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    Unassociated Document

    Icahn
Enterprises L.P.

    May 13,
2009

    VIA
ELECTRONIC TRANSMISSION

    AND
OVERNIGHT COURIER

    Mr. Kevin
Woody

    Accounting
Branch Chief

    United
States Securities and Exchange Commission

    100 F
Street, N.E.

    Washington,
D.C.  20549

    Re:    Icahn
Enterprises L.P.

    Form 10-K
for fiscal year ended December 31, 2008

    Filed on
March 4, 2009

    File No.
1-9515

    Dear Mr.
Woody:

    Reference
is made to the comments of the Staff of the Securities and Exchange Commission
(the “Staff”) in your letter dated April 28, 2009 with respect to the Annual
Report on Form 10-K of Icahn Enterprises L.P., a Delaware limited
partnership  (the “Company”), for the fiscal year ended December 31,
2008. (the “Comment Letter”).

    We are
writing to respond to the comments contained in the Comment
Letter.   For your convenience, the Staff’s comments have been
retyped below in boldface type, and the Company’s responses are provided
immediately after each comment.

    Form 10-K for the fiscal
year ended December 31, 2008

    Item 6. Selected Financial
Data

    1.           It
appears that EBITDA is used as a performance measure and you have excluded the
components of EBITDA without demonstrating the usefulness of excluding these
recurring items. Please explain to us how you considered the need to provide the
disclosures in Item 10(e) of Regulation S-K and questions 8 and 15 of the SEC's
Frequently Asked
Questions Regarding the Use of Non-GAAP Financial Measures for this
measure.

    In
response to the Staff’s observations as provided in comment 1 above, the Company
believes its disclosures are in compliance with Regulation S-K. However, in
future filings in which the Company includes such non-GAAP measure, the Company
will include additional language, as described below, to clarify management’s
use of this measure and the usefulness of removing the components of EBITDA.
Furthermore, the Company does not plan to include Adjusted EBITDA in future
filings as the Company no longer deems this to be meaningful information
relating to the operating performance of the Company’s continuing operating
businesses.

    The
Company believes that providing EBITDA to investors has economic substance as
this measure provides important supplemental information of the Company’s
performance to investors and permits investors and management to evaluate the
operating performance of the Company’s business without regard to potential
distortions introduced by interest, taxes and depreciation and amortization.
Additionally, the Company believes this information is frequently used by
securities analysts, investors and other interested parties in the evaluation of
companies that have issued debt. Management uses, and believes that
investors benefit from referring to these non-GAAP financial measures in
assessing the Company’s operating results, as well as in planning, forecasting
and analyzing future periods. Adjusting earnings for these recurring charges
allows investors to evaluate the Company’s performance from period to period, as
well as its peers, without the effects of certain items that may vary depending
on accounting methods and the book value of assets. Additionally, EBITDA
presents a meaningful measure of corporate performance exclusive of the
Company’s capital structure and the method by which assets were acquired and
financed.

          767 Fifth
Avenue, New York, New York 10153   Telephone
(212) 702-4300 Fax (212) 750-5841

          NYSE -
IEP

    Item 7. Management's
Discussion and Analysis of Financial Condition and Results of
Operations

    Results of
Operations

    Consolidated Financial
Results of Continuing Operations

    Investment
Management

    Revenues. page
56

    2.           We
note that in the event that sufficient net profits are not generated by an
Investment Fund that the special profits interest allocation will be carried
forward for any shortfall to the targeted amount. Regarding the waiving of
special profits interest allocations effective January 1, 2008, please confirm
to us that the target special profits interest allocations will not be due in
future periods related to all investments held during fiscal year 2008, not only
the $510 million net investment made by you and affiliates of Carl Icahn during
the current year ended December 31, 2008. It appears that based on your
disclosure that the $70 million representing the entire fiscal 2008 Target
Special Profits Amount will be carried forward into future periods and will be
accrued to the extent that there are sufficient net profits in the Investment
Funds during the investment period to cover such amounts.

    Special
profits interest allocations are calculated on fee-paying assets under
management (“AUM”) on a quarterly basis and are allocated to the General
Partners if there are sufficient net profits in the Investment Funds to make
such allocations. Any shortfall will be carried forward into future periods and
will be accrued to the extent there are sufficient net profits in the Investment
Funds to cover such amounts.  As disclosed in Footnote 4 and the
MD&A in Form 10-K, the Company’s investments in the Private Funds are not
subject to special profits interest allocations.  Additionally, Carl
C. Icahn, along with his affiliates, makes investments in the Private Funds
(other than the amounts invested by the Company), which also are not subject to
special profits interest allocations. The combined net amount of $510 million
invested during 2008 by the Company and Mr. Icahn is specifically excluded from
fee-paying AUM, the base on which special profits interest allocations is
calculated.

    As
disclosed in Footnote 4 and the MD&A in Form 10-K, during fiscal year 2008,
the Target Special Profits Interest Amount was $70 million. It is noted that the
Target Special Profits Interest Amount of $70 million is calculated based on
fee-paying AUM and will be carried forward into future periods due to losses in
the Investment Funds during fiscal 2008 and will be accrued to the extent there
are sufficient net profits in the Investment Funds during the investment period
to cover such amounts.

    Automotive. page
62

    3.           Please
tell us the basis for consolidating the financial position, results of
operations and cash flows of Federal-Mogul Corporation as of March 1, 2008,
which approximates the date of acquisition of Federal-Mogul by a separate
limited partnership wholly-owned by Carl Icahn, and not as of July 3, 2008, the
date of acquisition by the partnership. Please cite accounting literature relied
upon.

    As
disclosed in the Company’s 2008 Form 10-K, on July 3, 2008, pursuant to a stock
purchase agreement with Thornwood Associates Limited Partnership (“Thornwood”)
and Thornwood’s general partner, Barberry Corp. (“Barberry”), the Company
acquired an approximate 50.5%  majority interest in Federal-Mogul
Corporation (“Federal-Mogul”) for an aggregate price of $862,750,000. Thornwood
and Barberry are wholly owned by Mr. Carl C. Icahn, who, on July 3, 2008,
indirectly owned approximately 91.8% and 86.5% of the Company’s depositary units
and preferred units, respectively, and thus are entities under common control
with the Company. Prior to the Company’s majority interest acquisition of
Federal-Mogul, Thornwood owned an aggregate of 75,241,924 shares of
Federal-Mogul (“Federal-Mogul Shares”), which represented approximately
74.87% of the total issued and outstanding Federal-Mogul Shares. Thornwood
had acquired such shares as follows: (i) 50,100,000 Federal-Mogul Shares
pursuant to the exercise of two options on February 25, 2008 acquired in
December 2007 from the Federal-Mogul Asbestos Personal Injury Trust; and (ii)
25,141,924 Federal-Mogul Shares pursuant to and in connection with
Federal-Mogul’s Plan of Reorganization under Chapter 11 of the United States
Code, which became effective on December 27, 2007.

          767 Fifth
Avenue, New York, New York 10153   Telephone
(212) 702-4300 Fax (212) 750-5841

          NYSE -
IEP

    According
to paragraph 9 of Statement of Financial Accounting Standards (“SFAS”) No. 141,
Business Combinations,
“control is generally indicated by ownership by one company, directly or
indirectly, of over fifty percent of the outstanding voting shares of another
company”. Paragraph 11 of SFAS No. 141 states that a “business combination”
excludes transfers of net assets or exchanges of equity interests between
entities under common control. Paragraph 11 of SFAS No. 141 also states that
transfers of net assets or exchanges of equity interests between entities under
common control should be accounted for pursuant to the guidance provided at
paragraphs D11 - D18 of Appendix D of SFAS No. 141. In practice, the method used
to account for such transactions is similar to the pooling-of-interests method
(“as-if pooling-of-interests”) in that the entity that receives the net assets
or the equity interests initially recognizes the assets and liabilities
transferred at their carrying amounts in the accounts of the transferring entity
at the date of transfer.

    Regarding
the reporting periods required to be presented by an entity following an “as-if
pooling-of-interests” transaction, SFAS No. 141 paragraphs D16-D17
specify:

    The
financial statements of the receiving entity should report results of operations
for the period in which the transfer occurs as though the transfer of net assets
or exchange of equity interests had occurred at the beginning of the period.
Results of operations for that period will thus comprise those of the previously
separate entities combined from the beginning of the period to the date the
transfer is completed and those of the combined operations from that date to the
end of the period.... Similarly, the receiving entity should present the
statement of financial position and other financial information as of the
beginning of the period as though the assets and liabilities had been
transferred at that date. Financial statements and financial information
presented for prior years should also be restated to furnish comparative
information. All restated financial statements and financial summaries should
indicate clearly that financial data of previously separate entities are
combined.

    The SEC
staff has indicated that, in “as-if pooling-of-interests” accounting, the
financial statements of the previously separate entities should not be combined
for periods prior to the date that common control was established. Reference is
made to the speech by Leslie A. Overton, Associate Chief Accountant, Division of
Corporate Finance, in remarks before the AICPA National Conference on Current
SEC and PCAOB Developments on December 12, 2006. The response to question I C.
effectively states that the combined financial statements should reflect each
combining company only from the date the parent acquired control.

    In
applying the above guidance, the Company concluded that the transfer of the
equity interests in Federal-Mogul would be accounted for at historical cost in a
manner similar to that in a pooling of interests. Therefore, as of February 25,
2008 (the effective date of control by Thornwood and, indirectly, Carl C.
Icahn), and, thereafter, as a result of the Company’s acquisition of a majority
interest in Federal-Mogul on July 3, 2008, the Company consolidated the
financial position, results of operations and cash flows of Federal-Mogul. The
Company evaluated the activity between February 25, 2008 and February 29, 2008
and, based on the immateriality of such activity, concluded that the use of an
accounting convenience date of February 29, 2008 was appropriate.

    Other Liquidity and Capital
Resource Items

    Distributions

          767 Fifth
Avenue, New York, New York 10153   Telephone
(212) 702-4300 Fax (212) 750-5841

          NYSE -
IEP

    Preferred Units, page
80

    4.           Please
tell us and disclose in future filings the company's ability to redeem the
preferred units by March 31, 2010. We note that you have the option to settle
the redemption in cash or issuance of depository units. Please tell us and
disclose the sources of cash that would be used to redeem the preferred units if
you were to redeem the preferred units for cash. If such preferred units are
redeemed for depository units, please discuss whether the amount of authorized
depository units available for issuance is sufficient to redeem the preferred
units. If not, please note whether you will authorize additional depository
units to redeem the preferred units.

    In
response to the Staff’s observations and recommendations as provided in comment
4 above, in its Quarterly Report on Form 10-Q filed on May 6, 2009 and in future
Quarterly Reports on Form 10-Q and Annual Reports on Form 10-K filed with the
Commission, the Company has, and will expand its disclosure of the sources of
cash and availability of depositary units that would be used to redeem its
preferred units on the Redemption Date as indicated in the following
paragraph.

    Pursuant
to certain rights offerings, the Company’s preferred limited partner units must
be redeemed on March 31, 2010, the “Redemption Date.” Each preferred unit has a
liquidation preference of $10.00 and entitles the holder to receive
distributions, payable solely in additional preferred units, at the rate of
$0.50 per preferred unit per annum (which is equal to a rate of 5% of the
liquidation preference thereof).  In addition, on the Redemption Date,
subject to the approval of the Company’s Audit Committee, the Company may opt to
redeem all of the preferred units for an amount, payable either in cash or
depositary units, equal to the liquidation preference of the preferred units,
plus any accrued but unpaid distributions thereon. On the Redemption Date, if
the Company elects to redeem the preferred units in cash, the Company believes
that it will have sufficient cash available to do so from its existing cash and
liquid investments; if the Company elects to redeem by issuance of the Company’s
depositary units, the Company will have sufficient authorized depositary units
available to do so. As of March 31, 2009, there were 13,127,179 preferred units
issued and outstanding.

    Item 8. Financial Statements
and Supplementary Data

    Consolidated Balance Sheets,
page 94

    5.           We
note that you separately present the assets and liabilities of your continuing
operating segments on the face of your consolidated balance sheets. Explain to
us how your presentation complies with Rule 5-02 of Regulation S-X.

    As
indicated in Rule 5-02 of Regulation S-X, “the purpose of this rule is to
indicate the various line items and certain additional disclosures which, if
applicable, and except as otherwise permitted by the Commission, should appear
on the face of the balance sheets or related notes filed for the persons to whom
this article pertains (see Rule 4-01(a)).”

    Rule
4-01(a) provides that financial statements included in SEC filings should be
filed in a manner that will best indicate their significance and character in
the light of the various rules, regulations and other provisions that apply to
these statements. That is, the statements should fairly present the operations
and financial condition of the company in question, and should reasonably
present the disclosures required by statutes and SEC regulations. The statements
should include, at a minimum, information required by the rules and regulations,
as well as any further material information necessary to prevent the statements
from being misleading.

    As noted
above, Rule 4-01(a) provides that financial statements should be prepared in a
way that best indicates their significance and character. In addition, Rule 4-02
of Regulation S-X allows a filer to omit separate disclosure of immaterial
items, and Rule