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.”
NEW DELHI — Within the world’s worst coronavirus outbreak, few treasures are more coveted than an empty oxygen canister. India’s hospitals desperately need the metal cylinders to store and transport the lifesaving gas as patients across the country gasp for breath.
So a local charity reacted with outrage when one supplier more than doubled the price, to nearly $200 each. The charity called the police, who discovered what could be one of the most brazen, dangerous scams in a country awash with coronavirus-related fraud and black-market profiteering.
The police say the supplier — a business called Varsha Engineering, essentially a scrapyard — had been repainting fire extinguishers and selling them as oxygen canisters. The consequences could be deadly: The less-sturdy fire extinguishers might explode if filled with high-pressure oxygen.
“This guy should be charged with homicide,” said Mukesh Khanna, a volunteer at the charity. “He was playing with lives.” (The owner, now in jail, couldn’t be reached for comment.)
this month that “the moral fabric of the society is dismembered.”
Over the past month, the New Delhi police have arrested more than 210 people on allegations of cheating, hoarding, criminal conspiracy or fraud in connection with Covid-related scams. Similarly, the police in Uttar Pradesh have arrested 160 people.
“I have seen all kinds of predators and all forms of depravity,” said Vikram Singh, a former police chief in Uttar Pradesh, “but this level of predation and depravity I have not seen in the 36 years of my career or in my life.”
have swooped in to connect those in need with lifesaving resources.
The ad hoc system has limits. Vital supplies like oxygen are still stuck in bottlenecks, and people keep dying after hospitals run out. Vaccine and pharmaceutical makers can’t keep up. Politicians in some places are threatening people who publicly plead for supplies.
Infections and deaths are widely believed to be many times more numerous than the official figures indicate, and in hospitals across India, all the beds have been filled and people are dying for lack of oxygen or medicine.
Accusations by one doctor in Madhya Pradesh have gone viral. The doctor, Sanjeev Kumrawat, said he tried to stop a local activist for India’s governing party from selling access to beds in a government hospital where he works. “We all know that to get a bed is a big struggle all around,” Dr. Kumrawat said in an interview. “Government resources are to be distributed equitably and can’t become the property of one person.”
thousands of vials of fake remdesivir during a bust. A tipster led them to a factory where they recovered 3,371 vials that were filled with glucose, water and salt.
Many other doses had already been sold and maybe even put into patients’ bodies, the Gujarat police said, posing a public health risk of unknown scale.
Those who turn to the black market often know they are taking a gamble.
Anirudh Singh Rathore, a 59-year-old cloth trader in New Delhi, was desperately seeking remdesivir for his ill wife, Sadhna. He acquired two vials at the government-mandated price of about $70 each. He needed four more.
Through social media, he found a seller willing to part with four more vials for about five times that price. First, two arrived. When the second two were delivered, he noticed the packaging was different from the first batch. They had been made by different companies, the seller explained.
The Rathores had their doubts, but Sadhna’s oxygen levels were dropping and they were desperate. Mr. Rathore said they gave the doses to the doctors, who injected them without being able to determine whether they were real or fake. On May 3, Ms. Rathore died.
Mr. Rathore filed a police report and one of the sellers was arrested, he said, but he has been racked with guilt.
“I have the regret that probably my wife would have been saved if those injections were original,” he said, adding that the police had sent the vials to be tested.
“People are using the crisis period for their own benefit,” Mr. Rathore said. “This is a moral crisis.”
HANOVER, N.H. — Sirey Zhang, a first-year student at Dartmouth’s Geisel School of Medicine, was on spring break in March when he received an email from administrators accusing him of cheating.
Dartmouth had reviewed Mr. Zhang’s online activity on Canvas, its learning management system, during three remote exams, the email said. The data indicated that he had looked up course material related to one question during each test, honor code violations that could lead to expulsion, the email said.
Mr. Zhang, 22, said he had not cheated. But when the school’s student affairs office suggested he would have a better outcome if he expressed remorse and pleaded guilty, he said he felt he had little choice but to agree. Now he faces suspension and a misconduct mark on his academic record that could derail his dream of becoming a pediatrician.
“What has happened to me in the last month, despite not cheating, has resulted in one of the most terrifying, isolating experiences of my life,” said Mr. Zhang, who has filed an appeal.
Dartmouth recently accused of cheating on remote tests while in-person exams were shut down because of the coronavirus. The allegations have prompted an on-campus protest, letters of concern to school administrators from more than two dozen faculty members and complaints of unfair treatment from the student government, turning the pastoral Ivy League campus into a national battleground over escalating school surveillance during the pandemic.
insecure, unfair and inaccurate.
cease using the exam-monitoring tools.
“These kinds of technical solutions to academic misconduct seem like a magic bullet,” said Shaanan Cohney, a cybersecurity lecturer at the University of Melbourne who researches remote learning software. But “universities which lack some of the structure or the expertise to understand these issues on a deeper level end up running into really significant trouble.”
At Dartmouth, the use of Canvas in the cheating investigation was unusual because the software was not designed as a forensic tool. Instead, professors post assignments on it and students submit their homework through it.
That has raised questions about Dartmouth’s methodology. While some students may have cheated, technology experts said, it would be difficult for a disciplinary committee to distinguish cheating from noncheating based on the data snapshots that Dartmouth provided to accused students. And in an analysis of the Canvas software code, The Times found instances in which the system automatically generated activity data even when no one was using a device.
“If other schools follow the precedent that Dartmouth is setting here, any student can be accused based on the flimsiest technical evidence,” said Cooper Quintin, senior staff technologist at the Electronic Frontier Foundation, a digital rights organization, who analyzed Dartmouth’s methodology.
Seven of the 17 accused students have had their cases dismissed. In at least one of those cases, administrators said, “automated Canvas processes are likely to have created the data that was seen rather than deliberate activity by the user,” according to a school email that students made public.
The 10 others have been expelled, suspended or received course failures and unprofessional-conduct marks on their records that could curtail their medical careers. Nine pleaded guilty, including Mr. Zhang, according to school documents; some havefiled appeals.
Dr. Compton acknowledged that the investigation had caused distress on campus. But he said Geisel, founded in 1797 and one of the nation’s oldest medical schools, was obligated to hold its students accountable.
“We take academic integrity very seriously,” he said. “We wouldn’t want people to be able to be eligible for a medical license without really having the appropriate training.”
Instructure, the company that owns Canvas, did not return requests for comment.
A Hunt Begins
In January, a faculty member reported possible cheating during remote exams, Dr. Compton said. Geisel opened an investigation.
To hinder online cheating, Geisel requires students to turn on ExamSoft — a separate tool that prevents them from looking up study materials during tests — on the laptop or tablet on which they take exams. The school also requires students to keep a backup device nearby. The faculty member’s report made administrators concerned that some students may have used their backup device to look at course material on Canvas while taking tests on their primary device.
administrators held a virtual forum and were barraged with questions about the investigation. The conduct review committee then issued decisions in 10 of the cases, telling several students that they would be expelled, suspending others and requiring some to retake courses or repeat a year of school at a cost of nearly $70,000.
Many on campus were outraged. On April 21, dozens of students in white lab coats gathered in the rain in front of Dr. Compton’s office to protest. Some held signs that said “BELIEVE YOUR STUDENTS” and “DUE PROCESS FOR ALL” in indigo letters, which dissolved in the rain into blue splotches.
Several students said they were now so afraid of being unfairly targeted in a data-mining dragnet that they had pushed the medical school to offer in-person exams with human proctors. Others said they had advised prospective medical students against coming to Dartmouth.
“Some students have built their whole lives around medical school and now they’re being thrown out like they’re worthless,” said Meredith Ryan, a fourth-year medical student not connected to the investigation.
That same day, more than two dozen members of Dartmouth’s faculty wrote a letter to Dr. Compton saying that the cheating inquiry had created “deep mistrust” on campus and that the school should “make amends with the students falsely accused.”
In an email to students and faculty a week later, Dr. Compton apologized that Geisel’s handling of the cases had “added to the already high levels of stress and alienation” of the pandemic and said the school was working to improve its procedures.
The medical school has already made one change that could reduce the risk of false cheating allegations. For remote exams, new guidelines said, students are now “expected to log out of Canvas on all devices prior to testing.”
Mr. Zhang, the first-year student, said the investigation had shaken his faith in an institution he loves. He had decided to become a doctor, he said, to address disparities in health care access after he won a fellowship as a Dartmouth undergraduate to study medicine in Tanzania.
Mr. Zhang said he felt compelled to speak publicly to help reform a process he found traumatizing.
“I’m terrified,” he said. “But if me speaking up means that there’s at least one student in the future who doesn’t have to feel the way that I did, then it’s all worthwhile.”