The position increasingly held by academics is that the current tax treatment of such receipts is improper and should be obvious to all.6 Apparently, the small but determined group which defends the status quo7 not only fails to appreciate the clarity of the situation,8 but their analysis is derisively dismissed as sophistry and their motives impugned for acting as tools of the establishment. As the lowly representative of the Gang of Three, and the only one apparently not smart enough to be paid for his advocacy,'0 notwithstanding the intensity and inventiveness of the presenters' advocacy, I remain unconvinced. My support for the status quo appears elsewhere and is most detailed and recommended for those with further interest." Herein, I will limit my response to the larger themes of equity compensation in the business enterprise context, with cross references to my prior work for those who wish to pursue the matter further. The overriding criticism by the presenters of the status quo for recipients of compensatory profits interests is the lack of parity among similarly-situated recipients. Both make their case for changing the current tax treatment of carried interests because of this defect. The virtues of horizontal equity are extolled by the presenters. 12 However, the difficulty in the application of the tax policy guideline emphasizing horizontal equity is in ensuring that one is comparing the relevant parties, i.e., apples to apples, in making the assessment. Many advance the employee as the center point for comparison because the return on their services is taxed at progressive rates. 13 I instead offer the corporate or partnership executive as the appropriate focal point, whose return from his expenditure and investment of services under the current tax law is frequently entitled to preferential treatment.
Philip F. Postlewaite,
The Taxation of Compensatory Profits Interests: The Blind Men and the Elephant,
Nw. J. Int'l L. & Bus.