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American Bar Association. BASIC PARTNERSHIPS TAX PRINCIPLES July 22, 23, 2008. Michael Hirschfeld Dechert LLP New York, New York (212) 698-3635 [email protected] Are you a PS?. LLC PS for tax Check the box rules: Single member v Multi Member Use: Non-US Entity. Form 8832.

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American bar association
American Bar Association

BASIC PARTNERSHIPS TAX PRINCIPLES

July 22, 23, 2008

Michael HirschfeldDechert LLPNew York, New York(212) [email protected]


Are you a ps
Are you a PS?

  • LLC

    • PS for tax

  • Check the box rules:

    • Single member v Multi Member

      • Use: Non-US Entity


Form 8832
Form 8832

  • Entity Classification Election

    • No need for protective election

    • 75 days to file

    • List of per se companies in Instructions

      • UK-Public Limited Company

      • Netherlands-NV

      • Germany-AK

      • France-SA

      • Canada-Corporation and Company


Ps interest for cash
PS Interest for Cash

  • Tax free to contributing partner

    • What about Promissory Note?

      • Not the same as cash

      • No basis until pay it


Mix of equity debt
Mix of Equity & Debt

  • May want to transfer cash for debt as well as equity?

    • Why?

      • Protect against creditors if things go bad

        • But-will it work?

          • Equitable subordination is a risk

  • Tax Issues:

    • Is it good debt for tax purposes?

    • At risk rules-Will it count?


Ps interest for property
PS Interest for Property

  • General Rule: Tax free to contributing partner


Exception investment partnership
Exception: Investment Partnership

  • Property transfer taxable if:

    • Investment PS &

    • Diversification

  • Investment PS

    • More than 80% of value of assets are held for investment

      • Dollars, stock, debt, options, REIT, RIC, PTP

    • Key: Keep at least 20% in non-investment company assets


Investment partnership cont
Investment Partnership (cont)

  • Diversification

    • If 2 or more partners transfer non-identical assets to PS

  • BUT no diversification if:

    • Only 1 partner transfers assets or

    • Each partner transfers:

      • Same portfolio or

      • Diversified Portfolio

        • Not more than 25% in one asset &

        • Not more than 50% in 5 or fewer assets


Property contribution
Property Contribution

  • No investment PS & no cash then non-taxable with tax attributes being:

    • Carryover tax basis for PS interest

    • Tacked holding period for property contributions


But if get back cash then
But if get back cash then:

  • Disguised sale rules will make this in part a taxable sale

    • Part sale-Part tax free transfer

    • Allocate basis between two events


Disguised sale rules
Disguised Sale Rules

The game: Get cash back later in time after property contribution is made

Why? Cash distributions from a PS are not generally taxable until they exhaust your tax basis BUT

  • Later distribution of cash may be combined with earlier contribution of property to have a “disguised sale.”

  • Two year presumption but can rebut by showing subject to entrepreneurial risk of business


Exceptions to disguised sale rules
Exceptions to Disguised Sale Rules

  • Guaranteed payments for capital & preferred returns

    • Safe harbor: Very ltd-150% of AFR

  • Operating cash flow distributions

  • Reimbursement of preformation expenditures


Liabilities disguised sale rules
Liabilities & Disguised Sale Rules

  • Non-recourse liabilities:

    • Usually, allocate liability to contributing partner under §704(c)—reduces game playing

  • Recourse liabilities:

    • Could shift, which is treated as cash distribution

    • Is that cash distribution caught by disguised sale rules?

      • Yes unless qualified liability


Exceptions to disguised sale rules1
Exceptions to Disguised Sale Rules

  • Qualified Liability:

    • Incurred more than 2 years before contribution

    • Allocable to capital expenditures

    • Liability incurred in ordinary course of business but only if all the assets held in that trade or business are transferred to PS

  • Liability cannot exceed FMV of assets


Taxable sale cap gain
Taxable Sale-Cap Gain?

  • Code Section 1239

    • Sale of depreciable property between PS and controlling partner generates ordinary income

    • Controlling partner

      • More than 50% ownership


So tax free contribution are there any tax concerns
So, tax free contribution—are there any tax concerns?

  • Yes if AB is not equal to FMV of property

  • Why?

    • Consider 2 partners, A & B

    • A contributes $100 cash

    • B contributes land with FMV = $100, but tax basis of zero

    • The next day, PS sells land for $100

    • How does PS allocate the $100 gain?


Allocating gain from sale of contributed property
Allocating Gain from Sale of Contributed Property

  • Could PS allocate $100 gain to both partners in the same way that regular PS income is allocated (thaf is, 50-50)?

    • NO

      • Code Section 704(c) requires that you allocate built ingain to B, the contributing partner

      • Why?


Capital account analysis if use ab of assets

A

Increased by $100 due to cash contribution

If allocate A 50% of gain then increased to $150

If liquidate, A gets $150 if follow capital account-something is wrong since A thinks he should get only $100

B

Increased by zero upon property contribution since AB of property was zero

If allocate B 50% of gain then increased to $50

If liquidate, B gets $50 if follow capital account—something is wrong since B thinks she should get $100!

Capital Account Analysis if Use AB of Assets


Variation on a sale
Variation on a Sale

  • Sell land that had AB = 0 & was worth $100 on date of contribution for $150 then

    • Allocate $100 gain to B BUT

    • Can allocate excess gain of $50 to A and B

  • KEY ISSUE:

    • What is FMV of land on date of contribution?

    • MUST SPELL OUT IN YOUR AGREEMENT!


Allocation of gain capital accounts
Allocation of Gain & Capital Accounts

  • Capital accounts used for tax allocation purposes:

    • Increased by AB or FMV of property contribution?

    • Decreased by AB or FMV of property distribution?

    • Increased by taxable income/gain allocable to a partner

    • Decreased by taxable loss/deductions allocated to a partner

    • SO, LET’s APPLY THIS HERE


Contribution of depreciable property allocations
Contribution of Depreciable Property-allocations:

  • How do you handle Allocations Relating to a Contribution of Property


General principle
General Principle

  • Tax must follow book

  • § 704(c) addresses situations when a disparity exists between a partnership’s tax accounts and its book accounts.


Methods for 704 c allocations
Methods for § 704(c) Allocations

  • Traditional Method: each partner is treated as if it purchase a pro rata interest in the property

    • Beware the “Ceiling Rule”

  • Traditional Method with Curatives: allows for “reasonable curative allocations” to prevent distortions resulting from the “ceiling rule”

  • Remedial Method: permits partners to ignore the ceiling rule and create tax allocations to match and offset their book allocations


Section 704 c example
Section 704(c) Example

  • AB Partnership

    • A contributes $390,000

    • B contributes depreciable property worth $390,000, but with a $39,000 tax basis

  • Property depreciated over 39 years so:

    • A hopes there is $10,000/ year of depreciation to split & she will get $5,000

    • But there is only $1,000 of depreciation to split

  • What happens?


Section 704 c example outcome
Section 704(c) Example-Outcome

  • Traditional method: specially allocate $1,000 to A so A is short changed—she thought she would get $5,000

  • Traditional Method With Curative Allocations: can specially allocate other depreciation to A so as to get A $5,000 BUT if no other depreciation, you are stuck

  • Remedial method: A gets $5,000.


Diversion of sorts basic ps tax rule
Diversion of sorts: Basic PS Tax Rule:

  • Property distributions to a partner do not normally trigger tax!

  • Could you take advantage of this rule to “play games”


The game
The Game

  • The Players:

    • A & B each put in cash of $1,000

    • C puts in property worth $2,000

  • The Game:

    • 3 years later, A and B are redeemed out of PS by giving them each a ½ interest in the property

    • A and B-say tax free to us

    • C says great news—I just cashed out & fooled the tax system BUT


Tax traps if have contributed property
Tax Traps if have Contributed Property

  • Distribution of contributed property to other partner

  • Distribution of other property to contributing partner


Anti mixing bowl rules
Anti ”Mixing Bowl” Rules

  • If property leaves PS within 7 years, then that may trigger tax to contributing partner

  • Watch out for these rules

    • §704(c)(1)(B): Contributed property goes out to another partner

    • §737: Contributing partner redeemed out for other property


Purchase of ps interest impact on property ab
Purchase of PS Interest & Impact on Property AB

  • If you buy into a PS with property, are you stuck with tax basis of assets?


Section 754 election example
Section 754 Election-Example:

  • ABC PS acquired Property for $9M

  • Tax basis of property is now $6M

  • X buys C’s interest for $6M

    • Thus, current value of PS is $18M

    • But, C’s share of tax basis of PS property is only $2M and not $6M

    • Absent help, X is stuck with that $2M basis

  • Q. How can we help


The fix optional ab adjustment
The Fix-Optional AB Adjustment

  • Elect basis adjustment under Sections 754 and 743

  • Gives “basis boost” for C’s benefit


Example impact
Example Impact

  • ABC Partnership

    • Tax basis = $6M allocable $2M to A, $2M to B and $2M to Xm purchaser of C’s interest

  • BUT Now

  • Special tax basis adjustment for only X

    • X’s tax basis = $6M

      • More depreciation/amortization &

      • Less gain or greater loss on sale


But mandatory downward basis adjustments now required under section 754
BUT Mandatory Downward Basis Adjustments-now required under Section 754

  • Section 743-If “substantial built in loss,” then PS must reduce basis

    • $250,000 threshold

  • Section 734-If “substantial basis reduction,” then PS must reduce basis

    • $250,000 threshold

    • Electing investment PS (“EIP”) exception

    • If EIP election, then transferee partner’s share of losses from PS is reduced


Ps interest for services
PS Interest for Services Section 754

  • Can you get this tax free?


Carried interests
Carried Interests Section 754

  • Planning Possibility: Can get PS/LLC interest to a person w/o triggering tax!


Carried interest
Carried Interest Section 754

  • The grant of an interest to a service provider raises a host of issue:

    • Taxability of holder on date of grant or date when vesting restrictions lapse

      • Need for Capital Contribution

      • Code Section 83 Impact

    • Possible deduction to PS/LLC

    • Proposed tax legislation:

      • PTP Issue

      • Non-PTP Ordinary Income Exposure


Key profits interest good capital interest bad
Key: Profits Interest-Good; Capital Interest-Bad Section 754

  • Difference:

  • If you liquidate the PS, would you get something back?

    • If yes, capital interest

    • If no, profits interest

  • BUT, should this liquidation analysis be the proper test?


Carried interest irs guidance
Carried Interest Section 754IRS Guidance

  • Background: Diamond v. Comm., 56 TC 530, aff’d, 492 F.2d 286 (7th Cir. 1974)

  • Rev. Proc. 93-27

    • Key factor: Profits v Capital Interest

  • Rev. Proc. 2001-43

  • Notice 2005-43-Proposed Safe Harbor

    • Caveat: substantially certain & predictable stream of income from partnership assets, such as income from high-quality debt securities or a high-quality net lease, (b) transferred in anticipation of a subsequent disposition, or (c) an interest in PTP


Sample llc insert
Sample LLC Insert Section 754

  • “By executing this Agreement, each Unitholder authorizes and directs the Company to elect to have the ‘Safe Harbor’ described in the proposed Revenue Procedure set forth in Internal Revenue Service Notice 2005 43 (the ‘Notice’) apply to any interest in the Company transferred to a service provider by the Company on or after the effective date of such Revenue Procedure in connection with services provided to the Company.”


Sample llc insert cont
Sample LLC Insert (cont) Section 754

  • For purposes of making such Safe Harbor election, the Tax Matters Partner is hereby designated as the “partner who has responsibility for federal income tax reporting by the Company and, accordingly, execution of such Safe Harbor election by the Tax Matters Partner constitutes execution of a “Safe Harbor Election” in accordance with Section 3.03(1) of the Notice.


Sample llc insert cont1
Sample LLC Insert (cont) Section 754

  • The Company and each Unitholder hereby agrees to comply with all requirements of the Safe Harbor described in the Notice, including, without limitation, the requirement that each Unitholder shall prepare and file all federal income tax returns reporting the income tax effects of each interest in the Company issued by the Company covered by the Safe Harbor in a manner consistent with the requirements of the Notice.


Cookbook for PS Agreements-Tax Allocations Section 754

  • General Allocation Rules--§ 704(b)

  • Allocation of Non-recourse Deductions—Treas. Reg. § 1.704-2

  • Allocation for Contributed Property--§ 704(c)

  • Reverse § 704(c) Allocations


General allocation rules
General Allocation Rules Section 754

General Principle

Tax must follow economics


Two simple rules
Two “Simple” Rules Section 754

  • Allocations must have “substantial economic effect” (“SEE”)

  • If an allocation fails this test, then amounts are reallocated among partners in accordance with the partners’ interests in the partnership (“PIP”).


Two simple rules cont d
Two “Simple” Rules (cont’d) Section 754

  • But what is “substantial economic effect”?

  • There are dozens of pages of regulations to explain this


See vs pip
SEE vs. PIP Section 754

  • Why might it be preferable to rely on SEE rather than PIP in setting partner allocations?

    • More certainty in dealing with the IRS.

    • For pension plan investors in debt financed real estate partnership desirous of avoiding UBIT, the partnership agreement must meet “fractions rule” and allocations must have “substantial economic effect”.


Economic effect
Economic Effect Section 754

  • Test #1—Safe Harbor

  • Three Prong Test

    • Agreement provides for maintenance of capital accounts in accordance with Treas. Reg. § 1.704-1(b)(2)(iv);

    • Agreement provides for liquidation of partnership interests in accordance with positive capital accounts; and

    • Partners have a capital account “deficit restoration obligation” upon liquidation.


Economic effect cont d
Economic Effect (cont’d) Section 754

  • Capital Account Maintenance

  • Two requirements must be satisfied

    • All items of income, loss, deduction, tax-exempt income and non-deductible expenditures as well as capital contributions and distributions are reflected in determining capital accounts; and

    • Capital contributions and distributions of property are taken into account in computing their capital account at fair market value.


Relevance of capital accounts
Relevance of capital accounts Section 754

  • On the K-1

  • Non-liquidating distributions typically not tied to capital accounts

  • Liquidating distributions

    • Based on capital accounts?

    • Specified waterfall?

    • Both (belt and suspenders)

    • If not based on capital accounts, care must be taken, but it is still possible to survive, as discussed later vis a vis Target Allocations


Economic effect cont d1
Economic Effect (cont’d) Section 754

  • Deficit Restoration Obligation (“DRO”)

    • If the partnership were to liquidate and a partner had a capital account deficit as a result of previous allocations, that partner would be required to restore the deficit in her capital account, generally through the contribution of cash during the liquidation.

    • As Tony Soprano would say, “forget about it.”


Economic effect cont d2
Economic Effect (cont’d) Section 754

  • Why would someone ever agree to a deficit makeup?

    • Consider: Partner A wakes up on April 14, 2008, to the fact that he has received cash distributions for 2007 that exceed his tax basis

    • Absent relief, A has a taxable event. A expects to generate capital losses in 2008, but she cannot carry them back

    • What do you do?


Solution
Solution Section 754

  • The partnership can revise the partnership agreement until April 15, 2008 and could amend the allocation provisions to add a deficit restoration obligation, thereby eliminating the taxable event if there are sufficient liabilities to allocate to the DRO partner.


Economic effect cont d3
Economic Effect (cont’d) Section 754

  • Test #2—Alternative Test

  • Three Prong Test

    • Agreement provides for maintenance of capital accounts in accordance with Treas. Reg. § 1.704-1(b)(2)(iv);

    • Agreement provides for liquidation of partnership interests in accordance with positive capital accounts; and

    • Drop the DRO and in its place, do the following:


Alternate test
Alternate Test Section 754

  • DRO Surrogate

  • Partnership agreement must contain a provision that accomplishes the following:

    • no allocation will create for any partner a deficit in the partner’s capital account that exceeds the partner’s obligation to restore the deficit and

    • the partnership contains a “qualified income offset.”


Alternate test cont
Alternate Test (cont.) Section 754

  • If the partner’s obligation to pay back a deficit is limited to a specific amount (e.g., the amount of a partnership’s loan), the partner’s deficit cannot exceed the amount of that obligation. The calculations of these deficits are made after taking into account all distributions and allocations expected to be made for the taxable year.


Where do these rules make a big difference
Where do these rules make a BIG difference? Section 754

  • Distributions that are not straight up (that is, they do not remain the same)


Common case gp carry
Common Case: GP Carry Section 754

  • Distributions: 100% to LPs until they get their capital back & then,

  • 80% to LPs and 20% to GP


Gp carry example
GP Carry Example Section 754

  • LPs contribute $100M; GP contributes zero

  • Sell assets with AB = $50M for $100M and all cash goes to LPs

  • How do you allocate $50M of gain?

    • If allocate 100% to LPs, their capital account is now at $50M

    • BUT if you then sell remaining assets with AB =$50M for $50M, cash is to go $40M for LPs & $10M for GP—something is wrong since LP capital account = $50M & GP’s capital account = zero..

    • Should have allocated $40M to LPs & $10M to GP


Special case loss allocation
Special Case: Loss Allocation Section 754

  • Can you specially allocate a loss to one member?

  • Yes if ----


Loss allocation example
Loss Allocation Example Section 754

  • AB are equal partners

  • Each contributes $1M

  • PS borrows $8M non recourse debt

  • 1st year-Tax Loss =$1M

    • Q: Can you specially allocate that $1M loss to A?

    • A: Yes if take precautions.

      • Explanation----


A’s Cap Acc = $1M Section 754

A’s share of loss = 0

A’s Cap Acc after Loss Allocation = $1M

SO WHAT DOES THIS MEAN---If then sold property for $9M, pay off debt of &8M and who gets $1M cash

A gets all the cash

B’s Cap Acc = $1M

B’s share of loss = $1M

B’s Cap. Acc = 0


Special gain allocation to make things right
Special Gain Allocation to make things right! Section 754

  • OK, if sold property for $9M, A gets all the cash so how can we help B to get some cash?

  • Provide for Special Allocation of Income upon sale to offset Prior Loss Allocation, which works if we have enough gain

  • Example: Sell property for $10M, with $1M gain recognition, then allocate that $1M gain to B

  • After that happens, both A’s and B’s Cap Acc are now at $1M & each gets $1M


Hitting the bullseye
Hitting the Bullseye Section 754

  • Other Tax Allocation Trivia

  • Why needed?

    • Match the regs

    • Keep the IRS Agent happy

    • Preserve your allocations


Qualified income offset provision
“Qualified Income Offset” provision Section 754

  • Regulations require this!

  • Governs unexpected distributions by PS to partner in excess of partner’s obligation to restore her capital account deficiency.

    - Provision must direct PS to allocate subsequent items of income to partner in order to eliminate partner’s capital account deficiency as quickly as possible.


Sample qio provision
Sample QIO Provision Section 754

  • The LLC shall specifically allocate Net Loss and items of income and gain when and to the extent required to satisfy the “qualified income offset” requirement within the meaning of Regulations Section 1.704-1(b)(2)(ii)(d).


Qualified income offset cont d
Qualified Income Offset (cont’d) Section 754

  • Applies specifically to distributions described in Treas. Reg. § 1.704-1(b)(2)(ii)(d)(4), (5) and (6)

    • Expected adjustments for depletion allowances with respect to oil and gas properties of the partnership

    • Expected allocations of loss/deduction to be made by reason of a partner acquiring a partnership interest by gift (§ 704(e)(2)), by reason a partner’s share of prior excess losses (§ 704(d)), and by reason of a distribution of § 751 property

    • Expected distributions to the extent they exceed offsetting expected increases to such partner’s capital account that occur during or prior to the same tax year


Substantiality
“Substantiality” Section 754

  • The partnership must demonstrate that an allocation has some economic effect besides tax savings

  • Two Tests

    • Before-Tax Test

    • After-Tax Test


Substantiality cont d
Substantiality (cont’d) Section 754

  • Specific Allocations that Lack Substantiality

    • Shifting Tax Consequences

    • Transitory Allocations


Added concern
Added Concern: Section 754

  • How do you handle allocation of Non-recourse Deductions?


Definitions
Definitions Section 754

  • Partnership Minimum Gain (PMG)

    • The minimum amount of gain the partnership would realize if it made a taxable disposition of property secured by nonrecourse debt.

  • Exceptions

    • Conversions and Refinancing

    • Contributions of Capital

    • Revaluations-Special Twist


Definitions cont d
Definitions (cont’d) Section 754

  • Minimum Gain Chargeback Provision

    • A provision in the agreement that allocates to each partner its allocable share of any net decrease in PMG for a taxable year

    • Requires a partner to recognize income from a net decrease in PMG when that partner previously enjoyed the economic benefit of a nonrecourse deduction associated with the property


Safe harbor
Safe Harbor Section 754

  • An allocation of nonrecourse deductions will be respected if the following conditions are met:

    • Partnership must satisfy the substantial economic effect safe harbor or alternative test

    • Nonrecourse deductions must be allocated in a manner “reasonably consistent” with other “significant” partnership items that have substantial economic effect.

      (cont’d on next slide)


Safe harbor cont d
Safe Harbor (cont’d) Section 754

  • The agreement must contain a minimum gain chargeback provision

  • All other material allocations and capital account adjustments must be respected


Sample short cut provision
Sample Short Cut Provision Section 754

  • “The LLC shall allocate items of LLC income and gain among the Members at such times and in such amounts as necessary to satisfy the minimum gain chargeback requirements of Regulations Sections 1.704-2(f) and 1.704-2(i)(4).”


Member non recourse liability
Member Non-recourse Liability Section 754

  • Non-recourse debt from partner or related person

  • Specially allocates debt to that partner

  • Specially allocate deductions to that partner


Sample provision
Sample Provision Section 754

  • “Any nonrecourse deductions attributable to a Member Nonrecourse Liability shall be allocated among the Members that bear the economic risk of loss for such Member Nonrecourse Liability in accordance with the ratios in which such Members share such economic risk of loss and in a manner consistent with the requirements of Regulations Sections 1.704-2(c), 1.704-2(i)(2) and 1.704-2(j)(1).”


Other things
Other Things Section 754

  • Withholding

  • Tax Matters Partner

  • Tax Elections

  • Fiscal Year


Withholding
Withholding Section 754

  • Notwithstanding anything else contained in this Agreement, the Managing Member may in its discretion withhold from any distribution to any Member pursuant to this Agreement any amounts required to pay or reimburse (x) any withholding or other taxes legally payable by the LLC that are properly attributable to a Member of the LLC or (y) the Managing Member for any advances made by the Managing Member for such purpose.


Withholding cont
Withholding (cont) Section 754

  • Any amounts so withheld pursuant to this Section 6.9 shall be applied by the Managing Member to discharge the obligation in respect of which such amounts were withheld.

  • All amounts withheld pursuant to this Section 6.9 with respect to any Member shall be treated as amounts distributed to such Member for all purposes under this Agreement.

  • The Managing Member shall give written notice of any such withholding to each Member subject thereto within five Business Days after such withholding.


Std clause tax matters partner
Std. Clause: Tax Matters Partner Section 754

  • The Managing Member shall act as the “tax matters partner” of the LLC within the meaning of Section 6231(a)(7) of the Code and in any similar capacity under applicable state or local tax law. All expenses incurred by the Tax Matters Member while acting in such capacity shall be paid or reimbursed by the LLC.


Tax elections
Tax Elections Section 754

  • “Except as otherwise expressly provided herein, all elections required or permitted to be made by the LLC under the Code or other applicable tax law, and all decisions with respect to the calculation of its taxable income or tax loss under the Code or other applicable tax law, shall be made in such manner as may be determined by the Tax Matters Member.”


Fiscal year
Fiscal Year Section 754

  • Except as otherwise required by the Code, the fiscal year of the LLC (the “Fiscal Year”) for tax and accounting purposes shall be the 12-month (or shorter) period ending on the last day of December of each year.


Now let s look at
Now, let’s look at: Section 754

  • Examples from the Field


Drafting partnership agreements
Drafting Partnership Agreements Section 754

  • Most Important item: The Economic Deal

    • Tax rules/tax lawyers are meaningless without an understanding of the economic deal

    • The terms of the agreement define the deal

      • The tax lawyers and accountants do not define the deal – they follow the deal

  • What is the deal?

    • Get the term sheet if there is one.


Operating cash flow vs capital transaction
Operating cash flow vs. capital transaction Section 754

  • Read carefully the defined terms – available cash vs. net cash flow

  • Cash from operations often does NOT reduce unreturned capital

  • Proceeds of capital transactions typically does return capital AFTER preferences fully repaid

  • What is a capital transaction?

    • Interim capital transaction – refinancing or partial sale

    • Terminating capital transaction – sale of all or substantially all assets


What do you mean by percentage interests
What do you mean by Percentage Interests? Section 754

  • Does this mean Capital Percentages?

    • Initially based on ACTUAL contributions to the partnership

      • My contribution / Total contributions = My capital percentage

      • Staggered capital contributions impact

    • Beware of terminology, and scrutinize the agreement

      • Capital percentage vs. Percentage interest vs. Partnership percentage vs. Partnership interest vs. Unit percentage vs. Who knows what else

      • Many agreements use multiple terms, sometimes interchangeably and sometimes inconsistently


What happens upon call for additional capital squeeze down
What happens upon call for additional capital – squeeze down?

  • GP calls for additional capital (or loans)

    • Pro rata vs. non-pro rata

    • Some partners contribute their shares; others don’t.

    • Non-contributing partners are penalized by a reduction in their partnership interests.

      • Capital interests, profits interests, or both

      • Is this a revaluation event?


What do you mean by preferred returns what exactly is it
What do you mean by Preferred Returns-What down?exactly is it?

  • Also called preference amount, accrued preference, cumulative unpaid preference, unpaid preferred return, etc.

    • Does the preference accrue on a daily, monthly, quarterly, or annual basis?

    • Does the preference compound?

    • Is the preference specified as a simple percentage or as an internal rate of return?


Economic deal
Economic Deal down?

  • Problems arise when the business folks and the tax folks are not involved from the beginning

  • Why:

    • Different approaches

      • For example, distribution might mean one thing to a tax lawyer and a different thing to a business person.

    • Tax guys might be able to tell if the “magic” tax language is present

  • Business guy might think an “OK” from the tax guy means the agreement reflects the economic deal

    • Tax guy is merely saying the “magic” tax language is there


Economic deal1
Economic Deal down?

  • Partnership Attributes

    • Income and loss flow though currently

      • Affect return on investment

  • Income and loss

    • Items allocated

  • Cash and property

    • Items contributed and distributed

  • Allocations might not match contributions and/or distributions


Economic deal2
Economic Deal down?

What to do?

  • Model/Projections

  • Have the business folks and tax folks talk

  • Model/Projections Again


Figure out distributions
Figure out Distributions down?

  • Cash flow from operations

  • Cash flow from sales

  • Liquidating Distributions

  • Tax Distributions-Can override the rest

    • Particular concern to GP-Managing Member-Holder of Carry who may get “phantom income” if cash flow that generates taxable income is used to repay capital contributions


Allocations possible trouble spot
Allocations: down?Possible Trouble Spot

  • If you then say that “allocations follow distributions,” then you may get in trouble.

  • When?

    • Where cash flow that generates taxable income is used to repay capital contributions

    • Where cash flow & taxable income do not match each other


Let s see how basic example
Let’s see how-Basic Example down?

  • AB Partnership

  • A is the service provider, contributes $10, and owns 1%

  • B is the investor, contributes $990, owns 99%

  • Business deal: After return of capital to B, return capital to A and then, cash flow shared 20% to A and 80% to B

    • Upon liquidation, do not follow capital account balances—just follow economics!

  • & Allocations follow distributions-----


In year one
In Year One down?

  • Buy asset with $1,000

  • Generate $100 of taxable income & $100 of cash flow

    • Ignore depreciation to make life simpler

  • Pay off in part investor’s capital with $100

  • How do you allocate the $100 of taxable income?


Allocation in year 1

What has happened to each of A and B? down?

Allocation in Year 1


In year two
In Year Two down?

  • Sell asset for $1,000

  • Generate no gain or loss, but generate $1,000 of cash flow

  • Business deal: Use $890 of cash flow to pay off A’s (investor’s) unreturned capital, then pay off B’s $10 unreturned capital and then distribute excess of $100--$80 to A & $20 to B

  • What is the impact on capital accounts?


Allocation in year 2

What has happened to each of A and B? down?

Allocation in Year 2


Oops!!! down?

  • A has a +$20 capital account while B has a -$20 capital account

  • This means that allocations did NOT have substantial economic effect in year one

    • Note, if liquidating distributions followed capital account balances, the tax allocations work

    • BUT then, cash goes out $990 to B & $10 to B, which is NOT business deal, which would have B only get $970 and A get $30.


Aside
Aside down?

  • Sometimes, people draft agreement & say, don’t worry, we will fix things up by specially allocating income/loss in last year to make everything right.

  • However, as this example shows, this does NOT help if there is no income or loss in last year

    • Or income & loss in last year may not be enough to make things right.


Year one revisited
Year One Revisited down?

  • Drop idea of allocations following distributions, but what do you then do?

  • Allocations should follow how cash flow over and above return of capital would have been made

  • Thus, allocate $80 to A (not $100 to A) & allocate $20 to B (not no income allocation) & LET”S SEE WHAT HAPPENS NOW:


Revised allocation in year 1

What has happened to each of A and B? down?

Revised Allocation in Year 1


Year two again
Year Two Again down?

  • Sell asset for $1,000

  • Generate no gain or loss, but generate $1,000 of cash flow

  • Business deal: Use $890 of cash flow to pay off A’s (investor’s) unreturned capital, then pay off B’s $10 unreturned capital and then distribute excess of $100--$80 to A & $20 to B

  • What is the impact on capital accounts NOW?


Revised allocation in year 2

What has happened to each of A and B? down?

Revised Allocation in Year 2


Is there a need for a tax distribution in prior example
Is there a need for a Tax Distribution in Prior Example? down?

  • In this example, we saw how A was allocated $20 of phantom income in Year One.

  • A may want to request a Tax Distribution to cover its taxes on that income


Tax distributions
Tax Distributions down?

  • Will investor agree?

  • If agree:

    • What rate do you use?

      • Consider coming up with # & then adjust if law changes

    • Estimated taxes may require multiple payments

    • Impact of prior year losses


Added lesson must you say that liquidating distributions follow capital accounts
Added Lesson-Must you say that liquidating distributions follow capital accounts?

  • NO

  • This is a safe harbor BUT if you get allocations right, you do not have to incorporate that, which may make your client happier

  • However, watch out since it may be hard to actually get it right especially in complex deals & may make agent look harder.


Allocation methods to adopt
Allocation Methods to Adopt follow capital accounts?

  • Targeting approach

    • SHORT--At end of year, book capital accounts should equal the amounts of cash that partners would receive if all partnership assets sold for §704(b) book value, i.e., assume assets’ FMV = book value

  • Layering approach

    • LONG--Building up or taking down the capital accounts to reflect the waterfall rights

  • Others-Combination (boot-strap)


Targeted tax allocations
Targeted Tax Allocations follow capital accounts?

  • The “substantial economic effect” test is intended to make sure that tax allocations have real impact on the parties.

  • But, shouldn’t cash, not tax allocations, be king?

  • If so, why not have tax follow how cash should go, which is the essence of targeted capital accounts!

  • However, this does NOT work well if trying to specially allocate losses!


Target allocation section
Target Allocation Section follow capital accounts?

  • Allocations: Profits and Losses are allocated among the Members such that, as of the end of any Year, the Capital Account of each Member equals the net amounts that would be distributed to the Member on liquidation of the Company.

    • In computing net amount that may be distributed, all property is deemed sold at its Book Value

    • In determining how cash flow goes out on liquidation, you rely on the business deal

      • Do not say follow capital accounts or else this is circular


Targeted tax allocations cont d
Targeted Tax Allocations (cont’d) follow capital accounts?

  • § 5.1(a)(iv): “All items of income, gain, loss … shall be allocated to the partners in a manner which causes … each partner’s adjusted capital account balance to equal the amount (for each partner, its “target amount”) that would be distributed to such partner … upon a hypothetical liquidation of the partnership.”


Targeted tax allocations cont d1
Targeted Tax Allocations (cont’d) follow capital accounts?

  • Hypothetical Liquidation

  • § 5.1(b): “In determining the amounts distributable to the partners … upon a hypothetical liquidation, it shall be presumed that (a) all of the partnership assets are sold for cash at their respective [book] values …, and (b) the proceeds of such hypothetical sale are …distributed in accordance with … [the liquidation provisions]”


Targeted tax allocations cont d2
Targeted Tax Allocations (cont’d) follow capital accounts?

  • Contributed/Revalued Property

  • § 5.4(a): “If any property is contributed to the Partnership in kind, or if the Book Value of any Partnership property is adjusted … , all income, gain, loss and deduction with respect to such … property shall, solely for income tax purposes, be allocated among the Partners so as to take account of any variation between the adjusted basis of such property … and its initial or revalued Book Value ….”


Target allocation criticism praise
Target Allocation Criticism/Praise follow capital accounts?

  • Con: “I want guidance”

    • What do these tax advisors want me to do?

    • I need a cookbook

  • Pro: “I want flexibility to get it right”

    • I can avoid all those awful steps and do the “right thing”


Short cookbook for target allocation
Short Cookbook for Target Allocation follow capital accounts?

  • If Profits exceed Losses, (i) Losses shall first be allocated to Members whose Capital Accounts are to be reduced, and (ii) Profits and any remaining Losses shall be allocated to Members whose Capital Accounts are to be increased.

  • If Losses exceed Profits, (i) Profits shall first be allocated to Members whose Capital Accounts are to be increased, and (ii) Losses and any remaining Profits shall be allocated to Members whose Capital Accounts are to be reduced.


Layered allocations
Layered Allocations follow capital accounts?

  • Building up or taking down the capital accounts to reflect the waterfall rights

  • Separation of allocations for operations, interim capital transactions, and terminating capital transactions

    • Within a given year, a partnership may have both income/loss from operations and income/loss from one or more capital transactions.

      • Which items are allocated first?


Layered allocations key points
Layered Allocations-Key Points follow capital accounts?

  • Key Questions

    • At year-end, do partners’ book capital accounts properly reflect economic rights on sale for book value?

    • Do layers match the corresponding waterfall distribution right?

    • Do layers incorporate all Preferences?

    • Let’s see some examples:


Sample agreement 1 st layer loss reversal
Sample Agreement-1 follow capital accounts?st Layer-Loss Reversal

  • Except as otherwise provided herein and after application of Sections 1.3 and 1.4 hereof, Profits for any fiscal year shall be allocated as follows:

    • First, to the Partners in proportion to, and to the extent of, (A) any Losses allocated to each pursuant to Section 1.2(b)(iv) over (B) the cumulative Profits allocated to such Partners pursuant to this Section 1.2(a)(i);

    • Second, to the Partners in proportion to, and to the extent of, (A) any Losses allocated to each pursuant to Section 1.2(b)(iii) over (B) the cumulative Profits allocated to such Partners pursuant to this Section 1.2(a)(ii);


2 nd layer operating income cash flow
2 follow capital accounts?nd Layer-Operating Income Cash Flow

  • Third, to those Partners who shall have received (or be entitled to receive) a distribution of cash flow from operating income for such year pursuant to Section 9(a) of the Partnership Agreement (but excluding, for this purpose, any distributions deemed to be made pursuant to Section 9(a)(iv)) in proportion to, and to the extent of, the cash flow actually received (or to be received) by each such Partner for such year;


3 rd layer capital partner liquidation preference
3 follow capital accounts?rd Layer-Capital Partner Liquidation Preference

  • Fourth, to the Capital Partners in accordance with, and in proportion to, their respective Capital Partner’s Liquidation Preference until the capital account balances of each such partner (before taking into account any distribution to such Partner for such year relating to a sale of the Project or a liquidation distribution) shall be equal to their Capital Partner’s Liquidation Preference;


4 th profit partner liquidation preference if any
4 follow capital accounts?th Profit Partner Liquidation Preference, if any

  • Fifth, to the Profit Partners, in accordance with and in proportion to, their respective Profit Partner’s Liquidation Preferences until the capital account balances of each such Profit Partner (before taking into account any distribution to such Partner for such year relating to a sale of the Project or a liquidating distribution) shall be equal to such Profit Partner’s Liquidation Preference;


5 th layer residual distribution
5 follow capital accounts?th layer-Residual Distribution

  • Then, to the Partners in accordance with their respective Percentage Interests.


Sample loss allocation 1 st layer profit reversal
Sample Loss Allocation-1 follow capital accounts?st Layer-Profit Reversal

  • Except as otherwise provided herein and after application of Sections 1.3 and 1.4 hereof, Losses for any fiscal year shall be allocated as follows:

    • First, to the Partners in proportion to, and to the extent of, (A) any Profits allocated to each pursuant to Section 1.2(a)(vi) over (B) the cumulative Profits allocated to such Partners pursuant to this Section 1.2(b)(i);

    • Second, to each of the Profit Partners in proportion to, and to the extent of, (A) any Losses allocated to each pursuant to Section 1.2(a)(v) over (B) the cumulative Profits allocated to such Partners pursuant to this Section 1.2(b)(ii);


2 nd layer wipe out capital accounts
2 follow capital accounts?nd Layer-Wipe out capital accounts

  • Third, to the Partners in accordance with, and in proportion to, their respective positive capital account balances (after taking into account of any allocations of Losses under Section 1.2(b)(i) and (ii)); and


3 rd layer residual losses
3 follow capital accounts?rd Layer-Residual Losses

  • Then, to the Partners in accordance with their respective Percentage Interests.


Loss allocation override
Loss Allocation Override follow capital accounts?

  • However, any Loss allocation in accordance with this Section 1.2(b) shall not exceed the maximum amount of Loss that can be so allocated without causing any Partner to have a negative capital account balance at the end of the Partnership’s fiscal year. In the event some but not all of the Partners would have negative capital account balances as a consequence of an allocation of losses pursuant to Section 1.2(b) hereof, the limitation set forth in this Section 1.2(b) shall be applied on a Partner by Partner basis so as to maximize permissible losses to each Partner under Regulation § 1.704-1(b)(2)(ii)(d).


Common allocation provisions
Common Allocation Provisions follow capital accounts?

  • Regulatory allocations

    • Minimum gain chargebacks

      • Special problem for debt workouts

    • Allocating non-recourse deductions

  • Stop loss provisions

    • Adjusted capital account concept

      • Increased for minimum gain shares

      • Increased for allocations of recourse debt deductions

  • Avoid impermissible negative capital accounts


Other possible concerns
Other Possible Concerns? follow capital accounts?

  • Admission of a New Partner

  • Section 754 Elections


Admission of new partner achieving retroactive allocations legitimately
Admission of New Partner: follow capital accounts?Achieving Retroactive Allocations Legitimately!

  • Section 706(d) limits the ability to perform retroactive allocations for a new partner

  • However, if you disproportionately allocate losses after admission of a new partner, you may be able to legitimately achieve the same result


Section 754 elections
Section 754 Elections follow capital accounts?

  • Special Adjustments:

    • Section 743-Sale of PS Interest

    • Section 734-Partnership Redemption


Intangible property and partnerships
Intangible Property and Partnerships follow capital accounts?

  • Rule: Amortizable Section 197 Intangibles-15 year straight line amortization

  • Exception: Anti-churning Rules

  • Purchase of Partnership Interest

    • Section 754/743 Election-Creates new amortizable asset for step up even if the intangible was non-amortizable before


Intangible property cont d
Intangible Property (cont’d) follow capital accounts?

  • § 704(c) Intangible Predicament: if a partner contributes a non-amortizable section 197 intangible to the Partnership

    • Curative allocations are not available for the other partners

    • However, they can use remedial allocations. Treas. Reg. § 1.197-2(g)(4)(i)

  • Nonetheless, a partner related to the contributing partner may not receive remedial allocations of deductible amortization


Securities partnerships
Securities Partnerships follow capital accounts?

  • Such partnerships may have frequent capital account restatements (“book-ups”)

  • Sheer number of assets makes compliance with Regulations extremely difficult


Securities partnerships cont d
Securities Partnerships (cont’d) follow capital accounts?

  • Solution—Qualified Partnerships

    • May consistently aggregate gains and losses from securities and similar investments when making reverse § 704(c) allocations

      • Only applies to allocations on/after Dec 31, 1993.

    • May use any reasonable approach to aggregation that is consistent with § 704(c), but must continue to use the same approach.


Securities partnerships cont d1
Securities Partnerships (cont’d) follow capital accounts?

  • Requirements of Securities Partnerships

    • Must be either a management company registered with the SEC under the Investment Company Act of 1940, or an investment partnership

    • On each book-up date, 90% of an investment partnership’s noncash assets must consist of “qualified financial assets”

      • Qualified Financial Asset: any personal property that is actively traded


Securities partnerships cont d2
Securities Partnerships (cont’d) follow capital accounts?

  • Permissible Aggregation Methods

    • Step 1: establish “revaluation account” for each partner to track book allocations not matched with tax allocations

    • Step 2: select aggregation method

      • Partial Netting: tax gains and losses for each asset are netted separately; gains/losses are then allocated to partners with positive/negative accounts in proportion to their positive/negative balances; excess is allocated pro rata

      • Full Netting: nets all tax gains and losses together, and then allocates net amounts according to the same rule as above


Irs circular 230 disclosure
IRS Circular 230 disclosure follow capital accounts?

  • * * * * * * * * * * * * * * * * * * * * * *

  • To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

  • * * * * * * * * * * * * * * * * * * * * * *


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