Fortress worries about Obama’s plans and other new rules…

November 19, 2008

Last Thursday, we had the spectacle of five top hedge fund managers testifying on Capitol Hill. Several Congressmen honed in on the current tax code which allows hedge fund partners (and other partnerships) to be taxed at a lower rate because of the rules on carried interest. At last week’s hearing, George Soros and Jim Simons agreed that the rules should be revised. John Paulson, Philip Falcone and Ken Griffin offered several conditions.

The folks at Fortress Investment Group (FIG) weren’t on that panel, but that same day they reported its first quarterly loss since going public in February 2007 and announced that redemptions were running around 25%. But it was some of the new disclosures in the 10Q they filed that piqued my interest.

While the warning about the potential change in the tax code in terms of carried interest has been in previous filings, the last line was new:

If legislation were to be enacted by the U.S. Congress to treat carried interest as ordinary income rather than as capital gain for U.S. federal income tax purposes, such legislation would materially increase the amount of taxes that we and possibly our equityholders are required to pay, thereby reducing the value of our common units and adversely affecting our ability to recruit, retain and motivate our current and future professionals. Senator Barack Obama, the President-Elect, has publicly stated that he supports similar changes to the tax code.

Also new was a warning of the increased attention on hedge funds by members of Congress and the additional regulation that this could bring. Among the concerns singled out was the SEC’s rule on short-selling, which expired last month, though companies are still required to file the Form SH until next August: “Compliance with any new laws or regulations could make compliance more difficult and expensive and affect the manner in which we conduct business.”

Of course, given Fortress’ performance — the stock has declined a whopping 93% since February 2007 — new regulations seem like the least of their problems.

Image source: NYSE

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