From ICSC Website

U.S. lawmakers introduced legislation yesterday that would increase taxes on the percent of the profits investors collect from the deals their firms complete. The proposals to increase taxes on so-called “carried interest” are part a of larger attempt to reform the U.S. financial sector, but could end up hurting the commercial real estate industry just as it is trying to emerge from the worst recession for decades.

Specifically, legislators want to reclassify “carried interest,” which is currently treated as capital gains and taxed at 15 percent. Instead, carried interest would be considered ordinary income, subjecting it to a top tax rate of 35 percent, plus the 2.9 percent Medicare tax. This is likely to rise to 39.6 percent next year. Furthermore, the 3.8 percent Medicare tax included as a last minute addition to the health care will be added on top in 2013. Limited partnerships and liability companies are so common in real estate that the impact would be wide, observers say.

Carried interest — sometimes referred to as “the carry” — refers to the share of profits general partners of such institutions receive as compensation. Typically, general partners also take management, construction or leasing fees, though that is already classified as ordinary income.

Congress initiated the carried tax increase back in 2007 as a way to target perceived excess and abuses within equity and hedge funds. Many in the real estate sector will be unintentionally swept up by the new legislation if it passes, opponents say. If carried interest is taxed as ordinary income, general partners will owe billions more in federal taxes annually. The equity at risk for higher taxation is a traditional part of compensation at real estate development and management companies (which are often partnerships) and also for individuals in private deals, observers say.

Critics point out that most limited partnership managers are not overseers of private equity and hedge funds with billion-dollar returns, but rather more-modest partnerships in which the general partners have a stake in the form of capital investment, sweat equity and reputation.

“Here’s what will happen if this bill becomes law,” said Betsy Laird, senior vice president at ICSC’s Washington office. “Real estate values will be depressed immediately, transaction volume will drop. Risk will get riskier and certain projects our members once may have undertaken will no longer make economic sense.”

Lee H. Wagman, vice chairman of Los Angeles–based CityView, also takes a dim view of the proposal. “The proposal to reclassify “carried interest” as ordinary income instead of capital gains is tantamount to a tax increase on limited partnerships which will be a significant disincentive to take the kind of entrepreneurial risks that have been the hallmark of our industry. By dampening the motivation of real estate developers to undertake new deals, we will put a drag on one of the few robust job-creating sectors in the economy,” he said. “The proposal also makes what I believe is a false comparison between real estate partnerships, where the general partner assumes significant risks in providing things like loan guarantees, upfront risk capital, and carve outs to non-recourse provisions, and the typical private equity structure where the carried interest is much less of a reward for taking on these risks and capital obligations, if at all.”

The House vote on the measure is planned for Tuesday, with the Senate vote due May 28.

The timing could not be worse, says Michael P. Kercheval, president and CEO of ICSC. “Imposing this tax burden would be devastating at a moment when the retail real estate industry, one of the U.S. economy’s biggest drivers, is recovering after the recession,” he said. “ICSC is doing all it can to make legislators aware of the unforeseen consequences of this provision.”

Compiled by the staff of Shopping Centers Today. © May 21, 2010 International Council of Shopping Centers.

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Just as commercial real estate is starting to recover… Congress plans to drive a stake through its heart and raise income taxes from 15% capital gains rate to 35% ordinary income rate. Tell your U.S. Senators about the unintended consequences associated with the carried interest proposal.  Please call 202-224-3121 and ask to be connected to your Senators’ offices.  Visit http://lac.icsc.org/icsc/dbq/officials/ to look up your Senators.

Key Points:

  • The tax increase on carried interest proposed in the tax extenders package will have serious unintended consequences to local communities.
  • This proposal would be the largest tax increase on real estate since the 1986 Tax Reform Act.
  • This tax increase is likely to hurt economic redevelopment and job creation in our most economically deprived communities because it captures real estate development.
  • While the original target was private equity and hedge fund managers, this proposal will disproportionately impact the real estate industry because it will increase the tax on the general partner’s share of profits in a real estate partnership.
  • Unlike hedge fund and private equity firms, carried interest in real estate deals is not simply compensation for services.  Rather, it is the return for taking on the tremendous risks and liabilities associated with real estate development projects, such as environmental concerns, lawsuits, operational shortfalls, construction delays and loan guaranties.
  • This potential tax increase does not recognize the entrepreneurial risk and personal guarantees that the managing partner offers on behalf of the real estate partnership.
  • Quite simply, if this legislation is enacted, the managing partner’s incentive to take-on the risk is greatly diminished.  Projects with brownfield, mixed-use, or low income components will be most impacted by the carried interest proposal because they are the most risky.
  • This tax increase will also hit small to medium size developers the hardest.  These developers are already struggling with the current credit crisis, and this proposal will further limit available capital in the real estate market.
  • With the commercial real estate industry under serious strain due to current economic conditions, raising this carried interest tax on real estate will not only threaten economic development projects, but it will also jeopardize the related jobs that those projects create.

This week ICSC led an effort to show the support of the commercial real estate industry for S. 823/H.R. 2452, the Net Operating Loss (NOL) Carryback Act.

The NOL Carryback Act would provide American companies struggling in the current economy with the ability to access a quick infusion of cash by writing off losses from 2008 or 2009 against gains from the last five years, rather than carrying them forward for the next 20 years. ICSC supports the NOL Carryback Act and is advocating removal of the program exemption for companies that have accepted funds from the Troubled Asset Relief Program (TARP).

The act will allow businesses to stabilize operations and stay current with mortgage payments, thereby protecting banks from absorbing another round of write-downs associated with non-performing real estate loans. While the losses being experienced today will be offset against future tax liabilities, the real estate industry needs liquidity to make payroll, maintain the commercial properties in our communities, and stave off foreclosures and bankruptcies.

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