Private Equity Management Fee Conversions
Gregg D. Polsky
University of Georgia Law School
November 4, 2008
FSU College of Law, Public Law Research Paper No. 337
FSU College of Law, Law, Business & Economics Paper No. 08-18
Because of the uproar over "carried interests," it seems that almost everyone knows that the tax law currently allows private equity managers to pay capital gains taxes on a substantial part of the (often substantial) income generated by their services. While this result raises significant tax policy concerns, the basic tax law governing carried interests is well-settled, and legislative action therefore would be necessary to address these concerns.
In contrast, a little-known technique utilized by private equity managers to convert the character of their remaining compensation income is extremely aggressive and subject to serious challenge by the IRS. Private equity managers regularly attempt to convert their fixed annual two percent management fees into additional carried interest through so-called fee waivers. The tax result, if this technique is successful, is the conversion of current ordinary income into deferred capital gains.
Despite the recent spotlight on the taxation of private equity management compensation, surprisingly little attention has been paid to this particular tax minimization strategy. This article attempts to fill that void. Its purpose is twofold. First, it will describe the mechanics of fee waivers, which are pervasive within the private equity community but not widely appreciated or understood outside of it. Second, it will discuss the tax issues stemming from fee waivers, focusing on the IRS arguments that could be made to disallow their intended tax results.
Number of Pages in PDF File: 43
Keywords: fee waiver, fee waivers, management fee waivers, private equity management fee waivers
Date posted: November 6, 2008 ; Last revised: January 14, 2012