Tax break for managers of private investment funds

There's been much controversy lately about the tax break for managers of private investment funds that is currently under review by the Senate Finance Committee. The basics, first brought to general public attention (and certainly mine) by U of Illinois law prof Victor Fleischer, who presented his paper on the subject at the 2006 NYU Tax Policy Colloquium, are as follows. Managers of these funds typically get a standard return equaling 2% annually of the money they are managing plus 20% of the capital gain they eventually generate. The former is taxed as ordinary income, but the latter is taxed as capital gain. As Victor pointed out, this means that much of the managers' labor income is being taxed at 15% rather than 35%, even though these are some of the highest-paid people in the U.S. today.

Economically speaking, the managers' 20% return is a mix of labor income and a risky return to saving. The reason they get compensated so richly for playing with other people's money is that they are at least believed to have the ability to make big bucks, such that the investors are happy even after giving away the "2 and 20." It would be pure labor income if the managers could lock in and be paid the expected value of the 20% interest right up front. (This is of course unfeasible on measurement and liquidity grounds along with its incentive effects on what the manager does.) But even for the true investment component keep in mind that they are getting the tax benefit of deferral until sale.

What are these funds doing, exactly? While I know nothing first-hand, I gather that they run the gamut from (a) the straight hedge fund that figures out clever strategies to exploit market inefficiencies and generate above-market risk-adjusted returns to (b) takeover firms that find under-performing companies and restructure them to be more profitable, and thus rapidly salable for a big turnover profit.

Economically speaking, (b) is generally more valuable to the economy than (a). While (a) may increase market efficiency, the private return from figuring out how to beat out other investors by buying and selling at just the right time exceeds the social return. Not that I have any problem with such activity, but it definitely doesn't need to be subsidized.

By contrast, (b) may have some broader social payoffs, although the question here, from the standpoint of incentives, is whether there are positive externalities - i.e., gain beyond that captured by the entrepeneurs who sell for a big turnover profit. Note also that one would be less bullish about this activity if the improved performance came, say, from improved tax planning strategies or the one-shot gain from implicitly reneging on deferred compensation arrangements with rank and file workers, rather than from, say, rationalizing production and marketing processes.

I raise these broader issues of the social value associated with particular types of economic activity, although often one can and should ignore such issues in setting tax policy, because incentive arguments are important to the debate concerning the taxation of the 20% carried interest. The incentive case for giving managers a low tax rate is limited to some portion of the activity in category (b), although even for the best case scenario it is unclear why we should expect substantial positive externalities, i.e., social returns that aren't captured by the remake artists who make so much money for having done such a good job. I'd certainly like to think that I create value when I publish or teach. And lots of other workers in our economy can say the same. But presumably I'm paid for the value I create, and I am sadly unconvinced that I can make a powerful case for applying a lower tax rate to myself than the one that everyone else bears.

A week or two ago, the Wall Street Journal published an editorial, unless it was an op-ed (what's the difference most of the time in the WSJ these days?) arguing against making the managers pay the ordinary 35% rate. What a surprise. No comment needed. But today the Los Angeles Times published an editorial to the same effect. I figure that this is a bit more noteworthy since it wasn't as crushingly obvious that the Times would take this tack. Hence, worth a response.

I did not find the editorial very persuasive. After inaccurately describing the tax break as for takeover firms, rather than for the broader category of private investment firms, it rolls out the usual hardware about enterpeneurship and risk-taking and creating jobs and how crucial all this is to the health of the economy. The main problem with this argument, other than the poor fit between the affected firms and the claimed external social benefit, is the poor fit between the capital gains preference and the aim of addressing risk-taking.

A flat rate tax system with full loss refundability at the generally applicable marginal rate would not discourage risk-taking. Even the positive expected tax on the risk premium could be offset by investing on a riskier pre-tax basis in order to get where one wants after-tax. Since we don't have such a system, the tax system actually does discourage risk-taking, which is unfortunate, even without an externalities story, as it imposes deadweight loss beyond that implicit in taxing productive economic activity. For the big-time entrepeneurs, graduated marginal rates, although they discourage risk-taking, are not very important. These guys are way into the top bracket anyway. What matters a lot more is loss nonrefundability, in particular at the business (as opposed to the investor) level. That is, companies pay tax on profits, but do not get any tax benefit from net losses if they don't at some point have sufficient profits from other operations. A recent paper by Alan Auerbach, presented at the 2007 NYU Tax Policy Colloquium (see here) suggests that this problem is growing increasingly important.

The obvious solution to that problem is greater loss refundability. But this involves a dilemma. The one good reason for nonrefundability is to limit the tax benefit from phony tax losses. But if you can't measure income accurately, then distinguishing between the real losses that we want to allow and the phony ones that we still want to limit is tricky indeed. So, while we may not be at the optimum today, especially if (as Auerbach's paper suggests) the problem of real losses is growing more important due to a change in business dynamics, it's unclear exactly where we ought to go.

But a special capital gains rate for some set of investment fund managers is very poorly focused indeed on this underlying problem.

The L.A. Times op-ed admits that the effectiveness of using capital gains rates to encourage socially valuable entrepeneurship is "open to some debate." However, the only response it deems appropriate is "a simpler tax code that defines clearly the behavior it is trying to encourage." Big internal contradiction here. A simpler tax code would not result from trying to define the true value-creating entrepeneurs, e.g., those who are enough by way of making companies more profitable rather than merely outguessing the market by five minutes. That would undoubtedly be a complicated rule, inevitably drawing various objective bright lines about control percentage, ownership period, etc., that would further distort economic behavior and benefit mainly the accountants and lawyers who were in charge of making sure that particular investments qualified for the low rate. Almost certainly a bad idea.

There actually is one good rationale for the capital gains preference. It relates to lock-in, or the tax discouragement of selling appreciated capital assets, given that one can avoid the current tax by continuing to hold them. In view of this problem, a capital gains preference can actually raise revenue relative to full taxation, although I gather (from my memory of disputes and dueling revenue estimates from the time of the Bush I Administration) that the revenue-maximizing rate is more likely to be in the range of about 30% rather than 15%. (Although note that the optimal rate is likely to be lower than the revenue-maximizing rate.)

Anyway, this rationale seems singularly inapplicable to the investment fund managers if the stuff their firms hold is generally likely, in keeping with their business model, to be turned over quickly in any event, and if the investors in the funds, who get the remaining 80% of the turnover profits, are indeed getting the capital gains rate.

Bottom line: the Senate Finance Committee should press ahead with some version of its proposal, although I suppose Bush will just veto it anyway.