Tuesday, September 11, 2012

carried interest tax fraud



The attached two links identify “carried interest” as being used by Fund Managers to convert compensation for management fees into capital gain.  The Fund Managers are paying 15% capital gain rates instead of the 35% rate for ordinary income (management frees).



Congress codified the “economic substance” doctrine in Code Section 7701(o) in 20101.

Under section 7701(o), the partnerships structured to artificially convert ordinary income compensation for services should be disregarded because their only economic purpose is to get the 15% tax rate instead of the 35% tax rate.  The result is that billions of dollars are not subject to taxation.  The 20% shortfall (35% less 15%) is not being currently taxed. It should be taxed under the plain language of section 7701(o).

I have issued a press release on a related tax issue.



Substance - Not Form - Controls Taxation
The Supreme Court of the United States has consistently stated that the substance rather than the form of a transaction is controlling for tax purposes.
Gregory v. Helvering, 293 U.S. 465 (1935), XIV-1 C.B. 193; and Helvering v. Clifford, 309 U.S. 331 (1940), 1940-1 C.B. 105 - The court determined abusive trust arrangements may be viewed as sham transactions, and the IRS may ignore the trust and its transactions for federal tax purposes.
Markosian v. Commissioner, 73 T.C. 1235 (1980) - Held that the trust was a sham because the parties did not comply with the terms of the trust, and the supporting documents and the relationship of the grantors to the property transferred did not differ in any material aspect after the creation of the trust.
Zmuda v. Commissioner, 731 F.2d 1417 (9th Cir. 1984) - The income and assets of the business trust, the equipment in the equipment trust, the residence in the family residence trust, and the assets in the foreign trust were all determined to belong directly to the owner.
Lucas v. Earl, 281 U.S. 111 (1930) - Stated an assignment of income does not shift the incidence of taxation - the income remains taxable to the one who actually earned it.

The Supreme Court of the United States has consistently stated that the substance rather than the form of a transaction is controlling for tax purposes.
Gregory v. Helvering, 293 U.S. 465 (1935), XIV-1 C.B. 193; and Helvering v. Clifford, 309 U.S. 331 (1940), 1940-1 C.B. 105 - The court determined abusive trust arrangements may be viewed as sham transactions, and the IRS may ignore the trust and its transactions for federal tax purposes.
Markosian v. Commissioner, 73 T.C. 1235 (1980) - Held that the trust was a sham because the parties did not comply with the terms of the trust, and the supporting documents and the relationship of the grantors to the property transferred did not differ in any material aspect after the creation of the trust.
Zmuda v. Commissioner, 731 F.2d 1417 (9th Cir. 1984) - The income and assets of the business trust, the equipment in the equipment trust, the residence in the family residence trust, and the assets in the foreign trust were all determined to belong directly to the owner.
Lucas v. Earl, 281 U.S. 111 (1930) - Stated an assignment of income does not shift the incidence of taxation - the income remains taxable to the one who actually earned it.
Section 7701(o) clearly applies to stop the fraudulent filings by Fund Managers for artificial “carried interest.”  In each instance, the “economic substance” is that the Fund Manager have no business purpose to form partnerships with no business purpose other than to fraudulently manufacture a capital gain.
That fraudulent practice can easily be stopped under the plain language of sectin 7701(o) of the IRS Code.


www.irstaxattorney.com (212) 588-1113 ab@irstaxattorney.com

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