First Circuit Holds Private Equity Fund May Be Liable For Portfolio Company’s Pension Liability

On July 24, the U.S. Court of Appeals for the First Circuit held that two private equity funds managed by Sun Capital could be liable for their portfolio company’s withdrawal liability from a multiemployer pension plan (Sun Capital Partners III LP v. New England Teamsters & Trucking Indus. Pension Fund, 2013 WL 3814984 (1st Cir. July 24, 2013)). In a partial reversal of a Massachusetts district court ruling, the First Circuit found that at least one of Sun’s private equity partnerships is engaged in a “trade or business” for purposes of assessing liability under Title IV of the Employee Retirement Income Security Act (ERISA). The case also raises certain income tax questions. Both are addressed below.

Background

Under ERISA, all members of a “controlled group” are treated as a single employer for purposes of imposing liability on employers in connection with the termination of an underfunded pension plan or the withdrawal from an underfunded multiemployer pension plan. Thus, if an employer terminates or withdraws from an underfunded pension plan, each member of the employer’s controlled group is jointly and severally liable for the plan’s unfunded pension liabilities (or, for multiemployer plans, the employer’s share of the liability). If a private equity fund is found to be a member of a controlled group with a portfolio company, the fund would be exposed to liabilities associated with a pension plan maintained or contributed to by that company. Additionally, membership in the controlled group arguably could extend to a fund’s other portfolio companies and each of those companies could be exposed to the pension plan liabilities. In contrast, if the fund is not considered a member of a controlled group with its portfolio company, liability for pension obligations would be confined to the portfolio company that maintained or contributed to the plan (and its controlled subsidiaries).

An entity can be a member of a controlled group only if it is engaged in a “trade or business.” The Supreme Court of the United States, in Commissioner v. Groetzinger (480 U.S. 23 (1987)), established a test for when an activity constitutes a “trade or business” for certain tax purposes. Under Groetzinger, for a person to be engaged in a trade or business, the primary purpose of the activity must be income or profit, and the activity must be performed with continuity and regularity.

In 2007, the Pension Benefit Guaranty Corporation (PBGC) issued an opinion (PBGC Appeals Board opinion dated September 26, 2007) finding that a private equity fund was engaged in a trade or business and consequently jointly and severally liable for its portfolio company’s unfunded pension liability. In its opinion, the PBGC concluded that the fund in question engaged in a trade or business under the Groetzinger test because the stated purpose of the fund was to make a profit, and it attributed the activities of the fund’s advisor and general partner to the fund, which received consulting fees, management fees and carried interest (in other words, the fund did not receive just investment income as a passive investor). While many practitioners view the PBGC opinion as unpersuasive because it was a departure from existing case law (and some believe the PBGC lacked interpretative authority), the opinion created uncertainty regarding a private equity fund’s exposure to the pension liabilities of its portfolio companies.

District Court Ruling

In the Sun Capital case, following the bankruptcy of Scott Brass Inc. (SBI), a union-sponsored multiemployer pension plan sought to recover approximately $4.5 million in withdrawal liability from two funds established by Sun Capital Partners that were investors in SBI. Prior to its bankruptcy, SBI employees participated in the multiemployer plan and SBI made contributions to the plan pursuant to a collective bargaining agreement. Ownership of SBI was split between two Sun Capital funds, with one fund owning 70 percent and the other 30 percent. Sun Capital defended against the plan’s claims on the grounds that the funds were not engaged in trades or businesses and therefore neither fund could be liable for SBI’s pension liability. The District Court agreed with Sun Capital, finding that the PBGC incorrectly attributed the activities of the fund’s investment advisor and its general partner to the fund itself.

First Circuit Reverses District Court

In reversing the District Court ruling, the First Circuit adopted the “investment-plus” standard that the PBGC adopted in its 2007 opinion for purposes of evaluating whether a person is engaged in a “trade or business.” Under that standard, the First Circuit said that a fund is more likely to be a trade or business if it exercised control over the portfolio company. Taking a “very fact-specific approach,” the First Circuit found that the Sun Capital fund having a 70 percent ownership interest in SBI had “undertaken activities as to the [SBI] property,” became “actively involved in the management and operation” of SBI, and that the general partners of the funds had authority to make decisions about “hiring, terminating, and compensating [SBI’s] agents and employees.” Critical to the ruling was the fact that Sun Capital’s organizational documents identified the purpose of the funds as involving “extensive intervention with respect to [the] management and operations” of portfolio companies, the fact that the 70 percent Sun fund had “active involvement” in SBI’s management and that such involvement provided “a direct economic benefit … that an ordinary, passive investor would not derive” in the form of reduced fees payable to the fund’s general partner by an amount equal to the fees that the general partner received from the portfolio company.

The multiemployer pension plan also argued that Sun Capital’s decision to split the ownership interests in SBI between the two Sun funds in a 70 percent / 30 percent split was intentionally done in order to avoid either fund owning 80 percent or more of SBI and, therefore, avoid potential withdrawal liability. The pension plan contended that the interests of the two Sun funds should be combined, resulting in the funds collectively owning 100 percent of SBI and part of SBI’s controlled group. The court held that the Sun Capital funds could not be liable for SBI’s pension liability merely because they had designed the 70 percent / 30 percent ownership structure between the two funds in an effort to avoid creating a controlled group and the pension obligations that might otherwise apply. As discussed above, a fund will only be subject to the pension liability of its portfolio company if it is a trade or business and the fund is under common control with its portfolio company. An entity is typically under “common control” with another entity if the entities are considered to be in a “parent-subsidiary” or “brother-sister” relationship. Although the analysis of whether entities are under “common control” can be complicated, two entities will generally be considered to be in a “parent-subsidiary” relationship if one entity owns 80 percent or more of the other entity. Thus, notwithstanding the First Circuit’s decision in this case, private equity firms may be able to limit exposure by carefully structuring their ownership of portfolio companies.

The First Circuit remanded the case to the District Court to determine whether the facts relating to the second fund owning the 30 percent interest in SBI establish such fund as engaging in a trade or business based on the investment-plus standard and, if so, whether either of the Sun Capital funds was under “common control” with SBI.

Certain Possible Tax Risks

In addition to the pension liability, the Sun Capital case raises certain tax questions. Private equity funds generally do not consider themselves to be engaged in a trade or business for U.S. tax purposes. A contrary conclusion could, in certain circumstances, change a funds’ (and its sponsors and limited partners’) assumptions regarding the basis of taxation. Some of these assumptions are discussed below.

Carry Taxation

The taxation of carry has been a matter of debate since 2007. President Obama and certain members of Congress have regularly submitted proposals to tax carry entirely as ordinary income. Generally, private equity sponsors take carry in the form of a partnership interest in the fund. As partners in a partnership, the character of the income derived by the fund flows through to carry partners. Much of what flows through is long-term capital gains, which are taxed at favorable rates as compared to ordinary income. (Note that to the extent that the income of the fund includes interest or other items of income treated as ordinary income, under current law, carry income will include ordinary income.) It generally is understood that to treat carry as ordinary income would require a change in the long-standing, existing law.

A capital asset is defined by statute as property held by a taxpayer whether or not connected with his trade or business, other than certain specified assets, including stock in trade, inventory, property held primarily for sale to customers in the ordinary course of the trade or business, and commodities, or derivative financial instruments held by commodities derivatives dealers, and certain identified hedges. Sun Capital does not stand for the proposition that a private equity fund is a dealer in securities/commodities. Consequently, its holding should not be considered to convert income related to a carried interest into ordinary income.

Unrelated Business Taxable Income

U.S. tax-exempt investors, such as college endowment funds and pension funds, are subject to tax on their unrelated business taxable income (UBTI). UBTI includes income from a trade or business that is not substantially related (aside from the need for income) to the organization’s charitable purpose. UBTI recognized by a partnership, including a private equity fund formed as a partnership, retains its character as UBTI to the extent allocated to the tax-exempt organization. The statute specifically excludes from the definition of UBTI all dividends, interest, payments with respect to securities loans, commitment fees and gains on the sale or disposition of property (other than stock in trade, inventory or property held primarily for sale to customers in the ordinary course of the trade or business), unless such income relates to debt-financed property.

Again, nothing in the Sun Capital opinion stands for the proposition that income of a private equity fund (which typically consists of the types of income specifically excluded from the definition of UBTI) is somehow morphed into a different type of income. The exclusions from the definition of UBTI, described above, apply even if the fund is engaged in a trade or business. (There would be no need for such exclusions outside of a trade or business, as UBTI is defined as income from an unrelated trade or business.)

As part of the basis for its ruling, the court referred several times to the fact that the fund was able to offset management fees by the advisory fees charged by the investment managers. That said, the court did not go so far as to say that the fund earned this income. Accordingly, Sun Capital should not be viewed as holding that the investment income derived by tax-exempt organizations through a private equity fund, or reductions in management fees generate UBTI.

Effectively Connected Income

Foreign corporations and non-resident alien individuals that are engaged in a trade or business in the United States must file income tax returns in the United States, and pay tax on income effectively connected to such trade or business (ECI) on a net basis at graduated rates, in the same manner as U.S. residents. To the contrary, foreign investors not engaged in a trade or business in the United States are taxed at a flat 30 percent (or lower treaty) rate only on U.S.-source income, such as interest and dividends from U.S. corporations. Moreover, “portfolio interest” and capital gains generated by foreign persons generally are not subject to tax in the United States. Thus, the distinction between ECI and non-ECI investment income from a U.S. tax standpoint is quite significant. It also should be noted that this distinction is an intentional distinction designed to encourage foreign investment in the U.S. securities.

Case law has long supported the position that merely looking after one’s investments does not give rise to engaging in a trade or business. Given that there was some question about the status of a non-U.S. person if they managed their investments through agents located in the United States, under long-standing regulations, except in the case of dealers, trading in stocks and securities for one’s own account, directly, through dependent or independent agents, including employees, is not considered to constitute a trade or business in the United States. This is true even if the agent or employee exercises discretionary investment decisions on behalf of the taxpayer, and even if the taxpayer has an office in the United States, and regardless of how extensive such trading activities are. The regulations clarify that the same rule applies to foreign partners in a partnership that is engaged in such trading activities. Any activities closely related to the enumerated permitted activities also do not constitute the conduct of a trade or business in the United States. Similar rules apply in the case of commodities and derivatives.

The court focused significantly on the ability of the fund to control the portfolio company through its board members. Control of the board should not be relevant, or every foreign corporation with a majority-owned U.S. subsidiary would be engaged in a trade or business in the United States. Regulations indicate that so long as the subsidiary’s daily activities are conducted by officers of the subsidiary who are not employees of the parent, these activities are not attributed to the parent, even if these employees regularly consult with the parent employees.

Investment income generally is not considered to be ECI unless the maintenance of the investments constitutes the principal activity of that trade or business. In Sun Capital, the court held that the private equity fund was engaged in the trade or business of its portfolio company. If that rationale were applied in the tax context, the investment activities should not be viewed as the principal activity of the trade or business.

As discussed above, though the court focused on the management fee offsets, it did not hold that the income should be viewed as earned by the fund.

Based on the foregoing, the Sun Capital case should not be viewed as causing investment income of a private equity fund to be ECI.

Pepper Perspective

For private equity funds and their sponsors, the Sun Capital case highlights the importance of taking controlled group liability considerations into account in structuring investments. Funds should also evaluate their current exposure to the pension liabilities of their portfolio companies and consider adjustments to their ownership structures and involvement in the management and operation of their portfolio companies. Given that Sun Capital did not decide the issue of control, significant thought should be given to having any one partnership owning 80 percent of a portfolio company that has a pension plan. This is an appropriate opportunity to consider how the activities of a private equity fund and its sponsors compare to those described in the Sun Capital opinion. To the extent that these activities can be distinguished from those described in the case, this may limit the risk of the fund being subjected to pension fund liability, and further may limit the risk that the Internal Revenue Service or a court will attempt to rely on Sun Capital to find that the fund generates UBTI or ECI.