After the Lender Case -- Securities Law Restrictions That Apply to Family Offices Managing Other Peoples' Money

• More than 50% of the assets under management were invested in private equity;
• Lender Management also provided individual investors in the investment LLCs with one-on-one investment advisory and financial planning services;
• Compensation was paid to Lender Management for the investment management services that it provided in the form of profits interests (or carried interests) in the various investment partnerships that it advised;
• The taxpayer (Lender Management) therefore received not just a return on its investment, but compensation attributable to its services provided to others;
• Lender Management employed five employees during each of the tax years at issue; and
• The key person at Lender Management (Keith Lender, who was Harry Lender’s grandson) worked approximately fifty hours per week in Lender Management, had a business degree from Cornell University and a MBA from Northwestern University, and prior to joining Lender Management worked for several years in marketing and brand management for major corporations.

The Tax Court determined that the activities of Lender Management -- which involved providing investment management services to others for profit (although the others were all part of the Lender extended family or their related entities) -- were sufficient to constitute a trade or business to give rise to fully deductible trade or business expenses under IRC section 162.

The Internal Revenue Service had contended that these expenses were not trade or business expense deductions under IRC section 162, but instead were deductible under IRC section 212 -- which meant that, as miscellaneous itemized deductions, they were subject to the 2% of adjusted gross income (“AGI”) floor and the alternative minimum tax. (Importantly, under the new tax law, IRC section 212 expenses are no longer tax deductible.) The Internal Revenue Service basically asserted that the family was managing its own money, and that family attribution rules should apply where the clients are family members.

The critical distinction that the Tax Court drew in Lender was between [A] trade or business expenses and [B] investment expenses. Commenting on this distinction, the Tax Court observed that “[n]o matter how large the estate or how continuous or extended the work required may be, overseeing the management of one’s own investments is generally regarded as the work of a mere investor.” (Slip op. at 25 (quoting Higgins v. Comm’r, 312 U.S. 212, 218 (1941)) In addition, “[e]xpenses incurred by the taxpayer in trading securities or performing other investment-related activities strictly for his own account generally may not be deducted under section 162 as expenses incurred in carrying on a trade or business.” (Slip op. at 25 (citing Higgins, 312 U.S. at 218)) The Tax Court further observed that transactions within a family group are generally subject to heightened scrutiny.

Notwithstanding this heightened scrutiny due to the family group relationship, the Tax Court concluded that the record before it demonstrated that Lender Management provided investment management services to others for profit. According to the Tax Court, “selling one’s investment expertise to others is as much a business as selling one’s legal expertise or medical expertise. Investment advisory, financial planning, and other asset management services provided to others may constitute a trade or business.” (Slip op. at 27) As such, Lender Management’s activities were sufficient to constitute a trade or business to give rise to fully deductible trade or business expenses under IRC section 162.

Thus, the use of a family office management company in Lender under the facts presented effectively converted non-deductible expenses (miscellaneous itemized deductions) into above-the-line fully deductible trade or business expenses. Lender Management’s profits interests in the investment partnerships, in turn, reduced income for those partnerships.

As we noted in our Prior Bulletin, commentators have observed that, under Rev. Rul. 78-195, 1978-1 C.B. 39, the ability of the family office to deduct its general office expenses under IRC section 162 may be further enhanced if the family office entity is instead structured as a “C corporation.” In that Revenue Ruling, a C Corporation that was formed for the express purpose of investing in real property purchased a tract of unimproved, non-income-producing real property, which it held for two years and sold without having made any substantial improvements. The corporation did not make any significant efforts to sell the property and did not engage in any other transactions in real or personal property or in other commercial activities. During the period that it held the property, the corporation incurred expenses for interest, real property taxes, accounting fees, and general office costs. The Internal Revenue Service held that the accounting fees and general office costs were expenses related to investment property of the C Corporation and, as such, were deductible by the C Corporation under IRC section 162 in the year paid or incurred (except to the extent that such expenses may need to be capitalized).

We also noted certain caveats:

• Importantly, the Lender case solely involved the question of income tax deductions under IRC section 162. It does not address any other issues, such as whether the transfer of a carried interest – which was a junior class of equity under these facts, as other classes of equity were preferred to it in receiving distributions from the investment partnerships that Lender Management advised -- may constitute a “distribution right in a controlled entity” so as to potentially trigger the application of the deemed gift rules of Section 2701 of the Internal Revenue Code. That issue needs to be carefully considered as well.

• In addition, being deemed engaged in a trade or business could potentially trigger certain collateral tax consequences. Depending upon the circumstances, this could potentially include ordinary income treatment on certain trading profits and potential exposure to additional state, local and unincorporated business taxes.

• Moreover, a family office needs to carefully consider securities law restrictions on managing others’ financial assets. Accordingly, securities law counsel should be consulted as well in connection with the establishment of a family office that seeks to follow the Lender model.[2]

Securities Law Restrictions That Apply To Managing Others’ Money that Family Offices Seeking to Align Their Facts to the Lender Case Need to Carefully Consider

A family office that manages others’ financial assets for profit – as in the Lender case --- must carefully consider whether it needs to register with the Securities and Exchange Commission (the “SEC”) or a state regulator, or is exempt from such registration.

In 2011, the SEC adopted the “Family Office Rule,”[3] which excludes certain family offices from having to register with the SEC as an “investment adviser” under the Investment Advisers Act of 1940 (the “Advisers Act”). The rationale for this rule is that family offices are generally sophisticated, and its clients are less in need of the protections that the Advisers Act affords to the general public. The SEC has periodically commented on details related to the Family Office Rule, most recently in March 2018.[4]

The main requirement of the Family Office Rule is that the advisory clients of the family office must be “Family Clients.”[5] This sounds simple enough, but it is actually a more convoluted definition than one may think. Family Clients include current and former family members (as further discussed below), current and former key employees, the estates, trusts and charities of, and companies owned and controlled by, such persons and affiliated trusts and nonprofit organizations, each meeting certain (sometimes complex) requirements.

Who counts as a key employee is a question with a not-so-simple answer. Key employees generally include executive officers, directors, trustees, general partners or persons serving in a similar capacity and persons who have regularly participated in the investment activities of the family office for at least one year.

This leads to the next question – what is a family member for this purpose? The strict definition is that a family member includes all lineal descendants up to ten (10) generations removed from a common ancestor. This definition is intentionally broad and encompasses many types of family members, including step and foster children as well as former family members who are no longer part of the family due to divorce or otherwise. The Family Office Rule does not include in-laws related through the spouse of the common ancestor.[6] In addition, the Family Office Rule specifically requires that the family members be from one family; multiple family offices cannot rely on the Family Office Rule.

Another qualification under the Family Office Rule is that the family office must be wholly-owned by Family Clients and controlled by family members. This may sound easy enough, but there are nuances to this definition which include the fact that the key employees (who are acceptable Family Clients and owners of a family office) cannot control the family office by having influence over management. Key employees can serve as officers, but they should not make ultimate decisions at the senior executive or board level.

Perhaps the most critical element of this requirement is that family offices cannot hold themselves out to the public as an investment adviser.[7] The Family Office Rule does not apply if the family office intends to make its services available outside of the family and makes it known that it is soliciting accounts. If these types of activities are occurring, the family office must consider appropriate registration.

Yet another issue to consider is the nature of the services that the family office is providing. Family offices often provide services other than rendering investment advice, such as tax and financial planning, and need to ensure that any service that is considered investment advice under the Advisers Act is qualified as such, and that the clients of advisory services are Family Clients.

Finally, just because a family office is managed and exempt from registration under the Advisers Act doesn’t mean that other federal securities and similar laws do not apply. Other laws that can apply to family offices include the Securities Act of 1933, the Securities Exchange Act of 1934, the Investment Company Act of 1940 and the Commodity Exchange Act. These laws can apply to such matters as client qualifications, product registration, transactional filings, public reporting and compliance issues. In addition, certain market-protective rules can apply to family offices, such as the anti-fraud provisions of the Securities Exchange Act of 1934 and insider trading restrictions.

In sum, family offices that wish to follow the Lender model to obtain trade or business expense deductions for rendering investment management services must do more than simply obtain tax advice. They must go the further step of consulting securities counsel to ensure that they do not run afoul of the web of securities law restrictions that can otherwise ensnare the unwary.

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