Bite-Sized Business Law The Black Hole of Capital Gains: ETF Swap Funds
Billions of dollars are flowing into a new tax strategy known as ETF swap funds, which critics say allow the ultra-wealthy to avoid capital gains tax, legally. The strategy has drawn attention from lawmakers and some academics for testing the limits of existing tax law. In this episode of Bite-Sized Business Law, host Amy Martella speaks with Jeffrey Colon, a professor at Fordham Law whose research focuses on tax and financial law. Jeff is the author of the forthcoming DePaul Law Review article, ‘The Black Hole of Capital Gains: ETF Swap Funds’, examining how ETF swap funds exploit long-standing provisions of the tax code. The conversation begins with a clear explanation of why ETFs are often more tax-efficient than mutual funds. Jeff then breaks down how Section 852(b)(6) allows ETFs to distribute appreciated securities without triggering tax at the fund level, and how techniques like heartbeat trades magnify that benefit. From there, he explains the rise of Section 351 swap funds, which allow investors with highly appreciated stock to diversify while deferring capital gains. Amy and Jeff close by discussing who benefits from these strategies, why they raise fairness concerns, and what recent proposals from Senator Ron Wyden could mean for future reform. Listen in for a comprehensive look at this consequential tax issue and the questions it raises going forward.
Key Points From This Episode:
- Introducing Jeffrey Colon and his research focus.
- The billions of dollars flowing into ETF swap funds and why they have drawn scrutiny.
- How ETFs differ from mutual funds in structure and trading mechanics.
- Why ETFs are widely viewed as more tax-efficient than mutual funds.
- Section 852(b)(6) and how it provides an advantage to ETFs.
- How heartbeat trades move gains out of ETFs without triggering tax.
- The rise of tax-motivated ETFs over the past year and a half.
- What Section 351 swap funds are and how they operate.
- Using swap funds to diversify appreciated stock without selling.
- Why these strategies primarily benefit ultra-wealthy investors.
- Concerns about fairness and turning income tax into a consumption tax.
- Senator Ron Wyden and his proposed legislative responses.
- IRS limits and why congressional action may be required.
- Risks to the tax system if ETF swap funds continue to expand.
Links Mentioned in Today’s Episode: