Tax Fundamentals of LLCs and Partnerships

Chapter 1
Overview: Basic Tax Structure of Partnerships and LLCs

Overview: Partnership Framework Requires multiple partners Flexible profit, loss, and risk sharing Limited liability for some or all members Only one layer of tax

Types of Partnerships General Partnership All partners have unlimited liability for partnership obligations Limited Partnership General partners remain personally liable for partnership debts; limited partners risk only their actual or promised investments Only general partners participate in management

Types of Partnerships Limited Liability Partnership (LLP) All partners participate in management; all partners liable for individual behavior/actions but liability limited to capital investment for actions of other partners Limited Liability Company (LLC) Similar to LLP, but allowed to operate outside professional services industry and may have only one member

Tax Effect to Partner - Income Example: 50-percent partner Facts: $50,000 share of partnership income $24,000 distributions received during year

Tax Effect to Partner - Income Results: $50,000 included on partner tax return Tax basis in partnership interest increased by $26,000

Tax Effect to Partner - Losses Example: 25-percent partner $175,000 income from other sources ($50,000) share of partnership loss

Tax Effect to Partner - Losses Results: 25-percent partner No carryback, loss is applied against other income of partner in their Form 1040 AGI = $125,000: ($175,000-$50,000) (assuming no limitations on deductibility of partnership loss due to basis limitations)

Partnership Flexibility Partners may have different interests in: Different partnership assets or activities Partnership profits than in partnership losses Partnership profit/loss from one year to next

“Check-the-Box” Rules Entity chooses form of taxation Federal tax law has no special classification for LLCs They choose whether to be treated as partnerships or corporations A corporation is taxed as a corporation unless it elects Subchapter S status and is thereby treated as a pass-through entity

“Check-the-Box” Rules Partnership choosing to be treated as a corporation is made on Form 8832 Election can only be changed after 60 months (sooner with IRS permission) Change is treated as liquidation of old entity and formation of new one (with same ID number)

Accounting for Partner Interests Capital accounts track partners’ interests in partnership assets Contributions to capital increase capital (and basis in partnership interest) Partners’ shares of income increase capital and basis Subsequent distributions of income are nontaxable

Example: Reporting Partnership Income/Loss

Example: Measuring Partners’ Interests in the Partnership Assume the following balance sheets:Tax BasisFMV Land $ 25,000 $ 50,000 Building 450,000450,000 $475,000 $500,000 Mortgage, Bldg $400,000 $400,000 Capital, L 60 % Profit Sharing 50,000 50,000 Capital, B 40 % Profit Sharing 25,000 50,000 $475,000 $500,000 If partnership reports net income of $70,000 and distributes $25,000 to each partner, what are their interests?

Example: Measuring Partners’ Interests in the Partnership Capital L-60%Capital B-40% Beginning Balance $ 50,000 $ 25,000 Income Allocation 42,000 28,000 $ 92,000 $ 53,000 Distributions $ (25,000) $ (25,000) Ending Balance $ 67,000 $ 28,000 Partnership reports net income of $70,000 and distributes $25,000 to each PTR

Chapter 2
Tax Consequences of Partnership or LLC Formation

Partnership Formation §721 – No gain or loss to partner or partnership on contribution of property for an interest in partnership capital §722 – Partner takes a substitute basis in partnership interest equal to their basis in contributed property(is) and cash §723 – Partnership takes carryover basis in contributed property equal to partner’s basis in such property prior to contribution

Effect of Partnership Operations §705(a) – Partner’s basis in their interest is increased by Partner’s share of partnership income, including tax-exempt income Additional contributions of property or cash by partner to partnership

Effect of Partnership Operations §705(b) – Partner’s basis in their interest is decreased (but not below zero) by Partner’s share of partnership losses and deductions, including nondeductible losses and deductions Distributions of cash or property from the partnership to the partner

Effect of Partnership Liabilities §752(a) – Assumption by the partner of partnership debt, or increase in partner’s share of partnership debt treated as contribution of money to partnership §752(b) – Assumption by the partnership of partner debt, or decrease in partner’s share of partnership debt treated as distribution of money by partnership to partner

Example: Partnership Debt BasisFMVDebt A Prop 1 $100 $600 $300 B Prop 2 $200 $400 $100 A and B are 50-percent partners Will A recognize any gain? What will be her basis? What if P1 has FMV = $800, subject to $500 debt?

Solution: Partnership Debt BasisFMVDebt A Prop 1 $100 $600 $300 B Prop 2 $200 $400 $100 A and B are 50-percent partners Will A recognize any gain? YES $100-.5($300)=($ 50)=GAIN What will be her basis? ZERO What if P1 has FMV = $800, subject to $500 debt? $100-.5($500)=($150)=GAIN

§752(c) Under §752(c), liability transfer is recognized only to the extent of the FMV of encumbered property Example: Assume Partner A contributes property with FMV of $50,000, subject to nonrecourse mortgage of $75,000. Partnership records only $50,000 of the debt

§706 – Determination of Partnership Taxable Year Majority Interest Rule Same as majority partner(s) Principle Partner Rule Same as that used by principle partners (five-percent partners) Least Aggregate Deferral Rule

Exceptions to §706 Year that corresponds to partnership’s “natural business year” §444 – Prepayment of projected deferral

Exchange of Partnership Interest for Services Section 721 does not apply to exchange of capital interest for services rendered by a partner Instead, such exchanges are governed by §83 Proposed Regs. treat exchange of interest for services as guaranteed payment, with liquidation value safe harbor

Transfer of Capital Interests Service partner deemed to have received undivided interest in partnership property for services rendered Property interest is then deemed transferred to partnership in exchange for interest in partnership capital and profits Both sides typically recognize gain (though partnership’s may be offset by deduction) Under Proposed Regs., partnership would not recognize gain

§83 – Risk of Forfeiture No income to service partner until lapse of risk of forfeiture At lapse, income is recognized in amount equal to FMV of p/s interest at that time Partner may elect under §83(b) to recognize income upon receipt equal to FMV of interest at date of election

Transfer of Interest in Profit and Loss Only Sol Diamond Income recognized immediately where service partner sold interest shortly after receipt St. John Receipt of profits interest ruled taxable, but interest had no value Campbell TC ruled that receipt of profits interest was taxable; CA disagreed

Appellate Court Decision in Campbell Service acknowledged that transfer of profits interest to a partner is not a taxable event Argued that taxpayer was not acting as a partner Appellate court disagreed, noting that interest was not immediately transferable, thus requiring t/p to continue as a partner Ultimately ruled that valuation was not possible

Lessons for Tax Advisors Services performed for partnership rather than for one or more partners Service partner should retain interest for a reasonable period after receipt Subordination of service partner’s interest to that of other partners will make valuation more difficult

Chapter 3
Partnership Distributions

Partnership Distributions Current Distributions Distributions that do not terminate partner’s interest in the partnership Liquidating Distributions Distributions that do terminate the partner’s interest in the partnership

Current Distributions §731(a) – Partner recognizes gain only if they receive cash in excess of basis in partnership interest §731(b) – Partnership does not recognize gain or loss on distribution of property [subject to exceptions under §704(c)(1)(B), 707, 737, and 751(b)]

Cash Distributions Cash draws against partner’s share of partnership income are deemed made on the last day of the partnership’s taxable year Partner basis is adjusted for share of profits, capital contributions, and increases in share of liabilities before accounting for effect of draws

Non-Cash Distributions §731(a) – Non-cash distributions generally do not trigger recognition of gain to recipient partner §732(a)(1) – Partner takes carryover basis in property received from partnership §732(a)(2) – Basis in distributed property cannot exceed partner’s pre-distribution basis in partnership interest

Distribution of Multiple Properties Account for cash (including liability relief) first Then account for receivables and other ordinary income property Account for capital assets last

Distribution of Encumbered Property Change in share of partnership liabilities treated as cash distribution or contribution to or by partner Account for this deemed cash transfer first Remainder of transaction is simple property distribution

Liquidating Distributions §731(a)(1) – Partner recognizes gain only if they receive cash in excess of the basis of her partnership interest §731(a)(2) – Partner may recognize loss if: Receives nothing other than cash and/or ordinary income assets Amount of cash and basis of ordinary income assets is less than basis in partnership interest

Liquidating Distributions:Partner Basis in Property Received §732(B) – Partner takes basis in property received equal to basis in partnership interest less any cash received Liability relief treated as cash received Assumption of liabilities treated as cash contribution

Holding Period of Property Received §735(b) – Partnership’s holding period tacks onto partner’s holding period for distributed property §735(a) – Partnership ordinary income assets retain their character for five years

Chapter 4
Compensatory Paymentsto Partners

Payments to a Partner in His or Her Capacity as an Independent Third Party The partner will include the payment in income at the time that is appropriate under the partner’s accounting method The partnership is not allowed to deduct the payment until the later of The date the partner has included it in income, or The date the payment is deductible under the partnership’s regular accounting method

Section 707(a)(2) – Disguised Payments The transaction shall be treated as a transaction between a partnership and one who is not a partner if: A partner performs services for a partnership or transfers property to a partnership, There is a related direct or indirect allocation and distribution to such partner, and The performance of the services (or the transfer) and the allocation and distribution, when viewed together, are properly characterized as a transaction occurring between the partnership and a partner acting other than in his capacity as a member of the partnership

Payments to a Partner in Their Capacity as a Partner Payments for services are not dependent on partnership income and the partner is acting in their capacity as a partner Should be treated as “guaranteed payments” Payments for services are dependent on partnership income and the partner is acting in her capacity as a partner Should be treated as a distributive share of partnership income

Tax Treatment of Guaranteed Payments Treated as ordinary income by the partner who receives them In general, an ordinary deduction to the partnership Should be capitalized by the partnership where the services the partner has provided result in capitalizable expenses (such as organization or defense-of-title expenses)

Timing of Inclusion of a Guaranteed Payment in a Partner’s Income Guaranteed payments must be included as income in the partner’s taxable year that includes the end of the partnership taxable year in which the guaranteed payments were deducted as paid or accrued under the partnership’s method of accounting Critical factor is the partnership year in which the partnership deducts the guaranteed payment Whether or not a guaranteed payment must be capitalized by the partnership has no effect on when it must be included in the income of the partner

Minimum Guaranteed Payments Partner requires some level of minimum compensation, but wants to share in partnership income Guaranteed payment is the excess, if any, of the fixed amount over the partner’s share of partnership income Remainder of minimum payment is partner’s share of partnership income Partnership income minus payment to partner is remaining partners’ share of income

Self-Employment Income of Partners General partner’s self-employment income His distributive share of nonseparately stated income or loss from any trade or business carried on by the partnership Includes guaranteed payments (even if made for the use of capital), as long as the partnership making the guaranteed payments is engaged in a trade or business Limited partner’s self-employment income Includes any guaranteed payments for services rendered to the partnership

Proposed Regulations - Limited Partners’ Self-Employment Income A partner is a limited partner for self-employment tax purposes, unless the partner Has personal liability for the debts of or claims against the partnership by reason of being a partner, Has authority to contract on behalf of the partnership, or Participates in the partnership's trade or business for more than 500 hours during the partnership's taxable year

Chapter 5
At-Risk and Passive Activity Limits

Overview: Loss Limitations Section 704(d) – No deduction for losses in excess of basis Section 465 – No deduction for pass-through losses in excess of amount at risk Section 469 – No deduction for passive losses in excess of passive income

Disallowed Losses Carried Forward Disallowed losses carry forward until partner or LLC member has sufficient basis, at-risk amount, or passive income to support deduction At disposition of interest Section 704(d) c/fs are lost Section 465 c/fs are deductible Section 469 c/fs are deductible but may “crowd out” other passive deductions

Section 465: At-Risk Amount Only “qualified” nonrecourse debts are included in at-risk amount Borrowed with respect to activity of holding real estate, and secured by real estate; Borrowed from a lender in the business of lending money and who has no interest in the activity in which the funds are used; and Not convertible into stock or securities

Section 469 – Passive Loss Limitations Profits and losses from all of a taxpayer’s activities are netted together If losses exceed profits, the excess is nondeductible Excess losses may be carried forward indefinitely until taxpayer disposes of entire interest in activity to which losses are attributable

What Are Passive Activities? Most rental real estate activities All activities held as a limited partner or LLC member treated as a limited partner Other activities in which taxpayer does not “materially participate”

Material Participation Taxpayer’s participation exceeded 500 hours for the tax year Taxpayer’s participation constituted substantially all participation in the activity by anyone Taxpayer’s participation exceeded 100 hours and was at least as much as anyone else’s participation

Material Participation Activity is a “significant participation activity” T/P materially participated in the activity for any five of past ten years Activity is a personal service activity in which t/p has materially participated for any three prior years, or T/P’s participation was “regular, continuous and substantial”

Rental Activities Rental activities deemed passive regardless of taxpayer’s participation Exceptions: Avg. period of customer use <= 7 days (ex: hotel); Avg. period of customer use <= 30 days and significant personal services are provided with rental (ex: maid services);

Rental Activities Extraordinary personal services are provided in connection with rental; Rental is incidental to non-rental activity; Rental property is available during defined business hours for nonexclusive use by various customers; or Property is provided for use in a non-rental activity

Real Estate Professionals Passive Loss Limitations do not apply to “Real Estate Professionals” T/Ps spending more than half their time in real property businesses in which they materially participate; and Participation exceeds 750 hours for year

Exemption for “Active Participation” in Real Estate First $25,000 of losses from rental realty activities in which t/p actively participates exempt - Section 469 Exemption is phased out as modified AGI exceeds $100,000 Reduced by 50 cents for each dollar by which “modified” AGI exceeds $100,000

Active Participation Taxpayer’s interest in activity is at least 10%; Taxpayer’s interest is not held as a limited partner; and Taxpayer participates in activity in a “significant and bona fide” manner Generally interpreted as full participation in all management decisions

Grouping Activities Taxpayers may choose to group two or more activities if such activities constitute an appropriate economic unit; Activities grouped together cannot subsequently be “ungrouped” unless the original grouping was not appropriate

Appropriate Economic Units T/Ps should consider following factors in grouping activities: Similarities and differences in types of trade or business conducted through each activity; Extent of common control; Extent of common ownership; Geographical location; Interdependencies between or among activities

Limitations on Grouping Activities Rental activities generally cannot be grouped with trade or business activities unless one activity is insubstantial in relation to the other; Rental realty activities generally may not be grouped with rental activities involving personal property; Limited partners may not group activities held through limited partnership interests with other activities in different trades or business Publicly traded partnership activities may not be grouped with any other activities

Chapter 6
Overview of Profit and Loss Allocations: General Rules and Restrictions

Allocation of PartnershipIncome under §704(b) Economic Effect – Partner allocated a tax gain must also receive economic benefit of that gain Likewise, partner allocated tax loss must bear the economic burden of that loss

Substantiality Economic effect is not enough Effect on partners must also be substantial – i.e., meaningful and relatively long-lasting

Economic Effect:The General Test Maintenance of partner capital accounts Partners entitled to balance in their capital account upon liquidation or retirement from the partnership Partners must be obligated to restore deficit balances in their capital accounts (at liquidation)

Capital Account Maintenance BOOK accounts must be increased by: Cash contributions to partnership FMV of property contributions (net of liabilities) Allocated book income (including nontaxable income and gain)

Capital Account Maintenance Accounts must be decreased by: Cash distributions to partner FMV of property distributed to partner by the partnership Allocated expenses and losses (including nondeductible expenses and losses)

Optional Revaluation of Partnership Assets Allowed in following circumstances: Contribution of property to partnership by any partner; Distribution of property by partnership to any partner; or Substantially all partnership’s assets are tradable securities

Deemed Economic Effect If partnership agreement is silent with regard to capital accounts, liquidation rights and deficit restoration requirements, allocations are generally determined not to have economic effect Silence disregarded if there are no special allocations

Alternate Test for Economic Effect If partnership agreement requires Capital account maintenance; Liquidation proceeds distributed in accordance with capital balances; and “Qualified income offset”, then Allocations that do not cause or increase deficit balances will have economic effect

Qualified Income Offset Unexpected allocations that increase deficit beyond required level of restoration must be offset by special allocation of profit or gain “as quickly as possible” Provision must be included in partnership agreement if any partners are not required to restore deficits

Substantiality “Shifting Tax Consequences” test, and “Transitory Allocations” test

Shifting Tax Consequences Allocations lack substantiality if: Net capital changes would not differ substantially without the special allocation; and Aggregate partner tax liability is lower than if the allocation were not made

Transitory Allocations Same requirements as “shifting tax consequences” test Applied over five years rather than one Property FMV deemed equal to book value

Overall Tax Effects Test Allocation lacks substantiality if It may, in present value terms, increase the after-tax economic consequences to at least one partner; and There is a strong likelihood that no partner will suffer reduced after-tax economic consequences (again in present value terms)

Nonrecourse Deductions Allocations will be recognized if P/S agreement calls for proper maintenance of capital accounts; Liquidation proceeds must be distributed based on capital balances; P/S agreement requires minimum gain chargeback; and Allocation must be consistent with other significant items

Minimum Gain Chargeback “Minimum gain” is equal to excess of nonrecourse debt over property basis (or book value, if different); This gain must first be allocated to partners who were allocated the nonrecourse deductions that created the minimum gain

§704(c) – Allocations with Respect to Contributed Property Example: Basis FMV A Cash $250 $250 B Property $150 $250 Who should pay tax on B’s $100 built-in gain?

General Principles Statute intended to prevent one partner from shifting tax burden on pre-contribution gains to other partner(s) Applies to allocations of tax gain or loss (or depreciation) in excess of the amount available for book

Allowable Methods Traditional Method Traditional Method with Curative Allocations Remedial Allocations Method Other Methods with permission

Traditional Method Gain or Loss on Sale of Contributed Asset Any remaining “built-in” gain or loss at date of sale is allocated to contributor-partner Remaining gain or loss is allocated among partners in accordance with the partnership agreement

Traditional Method-Depreciation Tax depreciation is first allocated to partners other than the contributor to the extent of their allocated book depreciation Allocations are subject to the ceiling rule – aggregate allocations cannot exceed total amount of depreciation allowable for tax Contributing partner gets remainder, if any Allocations made property-by-property

Traditional Method with “Curative Allocations” Same as Traditional Method, but Ceiling Rule distortions offset by special allocations of other items (e.g., depreciation on other properties) Offsetting allocations must have same character as §704(c) item

Remedial Allocations Method Allocate same amounts of tax depreciation, gain or loss to non-contributor-partners as they receive for book Ignore ceiling rule If allocations to other partners exceed total amount available for tax (i.e., total amount on tax return), contributor-partner receives a negative allocation (i.e., gain rather than loss, negative depreciation, etc.)

Allocations in FamilyPartnerships: Section 704(e) Applies to family partnerships in which capital is a material income-producing factor Valid transfer of an interest in a family partnership to a family member, whether by gift or by sale, is sufficient to transfer the income attributable to that interest Reasonable compensation must be received by the donor partner for services rendered to the partnership The donee partner may not be allocated a greater return on donated capital than the donor partner receives on his/her capital

Chapter 7
Reporting Taxable Income for Partnerships and LLCs

Partnership and LLCReporting Framework Form 1065 Reports Partnership Income Page 1: Ordinary Income Schedule K: Separately stated items Schedule K-1 Received by each partner or LLC member summarizing his or her share of ordinary income and separately stated items Partners or LLC members pay tax on entity income, whether or not distributed

Due Dates and Extensions Form 1065 due by 15th day of 4th month following close of taxable year Form 7004 – Automatic 5-month extension Extensions do not extend filing deadlines for partners or LLC members

Entity Elections All elections must be made by partnership or LLC except for the following: Sec. 59(e) – ratable deduction of IDC, mining exploration, and R&D expenditures Sec. 108 – deferral of discharge of indebtedness income Sec. 617 – expense mining exploration expenditures Sec. 901 – foreign tax credit

Items that Must Be Separately Reported Net trade or business (ordinary) income or loss Net income/loss from rental real estate activities Net income/loss from other rental activities Long-term capital gains and losses Short-term capital gains and losses

Items that Must Be Separately Reported Sec. 1231 gains and losses Charitable contributions Interest and Dividends Foreign taxes paid or accrued Other items that may be subject to special treatment on a partner/member’s tax return (IDC, mining and exploration expenditures, etc.)

Schedules L, M-1, and M-2 Schedule L Partnership/LLC balance sheet Schedule M-1 Reconciliation of book and tax income Schedule M-2 Reconciliation of partner/member capital (total capital) Not required for entities with gross receipts < $250,000 and total assets < $600,000

Reporting Income Items on Form 1065 Lines 1-3: Sales and Cost of Goods Sold Line 4: Distributive share of income from other pass-through entities Line 5: Net farm profit/loss

Sales or Exchanges of Property Sale of Business-Use Assets: Form 4797 Sale of Capital Assets: Schedule D Sale of Assets Used in Rental Activities: Form 8825 and Schedules K and K-1 Section 179 Recapture: Form 4797 and Schedule K-1, box 20, Code M Sale to > 50-percent partner or member: Gains reported as described above Losses not deductible; reported on Schedule K, line 18c

Reporting Expense Items on Form 1065 Salaries & Wages – Employees: Form 1065, line 9 Salary-type payments – Partners: Form 1065, line 10 (deducted from income) and Schedule K, line 4 (added to income) Repairs: Form 1065, line 11 Bad Debts: Form 1065, line 12 Rents: Form 1065, line 13 Taxes, Licenses: Form 1065, line 14

Reporting Interest Expense on Form 1065 Nonrental trade/business – Form 1065, line15 Portfolio interest – Schedule K, line 5 Rental trade/business – netted with other rental income and expenses Guaranteed payments on capital – Form 1065, Schedule K, line 4

Depreciation and Amortization Computed on Form 4562 Total depreciation/amortization reported on Form 1065, line 16a Amounts attributable to rental real estate activities or reported on Schedule A subtracted from total on Form 1065, line 16b Net balance, line 16c

Section 179 Not included with depreciation or amortization expense Total amount reported on Schedule K, line 12 Any portion attributable to rental activities should be communicated to partners or members in note on Schedule K-1

Retirement Plans and Employee Benefit Programs Contributions on behalf of employees subtracted on lines 18 and 19 of Form 1065 Contributions on behalf of partners/ members treated as guaranteed payments and subtracted on line 10 of Form 1065 (and added back on line 4 of Schedule K)

Schedules K and K-1 K reports aggregate amounts of ordinary income (from 1065) and separately stated items K-1 reports individual partner’s shares of each line item on Schedule K: Copies sent to individual partners (much like 1099s) Copies attached to Form 1065 and filed with IRS Amounts reported on K-1s must add to totals reported on Schedule K

Reconciliation of Schedule K Amounts First section on last page of Form 1065 summarizes partnership’s total income and breaks it down by category as follows: Type of partner – individual, corporation, etc. General vs. limited partners Passive vs. nonpassive income

Overview: Schedule K-1 Reports reconciliation of each partner or member’s book capital account Reports each partner or member’s share of partnership or LLC liabilities, by type of liability Reports each partner or member’s share of the entity’s net ordinary income(loss) and of each item of separately stated income, gain, loss, deduction, or credit

Overview: Schedule K-1 Reports the total amount of pass-through income or loss to each partner or member that should be treated as self-employment income Reports each partner or member’s share of partnership AMT adjustments and tax-preference items

Questions, Wrap-Up, and Key Points/Lesson Review

Tax Fundamentals of LLCs and Partnerships
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Tax Fundamentals of LLCs and Partnerships