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.”
SAN ANTONIO HUISTA, Guatemala — An American contractor went to a small town in the Guatemalan mountains with an ambitious goal: to ignite the local economy, and hopefully even persuade people not to migrate north to the United States.
Half an hour into his meeting with coffee growers, the contractor excitedly revealed the tool he had brought to change their lives: a pamphlet inviting the farmers to download an app to check coffee prices and “be a part of modern agriculture.”
Pedro Aguilar, a coffee farmer who hadn’t asked for the training and didn’t see how it would keep anyone from heading for the border, looked confused. Eyeing the U.S. government logo on the pamphlet, he began waving it around, asking if anyone had a phone number to call the Americans “and tell them what our needs really are.”
soared in 2019 and is on the upswing once more.
have risen, malnutrition has become a national crisis, corruption is unbridled and the country is sending more unaccompanied children to the United States than anywhere else in the world.
That is the stark reality facing Ms. Harris as she assumes responsibility for expanding the same kind of aid programs that have struggled to stem migration in the past. It is a challenge that initially frustrated her top political aides, some of whom viewed the assignment from Mr. Biden as one that would inevitably set her up for failure in the first months of her tenure.
Her allies worried that she would be expected to solve the entire immigration crisis, irked that the early reports of her new duties appeared to hold her responsible for juggling the recent surge of children crossing the border without adults.
linked to drug traffickers and accused of embezzling American aid money, the leader of El Salvador has been denounced for trampling democratic norms and the government of Guatemala has been criticized for persecuting officials fighting corruption.
Even so, Ms. Harris and her advisers have warmed to the task, according to several people familiar with her thinking in the White House. They say it will give her a chance to dive squarely into foreign policy and prove that she can pass the commander-in-chief test, negotiating with world leaders on a global stage to confront one of America’s most intractable issues.
critics denounced as unlawful and inhumane. Moreover, members of the current administration contend that Mr. Trump’s decision to freeze a portion of the aid to the region in 2019 ended up blunting the impact of the work being done to improve conditions there.
But experts say the reasons that years of aid have not curbed migration run far deeper than that. In particular, they note that much of the money is handed over to American companies, which swallow a lot of it for salaries, expenses and profits, often before any services are delivered.
Record numbers of Central American children and families were crossing, fleeing gang violence and widespread hunger.
independent studies have found.
“All activities funded with U.S.A.I.D.’s foreign assistance benefit countries and people overseas, even if managed through agreements with U.S.-based organizations,” said Mileydi Guilarte, a deputy assistant administrator at U.S.A.I.D. working on Latin America funding.
But the government’s own assessments don’t always agree. After evaluating five years of aid spending in Central America, the Government Accountability Office rendered a blunt assessment in 2019: “Limited information is available about how U.S. assistance improved prosperity, governance, and security.”
One U.S.A.I.D. evaluation of programs intended to help Guatemalan farmers found that from 2006 to 2011, incomes rose less in the places that benefited from U.S. aid than in similar areas where there was no intervention.
Mexico has pushed for a more radical approach, urging the United States to give cash directly to Central Americans affected by two brutal hurricanes last year. But there’s also a clear possibility — that some may simply use the money to pay a smuggler for the trip across the border.
The farmers of San Antonio Huista say they know quite well what will keep their children from migrating. Right now, the vast majority of people here make their money by selling green, unprocessed coffee beans to a few giant Guatemalan companies. This is a fine way to put food on the table — assuming the weather cooperates — but it doesn’t offer much more than subsistence living.
Farmers here have long dreamed of escaping that cycle by roasting their own coffee and selling brown beans in bags to American businesses and consumers, which brings in more money.
“Instead of sending my brother, my father, my son to the United States, why not send my coffee there, and get paid in dollars?” said Esteban Lara, the leader of a local coffee cooperative.
But when they begged a U.S. government program for funding to help develop such a business, Ms. Monzón said, they were told “the money is not designed to be invested in projects like that.”
These days, groups of her neighbors are leaving for the United States every month or two. So many workers have abandoned this town that farmers are scrambling to find laborers to harvest their coffee.
One of Ms. Monzón’s oldest employees, Javier López Pérez, left with his 14-year-old son in 2019, during the last big wave of Central American migration to the United States. Mr. López said he was scaling the border wall with his son when he fell and broke his ankle.
“My son screamed, ‘Papi, no!’ and I said to him, ‘Keep going, my son,’” Mr. López said. He said his son made it to the United States, while he returned to San Antonio Huista alone.
His family was then kicked out of their home, which Mr. López had given as collateral to the person who smuggled him to the border. The house they moved into was destroyed by the two hurricanes that hit Guatemala late last year.
Ms. Monzón put Mr. López in one of her relatives’ houses, then got the community to cobble together money to pay for enough cinder blocks to build the family a place to live.
While mixing cement to bind the blocks together, one of Mr. López’s sons, Vidal, 19, confessed that he had been talking to a smuggler about making the same journey that felled his father, who was realistic at the prospect.
“I told him, ‘Son, we suffered hunger and thirst along the way, and then look at what happened to me, look at what I lost,’” Mr. López said, touching his still-mangled ankle. “But I can’t tell him what to do with his life — he’s a man now.”
WASHINGTON — Lawmakers have unleashed more than $5 trillion in relief aid over the past year to help businesses and individuals through the pandemic downturn. But the scale of that effort is placing serious strain on a patchwork oversight network created to ferret out waste and fraud.
The Biden administration has taken steps to improve accountability and oversight safeguards spurned by the Trump administration, including more detailed and frequent reporting requirements for those receiving funds. But policing the money has been complicated by long-running turf battles; the lack of a centralized, fully functional system to track how funds are being spent; and the speed with which the government has tried to disburse aid.
The scope of oversight is vast, with the Biden administration policing the tail end of the relief money disbursed by the Trump administration last year in addition to the $1.9 trillion rescue package that Democrats approved in March. Much of that money is beginning to flow out the door, including $21.6 billion in rental assistance funds, $350 billion to state and local governments, $29 billion for restaurants and a $16 billion grant fund for live-event businesses like theaters and music clubs.
The funds are supposed to be tracked by a hodgepodge of overseers, including congressional panels, inspectors general and the White House budget office. But the system has been plagued by disagreements and, until recently, disarray.
released a scathing report accusing other Treasury officials of blocking him from conducting more extensive investigations.
Mr. Miller was selected to oversee relief programs managed by the Treasury Department, but the agency’s officials believed his role was to track only a $500 billion pot of money for the Federal Reserve’s emergency lending programs and funds for airlines and companies that are critical to national security. Mr. Miller said that Treasury officials were initially cooperative during the Trump administration, but that after the transition to the new administration started, his access to information dried up.
After Mr. Miller’s requests for program data were denied, he appealed to the Justice Department’s Office of Legal Counsel, which ruled against him last month. His team of 42 people has been left with little to do.
Economic Injury Disaster Loans. But federal oversight experts and watchdog groups say the exact scale of problems in the $2 trillion bipartisan stimulus relief bill in March 2020 is virtually impossible to determine because of insufficient oversight and accountability reporting.
Mr. Miller has been pursuing cases of business owners double dipping from various pots of relief money, such as airlines taking small-business loans and also receiving payroll support funds. The Small Business Administration’s inspector general said last year that the agency “lowered the guardrails” and that 15,000 economic disaster loans totaling $450 million were fraudulent.
The Government Accountability Office also placed the small-business lending programs on its “high risk” watch list in March, warning that a lack of information about the recipients of aid and inadequate safeguards could lead to many more problems than have been reported. The report identified “deficiencies within all components of internal control” in the Small Business Administration’s oversight and concluded that officials “must show stronger program integrity controls and better management.”
proposal to revamp many, but not all, of its procedures.
Oversight veterans and some lawmakers say they want to see a more cohesive approach and more transparency from the Biden administration.
“It is just staggering how little oversight there is,” said Neil M. Barofsky, who was the special inspector general for the Troubled Asset Relief Program from 2008 to 2011. “Not because of the fault of the people who are there, but because of the failure to empower them and give them the opportunity to do their jobs.”
Senator Elizabeth Warren, Democrat of Massachusetts, said she had pushed hard for more oversight last year because she believed that Trump administration officials had conflicts of interest. Despite improvements, she said, the Biden administration could be doing more.
“I kept pushing for more oversight — we got some of it, but not all of what we need,” Ms. Warren said. “We are talking hundreds of billions here.”
She added: “The Biden administration is definitely doing better, but there’s no substitute for transparency and oversight — and we can always do better.”
programs intended to speed $25 billion for emergency housing relief passed last year.
Watchdog groups are wary that speed could sacrifice accountability.
Under Mr. Trump, the Office of Management and Budget, which is responsible for setting policy in federal agencies, refused to comply with all the reporting requirements in the 2020 stimulus that called for it to collect and release data about businesses that borrowed money under the small-business lending programs.
To some observers, Mr. Biden’s budget office has not moved quickly enough to reverse the Trump-era policy. Instead, Mr. Sterling’s team is working on a complex set of benchmarks — tailored to individual programs included in the $1.9 trillion relief bill — which will be released one by one in the coming months.
stymied by disagreements about a program to prop up struggling state and local governments.
Its legally mandated report to Congress was delayed for weeks, and a member of the panel, Bharat Ramamurti, accused his Republican colleagues of stalling the group’s work. Mr. Ramamurti has since left to work for the Biden administration, and the five-person panel now has three commissioners and no chair. Its latest report was only 19 pages.
The government’s confused effort to retrieve Americans overseas during the early weeks of the coronavirus outbreak compromised the safety of the evacuees, federal employees and communities near where Americans returned to, according to a new report published on Monday by Congress’s nonpartisan watchdog.
The effort was so dysfunctional that federal health agencies could not even agree on the purpose and terms of the mission, contradicting one another about whether it was classified as an evacuation or repatriation.
The more-than-yearlong investigation by the Government Accountability Office concluded that the evacuation of Americans from China bogged down badly as different divisions within the Department of Health and Human Services argued over which was responsible. That fighting undermined the earliest attempts to protect those Americans after they returned from China, where the coronavirus was believed to have originated.
The G.A.O. said three agencies within the department — the Centers for Disease Control and Prevention, the Office of the Assistant Secretary for Preparedness and Response, and the Administration for Children and Families — “did not follow plans or guidance delineating their roles and responsibilities for repatriating individuals during a pandemic — an event these agencies had never experienced.”
whistle-blower complaint filed early last year. Last April, the department’s top lawyer concluded that federal health employees without adequate protective gear or training interacted with Americans quarantined at the base, validating the whistle-blower’s central complaint.
According to the G.A.O. report issued Monday, as the Administration for Children and Families, or A.C.F., began its role overseeing the repatriation of the evacuees, lawyers at H.H.S. determined that the flights from Wuhan, China, constituted an evacuation, not a repatriation, and therefore were the C.D.C.’s responsibility.
For that reason, A.C.F. officials said resources from the federal government’s repatriation program were not used. But the decision from H.H.S. lawyers was not communicated to the C.D.C., the report said, and G.A.O. investigators were not given an explanation of the distinction between a repatriation and evacuation.
A focus of the report is the federal government’s response at March Air Reserve Base, near Los Angeles, where the health agencies functioned independently and without coordination, the G.A.O. said. As the A.C.F. prepared for the evacuees in late January, the Office of the Assistant Secretary for Preparedness and Response was abruptly put in charge on the day they arrived.
A.S.P.R.’s Incident Management Team “was not mobilized until after the flight landed and did not deploy to the site until January 31,” the report said. That led to broad confusion about who was in charge, with A.S.P.R. officials believing they were only supporting other agencies there.
The report describes other significant missteps, some of which had already been made public. It cites last year’s report from H.H.S. lawyers describing a scene at the base in which an A.C.F. official told health department employees to remove personal protective gear at a meeting with evacuees, lest there be “bad optics.”
Federal health agencies also struggled to stop those on the base from leaving in the absence of a federal quarantine order, which lasted several days, the report said. One person with the “potential to spread” Covid-19 attempted to leave the base.
The G.A.O. also wrote that federal health officials disagreed on which agency was responsible for infection control on the base, while the use of personal protective gear was uneven among poorly-trained federal employees there. The dispute led to an almost comical bureaucratic tangle.
At first, A.C.F. and A.S.P.R. officials viewed the C.D.C. as the body with more expertise and authority, including under a section of the federal government’s guidance on repatriation procedures related to Ebola. But C.D.C. officials told their colleagues that section was not applicable to other diseases, and that the agency was not responsible for managing the employees of other agencies. Still, the C.D.C. offered training after it was requested.
“According to H.H.S., C.D.C. personnel on the ground provided inconsistent and informal infection prevention and control guidance for the first 3 days of the mission because of a lack of clear roles,” the report said.
The G.A.O. noted that H.H.S. did not feature repatriation in its planning exercises for a pandemic, and therefore was not equipped to coordinate such an effort. “Until H.H.S. conducts such exercises, it will be unable to test its repatriation plans during a pandemic and identify areas for improvement,” the office wrote.
H.H.S. agreed with its recommendations, the G.A.O. said.