Open questions on the impact of the new law to hedge funds, private equity funds and real estate funds

The Tax Cuts and Jobs Act of 2017, P.L. 115-97 (the Act), enacted new Code section 1061. The Act was signed into law on Dec. 22, 2017. New Code section 1061 is effective for taxable years beginning after 2017 and has changed the holding period for capital gains realized by a taxpayer who holds an applicable partnership interest (as defined below). Under the new law, a taxpayer who holds an applicable partnership interest will recognize net long-term capital gain with respect to such interest only if the taxpayer has held the interest for at least three years. If the three-year holding period requirement is not met, the taxpayer’s net long-term capital gain will be treated as a short-term capital gain, notwithstanding Code section 83 or any election made under Code section 83(b).

It should be noted that short-term capital gains are potentially subject to tax at federal ordinary income rates of 37 percent, plus the 3.8 percent Medicare tax on unearned income, if applicable. In addition, the three-year holding period rule applies to capital gains recognized after 2017, regardless of when the taxpayer acquired the applicable partnership interest.

New Code section 1061 will affect many hedge funds, private equity funds and real estate funds.

Overview of Code section 1061

Code section 1061(c)(1) defines an applicable partnership interest to mean any interest in a partnership which, directly or indirectly, is transferred to, or is held by, the taxpayer in connection with the performance of substantial services by the taxpayer, or any other related person, in any applicable trade or business. The statute excludes any interest held by a person who is employed by another entity that conducts a trade or business (other than an applicable trade or business (as defined below)) and only provides services to such other entity. Code section 1061(c)(1) (last sentence).

Code section 1061(c)(2) defines the term applicable trade or business to mean any activity that is conducted on a regular, continuous and substantial basis, regardless if such activity is conducted in one or more entities, and consists, in whole or in part, of:

1. raising or returning capital; and
2. either (A) investing in, or disposing of, specified assets, or identifying specified assets for investing or disposition, or (B) developing specified assets.

Under Code section 1061(c)(3), the term specified assets means:

1. securities;
2. commodities;
3. rental or investment real estate;
4. cash or cash equivalents;
5. options or derivative contracts; or
6. a partnership interest to the extent of the partnership’s proportionate interest in any of the foregoing assets.

The House Ways and Means Report (the House Report) explains that a security means any

1. share of corporate stock,
2. a partnership interest in a widely held or publicly traded partnership or trust,
3. a note, bond or debenture,
4. interest rate, currency, or equity notional principal contract,
5. an interest in, or any derivative financial instrument in, any such security or currency, and
6. a hedge with respect to a security that is clearly identified as such.

The House Report states that a commodity means any

1. commodity that is actively traded,
2. a notional principal contract with respect to a commodity,
3. an interest in, or derivative financial instrument in, a commodity or notional principal contract, or
4. a hedge with respect to a commodity that is clearly identified as such.

Closely-held partnership interest

As noted above, the statute does not list a non-publicly traded, closely held partnership interest as a specified asset. However, the House Report explains that a partnership interest, for purposes of determining the proportionate interest of a partnership in any specified asset, includes any partnership interest that is not otherwise treated as a security, for example, a partnership interest that is not widely held or publicly traded. The House Report illustrates the case where a hedge fund acquires an interest in an operating business that is operated in a non-publicly traded, closely held partnership and concluded that the partnership interest is a specified asset for purposes of Code section 1061. Several commentators speculate that the failure to mention closely held partnerships in the statute may be a drafting error. See Elizabeth L. McGinley and Steven J. Lorch, The New Three-Year Holding Period for Carried Interests, Bloomberg BNA Daily Tax Report (February 26, 2018).

Exclusion of corporations, including S corps

The carried interest rules exclude certain partnerships from the definition of an applicable partnership interest. Specifically, an applicable partnership interest does not include any partnership interest that is held by a corporation. Code section 1061(c)(4)(A). Neither the statute nor the legislative history elaborates on what is meant by a corporation. However, on March, 2018, the IRS issued Notice 2018-18 which announced that future regulations will clarify that the term corporation does not include an S corporation.

Capital interest in a partnership

Another carve out from the definition of applicable partnership interest is the case where a taxpayer owns a capital interest in the partnership which permits the taxpayer to share in partnership capital commensurate with (a) the amount of capital contributed, or (b) the value of such interest that was subject to tax under Code section 83 upon issuance or vesting. Code Section 1061(c)(4)(B). Notwithstanding the foregoing, the House Report explains that a partnership interest will not fail to be treated as transferred or held in connection with the performance of services merely because the taxpayer made contributions to the partnership.

Sale to a related party

Finally, Code section 1061(d) provides a look-thru/aggregate approach in the case of the sale of an applicable partnership interest to a related person. Under Code section 1061(d), if a taxpayer transfers an applicable partnership interest to a related person (as defined below) the taxpayer is required to include in gross income as short-term capital gain the excess (if any) of:  (a) the taxpayer’s net long-term capital gain attributable to the sale of an asset held not more than three years as is allocable to the interest; over (b) any amount treated as a short- term capital gain under the general rule with respect to the transfer of the interest. The House Report explains that the related party sale rule should not result in double counting short-term capital gain. The term related party means a person related to the taxpayer if: (a) such person is a member of the taxpayer’s family within the meaning of Code section 318(a)(1); or (b) such person performed a service within the current calendar year or the preceding three calendar years in any applicable trade or business in which or for which the taxpayer performed a service.

Comments and questions

1. Does Code section 1061 apply to both sales of assets held (directly or indirectly) by an applicable partnership, and (b) the sale of an applicable partnership interest?
   
   Although not entirely clear, it appears that the three-year holding period rule described in Code section 1061 may be directed to both (a) sales of assets held (directly or indirectly) by the applicable partnership, and (b) the sale of an applicable partnership interest. Consider the following examples:
   
   **The result in this scenario is not entirely clear from the legislation and likely will require additional guidance from the IRS.
2. Long-term capital gain or short-term capital gain?
   
   Consider the following additional example:
   
   
   
   Query: Is A’s promote allocation of long-term capital gain or short-term capital gain?
   
   Code section 1061(a)(1) and (2) uses the term “with respect to such interest.” Presumably, the use of the foregoing term permits the inference that the promote gain should be subject to the carried interest rule and therefore be characterized as short-term capital gain. However, this question likely will require additional guidance.
3. How are unrealized gains as of 12/31/2017 treated when Code section 1061 becomes effective?The Code section 1061 carried interest rules apply to taxable years beginning after Dec. 31, 2017. The effective date rule does not provide for any grandfathering relief. Some commentators expressed the view that the three-year holding period applies to capital gains recognized after 2017, regardless of when the taxpayer acquired the applicable partnership interest. See Elizabeth L. McGinley and Steven J. Lorch, The New Three-Year Holding Period for Carried Interests, Bloomberg BNA Daily Tax Report (February 26, 2018).Future IRS guidance may provide some relief. However, until guidance is issued, taxpayers should exercise caution in tax planning straddle-year situations.

Continue talking with your tax advisor

Obviously, there are many questions that need to be addressed in the coming months as the industry and its practitioners come to terms with all the nuances and questions raised by newly enacted Code section 1061. Hopefully, the U.S. Treasury Department and IRS will issue new regulations answering some of these questions. Indeed, many of the references to the legislative history mentioned above may require regulations or other guidance to become fully implemented. We recommend speaking with your Baker Tilly tax advisor to understand how Code section 1061 and future guidance may affect your organization. Our team will continue to follow developments and keep our clients updated.

For more information on this topic, or to learn how Baker Tilly's tax specialists can help, contact our team.