Withum: Can funds duck the TCJA’s punches?

Landmark reforms have added further twists to the tax labyrinth for private funds, writes Withum’s Michael Oates.

This article is sponsored by Withum

The 2016 campaign trail introduced the nation to then-candidate Donald Trump’s promised tax cuts, which gave way in 2017 to sweeping reality in the form of the Tax Cuts and Jobs Act. In the almost two years since, the extensive repercussions of the TCJA have become increasingly apparent within the private equity, hedge fund and venture capital space. While IRS clarifications are typically intended to clear up ambiguity, on the TCJA front they also have created muddied waters for individual, fiduciary and business taxation.

Michael Oates

Across industries and fund types, the TCJA has created a wave of uncertainties and challenges as finance departments attempt to understand the new provisions. Expansions of certain deductions, new limitations of others and changes in various tax rates have significantly altered the taxation landscape in the immediate future – and will do until at least 2025.

Most prominently, the TCJA has raised the limits of standard deductions to nearly twice their previous amount while severely curbing itemized deductions. According to the Tax Foundation, the aim was to simplify tax returns by discouraging the headache-inducing technicalities of itemized calculations.

So, how has the TCJA altered the alternative investment fund landscape?

Trader fund versus investor fund

It is absolutely crucial to understand and differentiate between these two types of funds. Quite simply, the distinction significantly influences the tax treatment of the partnership and its investors. As a result, it is essential to determine the fund’s classification each year.

On one side of the ring is the trader fund – typically high-risk, high-reward endeavors designed to capitalize on micro-market trends and short-term swings with a high level of portfolio turnover. And in the other corner is the investor fund: notable for buying and holding assets over the long term to generate income from interest, dividends and capital appreciation.

Despite the differences, the proverbial fence between the status of trader and investor funds is not as rigid as one might imagine. In fact, the area between the two is quite grey and has been developed by case law over the years. Hence the TCJA presents deep nuances and occasional loopholes.

Since the impact of the trader versus investor debate has longevity on its side, funds need to carefully evaluate their investment strategies in order to achieve intended returns. This is due to the TCJA’s shift of the trader/investor fund landscape with profound effects on both investors and managers. Some important highlights include:

  1. Suspension of itemized deductions for miscellaneous expenses (including management fees and other investment expenses)
  2. A new limit on business interest deductions
  3. Limits on excess business loss from a partnership

Non-deductible Section 212 expenses

The trend from itemized to standardized deductions favors trader funds – primarily because funds with the ‘trader’ designation are categorized under the umbrella of business expenses, according to IRC Section 162. Thus, business expenses can be deducted as standard expenses.

The same, however, cannot be said for investor funds. Under the TCJA, itemized expenses under Section 212 are no longer deductible by investors (apart from C-corps, which we will address later). This greatly reduces the extent to which investor fund expenses can benefit taxpayers. In fact, the new Section 11045 stipulates that tax-related expenses – such as investment advisory fees – are no longer deductible.

“Across industries and fund types, the TCJA has created a wave of uncertainties and challenges”

But (there’s always a but) if these fees are tagged as business expenses and fall into the same category as trader funds, there is a possibility they can be deducted. This minor wrinkle in the system is a perfect representation of the complex and often-convoluted implications of applying the TCJA’s provisions on funds’ above-the-line/below-the-line expenses.

Business interest expense limitations

But when are they limited? It should be noted that new Article 163(j) has introduced a limit on deductions to business interest expenses. According to the IRS, relevant taxpayers must ensure the total of such deductions comes in lower than three different criteria – business interest income for that year; 30 percent of adjusted taxable income; and floorplan financing interest expense. Any excess is carried over to future tax years.

Article 163(j) does not apply to investor funds, since they do not qualify as business expenses. But both investor funds and trader funds are restricted by other limits tied to annual investment income.

Excess business losses in trader funds

Perhaps one of the most puzzling components of TCJA is Section 461, the excess business losses provision. Under the guidelines, there is a cap of $250,000 on non-corporate business losses. Any amount beyond this limit is subject to a net operating loss that passes over to the next tax year.

What makes this a head scratcher is its undermining potential with taxation at a higher rate. However, regardless of fairness or utility, trader funds could benefit from calculating business losses under the $250,000 ceiling (which is raised to $500,000 for married couples filing jointly).

QBI’s minimal impact on funds

The qualified business income deduction was heralded as providing substantial tax savings for eligible pass-through entities. But these benefits have not yet materialized on the trading fund front. Under Section 199(a), a deduction claim can be made if there is income from a trade or business operated as a pass-through other than a specified service trade or business. This includes the activity of trading securities in a partnership. There are limited benefits for the deduction for fund investors for the following types of income:

  1. 20 percent of ordinary dividends from a real estate investment trust
  2. 20 percent of ordinary income from a master limited partnership with QBI.

The pass-through to C-corp reality

The expectation that a tidal wave of pass-through entities would soon be converting their status to C-corps has proven to be misplaced. In reality, few have made the jump, despite the new corporate income tax rate of 21 percent.

C-corps still retain the double layer of taxation – the first associated with the corporate tax rate on profits and the second at the shareholder level on dividends. Rather than being an incentive, this has been a deterrent as pass-throughs have taken a ‘wait and see’ approach that appears to be working in their favor. And why not? Pass-throughs are taxed on the individual rate, not the corporate rate.

The TCJA – at its initial roll out – was comprised of 400+ pages of twisting tax reform, and its volume has since expanded with the ensuing clarifications, regulations and final rules. While the TCJA is neither heads nor tails, black nor white, one thing is certain: it is a complex, turbulent ocean best navigated with experienced financial services industry tax advisors at the helm.

Michael Oates is a CPA with Withum’s Financial and Investment Services Group and the practice leader for the firm’s financial service tax practice