United States: IRS Focuses On Risk In Proposed Regulations On Fee Waivers

In a long-awaited development that will affect fee waivers utilized by some fund managers and advisers, the Internal Revenue Service on July 23 proposed regulations that emphasize the role of entrepreneurial risk in determining when a partnership allocation and distribution to a partner that provides services to the partnership is considered to be a "disguised payment for services."

In a typical fee waiver arrangement, a fund manager waives its right to a fixed management fee in exchange for a partnership interest that entitles the partner to an allocation of fund profits that typically are intended to closely mirror the waived fee in amount and, to a large extent, timing of payment.

Under IRS Revenue Procedure 93-27, if a partnership interest issued in exchange for services only entitles the partner to share in future profits (a "profits interest"), then the receipt of the partnership interest is not taxable to the service partner, provided certain conditions are met. Instead, the service provider would be taxed on allocations of income to it, which income would have the same character to the partner (i.e., ordinary or capital gain) as the underlying income earned by the fund. As a result, fee waivers could potentially shift payments for management services rendered to the fund from ordinary income into lower-taxed capital gains.

The July 23 proposal was prompted to address this practice due to IRS concerns that some aggressive fee waiver practices may cross the line (such as waivers made after the services are performed or where the income allocation is substantially certain to occur). Should they be adopted in their present form, the regulations would make it more difficult for fund managers to convert high-taxed fees into potentially lower-taxed capital gains, which enjoy a 19.6 percentage-point reduced rate.

Internal Revenue Code Section 707(a)(2)(A) provides that if a partner receives an allocation and distribution that, when viewed together with the provision of services by the partner to the partnership, is properly characterized as a transaction between the partnership and a partner that is not acting in a partner capacity, then the allocation and distribution shall be treated under regulations as a payment to a non-partner. The proposed regulations set forth six factors (the first five of which are taken from the legislative history) to gauge whether or not an allocation and distribution constitutes a disguised payment for services under the statutory rule.

The first and most significant factor is whether the allocation and distribution is "subject to significant entrepreneurial risk," relative to the overall risk inherent in the partnership. The proposed regulations outline specific circumstances in which there is a "high likelihood" the service provider will receive an allocation regardless of the fund's overall success, and therefore lack significant risk, including:

  • Capped allocations of partnership income if the cap would reasonably be expected to apply in most years.
  • Allocations for a fixed number of years under which the service provider's distributive share of income is reasonably certain.
  • Allocations of gross income items.
  • An allocation that is predominantly fixed in amount, is reasonably determinable under all the facts and circumstances, or is designed to ensure that sufficient net profits are highly likely to be available to make the allocation to the service provider.
  • Arrangements in which a service provider either waives its right to receive payment for the future performance of services in a manner that is non-binding or fails to timely notify the partnership and its partners of the waiver and its terms.

The other five factors outlined in the proposed regulations, whose importance is secondary to entrepreneurial risk and depends on the facts of each particular case, are as follows:

  • The service provider holds, or is expected to hold, a transitory partnership interest or a partnership interest for only a short duration.
  • The service provider receives an allocation and distribution in a time frame comparable to the time frame that a non-partner service provider would typically receive payment.
  • The service provider became a partner primarily to obtain tax benefits that would not have been available if the services were rendered to the partnership in a third-party capacity.
  • The value of the service provider's interest in general and continuing partnership profits is small in relation to the allocation and distribution.
  • The arrangement provides for different allocations or distributions with respect to different services received, the services are provided either by one person or by persons who are related, and the terms of the differing allocations or distributions are subject to levels of entrepreneurial risk that vary significantly.

While the regulations are proposed to be effective only when finalized (comments and requests for a public hearing on the matter must be received by Oct. 21, 2015), the IRS stated that it will analyze arrangements entered into before that date on the basis of the statute and legislative history and believes that the proposed regulations reflect congressional intent. Thus, taxpayers can expect the IRS to apply the proposed regulations (or similar standards) with respect to pre-existing arrangements.

In addition to the proposed regulations, the IRS indicated that it plans to provide an exception from the application of Revenue Procedure 93-27 for profits interests issued in conjunction with the partner forgoing a substantially fixed payment. Thus, even if a fee waiver is properly designed to satisfy the entrepreneurial risk and other factors set forth above, a fund manager might nonetheless be taxed (at ordinary rates) upon the receipt of a partnership interest issued in connection with a fee waiver.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.