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What consequences does it have for a fund if securities or other assets owned by the fund are deemed to be "plan assets" under ERISA?

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Jul 14, 2023
1. What consequences does it have for a fund if securities or other assets owned by the fund are deemed to be "plan assets" under ERISA?

The AI answer also included this phrase: "transferring non-qualifying investments could require consent from other parties and could potentially lead to personal tax consequences for the fund manager".

Could you please verify and expand?
2. What consent?
3. What parties?
4. What personal tax consequences?
1 answer
Accepted Answer
Jul 18, 2023
When a venture capital fund takes in investors who are subject to ERISA, the fund may also become subject to the numerous and onerous ERISA regulations without an exemption. Such regulations would make operating the fund untenable. For example, the fund may be prohibited from paying carried interest to the fund managers.

There are two exemptions through which a venture capital fund can avoid being subject to ERISA:
 
1. 25% Test Exemption: Less than 25 percent of each class of equity interests of the venture capital fund is held by investors who are subject to ERISA.
 
2. Venture Capital Operating Company (VCOC) Exemption: At least 50% of the venture capital fund’s assets are invested in operating companies in which the fund has contractual management rights.  
 
In order to secure the VCOC Exemption, it has become customary for venture capital funds to ask each of its portfolio companies to sign a management rights letter providing the fund with such management rights.
 
It is important to note that a fund relying on the VCOC exemption should ensure that its first portfolio investment includes contractual management rights in order to satisfy the exemption requirement, and that it does not take LP money subject to ERISA before that first investment is made; otherwise, the fund be disqualified from being eligible for the exemption.
 
In addition, if the fund managers or their affiliates “warehouse” portfolio investments for transfer to the fund, it is important that the transfer documents provide that management rights with regard to such investments be transferred to the fund to ensure that the venture capital fund has the necessary contractual management rights to satisfy the exemption.
 
As ERISA regulations are complex, fund managers should seek the advice of the relevant professionals to ensure compliance if they will be receiving investor funds subject to ERISA.

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