Ungrateful LPs Don't Even Have The Decency To Pay Private Equity Firms' Taxes

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I feel like this came out wrong:

The idea that capital gains treatment should only be available to those with money to invest would advance a policy that puts a higher value on financial contributions than vision, hard work and other forms of sweat equity.

That's from Steve Judge, president of the Private Equity Growth Capital Council, and I think he just said "the idea that capital gains treatment should only be for gains to capital is unfair to people who earn their income from labor," and, I mean, that's certainly a position you can have, but ... I dunno, that's not how I'd argue for taxing my labor at a lower rate than other people's labor?1

It's from this very funny FT article about the incidence of changes to private-equity taxation. Basically you can just about imagine, if you have an overactive imagination, that a second Obama term would bring changes to the tax treatment of carried interest so that the 20 in private equity's 2-and-20 would be taxed as ordinary income (35%) instead of capital gains (15%). As with any tax on a business it's worth asking who actually pays it, and one possible answer is "well, if we amend our partnership agreements to require LPs to gross up managers for any change in the tax code, then the LPs will pay it, won't they." That answer turns out to be (1) something that people have actually tried and (2) wrong:

Spurred by the possibility of a change in taxation, five LPs told the Financial Times that many GPs were introducing general clauses into partnership agreements that would give them power to change the terms if there was any change in the tax regime. ...

General partners said their investors had shown little interest in their tax rate and have generally declined requests to stand up for the industry when it comes to the tax break, which benefits buyout groups.

One, who said his firm had not made any changes to its fund documents, said he would be surprised if such changes got past large institutional investors. “We have found that our LPs are unsupportive on the issue.”

Perhaps surprisingly, I own an economics textbook and here is a thing it says:

The incidence of a tax depends on the responsiveness of buyers and of sellers to a change in price. When buyers respond to even a small rise in price by leaving this market and buying other things, then they will not be willing to accept a price that is much higher. Similarly, if sellers respond to a small reduction in what they receive by shifting to other areas or going out of business, then they will not be willing to accept a much smaller payment, net of tax.

You can think your thoughts but there seems to be at least some evidence that (1) "investors have become sceptical about the ability of private equity to deliver big returns in the face of ailing public stock markets" and might leave this market and buy other things,2 while (2) most alternative investment managers are unlikely to quit to become touring members of Grizzly Bear. More to the point, we have (somewhat hypothetical) evidence that investors aren't going to pay it, in the form of them rejecting (somewhat hypothetical but nonetheless) direct requests that they pay it. So that leaves pretty much the managers to pay it.

That's not really surprising - "General partners said their investors had shown little interest in their tax rate," and why should they, really? You pay 2 and 20 because your grandfather paid 2 and 20, and his grandfather before him, and you're not about to pay 2 and 26.153 just because somebody else's taxes went up. Nor is it that interesting, really, unless you actually think that taxes on carried interest will go up soon, which, I don't, but what do I know, I had money on Rick Perry being elected president.

What's interesting is that this sort-of-hypothetical debate does tell you a bit about elasticity in private equity fees. In the face of an external shock to the status quo, managers tried to keep their share the same and take the costs out of investors - and the investors, so far, seem to have pushed back and won. And you could imagine their success in keeping the status quo could embolden them to push managers' share of the pie even lower. What are the managers gonna do about it - work for a living? That's so tax inefficient.

Private equity managers fear tax hit [FT]
TPG co-founder warns on returns [FT]

1. For the record, if I were arguing for it, I'd probably take John Carney's approach, which is one part metaphysical "what is a capital gain anyway?" and one part cynical "we'll find a way around any changes you might make." Though I wouldn't lean too hard on the second part: I suspect his way around the changes would actually founder on the IRS properly determining that it's not really a loan, and here is the FT again:

The lawyer was also sceptical that private equity groups would be able to avoid new laws designed specifically to end a highly preferential tax break. “Our tax guys would shrug their shoulders, the only way is to raise the carry,” he said.

2. Ooh also in "today in private equity people saying regrettable things to the FT":

“Returns are trapped by history,” Mr Bonderman added. “When public markets returned 12 per cent and Treasury rates were 600 to 700 basis points higher, private equity returns of 20 per cent made sense.”

Umm:

TBF he was talking in Asia, where things are worse, and even the S&P was flat for 2011, etc. etc. Still!

3. Right? (100% - 15%) x (20%) = (100% - 35%) x (26.15%). Also: you and your ancestors are precocious, reproductively and financially, in that sentence. I understand that there was no "private equity" charging "2 and 20" in, like, 1880 or whatever.

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