4. Outside gain from an ISPI—e.g., from sale of the interest—would also be ordinary. Outside losses would also be ordinary, subject to a limitation.
5. Net K-1 losses from a given ISPI would be allowed only to the extent of cumulative net income from prior years (excluding years before the effective date), with a carryover for unused losses.
6. An individual with an ISPI who is engaged in the investment services business (as defined) would be subject to self-employment tax on all above ordinary income, even where the underlying partnership income was LTCG. Top marginal federal tax rate on such income would go to 42.5%.
10. Most recent passage was in December 2009 as part of H.R. 4213, Tax Extenders Act of 2009.
11. Carried interest provision similar to the most recent House-passed bill is in the Obama administration budget proposal for FY 2011.
12. Joint Committee on Taxation has scored the proposal as raising $10.5 billion of revenue over five years.
13. Although Senate Democrats have in prior rounds held back the proposal—primarily because of the fundamental change to partnership taxation without a comprehensive policy study—a need for $27 billion to “pay for” revenue losers in the pending tax extenders bill has led some to reconsider.
24. Money or property contributed to the partnership in exchange for such interest. Constructive contributions under Sec. 752, relating to allocation or assumption of partnership debt, do not count.
26. The excess of K-1 items of income and gain over items of deduction and loss with respect to the interest for taxable years to which the new legislation applies
27. QCI is reduced by distributions for years to which the new legislation applies, and by allocated net losses for such years.
28. In general, income or gain attributable to a QCI is exempt from carried interest treatment providedthat: (i) allocations of items to the QCI are made “in the same manner” as allocations to other QCIs held by partners who do not provide tainted services and are not related to the service partner whose QCI is being tested; and (ii) the allocations to such other QCIs are significant compared to the allocations to QCI being tested.
31. For purposes of the QCI exception, if a non-service partner (or a related party) (NSP) makes or guarantees a loan or advance to the partnership, that amount is treated as capital.
32. For example, if SP and NSP each contribute $100, but NSP also loans the partnership $200, then for this purpose total capital is $400, and the SP is considered to have only a 25% interest in partnership capital exempt from carried interest treatment.
39. Except to the extent attributable to the partner’s qualified capital interest (QCI).
40. Loss is ordinary, but can only be deducted to the extent of aggregate net positive income from the same interest for prior partnership years (excluding years before the effective date). Unused losses carry forward and do not reduce outside basis until used.
42. Gain is recognized on disposition, even where a nonrecognition rule would otherwise apply—e.g., contribution of the interest to a corporation or another partnership.
43. Loss from disposition is ordinary, but only to the extent of aggregate net positive income previously treated as ordinary under the carried interest rules.
44. Any amount treated as ordinary income under these rules is also self employment income.
47. Excluded from this treatment is appreciation already taxed as ordinary income under the “hot asset” rules of Sec. 751(b). For purposes of the Section 751 rules, an ISPI is treated as an inventory item.
48. To the extent FMV of distributed property exceeds partner’s outside basis (as adjusted to reflect the above income inclusion), partner has ordinary income.
49. If partner later sells the partnership interest at a gain that is also ordinary.
50. No adjustment to the basis of remaining partnership property under Sec. 734(b) to reflect the above income inclusion.
53. Example: An option to acquire a partnership interest, where the option holder manages assets of the issuing partnership.
54. Another example (from legislative history): Stock in a Cayman Islands corporation that owns an interest in a hedge fund managed by the holder of such stock.
64. Deemed Section 83(b) election. Where a partnership interest is transferred in connection with providing services to the partnership (or for its benefit), the SP is deemed to have made a section 83(b) election absent an election out.
65. Applies to all services, not just investment management services (i.e., is not limited to carried interests).
69. Disfavors commercial and multifamily real estate as an industry vis-à-vis other industries.In other industries, “sweat equity” continues to be favorably treated through, for example: