How To Extend The Tax Holiday On Carried Interest
Both changes to participation exemption and carried interest give reason for a specific type of IRC 402(b) solution for:
- Private Equity because they could be caught by the carried interest definition and three year tax holiday; which means they could suffer to pay tax on money not yet received
- Captive Insurance Passive income solution
- Hedge Fund specific solution to continue deferral of carried interest.
Private Equity caught by the carried interest definition; which means they could pay tax on money not yet received.
This structure extends the tax holiday indefinitely.
This structure makes overseas passive income rules irrelevant.
That means the top marginal tax rate applies to overseas passive income because the general tax rate deductions and the new participation exemption rules reductions do not extend to Passive income and gains. (See 4501 and 1297)
The 2018 ”participation exemption” in tax law changes makes the way an American Company financed their business no longer tax neutral.
This structure makes overseas financing tax free.
- The Tax Reform Act did not eliminate the tax advantages of carried interest but instead adjusted the holding period for private equity funds and real estate partnerships.
- The Act treats carried interest gains on partnership assets held for three years or less as short-term capital gain and as long-term capital gain if held more than three years. The three year timeline limitation begins at the start of the Fund.
The non-contentious part of that limitation is repatriation of carried interest for Corporations and Funds. Funds will suffer a ”double whammy” of taxation and loss of yield. Which means funds not only kiss investor money away and suffer a huge tax bill.
Alternatively they trade the carried interest for a 402(b)
Summary of 402(b) solutions for the 2018 overseas tax problem.
- Extend the tax holiday on private equity, hedge funds and stock options.
- There are no time limits to a tax holiday
The key to 457A (see IRS Ruling 2014-14 attached)
- Removal of a promise by a US tax indifferent entity to pay a carried interest and replacement with a possibility of later payment
- In exchange, the certainty of taxation in 2018 is replaced by the certainty of taxation sometime later: in other words, deferral
- Tax deferred is always tax saved
- The return on deferred tax is always better that the return on the 457A after-tax residue
The legal framework
- Use of a 402(b) compliant non-qualifying unvested deferred compensation plan organized under Hong Kong law with existing hedge fund clearer’s as asset-holder of the plan
- Transfer of existing carried interest assets to the plan by the existing US tax indifferent entity as plan sponsor
- Vesting schedule by means of a generic award plan by which plan administrator decides on allocation to plan members, which is a tax event.
- By-passes probate, useful for business succession planning
- Not a discretionary trust and 409A and 83 compliant
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