Paulson Leads Funds to Bermuda Tax Dodge Aiding Billionaires
By Zachary R. Mider
Last year, about $450 million belonging to top executives at billionaire hedge fund manager John Paulson’s New York firm took a quick round trip to Bermuda.
In
April, the executives sent the money to a reinsurance company that
they’d set up on the island 650 miles off the North Carolina coast. By
June, the Bermuda company, which has no employees and sells far less
reinsurance than the industry norm, had sent all the cash back to New
York, to be invested in Paulson & Co. funds.
By recycling
the funds through Bermuda-based Pacre Ltd., the Paulson executives are
positioned to legally exploit a little-known tax loophole, reduce their
personal income taxes and delay paying the bill for years.
“These types of reinsurance companies are permitting U.S. taxpayers to defer -- indefinitely -- U.S. tax,” said David S. Miller, a tax lawyer at Cadwalader Wickersham & Taft LLP. For some, he said, it’s “an unjustified benefit.”
A
decade after the U.S. Internal Revenue Service threatened to crack down
on what it said were abuses by hedge-fund backed reinsurers, more
high-profile money managers are setting up shop in tax havens. Paulson,
SAC Capital Advisors LP’s Steven A. Cohen and Third Point LLC’s Daniel Loeb have started Bermuda reinsurance companies since 2011, following a similar Cayman Islands venture by Greenlight Capital Inc.’s David Einhorn.
Because
reinsurers, which sell coverage to other insurers, manage large pools
of capital, they’re a handy way to funnel a U.S. hedge fund investment
through a tax haven.
Some Loopholes
At a time when the
Obama administration and Congressional leaders of both parties are
calling for a corporate tax overhaul that includes eliminating some loopholes,
the reinsurance tax dodge is gaining popularity among hedge funds. The
three new reinsurers backed by U.S. hedge fund managers put a combined
$1.7 billion back into the managers’ hands.
Other top money
managers, including some in London, are hiring advisers to explore
setting up reinsurance companies in Bermuda, said Timothy Faries, an insurance lawyer at Appleby, one of the island’s largest law firms.
Fund managers are “trying to find a way to have a vehicle that can go offshore and avoid paying taxes,” said William Berkley, founder of W.R. Berkley Corp.,
a Greenwich, Connecticut-based insurer. “You have one company that does
it and nobody pays attention. You now have four or five and it’s likely
to get more people’s attention.”
Tax Management
Those involved in establishing reinsurers defend the strategy. “Given the world we’re in, it’s just good tax management,” said Robert Cooney, who served as chief executive officer of one of the first hedge-fund-backed reinsurers from 1999 to 2006.
Tax
avoidance isn’t the only advantage to establishing a Bermuda reinsurer,
insurance executives said. It means creating a large, fee-paying client
that is unlikely to take its money out of a hedge fund after a bad
year. Moreover, insurance companies get to invest customers’ premiums
for months or years before they pay out claims.
Cohen’s, Loeb’s
and Einhorn’s reinsurance firms are better designed to reap those
non-tax benefits than Paulson’s company, Pacre, which has just one
outside investor. The white, steel- and-glass complex overlooking
Bermuda’s capital of Hamilton, which is listed as its legal address, is
the office of another reinsurer to which it outsources its underwriting.
Insurance Sales
Pacre sold
about $8 million of reinsurance coverage from April to December, or 1.6
percent of its $500 million in initial shareholders’ equity. That’s far
below the average of 47 percent for 15 publicly traded Bermuda insurers
during their most recent nine months.
Cohen’s and Loeb’s
reinsurers employ underwriting staff and have set targets of insurance
sales equivalent to 30 percent and 19 percent, respectively, of their
equity in their first full year, according to disclosures to reinsurance
brokers.
Paulson, 57, declined to say whether he plans to get a tax benefit from Pacre.
“That’s never been a portion of the business we’ve ever commented on,” said Armel Leslie, a spokesman for Paulson’s hedge fund.
The
companies set up by Paulson, Cohen and Loeb are located within a
half-mile of each other in the narrow streets ringing Hamilton. The
pastel-hued business district overlooks a harbor where Russian
billionaire Roman Abramovich docked the world’s largest luxury yacht last month.
No Tax
Bermuda,
which imposes no corporate income tax, is the global center of the
reinsurance industry. Since it emerged in the 1980s, the reinsurance
business has lifted Bermuda’s economy, creating jobs for underwriters,
actuaries, lawyers and accountants.
The companies backed by
hedge funds -- lightly regulated funds available only to institutions
and wealthy individuals -- are no less welcome. A 2001 presentation
by a group of business leaders to encourage development in Bermuda
touted the tax benefits of what it called “reinsurance wrapped around a
hedge fund.”
After Paulson set up the Pacre venture last year,
Wayne Furbert, then the minister of business development, called it “a
strong vote of confidence in Bermuda as a leading financial
jurisdiction,” according to the local newspaper, the Royal Gazette.
IRS Rules
By
setting up reinsurance companies there, money managers can take
advantage of a loophole in IRS rules. Ordinarily, when hedge fund
managers invest in their funds, they pay either the 39.6 percent rate
for ordinary income or the 20 percent long- term capital gains rate,
depending on how frequently securities are traded, plus an extra 3.8
percent health-law surcharge. If they were to move the hedge funds to
tax havens, they would incur IRS penalties on earnings from what the
agency calls “passive foreign investment companies.”
Here’s the
catch: The IRS doesn’t penalize earnings from insurance companies, which
it considers to be “active” businesses. As a result, by routing money
through a Bermuda reinsurer, which in turn puts its assets back into
their own hedge funds, fund managers can defer any taxes until selling
the stake. They then pay only the lower capital gains tax rate.
In the meantime, the money grows tax-free, and the savings add up.
Investing $100 million in a hedge fund that returns 15 percent
annually, and paying the top marginal ordinary income rate on profit,
results in a $50 million profit after taxes after five years. If the
investment is taxed like a Bermuda reinsurer, the gain is $77 million.
$64,000 Question
To
qualify as an active company and avoid the tax penalty, the IRS says
firms can’t have a pool of capital that’s far greater than what they
need to back the insurance they sell.
But the IRS has never specified exactly how much is too much.
“The $64,000 question is how big a reserve can you have?” said Robert Cudd, a tax lawyer at Morrison & Foerster LLP in San Francisco. “There’s no easy answer to that.”
The IRS in 2001 disclosed plans
to clarify its definition of insurance companies, a move that might
prevent abuses by hedge funds, Cadwalader’s Miller said. He said it
never followed through.
The fact that Pacre and the other
startups trust virtually all their assets to one hedge fund manager may
allow them to argue to tax authorities that they can’t afford to take on
the extra risk of selling much reinsurance, Miller said.
“Under
the current law, so long as Pacre’s reserves are not excessive -- and
they probably aren’t -- this probably works,” he said. “I think you need
a change in law.”
First Fund
The first prominent hedge fund to set up a large Bermuda reinsurer was Louis Moore Bacon’s
New York-based Moore Capital Management LP, in 1999. He originally
planned for Max Re Capital Ltd. to invest all its assets in his funds,
and shares were marketed in part as a tax-efficient way to invest in a
hedge fund, said Cooney, a career insurance underwriter who was Max Re’s
first CEO. Forbes estimated Bacon’s net worth at $1.3 billion as of
September 2012.
As it turned out, Max never invested more than
40 percent of its assets in hedge funds and now puts less than 5 percent
in them. Still, the tax-avoiding aspect of Max Re was highlighted in a 2001 article
in Institutional Investor magazine, titled “The Great Hedge Fund
Reinsurance Tax Game.” Two years later, the IRS threatened to scrutinize
the practice.
Phony Insurance
The IRS
said
some of the offshore arrangements were shams, either because they
weren’t selling enough insurance or because the insurance they reported
selling was phony. The IRS “will challenge the claimed tax treatment,”
government lawyers wrote.
The IRS has rarely if ever done so.
Tax lawyers and insurance executives said they were unaware of any
company targeted by the IRS, even in private.
“Nobody’s been
challenged, so nobody knows whether it’s ironclad or not,” said Faries,
the Bermuda lawyer. The IRS declined to comment.
A year after
the IRS notice, Greenlight Capital Inc.’s Einhorn started laying the
groundwork for another reinsurer in a tax haven. Greenlight Capital Re Ltd.,
which opened in 2006 in the Cayman Islands, put 100 percent of its
assets under Einhorn’s control. Einhorn, 44, whose net worth is
estimated by Forbes at $1.2 billion as of last September, took the
reinsurer public in 2007.
Third Point
Third Point’s
Loeb, 51, was next in 2011 with Third Point Reinsurance Ltd., which
raised about $785 million, including $75 million of Loeb’s own money.
Forbes magazine estimated his personal fortune at $1.3 billion as of
September.
And last year, SAC’s Cohen, 56, whose net worth
Bloomberg estimates at about $9.5 billion, put $125 million of his own
money into a $500 million reinsurance company called
SAC Re.
Both
Cohen and Loeb followed the Greenlight model: hire a handful of local
employees to sell reinsurance while relying on the hedge fund firm to
manage the assets.
A stable pool of capital to invest may be
particularly welcome at SAC Capital, whose outside investors this month
asked to withdraw $1.7 billion amid a U.S. government insider-trading
investigation. Outside money accounts for less than half of SAC
Capital’s $15 billion under management; the rest belongs to Cohen and
his employees.
Cohen and SAC haven’t been accused of any
wrongdoing and believe they’ve acted appropriately, a spokesman said in
November. They declined to comment for this article.
Third Point
Re said in a statement last year that it located in Bermuda because of
the island’s “respected regulatory regime” and talented workforce. It
hired John Berger, a career insurance executive, as CEO.
Tax Advantage
As for the tax benefits, Berger said in an interview, “Anybody in Bermuda has a tax advantage.”
Hedge
fund-backed reinsurers turn the traditional business model on its head.
Reinsurers help insurance companies cushion big risks, such as a
California earthquake or a wave of lawsuits against asbestos makers.
A
typical reinsurer invests its capital conservatively, in investments
that are unlikely to decline in value and are available to pay claims on
short notice. It might invest in Treasuries and investment-grade corporate bonds, and focus on making money through selling as much profitable coverage as possible.
By contrast, the hedge fund-backed reinsurers seek big returns from investing and more stable results from underwriting.
Fewer Policies
A.M.
Best, which gauges insurers’ financial strength, has given “A-” ratings
to the companies set up by Paulson, Cohen, Loeb and Einhorn with the
understanding that they compensate for volatile investments by selling
fewer policies than their competitors.
Paulson’s firm, Pacre,
takes that approach the farthest. Pacre helps protect insurers against
natural catastrophes such as Florida hurricanes. While traditional
reinsurers have far more exposure, Pacre won’t risk more than $170
million, or about one-third of its capital, according to Edward Noonan, chief executive of Bermuda reinsurer Validus Holdings Ltd., which handles Pacre’s underwriting.
That
loss would happen only if it had to pay out every single policy in full
at the same time -- “in the event the end of the world happened,”
Noonan said on an April conference call.
Pacre’s Capital
When
it was established in April, Pacre’s startup capital included $450
million from the “principals” of Paulson’s hedge fund, according to A.M.
Best. While A.M. Best didn’t name the principals, Paulson owns about 53
percent of his firm’s assets under management, according to the
Bloomberg Billionaires Index, and at least 75 percent of the firm. No
other officer of the firm owns even 5 percent, according to a filing with the Securities & Exchange Commission last year.
Bloomberg
estimates Paulson’s net worth at $11.2 billion. He opened his money
management firm in 1994, and rose to fame in 2007 after a wager against
the collapsing U.S. subprime mortgage market generated billions in
profits. Paulson
told
a Congressional hearing in 2008 that all of his personal investments
were with Paulson & Co., which now manages about $18 billion in
assets. He announced plans last year to donate $100 million to conserve
Manhattan’s Central Park, steps from his six-story townhouse.
The other $50 million for Pacre came from Validus, to which Pacre outsources its underwriting. Validus sold premiums worth 32 percent of its equity in the most recent nine months.
Pacre invested
the entire $500 million in startup capital in four Paulson & Co.
hedge funds. Through December, those investments have lost about $19
million in value. Since the funds lost money, the Paulson investors
wouldn’t have owed income taxes anyway.
To contact the reporter on this story: Zachary R. Mider in New York at zmider1@bloomberg.net.
To contact the editor responsible for this story: Daniel Golden in Boston at dlgolden@bloomberg.net.
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