Tax Developments and Fund Manager Compensation: Management Fee Waivers (Part One of Two)

Proposed tax reforms recently announced by the Biden administration include increased tax rates for ordinary income and capital gains, as well as a proposal to treat carried interest as ordinary income. Those and other proposed regulations have brought management fee waivers and carried interest waivers into the spotlight for the PE industry, as the latent risks associated with those waivers could increase substantially and jeopardize fund managers’ existing compensation arrangements. To that end, Foundation Research Associates (FRA) recently hosted a webinar examining hot-button tax issues for PE funds, specifically as they relate to GP compensation. The program featured Proskauer partner Amanda H. Nussbaum and Finn Dixon & Herling partner Michael P. Spiro. This first article in a two-part series considers tax developments affecting management fee waivers, and the second article will address carried interest waivers and in-kind distributions. For coverage of a previous FRA program, see our two-part series: “New Tax Regulations Threaten Traditional Private Fund Structures and GPs’ Ability to Offset Incentive Allocations With Liabilities” (Feb. 2, 2021); and “Impact of New Tax Reporting and Ways Fund Managers Can Mitigate Harm of New Partnership Liability Allocation Rules” (Feb. 16, 2021).

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