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Tax Court says fund partners must pay self-employment tax

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Registered investment advisory firms that actively manage a private fund as limited partners must pay Uncle Sam for self-employment taxes on their profits, according to a court decision.

The Tax Court ruling last month in Denham Capital Management LP v. Commissioner will face a challenge in the Fifth Circuit Court of Appeals. In the meantime, the principals of RIAs or other advisory practices that also manage private funds should review the decision to see how it affects any possible taxes on their distribution of profits, according to Brett Cotler, a partner in the Taxation Group of law firm Seward & Kissel. An exclusion had previously shielded limited partners from taxes on their distributed shares in the form of net earnings from self-employment.

“The tax savings were definitely one reason why fund managers would structure their businesses — and wealth managers, too — as an LP structure,” Cotler said in an interview. “If it’s not the final nail in the coffin, we’re pretty close to it. … We’re thinking of a couple ideas that potentially would retain these tax savings for clients, but we’re still thinking through the pros and cons of those.”

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At the end of 2023, at least 5,560 RIAs that were registered with the Securities and Exchange Commission managed private funds — or 36% of the total count, according to the annual industry snapshot from the Investment Adviser Association and compliance firm COMPLY. 

Over a third of those firms that manage private funds do so as their exclusive form of business, but many of the rest are retail-focused RIAs that operate their own investment vehicles. Larger RIAs are especially likely to do so: 71% of firms with at least $100 billion in client assets, 67% of those with $5 billion to $100 billion and 54% with $1 billion to $5 billion manage hedge funds, private equity vehicles or investments focused on areas such as venture capital, real estate or other securitized assets. Some smaller RIAs operate specialized “exempt-reporting” vehicles that don’t need to register as private funds, the snapshot noted. 

RIAs had been bracing for a series of private fund reforms under an SEC rule adopted in 2023, but a court decision last year vacated the regulation entirely after industry pushback.   

“Over the past 10 years, the number of advisors offering private funds, the number of private funds and the assets in private funds have grown consistently,” last year’s snapshot said.

In the Tax Court case, a limited liability corporation that was the general partner and five limited partners who were owners of the investment manager received guaranteed payments and other distributions out of the profits generated by the fees from the private funds. The judge applied a test known as a “functional analysis” to decide whether the exclusion for limited partners from self-employment taxes applied to the distribution. In essence, the determination revolves around the question of whether the limited partners more closely resemble passive investors or employees, according to an analysis of the decision by Seward & Kissel.

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The limited partners got “reasonable compensation” as part of a base salary separate from the profit payments that was far lower than the pay of other employees of the fund company, the judge ruled.

“The Tax Court found that each of the limited partners were actively involved in the activities conducted by the investment manager, were held out as active partners in audited financial statements and prospectuses, devoted substantially all of their working time to the investment manager and actively directed and strategically guided the investment manager,” according to the law firm’s analysis of the decision.

“This opinion is the second Tax Court decision holding that a limited partner under state law who is actively involved in an investment manager’s business activities is subject to self-employment tax, notwithstanding the statutory language of the limited partner exception,” the analysis continued. “It has been publicly reported that one taxpayer is appealing the holding of an earlier Tax Court case on this issue to the Fifth Circuit Court of Appeals. The decision by the Fifth Circuit will provide more clarity on the ultimate application of the self-employment tax to limited partners. Management companies that are structured as limited partnerships should consider the application of these recent Tax Court decisions for the current and future taxable years.”

READ MORE: Appeals court sides with foreign investor over IRS and Tax Court decision

The exemption from self-employment taxes usually works out to savings of about 4% off the total hit — a number that sounds small but gets much bigger “when you multiply it out” over millions of dollars in annual profit over several years, Cotler noted. RIA owners who manage private funds should speak to their certified public accountant or another tax professional to assess the potential impact of the ruling on their 2024 taxes and moving forward, he said.

“The tax effectively puts the owner in more or less the same position as the employee who’s subject to W-2 wage withholding,” Cotler said. “I do anticipate there will be some reactions within the industry in terms of ways to restructure.”

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IAASB tweaks standards on working with outside experts

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The International Auditing and Assurance Standards Board is proposing to tailor some of its standards to align with recent additions to the International Ethics Standards Board for Accountants’ International Code of Ethics for Professional Accountants when it comes to using the work of an external expert.

The proposed narrow-scope amendments involve minor changes to several IAASB standards:

  • ISA 620, Using the Work of an Auditor’s Expert;
  • ISRE 2400 (Revised), Engagements to Review Historical Financial Statements;
  • ISAE 3000 (Revised), Assurance Engagements Other than Audits or Reviews of Historical Financial Information;
  • ISRS 4400 (Revised), Agreed-upon Procedures Engagements.

The IAASB is asking for comments via a digital response template that can be found on the IAASB website by July 24, 2025.

In December 2023, the IESBA approved an exposure draft for proposed revisions to the IESBA’s Code of Ethics related to using the work of an external expert. The proposals included three new sections to the Code of Ethics, including provisions for professional accountants in public practice; professional accountants in business and sustainability assurance practitioners. The IESBA approved the provisions on using the work of an external expert at its December 2024 meeting, establishing an ethical framework to guide accountants and sustainability assurance practitioners in evaluating whether an external expert has the necessary competence, capabilities and objectivity to use their work, as well as provisions on applying the Ethics Code’s conceptual framework when using the work of an outside expert.  

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Tariffs will hit low-income Americans harder than richest, report says

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President Donald Trump’s tariffs would effectively cause a tax increase for low-income families that is more than three times higher than what wealthier Americans would pay, according to an analysis from the Institute on Taxation and Economic Policy.

The report from the progressive think tank outlined the outcomes for Americans of all backgrounds if the tariffs currently in effect remain in place next year. Those making $28,600 or less would have to spend 6.2% more of their income due to higher prices, while the richest Americans with income of at least $914,900 are expected to spend 1.7% more. Middle-income families making between $55,100 and $94,100 would pay 5% more of their earnings. 

Trump has imposed the steepest U.S. duties in more than a century, including a 145% tariff on many products from China, a 25% rate on most imports from Canada and Mexico, duties on some sectors such as steel and aluminum and a baseline 10% tariff on the rest of the country’s trading partners. He suspended higher, customized tariffs on most countries for 90 days.

Economists have warned that costs from tariff increases would ultimately be passed on to U.S. consumers. And while prices will rise for everyone, lower-income families are expected to lose a larger portion of their budgets because they tend to spend more of their earnings on goods, including food and other necessities, compared to wealthier individuals.

Food prices could rise by 2.6% in the short run due to tariffs, according to an estimate from the Yale Budget Lab. Among all goods impacted, consumers are expected to face the steepest price hikes for clothing at 64%, the report showed. 

The Yale Budget Lab projected that the tariffs would result in a loss of $4,700 a year on average for American households.

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At Schellman, AI reshapes a firm’s staffing needs

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Artificial intelligence is just getting started in the accounting world, but it is already helping firms like technology specialist Schellman do more things with fewer people, allowing the firm to scale back hiring and reduce headcount in certain areas through natural attrition. 

Schellman CEO Avani Desai said there have definitely been some shifts in headcount at the Top 100 Firm, though she stressed it was nothing dramatic, as it mostly reflects natural attrition combined with being more selective with hiring. She said the firm has already made an internal decision to not reduce headcount in force, as that just indicates they didn’t hire properly the first time. 

“It hasn’t been about reducing roles but evolving how we do work, so there wasn’t one specific date where we ‘started’ the reduction. It’s been more case by case. We’ve held back on refilling certain roles when we saw opportunities to streamline, especially with the use of new technologies like AI,” she said. 

One area where the firm has found such opportunities has been in the testing of certain cybersecurity controls, particularly within the SOC framework. The firm examined all the controls it tests on the service side and asked which ones require human judgment or deep expertise. The answer was a lot of them. But for the ones that don’t, AI algorithms have been able to significantly lighten the load. 

“[If] we don’t refill a role, it’s because the need actually has changed, or the process has improved so significantly [that] the workload is lighter or shared across the smarter system. So that’s what’s happening,” said Desai. 

Outside of client services like SOC control testing and reporting, the firm has found efficiencies in administrative functions as well as certain internal operational processes. On the latter point, Desai noted that Schellman’s engineers, including the chief information officer, have been using AI to help develop code, which means they’re not relying as much on outside expertise on the internal service delivery side of things. There are still people in the development process, but their roles are changing: They’re writing less code, and doing more reviewing of code before it gets pushed into production, saving time and creating efficiencies. 

“The best way for me to say this is, to us, this has been intentional. We paused hiring in a few areas where we saw overlaps, where technology was really working,” said Desai.

However, even in an age awash with AI, Schellman acknowledges there are certain jobs that need a human, at least for now. For example, the firm does assessments for the FedRAMP program, which is needed for cloud service providers to contract with certain government agencies. These assessments, even in the most stable of times, can be long and complex engagements, to say nothing of the less predictable nature of the current government. As such, it does not make as much sense to reduce human staff in this area. 

“The way it is right now for us to do FedRAMP engagements, it’s a very manual process. There’s a lot of back and forth between us and a third party, the government, and we don’t see a lot of overall application or technology help… We’re in the federal space and you can imagine, [with] what’s going on right now, there’s a big changing market condition for clients and their pricing pressure,” said Desai. 

As Schellman reduces staff levels in some places, it is increasing them in others. Desai said the firm is actively hiring in certain areas. In particular, it’s adding staff in technical cybersecurity (e.g., penetration testers), the aforementioned FedRAMP engagements, AI assessment (in line with recently becoming an ISO 42001 certification body) and in some client-facing roles like marketing and sales. 

“So, to me, this isn’t about doing more with less … It’s about doing more of the right things with the right people,” said Desai. 

While these moves have resulted in savings, she said that was never really the point, so whatever the firm has saved from staffing efficiencies it has reinvested in its tech stack to build its service line further. When asked for an example, she said the firm would like to focus more on penetration testing by building a SaaS tool for it. While Schellman has a proof of concept developed, she noted it would take a lot of money and time to deploy a full solution — both of which the firm now has more of because of its efficiency moves. 

“What is the ‘why’ behind these decisions? The ‘why’ for us isn’t what I think you traditionally see, which is ‘We need to get profitability high. We need to have less people do more things.’ That’s not what it is like,” said Desai. “I want to be able to focus on quality. And the only way I think I can focus on quality is if my people are not focusing on things that don’t matter … I feel like I’m in a much better place because the smart people that I’ve hired are working on the riskiest and most complicated things.”

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