The term “carried interest” is typically used to refer to profits interests issued by investment partnerships to their manager(s). It is an ownership interest in a partnership that has no liquidation value at grant, but entitles the holder to a share in future partnership profits, if any. The term “carried interest” hails from the fact that the “carried interest” holder typically does not invest any of the holder's own capital in the partnership. Thus, the “carried interest” holder is “carried” by those who do invest capital in the partnership. Currently, the income that a “carried interest” receives is generally taxed as capital gain. Many commentators believe that income allocated by a partnership to “carried interest” holders should be taxed as compensation because the income is for the services the partner performs for the partnership. This paper will examine what the proper tax treatment of “carried interests” should be based on what is the most economically equitable, fair, and efficient method of taxation. Based on the equity and efficiency concepts, the authors suggest that a portion of all “carried interest” income should be taxed as a payment in exchange for services (i.e., as compensation)—regardless of the nature of the underlying assets inside the partnership and regardless of the nature of the business the partnership conducts. However, what qualifies as a “carried interest” and the portion of the income that should be taxed as compensation are not as easily defined.
After numerous failed previous attempts to enact legislation taxing “carried interest” income attributable to services as compensation income versus capital gains, Congress enacted Section 1061 as part of the Tax Cuts and Jobs Act. Unlike previous proposals, which would tax carried interest income attributable to services as compensation income, Section 1061 simply reclassifies some carried interest income attributable to services as short-term capital gain. By choosing to treat carried interest income attributable to services as short-term capital gain instead of as compensation income, Section 1061 exempts such income from self-employment tax and allows taxpayers to offset such income with an unlimited amount of short-term capital losses. This paper reviews the requirements under Section 1061 and explains several ambiguities created by the new law. In addition, this paper examines whether Section 1061 follows sound tax policy. The authors find that Section 1061 does not follow the tax policy concepts of equity and fairness, economic efficiency, neutrality, simplicity, or certainty. In addition, the authors find that Section 1061 will have minimal impact, as most carried interest is held longer than the required period to qualify as long-term capital gain.
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