Individual retirement account (IRA) investments into hedge funds are increasing rapidly. Below are some common questions hedge fund managers have about potential investments by IRAs.
Can an IRA invest in a hedge fund?
Generally yes, however the IRA and the hedge fund must make sure to follow certain regulations which a manager should discuss with a hedge fund attorney. A manager should not accept IRA investments into the hedge fund without first discussing this with his lawyer.
How does an IRA actually make the investment into the hedge fund?
Each IRA investment into the hedge fund needs to be made by the custodian of the IRA. That is, the beneficial owner of the IRA cannot simply take the money out of his IRA account and then place the money in the hedge fund – this would be deemed to be a withdrawal from the IRA and would be subject to very negative tax consequences.
In order to avoid these negative tax consequences the custodian needs to directly transfer the IRA assets to the hedge fund. Typically this is done through a self directed IRA account at a brokerage firm. Many brokerage firms do not have these self directed programs in place. If the brokerage firm does not have such a program in place the beneficial owner of the IRA would need to transfer the IRA to another custodian which does. Our law firm has worked with many custodians who have these programs and we can make recommendations.
Each custodian has different requirements for an investment into a hedge fund from an IRA. Typically the hedge fund manager is going to need to fill out a few pages of paperwork with the custodian and provide custodian with the fund’s offering documents. After the custodian’s compliance department has reviewed the paperwork, the custodian will be able to make the investment into the fund on behalf of the IRA. During this process the hedge fund manager is going to be spending time talking with the custodian and the compliance department. Additionally the law firm may need to be involved with the process as well; however, this is usually to a much lesser extent.
Are there any other issues with IRA investments into hedge funds?
Yes. There are many issues which a hedge fund manager should be aware of which include the following:
1. The manager should be sure that the hedge fund and the management company do not engage in any prohibited transactions with respect to the fund and the IRA. [More on this in a later article.]
2. The manager should make sure that if it uses any sort of leverage that such activities are clearly discussed in the fund’s offering documents. In certain circumstances where there is leverage, an IRA could be subject to tax on its unrelated business taxable income or UBTI.
3. The manager should make sure that the fund does not stray from its investment program. IRA are not allowed to make certain investments like investments in life insurance policies (life settlements).
As noted in an earlier article on hedge funds and ERISA, while IRAs are not specifically ERISA assets, they do count towards the 25% threshold and thus the manager needs to be aware of the amount of IRA and other ERISA assets in the hedge fund.
Because of the gravity of the tax consequences to potential IRA investors, please contact your hedge fund attorney or accountant if you have specific questions about IRA investments into your fund. Additionally, savvy hedge fund investors will usually want to make sure that their own tax advisors have reviewed the hedge fund offering documents before investing in the fund.