringe benefit for business owners and corporate executives. Generally speaking, two forms of classical split dollar arrangements exist, the endorsement method and collateral assignment method. Importantly, IRS Notice 2007-34 provides that split dollar is not subject to the deferred compensation rules of IRC Sec 409A. See § 1.409A-1(a)(5).

The IRS issued final split dollar regulation in September 2003. These regulations were intended to terminate the use of a technique known as equity split dollar. The consequence of these regulations is to categorize into two separate regimes – the economic benefit regime or the loan regime.

Split Dollar under the Economic Regime

Under the economic benefit regime, the employee or taxpayer is taxed on the "economic benefit" of the coverage paid by the employer. The tax cost is not the premium but the term insurance cost of the death benefit payable to the taxpayer. The economic benefit regime usually uses the endorsement method but may also use the collateral assignment method.

In the endorsement method within a corporate setting, the corporation is the applicant, owner and beneficiary of the life insurance policy insuring a corporate executive. The company is the applicant, owner, and beneficiary of the life insurance policy. The company pays all or most of the policy's premium. The company has in interest in the policy cash value and death benefit equal to the greater of the policy's premiums or cash value. The company contractually endorses the excess death benefit (the amount of death benefit in excess of the cash value) to the employee who is authorized to select a beneficiary for this portion of the death benefit.

Under the collateral assignment method, the employee or a family trust is the applicant, owner, and beneficiary of the policy. The employee collaterally assigns an interest in the policy cash value and death benefit equal to the greater of the cash value or cumulative premiums.

The economic benefit is measured using the lower of the Table 2001 term costs or the insurance company's cost for annual renewable term insurance. This measure is the measure for both income and gift tax purposes. Depending upon the age of the taxpayer, the economic benefit tax cost is a very small percentage of the actual premium paid into the policy -1-3 percent.

Split Dollar under the Loan Regime

The loan regime follows the rules specified in IRC Sec 7872. Under IRC Sec 7872 for split dollar arrangements, the employer's premium payments are treated as loans to the employee. If the interest payable by the employee is less than the applicable federal rate, the forgone interest payments are taxable to the employee annually. In the event the policy is owned by an irrevocable trust, any forgone interest (less than the AFR) would be treated as gift imputed by the employee to the trust. The loan is non-recourse. The lender and borrower (employer and employee respectively) are required to file a Non-Recourse Notice with their tax returns each year (Treas Reg. 1. 7872-15(d) stating that representing that a reasonable person would conclude under all the relevant facts that the loan will be paid in full.

Split dollar under the loan regime generally uses the collateral assignment method of split dollar. In a corporate split dollar arrangement under the loan regime, the employee or a family trust is the applicant, owner, and beneficiary of the policy. The employer loans the premiums in exchange for a promissory note in the policy cash value and death benefit equal to its premiums plus any interest that accrues on the loan. The promissory note can provide for repayment of the cumulative premiums and accrued interest at the death of the employee.

Switch dollar is a method of split dollar life insurance that commences using the economic benefit method and then converts to the loan regime when the economic benefit costs become too high.

Restricted collateral assignment is the classical form of split dollar arrangement utilized by the majority shareholder of a closely held business. Under restricted collateral assignment split dollar, a restriction is added to the split dollar agreement which "restricts" the company's access in the policy under the split dollar arrangement (greater of cash value or premium). The "restriction" limits the company's access until the earlier of the death of the insured, termination of the split dollar agreement, or surrender of the policy.

The owner's business purpose is driven by concerns of the estate tax inclusion of the death proceeds for the business owner under IRC Sec 2042. The incidents of ownership under IRC 2042 over the policy would be imputed to the business owner due to the owner's control of the business as the majority shareholder. The proposed private split dollar arrangement would contain the same type of restriction contained in the classical split dollar arrangement.

Death Benefit Only (DBO) Plan Overview

The DBO Plan is a contractual arrangement between a corporation and an employee or contractor. A DBO Plan is frequently incorporated in tandem with the split dollar arrangement to provide for the payment of benefits from the portion of the death benefit that the corporation receives to recover its costs in the split dollar arrangement. The corporation agrees that if the contractor or employee dies, the corporation will pay a specified amount to the employee or contractor's spouse or other designated class of beneficiaries' children. Payments can be made on an installment basis or in a lump sum.

The payments are taxable income but can be structured so that the payments are estate tax-free. If the payments are made to a designated beneficiary that does not provide the employee with the ability to right to change or revoke the beneficiary designation, the payments can avoid estate taxation. My planning suggestion is to have the designated beneficiary as the hedge fund manager's family trust. The hedge fund manager will not have a general power of appointment over the trust that could result in estate tax inclusion.

Inter-Generational Split Dollar

Inter-generational split dollar is a technique using the economic benefit regime of split dollar, along with a restricted collateral assignment used in a non-business setting, i.e. private split dollar. The technique was quietly used by very high end life insurance agents and estate planning attorneys to transfer large amounts of wealth at a very large tax valuation discount – 80-95 percent, making it more powerful from a planning perspective than GRATS and other advanced wealth transfer techniques.

The typical planning scenario involved the senior generation (say Mom and Dad ages 75) entering into a restricted collateral assignment split dollar arrangement with a Family Dynasty Trust insuring the lives of the second generation (Junior and his sister ages 51 and 50). The policy might be funded on a MEC basis (single premium) or overfunded over a four year period on a non-MEC basis. The senior generation funds the policy in its entirety and has a collateral assignment in the policy cash value and death benefit equal to the greater of the cash value or aggregate premiums. The collateral assignment is restricted until the earlier of the death of the insured(s), surrender of the policy or termination of the split dollar arrangement. Once the policy is funded, the senior transfers its interest in the policy, i.e. the account receivable or the right of recovery to the Dynasty Trust, on an arms-length basis. The sales price is determined by a valuation specialist.

The sales price is heavily discounted based upon a time value of money analysis and the present value given a life expectancy of the insured(s). In the example, in this paragraph, the joint life expectancy of Junior and his sister is approximately forty years. The discount rate in the analysis is high using the discount rate based upon the sale of life insurance policies in the secondary market. The combination makes the total valuation discount extremely high relative to other estate planning strategies.

Furthermore, the tax advantages of life insurance coupled with tax valuation discount benefits combine to make the strategy extremely useful and unique. The implementation of a split dollar program in lieu of a NSO and SARs program in combination with the inter-generation

The Strategy

The strategy uses the incentives fees, i.e. the carried interest in the offshore fund, to fund premiums in a split dollar arrangement. The offshore fund is not usually subject to corporate income in domiciles such as Cayman. The split dollar agreement between the investment management LLC which is usually a Delaware LLC and the offshore fund provides that the offshore fund will provide for premium contributions equal to the amount of carried interest (or some percentage) in lieu of the incentive fee payment. To say it another way, the offshore funds makes a premium using all or some percentage of the twenty percent incentive fee associated with the offshore fund.

The split dollar arrangement is also coupled with a death benefit only (DBO) plan sponsored by the offshore fund, a foreign corporation. The DBO plan provides for the payment of benefits to a designated beneficiary of the hedge fund manager at death. The designated beneficiary may include a family trust. This is an additional benefit above and beyond the split dollar arrangement.

The power of split dollar is how it is taxed to the participant, i.e. the investment management firm and its principals. The participant is not taxed on the employer's premium payment to a life insurance company but rather in one of two ways- the economic benefit method or the loan method- which will be described in detail below. Generally, the employee is taxed on the economic benefit of the death benefit provided to the employee.

My prior article focused on the use of Switch dollar which involves the use of the economic and loan methods of split dollar. This method uses inter-generational split dollar in order to transfer through an arms-length sale the offshore fund's interest in the policy, i.e. the split dollar receivable or right to reimbursement of its premiums. Under the split dollar agreement, the offshore fund would have an interest in the policy cash value and death benefit equal to the greater of its cumulative premium payments or cash value. The split dollar agreement would also provide that the offshore fund's access to its interest is "restricted" until the earlier of the insured's death, surrender of the policy or termination of the split dollar agreement.

At a point in the future after funding is completed, the offshore fund agrees to sell on an arms-length basis its interest in the policy.

An independent valuation study proposes a fair market value for the offshore fund's contractual right to reimbursement at the death of the insured which may be in the distant future. This valuation anomaly and the power of the time value of money provides for a very large discount in the sales price.

An outline of the planning steps below.

  1. Split Dollar Agreement – The offshore fund (corporation) enters into a split dollar arrangement with the investment management firm to provide death benefit coverage for a select group of executives from the hedge fund in lieu of payment of the carried interest to the investment management firm. The amount of premium commitment under the plan is equal to the amount of forgone carried interest or some percentage of the carried interest.

    In the majority of cases, the policy will be owned by a family trust. The trustee of the family trust will enter into the split dollar arrangement with the offshore corporation, and investment Management Company.

    The offshore corporation funds the entire policy premium. The investment management company has a tax cost equal to the value of the economic benefit (term insurance cost) for the trial attorney's (Family Trust) interest in the policy. Most investment management companies are structured as disregarded entities for tax purposes.
  2. Split Dollar Agreement Terms – The offshore fund retains an interest in the policy cash value and death benefit in an amount equal to the greater of its cumulative premium payments or the policy cash value. The offshore fund's right to access the cash value is restricted until the earlier of the death of the insured, termination of the split dollar agreement or surrender of the policy. The policy is collaterally assigned from the family trust to the offshore fund.

    The offshore fund also has a separate legal document for the Death Benefit Only (DBO) Plan which provides for a lump sum payment to the family trust in the event the hedge fund manager dies prematurely.This payment is subject to income taxation but should not be subject to estate taxation.
  3. Purchase of the Offshore Fund's Account Receivable

    The strategy provides for the arms-length sale of the offshore fund's contractual right of reimbursement of the premium advanced. The question is how the sales price is determined. Contractually, the reimbursement provides for the reimbursement at the death of the insured (hedge fund manager) under the split dollar agreement. If the manager is age 60 (wife also age 60) at the time of the sale and the offshore fund's cumulative premium payments is $10 million, the discounted value over the thirty one year joint life expectancy at ten percent is $520,000.

    The trustee of the family trust will purchase the offshore fund's right to reimbursement outright or on an installment basis. Under the legal doctrine of merger, the split dollar agreement terminates as the trustee of the family trust will own the policy in its entirety.
  4. Benefit Summary

    The amount of personal taxation for income or gift tax purposes for the investment manager and hedge fund manager personally is negligible at best during the funding phase. The purchase of the offshore fund's receivable under the split dollar agreement is dramatically discounted – 75-90 percent in many cases. The tax advantages of life insurance are well known – (a) Income tax-free death benefit (2) Estate tax-free death benefit (3) Tax-free buildup of the cash value (4) Tax-free withdrawals and loans from the policy.

(1) Example

A. The Facts

Joe Smith, age 50, is the managing member of Acme Funds, a hedge fund. Acme is a $1 billion fund with assets equally split between the onshore and offshore funds. The fee structure for fund provides for a two percent management fee and 20 percent carried interest. The fund earns 10 percent in 2012. The expected carried interest for the offshore fund is $10 million. Joe typically splits half the carried interest with his managing directors and key traders. Joe's wife is also fifty years old.

Solution

Acme's offshore fund, a BVI corporation, enters into a split dollar arrangement with Acme Investment Management, and the Smith Family Trust. Under the arrangement, Acme agrees to pay premiums equal to one-quarter of the carried interest calculation or $2.5 million as a premium in the split dollar arrangement. Under the arrangement, Acme will have a collateral assignment interest in the policy equal to the greater of the policy cash value or policy's cumulative premiums. Acme's access to the cash value is restricted under the arrangement until the earlier of the termination of the split dollar agreement, surrender of the policy or death of the insured, Joe Smith.

The Smith Family Trust is an irrevocable trust designed to provide multi-generational benefits to Joe's wife, children and grandchildren. The trustee of the family trust is the applicant, owner, and beneficiary of a private placement life insurance policy insuring Joe's life. The policy will have premiums of $2.5 million per year or whatever the calculated carried interest equivalent in a particular year might be under the management firm's incentive fee agreement. The policy will have a death benefit of $25 million.

During the first ten years of the arrangement, the split agreement will use the economic benefit arrangement and then switch to the loan regime. The cumulative tax costs over the ten year funding period for income and gift tax purposes $437,000 which is 1.7 percent of the premiums paid into the policy by the offshore corporation.

The offshore fund will also sponsor a DBO plan that will provide a lump sum benefit of $2.5 million initially in the event that Joe dies during the program. This benefit increases by the amount of premium paid each year by the offshore fund. This benefit is in addition to the death benefit under the split dollar program - $25 million.

Projection of Tax Costs

Year Income Tax Gift Tax Cum. Premiums Cum. Income Tax
1 $32,400 $32,400 $2.5 million $32,400
5 $40,950 $40,950 $12.5 million $181,800
10 $58,050 $58,050 $25 million $436,150

At the end of Year 10, the trustee agrees to purchase the offshore fund's interest in the split dollar agreement. An independent valuation provides a fair market value for the contractual right to collect the cumulative premiums paid by the offshore corporation - $10 million. The life expectancy under Treas. Reg. 1.401(a)(9) is 25 years. The present value of the cumulative premiums discounted at twelve percent, the discount rate for the purchase of life insurance policies in the secondary market is 12 percent. The fair market value is approximately is $588,000. The trustee makes the purchase outright.

The trustee is able to take policy loans in order to make tax-free distributions to trust beneficiaries including Joe's wife. The policy death benefit at this point is $25 million. The projected cash value in a retail policy would be approximately $12 million. The cash value in a private placement life insurance policy depending upon investment performance within the policy would be approximately $15 million. The cumulative economic benefit, i.e. the amount of taxation to the investment management during the funding period would be approximately $400,000. The same amount would be imputed as a gift from the hedge fund manager to the family trust.

Summary

The strategy outlined above provides powerful tax benefits to hedge fund managers in the wake of IRC Sec 457A. If you ask me, the overall tax-treatment of split dollar life insurance is significantly greater than the Non-Qualified Stock Option and Stock Appreciation Right. It is what it is! The life insurance industry's lobby is equally as talented as the lobbying organizations representing hedge funds and private equity funds and has managed to preserve the tax benefits of life insurance. In the final analysis, the combination of split dollar and the tax advantages of life insurance create a benefit that far exceeds any other strategy currently being contemplated by hedge fund managers.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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