Carried Interests:
Technical and Tax Analysis
There continues to be much public debate about tbe fairness ol carried interest. Tbis article describes how investment
partnerships typically structure carried interest arrangements between passive investors and the general partner or managing
member of sucb partnerships. The author tirst describes the cash tlows and economic arrangement of a carried interest
relationship in detail; he then explains the taxation of such an arrangement under current federal income tax law.
. RUSSELL J.PINILIS
M any limited liability companies and part-
nerships have an economic arrangement
whereby one or more partners contribute a
substantial portion of the capital to be used by the en-
tity, and the general partner or managing member that
is sponsoring, and working on behalf of, the entity re-
ceives profits distributions that are disproportionate
with its capital investments. Such an arrangement is
commonly referred to as a "carried interest," "incen-
tive interest," or "profits interest." This arrangement,
which is common in private investment partnerships,
such as private equity funds, and in real estate invest-
ment partnerships, has frequently come under attack,'
and President Obama's current budget proposal calls for
a change to tbe way carried interest is taxed—i.e., as or-
dinary income rather than capital gains. But for now,
these arrangements continue to have tax advantages. The
first section of this article describes in detail how a car-
ried interest arrangement works as a business and cash
fiow matter, and the second section explains the federal
income taxation of a carried interest under current law.
' See, e.g., Lynn Forester de Rothschild, "A Costly and Unjust
Perk for Financiers" (New York Times, Feb. 24, 2013), available
at http://www.nytimes.com/2013/02/25/opinion/carried-interest-
an-unjust-pri vilege-for-financiers.htm I ?_r=0.
Russell J. Pinilis is a partner in the New York office of
Kramer Levin Naftalis & Frankel LLP, and an adjunct
professor at New York Law Scfiooi, where he teaches a
course entitled "Private Equity Funds."Mr. Pinilis's practice
focuses on tax planning and structuring for asset managers
and private investment funds, and fund formation. He may
be contacted at RPinilis@KRAMERLEVIN.com. The author
thanks Philip Isom, a partner at Willkie Farr & Gallagher,
for his helpful comments on this article.
July/Augusl 2013 Vol 3S / No 6
HOW CARRIED INTERESTS WORK
Plain Vanilla Version. A carried interest is an interest in
an entity taxed as a partnership for federal income tax
purposes^ that entitles the partner to share in the profits
of the partnership in an amount that is in excess of the
partner's proportion of the capital of the partnership.
For example, assume A and B form a partnership
to invest in private company securities. A agrees to
provide 98 percent of the capital in the partnership
and B agrees to provide 2 percent. In addition, B agrees
to serve as the general partner or managing member of
the partnership and manage its assets. Upon the sale
or other disposition of the partnership's assets, the net
profits are first shared 98 percent to A and 2 percent
to B. The net profit, if any, that is initially allocated
to A ("As initial net profit allocation," i.e., the 98
percent share) is then further shared so that A receives
a distribution equaling only 80 percent of its initial
net profit allocation while B receives 20 percent of A's
initial net profit allocation. This additional sharing is
B's "carried interest" in the partnership. Example 1
shows how this economic arrangement works:
Example 1: A and B agree to form Partnership
AB with total capital of $1,020.40.^ A will
^ An eligible entity is classified for federal tax purposes under
the default rules set out in Treas. Reg. § 301.7701-3, unless it elects
a different classification. The domestic default rule for an entity
with two or more members is to be taxed as a partnership. For
purposes of this article, a "partnership" means any entity classified
as a partnership for federal income tax purposes, a "partner" is an
equity owner of a "partnership." For example, if a limited liability
company is treated as a partnership, its "members" are treated as
partners for tax purposes, and referred to as partners herein.
^ Numerical examples are rounded to hundredths and thus may
be subject to small rounding errors.
CARRIED INTERESTS: T E C H N I C A L AND TAX A N A L Y S I S 2 3
 contribute $1,000 and B will contribute $20.40. Y. However, Y goes into bankruptcy and the
E will be entitled to a carried interest of 20 total investment is lost. On an aggregate basis
percent of all net profits earned by A from the Partnership AB's cash flows are as follows:
partnership.

In Year 1, AB buys asset X for $340.13. A Contributions Distributions

contributes $333.33 and B contributes $6.80
to AB. Partner A
X $333.33 $458.67
In Year 2, asset X is sold for $500. The proceeds
Y 333.33 $0
of the sale of X are shared as follows:
Total $666.66 $458.67
• First, A and B each receive back their capital
invested in X: Partner B
A receives $333.33; X $6.80 $41.33
B receives $6.80. Y $6.80 $0
Total $13.60 $41.33
• Second, A and B share the $159.87 profit on X
ratably, according to each one's capital contri-
bution:
In the aggregate. Partnership AB has a loss of
A is initially allocated $156.67; $180.26 (total contributions less total distribu-
B is allocated and receives $3.20. tions). However, because B was paid a carried
interest of $31.33 in Year 2 from X proceeds,
• Third, A's initial net profit allocation is further A has disproportionately borne this loss. There-
shared between A and B, 80/20, to account for fore, B must contribute the $31.33 carried
B's carried interest: interest it received from X back to Partnership
AB, whereupon it is distributed to A. After B
A receives $125.34; pays the clawback amount. Partnership AB's
B receives $31.33 (in addition to its $3.20 cash flows are:
allocation from Step 2).

Accordingly, of the total investment of $340.13, Contributions Distributions

there is profit of $159.87. A receives $125.34 of
the profit, and B receives $34.53 of the profit. Partner A
A's return reflects A's investment in X minus the X $333.33 $458.67
carried interest received by B, B's return reflects Y 333.33 $0
B's investment in X plus the carried interest."*
Clawback $31.33
Complexities of Multiple Partnership Investments. A Total $666.66 $490.00
carried interest becomes more complex when a
partnership has multiple investments because carried
Partner B
interest paid in one year may need to be returned to
the partnership in a subsequent year to reflect losses X $6.80 $41.33
on subsequent transactions. This obligation is referred Y $6.80 $0
to a? a "clawback." Example 2 shows how a clawback Clawback ($31.33)
works.
Total $13.60 $10.00
Example 2: In Year 3, Partnership AB from
Example 1 invests $340.13 in a second investment.
Accordingly, in the aggregate. Partnership AB
has invested $680.26, and has received $500
'' [n most investment partnerships, A would receive a preferred
return prior to B being entitled to a carried interest. For simplicity, from its investments for a loss of $180.26. Indi-
the preferred return is not reflected in examples in this article. vidually, A has lost $176.66, which represents

24 JOURNAL OETAXATION AND REGULATION OF FINANCIAL INSTITUTIONS July/Au9USl2013Vol26/No6

 98 percent of the loss, reflecting A's 98 percent
interest in the capital of Partnership AB and B
has lost the remaining $3.60, which represents
2 percent of loss, reflecting B's 2 percent capital
interest.
Things become more complex as additional invest-
ments are made. Say that in Year 4, Partnership AB
makes a final investment, Z, for $340.13. Partner-
ship AB sells Z in Year 5 for $1,000. The cash flow
from the investment would be shared, first, to return
each partner's original capital contribution in Z, or
$333.33 to A and $6.80 to B. The remaining $659.87
would be allocated to A and B according to their capi-
tal interests, or $646.67 and $13.20, respectively. The
$646.67 of A's initial net profit allocation would then
be shared between A and B as shown in Example 3:
Example 3: Eirst, to offset A's loss on the prior
investments, A would receive a distribution of
$176.66. This would leave A with a remaining
profit of $470.01 in Z (which also represents
A's aggregate profit on all of Partnership AB's
investments). This remaining profit is split
80/20, such that A receives $376.01 and B
receives a carried interest of $94.00. The total
cash flows of Partnership AB are:
Contributions Distributions
Partner A
X $333.33 $458.67
Y $333.33 $0
Clawback $31.33
Z $333.33 $886.00
Tota] $1,000.00
$1,376.00
Partner B
X $6.80 $41.33
Y $6.80 $0
Clawback ($31.33)
Z $6.80 $114.00
Total ,<l;2040 i;i94 on
Looking at the full picture as presented in Examples
1 through 3, the total profit of Partnership AB after
four years is therefore $479.60, reflecting the partners'
investment of $1,020.40, and sales of X for $500, Y
for $0 and Z for $1,000. A's initial net profit alloca-
tion equals 98 percent of $479.60, or $470. B receives
July/Augusl 2013 Vol 26 / No 6
20 percent of that profit, $94, as its carried interest,
leaving a total profit to A of $376. In addition, B
receives 2 percent of the profit, equaling $9.60 for a
total profit of $103.60.
Payment of Carried Interest—American vs. European
Style. Carried interest is paid under either an "American
style" or a "European style" system. In the American
system, carried interest is paid for each investment
on a stand-alone basis, reduced by realized losses on
prior investments (almost all deal-by-deal waterfalls
include unrealized losses as well). In a European system,
however, carried interest is not paid until investors
receive a return of capital on all the investments in
arried interest is paid under either an
_ "American styie" or a "European styie"
system. Tlie difference between which "style"
of carried interest is used will not affect the
aggregate ainounts received by the partners,
but will affect the timing of tbe distrihutions.
the partnership on an aggregate basis. The difference
between which "style" of carried interest is used will not
affect the aggregate amounts received by the partners,
but will affect the timing of the distributions.
The above examples are simplified to show how a
carried interest works if investments are made sequen-
tially. The situation becomes much more complex if
multiple investments are made and held at the same
time. Examples 4 and 5, below, show how the two
payment systems would work in such a case.
Example 4: Assume Partnership AB makes all
three investments in X, Y, and Z before any of
the investments is sold, and then sells them off
one at a time. In that case, an American system
would work as follows:
Contributions
Partner A
X $333.33
Y $333.33
Z $333.33
Partner B
X $6.80
Y $6.80
Z $6.80
If X is sold first, then Y, and then Z, the cash
flows will be the same as described above, but
paid out as the investments are realized.
C A R R I E D I N T E R E S T S : T E C H N I C A L A N D TAX A N A L Y S I S 2 5
 Example 5: In a European style carry system
tne cash flows are much different. If X is sold
f.rst for $500 the cash flow will be as follows:
A has made total contributions to Partnership
AB of $1,000.00, and must receive all of those
contributions back before a carried interest is
paid to B. Therefore the cash flow from the
sale of X is shared ratably, according to each
partner's capital contribution: 98 percent to A
($490.00) and 2 percent to B ($10).
Contributions Distributions
Partner A
AB $1,000.00 $490.00
Partner B
AB $20.40 $10
Y is then hquidated for no value, so the
cash flows do not change. Finally, Z is sold for
$1,000. Now, there is an aggregate profit from
Partnership AB's investments, so B will receive a
carried interest. The cash from Z will be shared
as follows: First, the cash will be split ratably,
according to each partner's capital contribution:
98 percent to A ($980) and 2 percent to B ($20).
The $980 will first go to A to offset its losses
on prior investments (X-Y). This reduces the
cash by $176.66 (reflecting a loss of $333.33
on Y and a profit of $156.67 on X), leaving
$803.34. The cash then is applied toward A's
capital investment of $333.33 in Z, reducing the
remaining cash further to $470 which equals A's
initial net profit allocation from its investment
in the Partnership AB.
A's initial net profit allocation of $470 is then
shared 80 percent by A ($376) and 20 percent
by B ($94.00). Therefore, the total cash flows of
partnership AB under a European system are:
Contributions Distributions
Partner A
X $333.33 $490.00
Y $333.33 $0
7 $333.33 $886.00
$1,000.00 $1,376.00
Partner B
X $6.80 $10.00
Y $6.80 $0
z $6.80 $114.00
$20.40 $124.00
26 JOURNAL OF TAXATION A N D REGULATION OF FINANCIAL INSTITUTIONS
As the examples show, the total cash flows under
both the American and European carried interest sys-
tems are the same, but in the American system, cash
flow is received earlier by the carry partner. Moreover,
A had increased distributions in the American system
because there was a clawback of carried interest paid
on X as a result of the loss on Y.^
TAX TREATMENT OF CARRIED INTERESTS
Under current law, the grant of a carried interest in
exchange for providing services is generally not a tax-
able event. Rather, a service provider who is granted
a profits interest in exchange for providing services
to a partnership is treated as a partner, and a distribu-
tive share of the partnership's income is allocated to
the service provider on account of that interest. The
character of the income earned by the partnership
is retained by the carried interest recipient as pro-
vided under Section 702(b).* For federal income tax
purposes. Section 704 requires taxable income to be
allocated to the partners in accordance with their re-
spective interests in the partnership—i.e., the tax al-
location must reflect how income, rather than capital,
will be shared among the partners.^
It is a common misconception that a "carried
interest" payment received by a service partner is
taxed as capital gain rather than as "ordinary in-
come." This misconception derives from the fact
that it is common for private equity partnerships to
generate a large portion of their income as capital
gains,* however, that is not necessarily the case. A
partner who receives a carried interest is allocated
his proportionate share of the underlying income of
the partnership and that income is taxed based on
the character of income received by the partnership.
Thus, if the partnership receives ordinary income,
e.g., from carrying on a trade or business or investing
through other partnerships that carry on a trade or
business, the carried interest will be allocated as or-
dinary income rather than capital gains. Examples 6
' In the example, it is assumed that any clawback is paid dur-
ing the life of the partnership (an "interim clawback"). While this
may be the case, often a clawback is not paid until the partnership
is terminated.
' All Section references are to the Internal Revenue Code of
1986, as amended, unless noted otherwise.
' A detailed explanation of partnership taxation is beyond the scope
of this article. For more detail on partnership tax allocations see 1
McKee, Nelson & Whitmire, Federal Taxation of Partnerships &
Partnersill (4th ed. 2007).
* For example, hedge funds typically generate short-term capital
gains and debt-focused funds generate interest income.
Julv/Augusl2013 V o l 2 6 / N o 6
 and 7 illustrate how a carried interest will be taxed
for federal income tax purposes:
Example 6: C and D form a Partnership CD.
C contributes $98 and D contributes $2. Cash
flows from Partnership CD are shared, first,
98 percent to C, and 2 percent to D until C has
received $98 plus an 8 percent annual return on
its capital investment. Thereafter, 78.40 percent
is allocated to C and 21.60 percent to D.
This sharing percentage reflects a 20 percent
carried interest paid to D from C's 98 percent
of Partnership CD's capital (i.e., 20 percent of
98 percent equals 19.60 percent, plus D's
2 percent capital interest). For federal income
tax purposes. Partnership CD's taxable income
is determined by first allocating 98 percent to C
and 2 percent to D until income has been allo-
cated to C in an amount equal to the required
preferred return, and thereafter allocated 78.40
percent to C and 21.60 percent to D.
Now assume Partnership CD purchases a
single asset, stock in a private company, for
$100 and sells the stock after 3 years for $300.
The cash flows from this transaction are as
follows:
Contributions Distributions
First, $98 plus an 8 per-
cent return for 3 years
equal to $23.52 for a total
of $121.52
First, $2 plus an 8 percent
D $2 return for 3 years equal to
$.48 for a total of $2.48
Thereafter, the remaining
cash of $176.00 will be
distributed:
C $137.98
$3.52 (refiecting capital
D interest) and $34.50 (re-
flecting carried interest)
For federal income tax purposes, there is a
long-term capital gain of $200, which is allo-
cated $161.50 to C (reflecting C's profit of
$23.52 + $137.98) and $38.50 to D (reflecting
D's profit of $.48+$3.52+$34.50). D's carried
interest is treated as a partnership interest, and
is therefore also taxed as long-term capital gain.
J u l y / A u g u s l 2 0 1 3 Vol 2 6 / N o 6
Here, because the sale caused both capital and
profit to be paid to C and D, cash and tax are
consistent.
Of course, partnerships don't always sell off their
profitable assets. Example 7 illustrates the tax treat-
ment of a dividend distribution to the partners.
Example 7: Now assume that Partnership CD
from our previous example purchases a single
asset, stock in a private company, for $100
and after 3 years the value of the company has
increased to $500. Partnership CD does not
sell this company; instead, the private company
borrows $100 from a bank and uses the cash to
pay a dividend to Partnership CD. The private
company has more than $100 of earnings and
profits, and therefore the entire distribution is
taxable as a dividend for federal income tax
purposes.'
The cash flows from the dividend are as
follows:
Contributions Distributions
C $98 First, $98 to C.
D $2 First, $2 to D.
For federal income tax purposes, however,
there is a very different allocation of the income.
Under partnership tax principles, the dividend
income is allocated in a manner that reflects the
overall economic relationship of the partners.
Here, the cash flow was distributed in accor-
dance with the capital contributions made by
the partners. However, tax is allocated in a
manner that reflects how profits are economi-
cally shared among the partners, and does not
necessarily reflect distributions that are a return
of capital. The tax liability will be allocated as
if the $100 profit was shared pursuant to the
8 percent preferred return and the 20 percent
carried interest—reflecting how Partnership
CD's profits are shared, rather than how its
capital is shared. Accordingly, C and D are
first allocated taxable income equal to. their
accrued preferred returns of $23.52 and $.48,
respectively. The remaining profit of $76 is
shared $59.58 to C, and $16.42 to D, reflecting
D's 2 percent capital interest (i.e., $1.52 of the
' For federal income tax purposes, a "dividend" is a payment
out of the current or accumulated earnings and profits of a cor-
poration. IRC § 301.
CARRIED INTERESTS: TECHNICAL ANO TAX ANALYSIS 2 7
 remaining profit) and D's carried interest on C's service provider because he was acting in his capac-
portion of the residual profit (i.e., 19.6 percent ity as a partner of the investment partnership rather
of $76, or $14.90). D is therefore subject to than as an employee or contractor. The 1RS argued,
tax on $16.42, even though D only receives $2. relying primarily on Diamond, that Campbell's receipt
Moreover, the income allocated to each of the of the partnership interest in exchange for services
partners will be taxed as a dividend, rather than was taxable as ordinary income, equal to the value
as a capital gain, because the income received of the partnership interest received. The Tax Court
by Partnership CD from the private company agreed with the 1RS but on appeal the Eighth Circuit
was dividend income. reversed the Tax Court. The Eighth Circuit extensively
analyzed the issue, and concluded that Campbell's
receipt of the profits interest was distinguishable
LEGAL RASIS FOR TAXATION OF CARRIEO INTERESTS from the taxpayer in Diamond because Campbell's
The first significant case to address the taxation of a interest was not transferable and was unlikely to pro-
profits interest in a partnership was Diamond v. Com- vide immediate returns. The court doubted (without
missioner.^" In that case, tbe taxpayer, Sol Diamond, deciding) whether the Tax Court correctly held that
arranged for tbe financing of a purchase of real es- Campbell's profits interest was taxable upon receipt.
tate by a partnership. In exchange for performing this Tbe circuit court then held that the profits interest
service, the partnership issued Mr. Diamond an inter- received by Campbell was nevertheless not subject
est in the partnership that entitled him to 60 percent to tax in tbe year of receipt because the interest had
only speculative value (if any).
Eollowing Campbell, the accepted view among
oliovuing the 1991 CampAe//decision, the accepted the tax bar was that the receipt of a profits interest
view among the tax bar was that the receipt of was not a taxable event, and the recipient of a profits
a profits interest was not a taxahle event, and the interest would generally be treated as a partner in
recipient of a profits interest would generally be the partnership and taxed accordingly. The 1RS ac-
treated as a partner in the partnership and taxed knowledged this view in published guidance'^ which
accordingly. provided that the grant of a vested or unvested profits
interest in a partnership to a service provider is not a
taxable event and the holder of that interest is treated
of the profit upon the sale of the real estate. Shortly as a partner, provided that:
after the transaction closed, Mr. Diamond sold his
partnership interest for $40,000. He reported the sale • The profits interest does not relate to a substantial-
as a short-term capital gain and used unrelated short- ly certain and predictable stream of income from
term capital losses to shelter the gain. Accordingly, partnership assets;
Mr. Diamond paid no federal income tax on the re- • The interest is not disposed of by the service pro-
ceipt of this $40,000. The Seventh Circuit ruled that vider within two years of its receipt; and
because the profits interest received by Mr. Diamond • The interest is not a limited partnership interest in
had a determinable market value and was received in a publicly traded partnership.
exchange for services he performed for the partner-
ship, the value of the interest was taxable as ordinary In 2005, the 1RS issued proposed regulations'^ and
income. Notice 2005-43, which included a proposed revenue
The next significant case regarding the proper procedure regarding the taxation of an exchange
taxation of a profit's interest was Campbell v. Com- of partnership interests for services provided to the
missioner.^^ In that case, William Campbell provided partnership ("compensatory partnership interests").
services syndicating and sourcing investments for The proposed regulations differ from current law
a real estate investment partnership. As part of his because they provide that all partnership interests,
compensation for providing these services, Campbell including profits interests, are definitively "property"
was issued a profits interest in the investment partner- and, therefore, potentially taxable when they are re-
ship. Campbell took the position that the receipt of ceived by, or become fully vested in, a service partner.
the partnership interest was not taxable to him as a As a result, a service provider would be taxed on the

'2 Rev. Proc. 93-27, 1993-2 CB 343; Rev. Proc. 2001-43,

'" 492 F.2d 286 (7th Cir. 1974). 2001-2 CB 191.
" 943 F.2d 815 (8th Cir. 1991). " Prop. Treas. Reg. § 1.721-l(b).

28 JOURNAL OF TAXATION A N D REGULATION OF FINANCIAL INSTITUTIONS July/Augusl 2013 Vol 36 / No 6

 value of any vested partnership interest at ordinary
income rates.'''
The proposed revenue procedure, however, brings
the proposed guidance closer to current law because
it provides that, where certain conditions are met,
including that the interest qualify as a "safe harbor
partnership interest" (SHPI), the liquidation value
of a partnership interest is treated as its fair market
value upon receipt. Liquidation value is the amount
that would be received if, immediately after the re-
ceipt and vesting of the interest, the partnership sold
all of its assets and liquidated. A true profits interest
has a liquidation value equal to zero because the ser-
vice provider is entitled to only the future profits of
the partnership after the date of grant. Therefore,
where the revenue procedure applies, a service pro-
vider would not be taxable upon receipt of a vested
profits interest, or an unvested profits interest for
which the service provider makes an 83(b) election.'^
The service provider would then be taxed on any later
appreciation at rates determined based on the charac-
ter of the income earned at the partnership level.
'"IRCS 83(a).
" Notice 2005-43, 2005-1 CB 1221 (§ 3.02 of the proposed
revenue procedure). When a service provider receives property
that is subject to a "substantial risk of forfeiture" (e.g., unvested
property), he is not subject to tax until the forfeiture risks lapse.
IRC § 83(b) provides an election to include in income the current
value of unvested property. If this election is made, the service
provider includes in income the value of the unvested property
when received as ordinary income. On a subsequent disposition
of the property the service provider has a capital gain or loss equal
to the difference between the amount realized on the disposition and
the amount paid and included in income due to the election. Because
a profits interest is treated as having a value of zero at the time it is
granted, making a Section 83(b) election is always advised.
July/Augusl2OI3 V o l 2 6 / N o 6
After eight years, neither the proposed regulations
nor the proposed revenue procedure in Notice 2005-
43 have been finalized. In addition, the taxation of
carried interests has recently become a focal point for
legislative inquiry and possible action. As a result,
the proposals are not expected to befinalizedanytime
soon. Unless and until they are finalized. Revenue
Procedures 93-27 and 2001-43 continue to apply.
The taxation of carried interests is not controver-
sial as a legal matter, but is the subject of considerable
debate as a policy and political matter. For several
years. Democrats have sought to change the taxation
of carried interest by treating carried interest income
as earnings rather than as their portion of interest in
the partnership in order to tax carried interest recipi-
ents at ordinary income tax rates. Some Democrats
argue that carried interest is equivalent to a fee for
providing services and should be taxed accordingly.'*
Taxation of carried interests has factored into Presi-
dent Obama's budget proposals for the past several
years.'^ Taxation of carried interests also has been
the subject of significant media attention, especially
during the 2012 presidential race when candidate
Mitt Romney revealed that his income was taxed at
a 14 percent effective rate, which was attributable to
a large portion of his income being earned as carried
interests taxed at capital gains rates. •
'* Victor Fleischer, "Two and Twenty: Taxing Partnership Profits
in Private Equity Funds," 83 N.Y.U. L. Rev. 1 (2008).
" Department of the Treasury, General Explanations of the
Administration's Fiscal Year 2014 Revenue Proposals 159 (2013);
Department of the Treasury, General Explanations of the Adminis-
tration's.Fiscal Year 2013 Revenue Proposals 134 (2012); Depart-
ment of the Treasury, General Explanations of the Administration's
Fiscal Year 2012 Revenue Proposals 61 (2011).
CARRIED INTERESTS; TECHNICAL AND TAX ANALYSIS 2 9
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