Chapters 4 & 5

Chapter 4
Calculation of Partnership Taxable
• Code Sec. 702(a) requires that the partnership
separately state its net amounts from the following
Long-term capital gains and losses
Short-term capital gains and losses
Code Sec. 1231 gains and losses
Charitable contributions
Dividends that are taxed as net capital gains or are eligible
for the dividends received deduction
Income taxes paid to foreign countries
Other items required by the regulations
Introduction (Cont.)
• Examples of items that the regulations add are:
Recoveries of bad debts and taxes
Gains from wagering
Nonbusiness expenses
Medical and dental expenses
Items specifically allocated
Any amount that, if separately taken into account by any
partner, would result in a different income tax liability for
that partner than if the item was not separately taken into
Both Entity and Aggregate Rules Apply
• Sometimes the partnership is treated as a group of
aggregate partners (for example, when income is taxed
not at the partnership level but at the individual level)
and sometimes it is treated as an entity (for example,
when the combined net income is reported on Form
• Partnerships are treated as entities for purposes of
making most elections that affect the computation of
pass-through items, and for certain procedural purposes.
• For other purposes, it is treated as an aggregation of
individual owners.
Both Entity and Aggregate Rules Apply (Cont.)
• In some cases, the partnership can choose to use the
entity rule or the aggregate rule.
• Examples of the aggregate approach to taxation:
Requirement to file a tax return
Application of 6 year statute of limitations for omitting more than
25% of gross income
Tax imposed on S corporations with excessive investment income
and termination of their election
Partners are required to report their share of the profits or loss,
regardless of whether it is paid to them or the partnership
The character of the income, gain, loss, etc. is passed on to the
partner from the partnership level.
Co-inventors of a patent are still considered its “holders” if they
make a partnership and transfer the patent to the partnership
Both Entity and Aggregate Rules Apply (Cont.)
 Elections made at the partner level include:
 Code Sec. 901 election
 Election to deduct mining exploration expenses
 Election related to cancellation of indebtedness income
 Elections related to nonresident and foreign corporation
investments on US rental realty
Both Entity and Aggregate Rules Apply (Cont.)
• Examples of the entity approach to taxation:
– An S corporation shareholder may deduct his or her share of
losses only to the extent of his or her basis in the stock and the
basis he or she has in loans made to the corporation.
– Partnership income is computed at the entity level
– The partnership files a tax return reporting its taxable income
– The partnership has its own accounting method
– The partnership has its own taxable year
Both Entity and Aggregate Rules Apply (Cont.)
• Elections made at the entity level include:
– Depreciation elections
– Inventory method
– Election to roll over involuntary conversion gains
– Election to expense a limited amount of depreciable basis in
the year of acquisition
– Election not to use the installment method for reporting
installment sales
– Election to amortize organizational expenses
– Election to adjust the basis of partnership assets following
certain distributions or transfers of interest in the partnership
– Election to apply self-charged interest deduction rule
Both Entity and Aggregate Rules Apply (Cont.)
• Code Sec. 1244 Stock
– Code Sec. 1244 allows the owner of qualifying stock a limited
amount of ordinary loss when the stock is worthless or is sold
at a loss.
– If the partnership distributes the stock to its partners, they do
not qualify for an ordinary loss because Code Sec. 1244
treatment applies only to original holders of the stock.
The partnership, not the partners themselves, is viewed as the
original owner.
• Prepaid Expenses
– Prepaid expenses are deductible only if, after taking the
deduction into account, income is clearly reflected.
Calculation of the Amount of the Partnership’s
Taxable Income (Cont.)
 The general rule is that income is reported by the
partnership if it is reasonably associated with the
partnership’s business activity.
 The partner must report outside service income to
himself even if the income is from services similar to
services rendered by the partnership.
 If a partner is personally responsible for an expense
and not entitled to reimbursement, the partner (not
the partnership) is entitled to the deduction.
Payments to a Partner
• If payments are made to a partner acting in a
nonpartner capacity, it’s governed by Code Sec.
• If payments are made to a partner acting like a
partner, but without regard to partnership profits,
they are governed by Code Sec. 707(c).
• Code Sec. 707(a) and (c) payments are part of the
partnership’s aggregated nonseparately stated
taxableincome calculation unless they are specially
Payments to a Partner (Cont.)
 A partnership generally classifies its payments to a
partner in 1 of 3 categories:
Code Sec. 707(a) payments
Code Sec. 707(c) “guaranteed” payments
Tends to treat the payment as if it’s made to a nonpartner
Treated as distributive shares for some purposes and a
payment to a nonpartner for other purposes
A distributive share of the partnership’s income
Payments to a Partner (Cont.)
 Payments to Partners as Compensation for
Services or Property Not Required as a Condition
of Partner Status
Payments made to partners for the use of the partner’s money
or property, or for “support services, are normally deductible
by the partnership. These are generally known as Code Sec.
707 (a) payments.
Support services are services not required by the partnership
agreement or because of his or her partner status.
Timing of Income and Deduction for a Code Sec.
707(a) Payment
 The rules are meant to prevent a tax deferral
resulting from the deduction of the payment (by the
partnership) occurring in a year prior to the
recognition of income from the payment (by the
 To claim a deduction for a Code Sec. 707(a) payment,
two requirements must be satisfied.
Timing of Income and Deduction for a Code Sec.
707(a) Payment (Cont.)
The amount must be currently deductible under
the partnership’s method of accounting.
Ex: A cash method partnership must have paid the amount
to the partner.
2. The partnership generally cannot claim a deduction
for a payment to a partner until the day the partner
must report the payment as income.
Guaranteed Payments
 Guaranteed
payments are those payments made
to a partner for acting in his or her capacity as a
partner when the amount is determined
independent of the partnership’s operating
 These
are known as Code Sec. 707(c) payments.
 They can represent either payments for services
rendered or payments for the use of the partner’s
Guaranteed Payments (Cont.)
 The
amount of the payment is determined by
reference to the value of the services or property
provided rather than by reference to the partnership
 Guaranteed payments for use of a partner’s capital
are similar to interest payments, but the partnership
has no duty to repay the principal at a specified date.
 These
amounts are paid to partners in consideration for
their continued investment in the partnership.
Guaranteed Payments (Cont.)
 If
the partner has both the right and duty to perform
the services under the partnership agreement as
opposed to a separate contract between the partner
and partnership, it is a guaranteed payment under
Code Sec. 707(c).
Timing of Income and Deduction of a Guaranteed
• Timing of the deduction to the partnership is
governed by the partnership’s accounting method
• The partner must include the agreed upon payment
as income on the last day of the partnership’s year in
which the partnership takes the payment into
• In all cases a guaranteed payment results in ordinary
income to the partner.
Timing of Income and Deduction of a Guaranteed
Payment (Cont.)
• A Code Sec. 707(c) guaranteed payment generally will
not affect the computation of a partner’s distributive
share of partnership income other than ordinary income.
• Complications arise when the partner is entitled to the
greater of a specified guaranteed salary payment or a
fixed percentage of partnership income computed before
the guaranteed payment is taken into account.
In that case, the guaranteed payment under Code Sec. 707(c) will be
the excess of the fixed minimum dollar amount over the amount the
partner would have been allocated based on his or her profit/loss
sharing ratios (their distributive share).
Timing of Income and Deduction of a Guaranteed
Payment (Cont.)
• If the partner is to receive a certain fraction of all of
the income (not just the ordinary income) of the
partnership, subject to a minimum amount,
complications may arise.
Under these circumstances, the guaranteed payment is the
minimum amount less the partner’s total distributive share of
all partnership income.
The guaranteed payment must then be subtracted from the
partnership ordinary income, and the remaining ordinary
income and other income of the partnership will be allocated
among the partners based on the fraction of total remaining
income that each partner is due to receive.
Timing of Income and Deduction of a Guaranteed
Payment (Cont.)
A guaranteed payment is:
Not a share of profits for purposes of identifying the
partnership’s required taxable year.
Not a share of profits for the special rules on the
taxation of sales between a partnership and its partners.
Not a share of profits for purposes of the partnership’s
technical termination upon the sale of interests in that
Not subject to income or payroll tax withholding.
Timing of Income and Deduction of a Guaranteed
Payment (Cont.)
Subject to the tax on self-employment income unless:
The partnership is not engaged in a trade or
business, or
The payment is a guaranteed payment for the use of
capital paid to a limited partner.
Earned income for purposes of contributions to a
qualified deferred compensation plan.
Nonpassive interest income for purposes of the Code
Sec. 469 passive loss rules if paid for the use of capital.
Nonpassive compensation income for purposes of the
Code Sec. 469 passive loss rules if paid for services.
Timing of Income and Deduction of a Guaranteed
Payment (Cont.)
Premiums a partnership pays for accident and health
insurance coverage on behalf of its partners are deemed
guaranteed payments for services to the partners provided:
The premium payments are paid for services rendered as a
partner, and
 The payments are determined without regard to partnership
Summary: Is This “Much Ado About Very Little”?
The timing of the partnership’s deduction and the partner’s
income will be the same if:
Both parties are using the cash method of accounting.
Both parties use the calendar year as their taxable year.
The payment is made to the partner during the same year the
services or capital is provided by the partner to the
Accounting Method
• Under Code Sec. 448, partnerships that either (1)
have a C corporation as a partner or (2) are tax
shelters are not allowed to use the cash basis
accounting method even when it otherwise properly
reflects income.
• This rule does not apply to partnerships with a
corporate partner if the partnership does not meet
the $5,000,000 gross receipts test for all preceding
A partnership meets this test if its average gross receipts for
that year and the preceding 2 years does not exceed
Accounting Method (Cont.)
• A partnership (even a partnership with a C
corporation partner) that meets a $10,000,000 gross
receipts test for all prior years will be allowed to use
the cash basis.
• Tax shelters may never use the cash method.
Tax shelters are:
Enterprises in which interests have been offered for sale in any
offering required to be registered under state or federal law.
All partnerships in which limited entrepreneurs are allocated more
than 35 percent of the losses for the taxable year.
Any arrangement that has as its principal purpose the avoidance
or evasion of the federal income tax.
Organization and Syndication Expenses—Code
Sec. 709
• A partnership’s deduction for expenses incurred
before operation begins encounters 2 problems:
There is no partnership trade or business so a Code Sec.
162 expense isn’t allowed.
A majority of the expenditure will benefit a future taxable
year so it’s potentially a capital expenditure under Code
Sec. 263.
Common partnership expenditures that occur
prior to operation include: organization,
syndication, business investigation, and start-up
Code Sec. 709: Organization Expenses
• Code Sec. 709(a) disallows all deductions for
amounts paid or incurred to organize a partnership.
• Code Sec. 709(b) allows a deduction of up to $5,000
for organizational expenses.
Any additional organizational expenses are amortizable over
the 180 month period that begins with the inception of the
trade or business.
• A Code Sec. 709 deduction election is automatically
deemed made for the taxable year in which the
partnership begins business.
Code Sec. 709: Syndication Costs
• Code Sec. 709(a) denies any deduction for amounts paid
and incurred “to promote the sale of (or to sell) an
interest in such partnership.”
These selling expenses are referred to as syndication expenses.
• Examples of syndication expenses include:
Brokerage fees
Registration fees
Legal fees of an underwriter, place management, an issuer for
securities advice and for advice pertaining to the adequacy of tax
disclosure in the prospectus
Accounting fees for preparation of representations to be included in
the offering materials, and
Printing costs of the prospectus, placement memorandum, and other
selling and promotional material.
Investigation, Acquisition, and Start-Up
Expenses– Code Secs. 195 and 263
• There are 2 categories of Code Sec. 195 expenses:
Investigation expenses
Pre-opening/start-up expenses
Up to $5,000 ($10,000 in 2010) of Code Sec. 195
expenses may be deducted in the taxable year in
which the trade or business begins.
Code Secs. 195 and 263: Investigation Expenses
 Expenses incurred in expanding a taxpayer’s current business
are deductible currently as trade or business expenses.
 Expenditures incurred in the investigation of an active trade or
business in order to determine whether to enter a new business
and which new business to enter are eligible for amortization.
 Expenditures incurred to acquire a specific business aren’t
eligible for amortization.
 Therefore, during the acquisition process there will be a point in
time when expenses cease being capitalized and deducted or
amortized under Code Sec. 195 and start being capitalized under
Code Sec. 263 as cost of acquiring the business itself.
Code Secs. 195 and 263:
Investigation Expenses (Cont.)
• In the case of expanding an existing business, costs
incurred in connection with the acquisition of assets
are capitalized under Code Sec. 263.
• Factors which could imply expansion of the business
would be geographically extending the business or
vertical integration.
• Factors indicating a new trade or business might
include involvement in marketing products that
differ significantly from the products currently being
marketed or marketing the same products to new
and different customers.
Code Secs. 195 and 263: Pre-Opening/Start-Up
• Start-up costs are another type of Code Sec. 195
expense. These include:
Wages paid to employees being trained and to instructors
Travel and other expenses incurred in lining up prospective
distributors, suppliers or customers, and
Salaries or fees paid or incurred for executives, consultants,
and/or similar professional services.
Code Secs. 195 and 263: Pre-Opening/Start-Up
Expenses (Cont.)
 The start-up period begins with the end of the
investigatory phase of whether to enter the business
or which business to enter and it ends when the
associated trade or business is actively conducted.
Generally, they are considered actively engaged when they
begin earning revenue from the trade or business.
Chapter 5: Character and
Presentation of Partnership
 Generally, a partnership computes its taxable income
in the same manner as do individuals.
Items that may have potentially varying tax consequences to
particular partners must be separately stated; all other items
are aggregated and passed through as one lump sum.
This is then allocated to the partners in accordance with the
partnership agreement.
General Rule– Entity Level Characterization
 The character of the item (income, loss, deduction,
credit, etc…) passed on to the partners is determined
by reference to partnership-level factors.
Characterization of the Gain (Loss) on
Disposition of Contributed Property
• The character of the partnership’s income is determined
at the partnership level except as provided by Code Sec.
• Code Sec. 724 modifies partnership level characterization
for three categories of contributed property:
Unrealized receivables
Inventory items
Capital Loss Property
Substituted basis property received in exchange for
such contributed property is treated as if it were the
contributed property.
Gain (Loss) on Disposition of Contributed
Property (Cont.)
Any gain or loss recognized by the partnership on
the disposition of an “unrealized receivable” would
be ordinary income.
2. Inventory items retain their ordinary income taint
under Code Sec. 724(b) for five years after their
contribution to the partnership.
After 5 years, the character of the property is determined at
the partnership level.
Appreciation existing at the time of the contribution is
taxed to the contributor under Code Sec. 704(c), and the
remainder is ordinary income allocated according to the
partnership agreement.
Gain (Loss) on Disposition of Contributed
Property (Cont.)
3. “Capital Loss Property” is any capital asset held by
the contributing partner which has an adjusted
basis in excess of the fair market value immediately
before it was contributed to the partnership.
If the partnership sells such property at a loss, Code Sec.
724(c) requires the built-in loss at the time of the contribution
to retain its character as a capital loss for a period of five years
from the date of the contribution.
Additional loss is characterized at the partnership level.
Preparation of Form 1065, Schedules K and K-1
Reconciling Partners’ Capital Account Balances
Box L reconciles the partners’ capital account balances.
The total of the partners’ items in box L should agree with
the accounting methods employed in preparing the
Schedule L balance sheets and the reconciliation with the
total partnership capital in Schedule M-2.
Preparation of Form 1065, Schedules K and K-1
2. Schedules M-1 and M-2
Schedule M-1:
Book income + income items on the partners’ K-1s but not on
the books (Line 2) + guaranteed payments (Line 3) + expenses
for books not on K-1s (Line 4) – Income items on books but
not on K-1s including tax-exempt interest (Line 6) – items of
deductions on the K-1s but not on the books (Line 7) = Total
of the income and deduction items distributable to the
partners on their K-1s.
This ties with the net income on Schedule K, Partnership
Income or Loss.
Preparation of Form 1065, Schedules K and K-1
Schedule M-2:
Capital account balances at the beginning of the year + capital
contributed during the year (Line 2) + net income per books (Line
3) + other increases (Line 4) – distributions to partners (Line 6) –
other decreases (Line 7) = capital account balances at the end of
the year.
Partners’ individual capital accounts are reconciled in box L of
Schedule K-1.
All the income and deduction effects on the capital accounts
are combined and appear in “Current year increase (decrease)”
line of box L.
This amount MUST be reported to the partners.
Preparation of Form 1065, Schedules K and K-1
3. Schedule M-3
– Any entity which files Form 1065 or Form 1065-B must
complete and file Schedule M-3 in lieu of Schedule M-1 if any
of the following is true:
The amount of total assets at the end of the year is equal to $10
million or more.
The amount of adjusted total assets for the year is equal to $10
million or more.
– This equals the total assets at the end of the tax year before
capital distributions, losses, and adjustments that reduce total
The amount of total receipts for the taxable year is equal to $35
million or more.
The partnership has a “reportable entity partner.”
Preparation of Form 1065, Schedules K and K-1
In Part 1 of Schedule M-3 questions about the partnership’s
financial statements must be answered.
A reconciliation of financial statement net income for the
consolidated financial statement group to income per the
income statement for the partnership is also required.
Parts II and III of Schedule M-3 reconcile financial statement
net income (loss) for the partnership (per Schedule M-3, Part
I, line 11) to income (loss) per the return on Form 1065 and
Form 1065-B, page 4, Analysis of Net Income (Loss), line 1.
Preparation of Form 1065, Schedules K and K-1
4. Separately Stated Items
Items Having Special Tax Characteristics
These are separately reported on boxes 1 through 13 on
Schedule K-1. Boxes 3-13 can contain regularly allotted items
as well.
Items Receiving a Special Allocation
Line 1 represents the partner’s share of the “bottom line” on
Form 8825.
Line 2 represents the partner’s share of the “bottom line” on
Form 8825.
The allocations on these lines should not include specially
allocated items.
Specially allocated items should be reported on Line 11
(income items on Line 11 and loss items on line 13e).
Preparation of Form 1065, Schedules K and K-1
5. Separate Reporting
• Reg. § 1.702-1(a)(8)(i) requires the separate
reporting of any item subject to a special allocation
“under the partnership agreement.”
This applies to the mandatory special allocations under Code
Sec. 704(c)(1)(A).
Presentation of a Partnership’s Taxable Income
 A partnership reports its taxable income differently
than an individual.
It separately lists the net amount of any item of income, loss,
or deduction that could affect the various partners differently.
The remainder of the partnership’s items of income, loss, and
deduction are simply aggregated as one net number.
Separately Stated Items
 It is also necessary to inform the partners of their
shares of nontaxable income and expenditures that
are not deductible by the partnership.
In this case, it reports the amount and nature of the
nondeductible expenditure to the partners, and its
intermediary status is ignored.
See chapter five and instructions for Form 1065 schedule K
and k-1 for more specific information on each separately stated
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