© 2016 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

© 2016 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. Essentials of Taxation Chapter 14 Partnerships and Limited Liability Entities

The Big Picture (slide 1 of 3) For 15 years, Maria has owned and operated a seaside bakery and cafe called The Beachsider. –Maria would like to expand and has talked to her landlord, Kyle about it. The Beachsider is one of several older buildings on 3 acres of a 10-acre parcel that Kyle inherited 30 years ago. –The remaining 7 acres are undeveloped. Kyle and Maria talked to Josh, a real estate developer, and he proposed an expansion to The Beachsider and upgrades to the other buildings.

The Big Picture (slide 2 of 3) The parties agreed to form a partnership to own and operate The Beachsider and to improve and lease the other buildings. Under the plan, Kyle and Maria will each contribute ½ of the capital needed. –Kyle’s real estate is valued at about $2 million. –Maria’s bakery equipment and the cafe furnishings are valued at about $500,000. –The improvements will cost about $1.5 million, which Maria has agreed to contribute to the partnership.

The Big Picture (slide 3 of 3) Josh will not contribute any capital to the partnership. –Instead, he will manage the construction and the operation of the partnership in exchange for 5% of the capital and 20% of the ongoing profits. –His capital interest is valued at $200,000. What are the tax consequences if the trio forms Beachside Properties as a partnership to own and operate the shopping center? –What issues might arise later in the life of the entity? Read the chapter and formulate your response.

Partnership Definition An association of two or more persons to carry on a trade or business –Contribute money, property, labor –Expect to share in profit and losses For tax purposes, includes: –Syndicate –Group –Pool –Joint venture, etc

Entities Taxed as Partnerships (slide 1 of 4) General partnership –Consists of at least 2 general partners –Partners are jointly and severally liable Creditors can collect from both partnership and partners’ personal assets General partner’s assets are at risk for malpractice of other partners even though not personally involved

Entities Taxed as Partnerships (slide 2 of 4) Limited liability company (LLC) –Combines the corporate benefit of limited liability with benefits of partnership taxation Unlike corporations, income is subject to tax only once Special allocations of income, losses, and cash flow are available –Owners are “members,” not partners, but if properly structured will receive partnership tax treatment

Entities Taxed as Partnerships (slide 3 of 4) Limited partnership –Has at least one general partner One or more limited partners –Only general partner(s) are personally liable to creditors Limited partners’ loss is limited to equity investment

Entities Taxed as Partnerships (slide 4 of 4) Limited liability partnership (LLP) –An LLP partner is not personally liable for malpractice committed by other partners –Popular organizational form for large accounting firms Limited liability limited partnership (LLLP) –An extension of the limited partnership form –All partners, whether general or limited, are accorded limited liability

Partnership Taxation (slide 1 of 2) Generally, the calculation of partnership income is a 2-step approach –Step 1: Net ordinary income and expenses related to the trade or business of the partnership –Step 2: Segregate and report separately some partnership items –If an item of income, expense, gain or loss might affect any 2 partners’ tax liabilities differently, it is separately stated –e.g., Charitable contributions

Partnership Reporting Partnership files Form 1065 –On page 1 of Form 1065, partnership reports ordinary income or loss from its trade or business activities –Schedule K accumulates information to be reported to partners Provides ordinary income (loss) and separately stated items in total –Each partner (and the IRS) receives a Schedule K-1 Reports each partner’s share of ordinary income (loss) and separately stated items

Key Concepts in Partnership Taxation (slide 2 of 3) Involves 2 legal concepts: –Aggregate (or conduit) concept—Treats partnership as a channel with income, expense, gains, etc. flowing through to partners Concept is reflected by the imposition of tax on the partners, not the partnership

Key Concepts in Partnership Taxation (slide 3 of 3) Involves 2 legal concepts (cont’d): –Entity concept—Treats partners and partnerships as separate and is reflected by: Partnership requirement to file its own information return Treating partners as separate from the partnership in certain transactions between the two

Partner’s Ownership Interest Each owner normally has a: –Capital interest Measured by capital sharing ratio –Partner’s percentage ownership of capital –Profits (loss) interest Partner’s % allocation of partnership ordinary income (loss) and separately stated items Certain items may be “specially allocated” –Specified in the partnership agreement

Inside and Outside Bases Inside basis –Refers to the partnership’s adjusted basis for each asset it owns –Each partner “owns” a share of the partnership’s inside basis for all its assets Outside basis –Represents each partner’s basis in the partnership interest –All partners should maintain a record of their respective outside bases

Basis Issues (slide 1 of 3) Partner’s outside basis is adjusted for income and losses that flow through from partnership This ensures that partnership income is only taxed once

Basis Issues (slide 2 of 3) Partner’s basis is important for determining: –Deductibility of partnership losses –Tax treatment of partnership distributions –Calculating gain or loss on the partner’s disposition of the partnership interest

Basis Issues (slide 3 of 3) Partner’s capital account balance is usually not a good measure of a partner’s adjusted basis in a partnership interest for several reasons e.g., Basis includes partner’s share of partnership liabilities; Capital account does not

Partnership Formation Transaction

Tax Consequences of Partnership Formation (slide 1 of 2) Usually, no gain or loss is recognized by a partner or partnership on the contribution of money or property in exchange for a partnership interest Gain (loss) is deferred until taxable disposition of: –Property by partnership, or –Partnership interest by partner

Tax Consequences of Partnership Formation (slide 2 of 2) Partner’s basis in partnership interest = basis of contributed property –If partner contributes capital assets and §1231 assets, holding period of partnership interest includes holding period of assets contributed –For other assets including cash, holding period begins on date partnership interest is acquired –If multiple assets are contributed, partnership interest is apportioned and separate holding period applies to each portion

WST Partnership Formation Example (slide 1 of 2) William contributes cash –Amount$20,000 Sarah contributes land –Basis$ 6,000 –FMV$20,000 Todd contributes equipment –Basis$22,000 –FMV$20,000

WST Partnership Formation Example (slide 2 of 2) Gain or lossBasis inPartnership’s Partner RecognizedInterestProperty Basis William $-0-$20,000 $20,000 Sarah $-0-$ 6,000 $ 6,000 Todd $-0-$22,000 $22,000 Neither the partnership nor any of the partners recognizes gain or loss on the transaction

Exceptions to Tax-Free Treatment on Partnership Formation (slide 1 of 4) Transfers of appreciated stock to investment partnership –Gain will be recognized by contributing partner –Prevents multiple investors from diversifying their portfolios tax-free

Exceptions to Tax-Free Treatment on Partnership Formation (slide 2 of 4) If transaction is essentially a taxable exchange of properties, gain will be recognized –e.g., Individual A contributes land and Individual B contributes equipment to a new partnership; shortly thereafter, the partnership distributes the land to B and the equipment to A; Partnership liquidates –IRS will disregard transfer to partnership and treat as taxable exchange between A & B

Exceptions to Tax-Free Treatment on Partnership Formation (slide 3 of 4) Disguised Sale –e.g., Partner contributes property to a partnership; Shortly thereafter, partner receives a distribution from the partnership Distribution may be viewed as a purchase of the property by the partnership

Exceptions to Tax-Free Treatment on Partnership Formation (slide 4 of 4) Receipt of fully vested partnership interest in exchange for services rendered to partnership –Receipt of the partnership interest is generally taxable to the partner Partnership may deduct the amount included in the service partner’s income if the services are of a deductible nature –If the services are not deductible by the partnership, they must be capitalized to an asset account

Tax Issues Relative to Contributed Property (slide 1 of 4) Contributions of depreciable property and intangible assets –Partnership “steps into shoes” of contributing partner Continues the same cost recovery and amortization calculations Cannot expense contributed depreciable property under §179

Tax Issues Relative to Contributed Property (slide 2 of 4) Gain or loss is ordinary when partnership disposes of: –Contributed unrealized receivables –Contributed property that was inventory in contributor’s hands, if disposed of within 5 years of contribution Inventory includes all tangible property except capital assets and real or depreciable business assets

Tax Issues Relative to Contributed Property (slide 3 of 4) If contributed property is disposed of at a loss and the property had a ‘‘built-in’’ capital loss on the contribution date –Loss is treated as a capital loss if disposed of within 5 years of the contribution –Capital loss is limited to amount of ‘‘built-in’’ loss on date of contribution

Tax Issues Relative to Contributed Property (slide 4 of 4) Special allocations must be made relative to contributed property that is appreciated or depreciated –The partnership’s income and losses must be allocated under § 704(c) to ensure that the inherent gain or loss is not shifted away from the contributing partner –Discussed later in the chapter

The Big Picture – Example 15 Contributions To The Partnership (slide 1 of 2) Return to the facts of The Big Picture on p. 10-1. Kyle’s and Maria’s capital contributions to the newly formed LLC are as follows –Kyle contributes real estate, FMV $2 million, consisting of land with basis = $600,000 and fully depreciated building, basis = $0. –Maria contributes bakery equipment, basis $0, FMV $500,000. No tax consequences on formation of Beachside Properties, LLC for the LLC, Kyle, or Maria. –Kyle does not recognize his $1.4 million realized gain. –Maria does not recognize her $500,000 realized gain. Kyle takes a substituted basis of $600,000 for his interest. Maria takes a substituted basis of $1.5 million ($1.5 million for contributed cash + $0 for contributed property).

The Big Picture – Example 15 Contributions To The Partnership (slide 2 of 2) Beachside Properties has the following adjusted basis in the contributed property. –A carryover basis of $600,000 for the real estate contributed by Kyle. –A carryover basis of $0 for the property contributed by Maria. If the buildings and other land improvements had any remaining depreciable basis, the LLC would ‘‘steps into the member’s shoes’’ in calculating depreciation deductions. When Josh vests in his 5% capital interest in the LLC in exchange for services, the $200,000 is taxable to him. –Beachside Properties will probably capitalize this amount because it relates to construction Josh’s 20% interest in future profits will be taxed to him as profits are earned by the partnership.

Elections Made by Partnership (slide 1 of 2) Inventory method Accounting method –Cash, accrual or hybrid Depreciation method Tax year Organizational cost amortization Start-up expense amortization

Elections Made by Partnership (slide 2 of 2) Optional basis adjustment (§754) §179 deduction Nonrecognition treatment for involuntary conversions Election out of partnership rules

Organizational Costs (slide 1 of 2) Partnership may elect to deduct up to $5,000 of organization costs in year business begins –Deductible amount must be reduced by organization costs that exceed $50,000 –Remaining amounts are amortizable over 180 months beginning with month the partnership begins business

Organizational Costs (slide 2 of 2) Organizational costs include costs: –Incident to creation of the partnership, chargeable to a capital account, and of a character that, if incident to the creation of a partnership with an ascertainable life, would be amortized over that life Includes accounting fees and legal fees connected with the partnership’s formation Costs incurred for the following items are not organization costs: –Acquiring and transferring assets to the partnership –Admitting and removing partners, other than at formation –Negotiating operating contracts –Syndication costs

Start-up Costs (slide 1 of 2) Start-up costs—include operating costs incurred after entity is formed but before it begins business including: –Marketing surveys prior to conducting business –Pre-operating advertising expenses –Costs of establishing an accounting system –Costs incurred to train employees before business begins, and –Salaries paid to executives and employees before the start of business

Start-up Costs (slide 2 of 2) Partnership may elect to deduct up to $5,000 of start-up costs in the year it begins business –Deductible amount must be reduced by start-up costs in excess of $50,000 –Costs that are not deductible under this provision are amortizable over 180 months beginning with the month in which the partnership begins business

Measuring Income of Partnership Calculation of partnership income is a 2-step approach –Step 1: Net ordinary income and expenses related to the trade or business of the partnership –Step 2: Segregate and report separately some partnership items

Separately Stated Items (slide 1 of 2) If an item of income, expense, gain or loss might affect any 2 partners’ tax liabilities differently, it is separately stated

Separately Stated Items (slide 2 of 2) Separately stated items fall under the “aggregate” concept –Each partner owns a specific share of each item of partnership income, gain, loss or deduction Character is determined at partnership level Taxation is determined at partner level

Examples of Separately Stated Items (slide 1 of 2) Net short and long-term capital gains and losses §1231 gains and losses Domestic production activities deduction Charitable contributions Interest income and other portfolio income Expenses related to portfolio income

Examples of Separately Stated Items (slide 2 of 2) Personalty expensed under §179 Special allocations of income or expense AMT preference and adjustment items Passive activity items Self-employment income Foreign taxes paid

The Big Picture – Example 17 Income Measurement (slide 1 of 4)

The Big Picture – Example 17 Income Measurement (slide 3 of 4) Beachside is not a allowed a deduction for last year’s $250,000 NOL –This item was passed through to the LLC members in the previous year. The LLC is not allowed a deduction for payment of Kyle’s medical expenses. –This payment is probably handled as a distribution to Kyle, who may report it as a medical expense on his Schedule A in determining his itemized deductions. Maria’s distribution is not deducted by Beachside. –That amount instead reduces Maria’s basis in her LLC interest. The AMT adjustment is not a separate component of the LLC’s income –It must be reported by Beachside’s members so that they can properly calculate any AMT liability.

The Big Picture – Example 18 Book-tax Reconciliation Continue with the facts in Example 17 and consider the book-tax reconciliation. Beachside Properties, LLC, must prepare the Analysis of Income (Loss) and Schedule M–1 on Form 1065, page 5. –In preparing these schedules, the LLC combines the ordinary income of $420,000 and the 4 separately stated amounts in Example 17 to arrive at ‘‘net income’’ of $730,000. This amount is shown on line 1 of the Analysis of Income (Loss) and is the amount to which book income is reconciled on Schedule M–1, line 9.

The Big Picture – Example 19 Maria’s Reported Amounts Assume the same facts as in Example 17, but now consider the effect of the LLC’s operations on one of its members. Maria, a 40% owner, will receive a Schedule K–1 from Beachside Properties, on which she is allocated a 40% share of ordinary income and separately stated items. Thus, on her Form 1040, Maria includes: Ordinary income $168,000 Charitable contribution $2,400 Short-term capital gain $4,800 Passive rent income$120,000 Qualified dividend income $1,600 Maria’s Schedule K-1 also reports her $20,000 cash distribution. Maria will disclose her $840 share of tax-exempt interest on the first page of Form 1040. In determining her AMT liability (if any), Maria will take into account a $7,290 positive adjustment.

Partnership Allocations (slide 1 of 2) Partnership agreement can provide that a partner share capital, profits, and losses in different ratios –e.g., Partnership agreement may provide that a partner has a 30% capital sharing ratio, yet be allocated 40% of the profits and 20% of the losses –Such special allocations are permissible if certain rules are followed e.g., Economic effect test

Partnership Allocations (slide 2 of 2) Precontribution gain or loss –Must be allocated to partners taking into account the difference between basis and FMV of property on date of contribution For nondepreciable property this means any built-in gain or loss must be allocated to the contributing partner when disposed of by partnership in taxable transaction For depreciable property, allocations related to the built-in loss can be made only to the contributing partner –For allocations to other partners, the partnership’s basis in the loss property is treated as being the fair market value of the property at the contribution date

The Big Picture – Example 21 Precontribution Gain or Loss (slide 1 of 2) Return to the facts of The Big Picture on p. 14-1. When Beachside Properties, LLC, was formed –Kyle contributed land (value of $800,000, basis of $600,000) and buildings (value of $1,200,000, basis of $0). –Maria contributed equip. & furnishings with FMV $500,000, basis $0. For § 704(b) book accounting purposes, Beachside records the land and other properties at their FMV. –For tax purposes, the LLC takes carryover bases in the properties. The LLC must keep track of the differences between the basis in each property and the value at the contribution date. –If any property is sold, gain must be allocated to contributing partner to extent of previously unrecognized built-in gain.

The Big Picture – Example 21 Precontribution Gain or Loss (slide 2 of 2) For example, if Beachside sells the land contributed by Kyle for $1.1 million, the gain would be calculated and allocated as follows: For tax purposes, –Kyle would recognize $320,000 of the gain [($300,000 X 40%) + $200,000] –Maria would recognize $120,000 ($300,000 X 40%), and –Josh would recognize $60,000 ($300,000 X 20%).

Basis of Partnership Interest (slide 1 of 3) For new partnerships, partner’s basis usually equals: –Adjusted basis of property contributed, plus –FMV of any services performed by partner in exchange for partnership interest

Basis of Partnership Interest (slide 2 of 3) For existing partnerships, basis depends on how interest was acquired –If purchased from another partner, basis = amount paid for the interest –If acquired by gift, basis = donor’s basis plus, in certain cases, a portion of the gift tax paid on the transfer –If acquired through inheritance, basis = FMV on date of death (or alternate valuation date)

Basis of Partnership Interest (slide 3 of 3) A partner’s basis in partnership interest is adjusted to reflect partnership activity –This prevents double taxation of partnership income

Basis Example (slide 1 of 2) Pam is a 30% partner in the PDQ partnership Pam’s beginning basis is $20,000 PDQ reports current income of $50,000 Pam sells her interest for $35,000 at the end of the year

Basis Example (slide 2 of 2) With BasisWithout Basis Adjustment Adjustment Selling Price(A)$ 35,000 $35,000 Less: Basis in interest Beginning basis 20,000 20,000 Share of current income 15,000 - 0-. Ending basis (B) 35,000 20,000 Taxable gain (A)-(B)$ -0- $15,000 –If no basis adjustment, Pam's $15,000 share of partnership income is taxed twice: as ordinary income and as gain on sale of interest

Adjustments to Basis Initial Basis –+ Partner’s subsequent contributions to partnership –+ Partner’s share of partnership: Debt increase Income items Exempt income items Depletion adjustment –– Distributions and withdrawals from partnership –– Partner’s share of partnership: Debt decreases Nondeductible expenses Deductions and losses

Basis Limitation A partner’s basis in the partnership interest can never be negative

Partnership Liabilities Affect partner’s adjusted basis –Increase in partner’s share of liabilities Treated as a cash contribution to the partnership Increases partner’s adjusted basis –Decrease in partner’s share of liabilities Treated as a cash distribution to the partner Decreases partner’s adjusted basis

Allocation of Partnership Liabilities Two types of partnership debt –Recourse debt—The partnership or at least one partner is personally liable Allocate to partners using a “Constructive Liquidation Scenario” –Nonrecourse debt—No partner is personally liable Allocate to partners using a three-tiered allocation

Distributions When partnership distributes property –Recipient partner reduces basis in partnership interest by the inside basis of the distributed asset –Partner’s basis in asset received equals inside basis of the distributed asset When cash and another asset are distributed at the same time, the partner first accounts for the cash received Loss is never recognized when a partnership makes a distribution other than in its own liquidation A partner recognizes gain only when receiving cash in an amount in excess of the partner’s basis

Loss Limitations (slide 1 of 2) Partnership losses flow through to partners for use on their tax returns –Amount and nature of losses that may be used by partners may be limited –Three different loss limitations apply Only losses that make it through all three limits are deductible by a partner

Loss Limitations (slide 2 of 2) Section Description 704(d) Basis in partnership interest 465 At-risk limitation 469 Passive loss limitation Limitations are applied successively to amounts which are deductible at all prior levels

Loss Limitation Example 34 (slide 1 of 2) Megan's basis in interest $50,000 At-risk amount $35,000 Passive income, other sources $25,000 Share of partnership losses (passive) $60,000

Loss Limitation Example 35 (slide 2 of 2) ProvisionsDeductible lossSuspended loss 704(d) $ 50,000 $ 10,000 465 35,000 15,000 469 25,000* 10,000 *Amount deducted on tax return: $25,000 -passes all three loss limitations

Guaranteed Payments Payment to partner for use of capital or for services provided to partnership –May not be determined by reference to partnership income –Usually expressed as a fixed dollar amount or as a % of capital

Treatment of Guaranteed Payments (slide 1 of 2) May be deducted or capitalized by partnership depending on the nature of the payment –Deductible by partnership if meets “ordinary and necessary business expense” test –May create partnership loss

Treatment of Guaranteed Payments (slide 2 of 2) Includable in income of partner at time partnership deducts –Treated as if received on last day of partnership tax year –Character is ordinary income to recipient partner

Other Transactions Between Partner and Partnership (slide 1 of 2) May be treated as if partner were an outsider, for example: –Loan transactions –Rental payments –Sales of property

Other Transactions Between Partner and Partnership (slide 2 of 2) Timing of deduction for payment by an accrual basis partnership to a cash basis partner depends on whether payment is: –Guaranteed payment Included in partner’s income on last day of partnership year when accrued (even if not paid until the next year) –Payment to partner treated as an outsider Deduction cannot be claimed until partner includes the amount in income

Sales of Property No loss is recognized on the sale of property between a partnership and a partner who owns > 50% of partnership capital or profits –If property is subsequently sold at a gain, the disallowed loss reduces gain recognized

Partners as Employees A partner usually does not qualify as an employee for tax purposes resulting in the following tax consequences: –A partner receiving guaranteed payments from the partnership is not subject to tax withholding –The partnership cannot deduct payments for a partner’s fringe benefits –A general partner’s distributive share of ordinary partnership income and guaranteed payments for services are generally subject to the Federal self-employment tax

Limited Liability Companies A LLC with 2 or more owners is taxed as a partnership –LLC members are not personally liable for debts of the entity Effectively treated as a limited partnership with no general partners –LLCs are relatively new so there is no established body of case law available Makes planning difficult

Refocus On The Big Picture (slide 1 of 3) After considering the various types of partnerships, Kyle, Maria, and Josh decide to form Beachside Properties as an LLC. On formation of the entity, there was no gross income to the LLC or to any of its members (see Example 15). Beachside Properties computes its income as shown in Example 17 and allocates the income as illustrated in Example 19.

Refocus On The Big Picture (slide 2 of 3) The LLC’s income affects the members’ bases and capital accounts. An important consideration for the LLC members is whether their distributive shares and guaranteed payments will be treated as self- employment income.

Refocus On The Big Picture (slide 3 of 3) What If? What happens in the future when the LLC members decide to expand or renovate Beachside’s facilities? –At that time, the existing members can contribute additional funds, the LLC can obtain capital from new members, or the entity can solicit third-party financing. –An LLC is not subject to the 80% control requirement applicable to corporations. Therefore, new investors can contribute cash or other property in exchange for interests in the LLC—and the transaction will qualify for tax-deferred treatment.

© 2016 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 87 If you have any comments or suggestions concerning this PowerPoint Presentation for South-Western Federal Taxation, please contact: Dr. Donald R. Trippeer, CPA trippedr@oneonta.edu SUNY Oneonta

© 2016 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

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© 2016 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

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