Limitation on Trader Fund Losses under the CARES Act of 2020

35 Pages Posted: 4 Mar 2021 Last revised: 22 Mar 2021

See all articles by Nathan Sosner

Nathan Sosner

AQR Capital Management, LLC

Roxana Steblea

AQR Capital Management, LLC

Date Written: March 3, 2021

Abstract

Hedge funds are characterized by a significant complexity of their tax attributes. In this paper, we explain how hedge fund investors might be affected by a limitation on excess business losses codified in a new IRC Section 461(l), introduced as a part of the TCJA of 2017 and later amended by the CARES Act of 2020. In order to allocate business losses a hedge fund must be a trader fund. We thus discuss what makes a hedge fund a trader fund, whether management and performance fees of a trader fund are deductible as trade or business loss, and whether trader fund losses constitute passive activity losses. After explaining the relationship between hedge fund losses and business losses, we illustrate with simple examples how the new provisions of the CARES Act under Section 461(l) may affect hedge fund investors. We find that compared to TCJA some of these new provisions are beneficial while others are detrimental to investors. On the balance, Section 461(l) remains punitive, uneconomic, and unnecessary.

Keywords: Excess Business Loss, Hedge Fund Taxation, Trader Fund, Trader in Securities Election, TCJA, CARES Act, Section 461(l)

JEL Classification: G23, H24, K34

Suggested Citation

Sosner, Nathan and Steblea, Roxana, Limitation on Trader Fund Losses under the CARES Act of 2020 (March 3, 2021). Available at SSRN: https://ssrn.com/abstract=3797118 or http://dx.doi.org/10.2139/ssrn.3797118

Nathan Sosner (Contact Author)

AQR Capital Management, LLC ( email )

One Greenwich Plaza
Greenwich, CT 06830
United States

Roxana Steblea

AQR Capital Management, LLC ( email )

Greenwich, CT
United States

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