There were two weeks left in the Trump administration when the Treasury Department handed down a set of rules governing an obscure corner of the tax code.
Overseen by a senior Treasury official whose previous job involved helping the wealthy avoid taxes, the new regulations represented a major victory for private equity firms. They ensured that executives in the $4.5 trillion industry, whose leaders often measure their yearly pay in eight or nine figures, could avoid paying hundreds of millions in taxes.
The rules were approved on Jan. 5, the day before the riot at the U.S. Capitol. Hardly anyone noticed.
The Trump administration’s farewell gift to the buyout industry was part of a pattern that has spanned Republican and Democratic presidencies and Congresses: Private equity has conquered the American tax system.
one recent estimate, the United States loses $75 billion a year from investors in partnerships failing to report their income accurately — at least some of which would probably be recovered if the I.R.S. conducted more audits. That’s enough to roughly double annual federal spending on education.
It is also a dramatic understatement of the true cost. It doesn’t include the ever-changing array of maneuvers — often skating the edge of the law — that private equity firms have devised to help their managers avoid income taxes on the roughly $120 billion the industry pays its executives each year.
Private equity’s ability to vanquish the I.R.S., Treasury and Congress goes a long way toward explaining the deep inequities in the U.S. tax system. When it comes to bankrolling the federal government, the richest of America’s rich — many of them hailing from the private equity industry — play by an entirely different set of rules than everyone else.
The result is that men like Blackstone Group’s chief executive, Stephen A. Schwarzman, who earned more than $610 million last year, can pay federal taxes at rates similar to the average American.
Lawmakers have periodically tried to force private equity to pay more, and the Biden administration has proposed a series of reforms, including enlarging the I.R.S.’s enforcement budget and closing loopholes. The push for reform gained new momentum after ProPublica’s recent revelation that some of America’s richest men paid little or no federal taxes.
nearly $600 million in campaign contributions over the last decade, has repeatedly derailed past efforts to increase its tax burden.
Taylor Swift’s back music catalog.
The industry makes money in two main ways. Firms typically charge their investors a management fee of 2 percent of their assets. And they keep 20 percent of future profits that their investments generate.
That slice of future profits is known as “carried interest.” The term dates at least to the Renaissance. Italian ship captains were compensated in part with an interest in whatever profits were realized on the cargo they carried.
The I.R.S. has long allowed the industry to treat the money it makes from carried interests as capital gains, rather than as ordinary income.
article highlighting the inequity of the tax treatment. It prompted lawmakers from both parties to try to close the so-called carried interest loophole. The on-again, off-again campaign has continued ever since.
Whenever legislation gathers momentum, the private equity industry — joined by real estate, venture capital and other sectors that rely on partnerships — has pumped up campaign contributions and dispatched top executives to Capitol Hill. One bill after another has died, generally without a vote.
An Unexpected Email
One day in 2011, Gregg Polsky, then a professor of tax law at the University of North Carolina, received an out-of-the-blue email. It was from a lawyer for a former private equity executive. The executive had filed a whistle-blower claim with the I.R.S. alleging that their old firm was using illegal tactics to avoid taxes.
The whistle-blower wanted Mr. Polsky’s advice.
Mr. Polsky had previously served as the I.R.S.’s “professor in residence,” and in that role he had developed an expertise in how private equity firms’ vast profits were taxed. Back in academia, he had published a research paper detailing a little-known but pervasive industry tax-dodging technique.
$89 billion in private equity assets — as being “abusive” and a “thinly disguised way of paying the management company its quarterly paycheck.”
Apollo said in a statement that the company stopped using fee waivers in 2012 and is “not aware of any I.R.S. inquiries involving the firm’s use of fee waivers.”
floated the idea of cracking down on carried interest.
Private equity firms mobilized. Blackstone’s lobbying spending increased by nearly a third that year, to $8.5 million. (Matt Anderson, a Blackstone spokesman, said the company’s senior executives “are among the largest individual taxpayers in the country.” He wouldn’t disclose Mr. Schwarzman’s tax rate but said the firm never used fee waivers.)
Lawmakers got cold feet. The initiative fizzled.
In 2015, the Obama administration took a more modest approach. The Treasury Department issued regulations that barred certain types of especially aggressive fee waivers.
But by spelling that out, the new rules codified the legitimacy of fee waivers in general, which until that point many experts had viewed as abusive on their face.
So did his predecessor in the Obama administration, Timothy F. Geithner.
Inside the I.R.S. — which lost about one-third of its agents and officers from 2008 to 2018 — many viewed private equity’s webs of interlocking partnerships as designed to befuddle auditors and dodge taxes.
One I.R.S. agent complained that “income is pushed down so many tiers, you are never able to find out where the real problems or duplication of deductions exist,” according to a U.S. Government Accountability Office investigation of partnerships in 2014. Another agent said the purpose of large partnerships seemed to be making “it difficult to identify income sources and tax shelters.”
The Times reviewed 10 years of annual reports filed by the five largest publicly traded private equity firms. They contained no trace of the firms ever having to pay the I.R.S. extra money, and they referred to only minor audits that they said were unlikely to affect their finances.
Current and former I.R.S. officials said in interviews that such audits generally involved issues like firms’ accounting for travel costs, rather than major reckonings over their taxable profits. The officials said they were unaware of any recent significant audits of private equity firms.
No Money Owed
For a while, it looked as if there would be an exception to this general rule: the I.R.S.’s reviews of the fee waivers spurred by the whistle-blower claims. But it soon became clear that the effort lacked teeth.
Kat Gregor, a tax lawyer at the law firm Ropes & Gray, said the I.R.S. had challenged fee waivers used by four of her clients, whom she wouldn’t identify. The auditors struck her as untrained in the thicket of tax laws governing partnerships.
“It’s the equivalent of picking someone who was used to conducting an interview in English and tell them to go do it in Spanish,” Ms. Gregor said.
The audits of her clients wrapped up in late 2019. None owed any money.
The Mnuchin Compromise
As a presidential candidate, Mr. Trump vowed to “eliminate the carried interest deduction, well-known deduction, and other special-interest loopholes that have been so good for Wall Street investors, and for people like me, but unfair to American workers.”
wanted to close the loophole, congressional Republicans resisted. Instead, they embraced a much milder measure: requiring private equity officials to hold their investments for at least three years before reaping preferential tax treatment on their carried interests. Steven Mnuchin, the Treasury secretary, who had previously run an investment partnership, signed off.
McKinsey, typically holds investments for more than five years. The measure, part of a $1.5 trillion package of tax cuts, was projected to generate $1 billion in revenue over a decade.
credited Mr. Mnuchin, hailing him as “an all-star.”
Mr. Fleischer, who a decade earlier had raised alarms about carried interest, said the measure “was structured by industry to appear to do something while affecting as few as possible.”
Months later, Mr. Callas joined the law and lobbying firm Steptoe & Johnson. The private equity giant Carlyle is one of his biggest clients.
‘The Government Caved’
It took the Treasury Department more than two years to propose rules spelling out the fine print of the 2017 law. The Treasury’s suggested language was strict. One proposal would have empowered I.R.S. auditors to more closely examine internal transactions that private equity firms might use to get around the law’s three-year holding period.
The industry, so happy with the tepid 2017 law, was up in arms over the tough rules the Treasury’s staff was now proposing. In a letter in October 2020, the American Investment Council, led by Drew Maloney, a former aide to Mr. Mnuchin, noted how private equity had invested in hundreds of companies during the coronavirus pandemic and said the Treasury’s overzealous approach would harm the industry.
The rules were the responsibility of Treasury’s top tax official, David Kautter. He previously was the national tax director at EY, formerly Ernst & Young, when the firm was marketing illegal tax shelters that led to a federal criminal investigation and a $123 million settlement. (Mr. Kautter has denied being involved with selling the shelters but has expressed regret about not speaking up about them.)
On his watch at Treasury, the rules under development began getting softer, including when it came to the three-year holding period.
Monte Jackel, a former I.R.S. attorney who worked on the original version of the proposed regulations.
Mr. Mnuchin, back in the private sector, is starting an investment fund that could benefit from his department’s weaker rules.
A Charmed March
Even during the pandemic, the charmed march of private equity continued.
The top five publicly traded firms reported net profits last year of $8.6 billion. They paid their executives $8.3 billion. In addition to Mr. Schwarzman’s $610 million, the co-founders of KKR each made about $90 million, and Apollo’s Leon Black received $211 million, according to Equilar, an executive compensation consulting firm.
now advising clients on techniques to circumvent the three-year holding period.
The most popular is known as a “carry waiver.” It enables private equity managers to hold their carried interests for less than three years without paying higher tax rates. The technique is complicated, but it involves temporarily moving money into other investment vehicles. That provides the industry with greater flexibility to buy and sell things whenever it wants, without triggering a higher tax rate.
Private equity firms don’t broadcast this. But there are clues. In a recent presentation to a Pennsylvania retirement system by Hellman & Friedman, the California private equity giant included a string of disclaimers in small font. The last one flagged the firm’s use of carry waivers.
The Biden administration is negotiating its tax overhaul agenda with Republicans, who have aired advertisements attacking the proposal to increase the I.R.S.’s budget. The White House is already backing down from some of its most ambitious proposals.
Even if the agency’s budget were significantly expanded, veterans of the I.R.S. doubt it would make much difference when it comes to scrutinizing complex partnerships.
“If the I.R.S. started staffing up now, it would take them at least a decade to catch up,” Mr. Jackel said. “They don’t have enough I.R.S. agents with enough knowledge to know what they are looking at. They areso grossly overmatched it’s not funny.”
The Times’s David Gelles gives DealBook the backstory to his recent front-page article about rising C.E.O. pay during the pandemic.
Companies battered by the pandemic are handing out enormous pay packages to their C.E.O.s, highlighting the sharp divides in a nation on the precipice of an economic boom, but still wracked by steep income inequality.
Executive compensation has, of course, been soaring for decades now. Chief executives of big companies in the U.S. now make, on average, 320 times as much as the typical worker. In 1989, that ratio was 61 to 1.
Read the full story here.
HERE’S WHAT’S HAPPENING
A deep split in pandemic fortunes highlights an uneven global recovery. On one hand: The E.U. could let vaccinated Americans visit this summer, bringing much-needed tourism revenue to the region. (One potential hangup is a rising number of people who aren’t getting their second doses.) On the other: India will receive emergency medical supplies from the U.S. as it reports half of all new Covid-19 cases worldwide.
Netflix had a big night at the Oscars. The streaming company won seven Academy Awards last night, the most of any studio, but again fell short in its quest to win Best Picture. (That went to Disney, whose Searchlight Pictures’ “Nomadland” won the big prize; Disney won five awards over all.) AT&T’s Warner Bros. won three Oscars, while Amazon took home two.
An activist investor steps up its challenge at Exxon Mobil. Engine No. 1 argues in a new presentation that the oil giant faces an “existential business risk” because it is not taking bolder steps to move away from fossil fuels, The Financial Times reports. (Exxon and other major producers are set to report earnings this week.)
Second Chance Business Coalition, which was announced today.
Elon Musk is hosting “S.N.L.” Yes, really. The Tesla chief is scheduled to host “Saturday Night Live” on May 8. (We bet S.E.C. officials will be watching.) John Authers of Bloomberg Opinion has an interesting take on it: The Tesla chief’s antics are doing more to encourage adoption of green technology than any amount of environmentalist scolding.
The ‘massive threat’ in a ‘measly’ Supreme Court case
Today the Supreme Court will hear a case that could upend American politics. It has largely escaped attention because it’s not obviously political at all. “Americans for Prosperity Foundation v. Rodriquez” involves a fight over California’s donor disclosure requirements for charities and “may seem like a measly spat over state nonprofit rules,” Senator Sheldon Whitehouse, Democrat of Rhode Island, told DealBook. “But a massive threat lurks within.”
Today in Business
Nonprofits want more donor anonymity. Americans for Prosperity Foundation is a “social welfare” nonprofit arguing that the right to anonymous assembly guaranteed by the First Amendment extends to donor data. Critics say that a ruling in favor of the Koch-funded charity would allow more untraceable money to flow through groups designed to mask the outsize role that a few wealthy players have in American politics. If A.F.P.F. wins, “special interests will have a free pass to rig our democracy from behind a veil of secrecy,” Whitehouse said.
Companies secretly influence politics with “dark money” donations that are deliberately opaque. Basically, some “social welfare” groups are quasi-political yet don’t have the same reporting requirements as explicitly political groups. Similarly, trade groups take corporate donations and pass them on, obscuring the sources.
“The importance of dark money in society, the scope of it, is something people don’t really grasp, but it impacts everyday life,” said Anna Massoglia, a researcher at the Center for Responsive Politics.
A decision is expected around late June. Notably, the court took the case on Jan. 8, two days after the Capitol riot prompted a reckoning over corporate political donations. Both the Chamber of Commerce and the National Association of Manufacturers filed briefs supporting A.F.P.F.’s case for anonymity, and Allen Dickerson of the Federal Election Commission argued the same in a Wall Street Journal op-ed yesterday.
cottage industry of scammers.
Bain is buying $1 billion worth of desserts
Bain Capital Private Equity is buying Dessert Holdings in a deal that DealBook hears values the company at about $1 billion.
Dessert Holdings makes “Insta-worthy” cheesecakes and other desserts through three brands: The Original Cakerie, Lawler’s Desserts and Atlanta Cheesecake. The company, which sells to retailers and restaurants, was created through acquisitions led by its prior owner, Gryphon Investors. The dessert conglomerate emphasizes the “wow factor” of products like tuxedo truffle mousse cake that are made to look good on social media.
A sweet deal? In-store bakeries have held up well during the pandemic, while restaurants are expected to rebound post-Covid. There could be more consolidation in the industry, with George Weston announcing in March it plans to put its bakery business — which includes Wonder Bread in Canada — up for sale. Over the years, Bain has invested in a number of food service and restaurant brands, like Dunkin’ and Domino’s Pizza. It plans to develop “new and innovative products” as well as pursue more acquisitions after the Dessert Holdings deal, said Adam Nebesar, a managing director at the private equity firm.
Trevor Lawrence is getting paid in Bitcoin
As cryptocurrency goes more mainstream — thanks in part to the recent public listing of Coinbase — blockchain businesses are hustling for brand recognition. “We’re really trying to get our name out a lot,” said Sam Bankman-Fried, the C.E.O. of FTX, a crypto exchange that competes with Coinbase. One of FTX’s companies, the investment app Blockfolio, has signed an endorsement deal with Trevor Lawrence, the former Clemson quarterback and presumptive number-one pick in this week’s N.F.L. draft, DealBook is first to report.
29-year-old billionaire founded FTX in 2019, and said he regrets spending his early years “playing video games.” Now, he’s trying to make up for lost time and the “low name recognition” of his crypto brands by hitching their wagon to bigger brands. FTX recently agreed to pay $135 million for the naming rights to the N.B.A.’s Miami Heat arena for 19 years.
THE SPEED READ
ByteDance, the Chinese parent of TikTok, has reportedly delayed plans to go public because it hasn’t devised a corporate structure that would win approval from Washington and Beijing. (South China Morning Post)
A close look at the efforts by the Carlyle Group’s C.E.O., Kewsong Lee, to catch up to his private equity rivals. (WSJ)
Politics and policy
The law firm Jones Day has rehired at least seven lawyers who worked in the Trump administration, cementing its status as a top outpost for Republican legal experts. (FT)
Advisers to wealthy Americans are studying various strategies to minimize the hit from the Biden administration’s proposed tax hikes. (Bloomberg)
Ant Group, the Chinese fintech giant, reportedly plans to offer employees zero-interest loans backed by their stock options to bolster morale. (Bloomberg)
The culture of Travis Kalanick’s food-delivery start-up, CloudKitchens, is said to closely resemble the “bro-y” early days of Uber — and it’s losing workers as a result. (Insider)
Best of the rest
Honda said it expects all cars it sells will be electric by 2040. (Bloomberg)
One of the men who created the “Yale model” of endowment investing says the strategy is past its prime. (FT)
An eye-opening look inside the “slander industry.” (NYT)
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Getting a market-rate return is something impact investors are comfortable with, but a lower return makes it harder to attract enough investors, said Trenton Allen, managing director and chief executive of Sustainable Capital Advisors. “It’s not impossible,” he said. “But you’re narrowing the number of investors you have access to.”
Traditional impact investors also argue that accepting different returns for different investments is already happening. Consider bondlike returns for fixed-income types of risk.
“Impact investing is a big tent and should be a big tent,” said Nancy Pfund, managing partner at DBL Partners, an impact venture capital fund. “The challenge is, we shouldn’t muddy the waters and think impact-first is the only kind of investment. We also don’t want to step backward and deal with biases about returns that we have spent at least 10 years fighting.”
Even those who have taken the approach agree that it is a luxury.
“If the organizing priority is impact, that’s a privilege, but you have to have a deep tolerance for risk,” said Margot Kane, chief investment officer of Spring Point Partners, which is a social venture fund created by the Berwind family of Philadelphia, whose wealth dates to 19th-century coal mining.
For anyone considering taking the middle ground, here are the two key questions: How do you determine if an investment qualifies as impact first? And since impact, not return, is the primary motivation, how do you measure it?
Let’s start with selection.
“One of the things we ask ourselves when we’re doing due diligence on one of these projects is, ‘Is this a really great catalytic investment or a very bad market-rate investment?’” said Liesel Pritzker Simmons, co-founder and principal of Blue Haven Initiative and a member of the family whose wealth derives from Hyatt hotels.
“Honestly, it tends to come down to what is the problem they’re trying to solve and is the nature of that solution super-scalable or not?” she said.