Photo of Janicelynn Asamoto Park

Janicelynn Asamoto Park is a partner in the Tax Department and a member of the Private Funds Group. She counsels fund sponsors and their investors as to the tax and economic considerations relating to forming, operating, and investing in private investment funds, co-investment vehicles, and other investment partnerships across asset classes. Janicelynn also regularly advises investors and sponsors in buy-side and sell-side secondary transactions (including in connection with GP-led fund restructurings).

Her practice also includes advising on domestic and cross-border financings and investments, inbound and outbound private mergers and acquisitions, and equity-compensation arrangements.

Janicelynn currently serves on the board of Reach Out and Read of Greater New York, a not-for-profit organization that partners with physicians to promote early literacy in low-income communities.

Before joining Proskauer, Janicelynn served as a law clerk for the Honorable Denny Chin of the U.S. Court of Appeals for the Second Circuit, and was a youth development volunteer in Honduras with the U.S. Peace Corps.

Introduction

Section 1402(a)(13) of the Internal Revenue Code provides that the distributive share of “limited partners, as such” from a partnership is not subject to self-employment tax.[1]  Managers of private equity and hedge funds are routinely structured as limited partnerships to exclude management and incentive fees from self-employment

Last week, in McKelvey v. Commissioner¸[1] the U.S. Tax Court held that the extension of a typical variable prepaid forward contract (“VPFC”) did not give rise to a taxable exchange to the obligor because a VPFC is solely an obligation, and not property, within the meaning of section 1001 of the Internal Revenue Code. The Tax Court also noted this result is consistent with the usual treatment of a VPFC as an “open transaction”. This decision is very good news for an obligor under a VPFC (that is, the party required under the contract to deliver cash or stock at the end of the term of the VPFC), that wishes to extend a VPFC without tax consequences. If the decision is upheld on appeal under the Tax Court’s reasoning, the case would seem to apply equally an obligor that extends a conventional option, and could even provide a basis for debtors to argue that a modification of their debt does not give rise to an exchange (and thus, does not give rise to cancellation of indebtedness income) notwithstanding Treasury regulations section 1.1001-3. However, the Tax Court’s reasoning in McKelvey is in some tension with other authorities and, if taken at face value, could create opportunities for significant tax deferral on a wide variety of financial products.

The U.S. Internal Revenue Service (IRS) and the Department of the Treasury (“Treasury”) have published proposed regulations that would modify the device and active trade or business requirements for tax-free spin-offs under section 355 of the Code in three important respects.

First, the proposed regulations clarify the “device” test and