BOGDANSKI, SPRING 2017

Partnership Tax Outline

Tax Classification of Business Enterprises
C Corporations in General
 Double taxation of corporate profits
a. Corporate tax (section 11 – 15%-35%)
b. Shareholder tax at relatively low rates (section (1)(h)(11) capital gain rate); § 61 dividends are income
c. AND § 1411 Medicare 3.8% tax for high income individuals
 No shareholder benefit of corporate losses
a. Corporate losses not deductible by shareholders
b. Shareholder stock losses require realizing event to be deductible

Partnerships in General – Subchapter K

Basic Model
 Single taxation of partnership profits (maximum 39.6% + 3.8%).
 Partnership pays no tax.
 Partners report their shares of partnership income as soon as partnership recognizes it.
 Distributions generally not taxed.
 Losses “pass through.”
§ 701. Partnership is not subject to income tax, but persons carrying on business as partners are subject to income tax.
§ 702. Income and credits of partner. Lists what is taken into account for income tax of the individual taxes of the
partners based on their distributive share (regardless of whether the partnership actually pays them anything).

 Tax consequences “pass-thru.” Both profits and losses pass-through to the partners. Subject to passive loss rules
and “at risk” rules.
 In partnership agreement, should get something saying you are entitled to being paid so you can at least cover
the taxes.
 Required to send schedule K-1 to the partners so they can fill out tax returns.
§ 705. Determination of basis of partner’s interest. Partner’s basis in partnership interest will increase every year based
on the amount of income they had to pay tax on.
§ 731. Extent of recognition of gain or loss on distribution. Can use adjusted basis when receiving income from
distributions. So distributions are usually not taxable.
§ 704(d). Limitation on allowance of losses. Losses only allowed to the extent of basis.

S Corporations Generally – subchapter S

 § 1363. S corporation not subject to income tax.
 § 1366. Tax passes through to the shareholders. Each shareholder needs to report pro-rata share.
 Rules for determining basis in stock is not as generous as the basis rules for partnerships.
 Extensive eligibility rules that must be maintained (cannot have preferred stock, foreign shareholders, etc.)

Trusts – Regs. § 301.7701-4

 This class applies to trusts classified as a business entity, but not all trusts are.
 § 301.7701-4(a) defines “ordinary trusts,” which are taxed under subchapter J. If income accumulates, pays tax
at 1(e) rate. If pays out income in the same year, tax the beneficiary at their rate.
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  § 301.7701-4(b) defines “business trusts” as created by the beneficiaries simply as a device to carry on a profit-
making business – look at what the trustee is doing. If this is the case, it is taxed as a partnership.

Partnership Choice of Entity

Definition
§ 761(a) Partnership “includes a syndicate, group, pool, joint venture, or other unincorporated organization through or
by means of which any business, financial operation, or venture is carried on, and which is not, within the meaning of
this title, a corporation or a trust or estate . . . .”

 § 7701(a)(2) Partnership & Partner – includes same definition in the definition section applicable to the entire
title. And a “partner” is a member of the above.
 Ex. 3 people who purchase a single parcel of land as tenants-in-common and then subdivide the land and sell the
lots. This may not be desired b/c an informational return must be filed. If you fail to file a partnership return,
you cannot take personal deductions for the partnership.
a. Podell v. Commissioner – the court found an oral agreement for the purchase, renovation, and sale of
certain residential real estate created a joint venture and should be taxed as partnership property as
ordinary income rather than capital gains.
b. § 703(b) – partnership must make all elections, partners cannot. So all partners have to agree.
c. Regs. § 301.7701-1(a)(2) – draws line between mere co-ownership and an entity for federal tax
purposes. Must lease property to someone and provide services.

NOT a Partnership
(1) Contract (lease, employment, consulting, etc.) – may be working together without creating a partnership.
 An agreement where you get a % of gross revenue is not a division of profits. This would not be a partnership.
 Non-recourse loan and interest in the form of 15% of net profits from fishing boat arrangements. However, this
is not an ordinary loan b/c interest depends on profit.
(2) “Tax nothing” – may be recognized for state law purposes, but not for tax purposes.
 Ex. 3 people who purchase a single parcel of land as tenants-in-common and hold the land as an investment.
This is mere co-ownership of property.
 Ex. Two attorneys who share an office and a secretary. Each attorney services and bills his own clients.
a. Regs. § 301.7701-1(a)(2) – a key indicator of a partnership involves dividing the profits (revenue –
expenses). A joint undertaking merely to share expenses does not create a separate entity for tax.
 Ex. Doctor and architect build and keep a building, separating it to each rent their own portion. However, this is
a close call, based on the facts this could be a partnership.
a. Allison v. Commissioner – the court found two companies did not enter into a joint venture and that
one party just received 75 lots in return for financial services. Therefore, the residual property should be
taxed as ordinary income. Joint venture factors include: a contract, express or implied, that a joint
venture be formed; the contribution of money, property, and/or services; an agreement for joint
proprietorship and control; and an agreement to share profits.
(3) Corporations
 Entity Choices (state law): Corporation, Partnership (GP, LP, LLP, LLLP), LLC
 Main Concerns with Choice: limited liability, free/restricted transferability of interests (partnerships and LLCs
cannot sell management/control interest), management format (all partners can bind v. only board/officers can
take action), agency relationship (shareholders are not agents).
 § 11 Double Taxation for C Corps: can occasionally have better tax consequences than other models when
profits are low. If profit is low (<$50,000), it is only taxed at 15%. The tax at the shareholder level will only be
20%. Total tax = $16,000. Total tax for partnership with pass through = $19,800.

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 a. This does not apply to personal service corporations (providing professional services and all stock owned
by the providers – lawyers, doctors).
(4) Trusts
 Grantors are not taxed on the income to the trust, but only if they retain NO interest or control.
 Either the beneficiaries or the trust pays tax.

Avoid Being a “Corporation” for Tax Purposes

§ 7701(a)(3) corporations include “associations, joint-stock companies, and insurance companies.” The word that causes
concern is the word “association.” Originally, “association” was defined by case law. Compared entity to traditional
partnership and traditional corporation and determined which one it most resembled.
Check-the-Box Regulations
Regs. §§ 301.7701-2

 If two or more members = either a corporation or a partnership. Partnership is the default essentially.
 If only one person = either corporation or is disregarded. If disregarded treated as a “tax nothing.”
 Lists “corporations.” If not on this list, it is not a corporation.
a. If defined as such by state law – so don’t form a corporation under state law obviously.
b. An association – see 301.7701-3.
c. Joint-stock association.
d. Insurance company.
e. State-chartered banks.
f. Entity owned by a State.
g. If another part of the IRC says so.
h. Lists the name of corporations in other countries.
Regs. §§ 301.7701-3

 Two or more members can elect to be an “association” and therefore a corporation or a partnership.
 One person can elect to be either a corporation or disregarded.
 301.7701-3(b) are what people refer to as the “check-the-box” regulation. States you must elect, but otherwise
you are the default.
 301.7701-3(c) describes the election procedure. Check the box on the Form 8832. Can also change afterward.
a. Limitations: once you change, cannot change again for 5 years.
b. Some form an LLC and elect to be a C corp. and then elect to be an S corp. They do this in case they ever
want to go back to being a partnership for tax purposes.
 301.7701-3(g) when you change your classification, the tax code treats it as if you liquidated the old entity and
made a new one. Liquidating a partnership/formation of a corporation is not a big deal; however, the other way
around, this leads to serious tax consequences. Going to/from S corp. to C corp. does not create tax
consequences (not treated as a liquidation).
§ 7704 Publicly Traded Partnerships Treated as Corporation
 (a) Publicly traded partnerships are treated as corporations.
 (b) Publicly traded partnership means any partnership if (1) interests in such partnership are traded on an
established securities market, or (2) interests in such partnership are readily tradable on a secondary market.
 (c) Subsection (a) does not apply to partnerships if 90% or more of the gross income of such partnership
consists of qualifying income (passive income) (interest, dividends, real property rents, gain from the sale or
other disposition of real property, income and gains from mining, etc., gain from sale of capital asset, gains from
commodities).
 (d) Defines “qualifying income” – basically passive-type income.

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§ 761(a) Exclusions can be made from Subchapter K (narrow)

 Can elect out of partnership status and being taxed as such – can elect out if (1) for investment purposes only
and not for the active conduct of a business, (2) purpose of selling services or property produced or extracted, or
(3) by securities dealers who engage in a short-term joint venture to underwrite, sell or distribute a particular
issue of securities.
a. Only requirement: “if the income of the members of the organization may be adequately determined
without the computation of partnership taxable income.”
 § 761(f) provides an unincorporated business conducted by a married couple who files a joint return and each of
whom materially participates in the business may elect not to be treated as a partnership for tax purposes.

Social Security/Medicare Taxes – Choice of Entity

On Wages
Employer Employee Total
Social Security 6.2% 6.2% 12.4%
Medicare 1.45% 1.45% 2.9%
Total 7.65% 7.65% 15.3%

 Not applicable to partners and partnerships AT ALL.

 Personal exemption: None
 Social Security wage base for 2017: $127,200; once wages go over this, they do not take SS any more – b/c the
benefits are capped, the premiums should be too.
 Medicare surtax (add’l tax on high income): 0.9% of wages, compensation, and self-employment income
greater than $200,000 (single), or $250,000 (married, joint return) – employee only – combined with regular
Medicare tax, rate is 3.8%.

On Net Earnings from Self-Employment – including partnerships

Social Security 12.4%
Medicare 2.9%
Total 15.3%

 Tax base: 92.35% of net earnings from self-employment.

 Filing threshold: $400 of net earnings from self-employment. Not taxed if you make less than $400.
 Social Security base for 2017: $127,200.
 Medicare surtax: same as above.
 Can deduct half for ordinary income purposes to make the tax equal to regular employees.

Tax on Investment Income (Medicare) - § 1411

 3.8% of net investment income.
 Applicable only to extent AGI is greater than $200,000 (single), or $250,000 (married, joint return).
 Applicable to investment income (dividends from C corporations, interest, recognized gains on stocks, bonds,
etc.), income from financial trading business, and passive activity income (such as rental).
 Not applicable to income from non-rental, non-financial-trading business activities in which taxpayer materially
participates.
 Not imposed on wages or self-employment income.

Choice of Entity Considerations

 S corporations are popular, because you can avoid some of these tax consequences and partnerships and c
corporations can’t. Mostly just avoiding the Medicare part (3.8%). Probably not worth the risk if S election

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 cannot be maintained. They only have to pay taxes on wages, so they often structure the company to pay low
wages and get money otherwise. Now, if an employee and shareholder of an S corp., you must take a
reasonable amount out for wages. Can still get deferral if you want to wait to pay out wages.
 Wage tax is not applicable to partners (however, there are reasons partners would want to be employees).
 Wage tax is imposed on S corporation shareholders only to the extent of wages paid.
 Self-employment tax is imposed on pass-through income from partnership business to general partners.
 Self-employment tax is not imposed on pass-through income from partnerships to limited partners.
 Some LLC members may be treated as general partners for this purpose – if they are working for and managing
the LLC.
 Self-employment tax is not imposed on pass-through income from S corporation to shareholders – doesn’t
matter whether they are active or not in managing.
 Net investment income tax is not imposed on tax-free distributions from S corporations to shareholders
(because it is not income), or from partnerships to partners.
 Net investment income tax is imposed on investment income passing through from S corporations to
shareholders, and from partnerships to partners.

Formation of a Partnership
Problem Pg. 38

Contributions
Asset Adjusted Basis FMV
A Land 30,000 70,000
Goodwill 0 30,000
B Equipment (1245 gain) 25,000 45,000
Installment note from the sale of land 20,000 25,000
Inventory 5,000 30,000
C Building 25,000 60,000
Land 25,000 10,000
Receivables for services rendered to E 0 30,000
D Cash 100,000 100,000

(1)(a) There is a gain realized, BUT no gains or losses recognized to the partner or partnership. § 721. A’s basis of
contributed property will be $30,000 (amt. of basis at time of contribution). § 722. The Partnership’s basis will also be
$30,000 (carryover basis). His holding period does not tack if he is contributing it within a year. § 1223.
(1)(b) Nothing changes. Differences include depreciation recapture, installment method payments, and inventory cannot
be tacked. Section 1245 depreciation recapture does not affect anything. Usually there is a gain recognized for
installment sales that are “disposed of,” which includes a wide variety of things, but does not apply to partner
contributions.
 § 1245 Gain from dispositions of certain depreciable property: Purpose of 1245 is to make sure you don’t
change ordinary income into capital gain. Depreciation deductions are ordinary, so sale of capital asset cannot
be capital gain (unless sold for more than depreciation taken). Depreciation is recaptured as ordinary income.
Sometimes this overrides other provisions, but subsection (b)(3) states this shall not affect sections 721, 731,
etc. Therefore, this section does not affect the above problems.
 Reg. 1.453-9(c) 453 “disposals” do not affect contributions of property by a partner to a partnership.
(1)(c) Difference is the partner has realized a loss BUT no gains OR losses are recognized. § 721.
(1)(d) Contributing cash does nothing, buying things is not income. Basis = amt. of cash for partner and partnership.

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Contributions of Property
§ 721 Non-recognition of gain or loss on contribution

 (a) “No gain or loss shall be recognized to a partnership or to any of its partners in the case of a contribution of
property to the partnership in exchange for an interest in the partnership.”
1. “Goodwill” and “receivables” are property for this purpose.
2. “Property” is not defined, but it is interpreted to be broad. However, it does not include services
rendered to the partnership. A partner who provides services in exchange for a partnership interest has
ordinary income.
 (b) Exception for investment company. (a) Shall not apply to gain realized on a transfer of property to a
partnership which would be treated as an investment company (§ 351) if the partnership were incorporated.
1. Designed to prevent the tax-free diversification of a portfolio by a group of taxpayers through the
transfer of appreciated investment assets to a partnership.
2. Reg. § 1.351-1(c) A transfer of property will be considered to be a transfer to an investment company if
i. The transfer results, directly or indirectly , in diversification of the transferors’ interests AND
ii. The transferee is (a) a regulated investment company, (b) a real estate investment trust, or (c) a
corporation more than 80 % of the value of whose assets are held for investment and are readily
marketable stocks or securities, or interests in regulated investment companies or real estate
investment trusts.
 § 351(e) – but this section has expanded the regulations and includes cash, and stocks and securities of any
corporation, not just publicly traded.
 Take Away: be sure 20% of assets are real usable assets, don’t just contribute money, stocks, gold bars, etc. If
more than 80% of assets fit this description, then all partners would have to recognize a gain and everyone’s
basis steps up.
§ 722 Basis of contributing partner’s interest: “The basis of an interest in a partnership acquired by a contribution of
property, including money, to the partnership shall be the amount of such money and the adjusted basis of such
property to the contributing partner at the time of the contribution increased by the amount (if any) of gain recognized
under section 721(b) to the contributing partner at such time.”
 Ensures the contributing partner does not avoid recognizing the gain by selling his interest.
 Partner basis is referred to as “outside basis,” while partnership basis is referred to as “inside basis.”
§ 723 Basis of property contributed to partnership: “The basis of property contributed to a partnership by a partner
shall be the adjusted basis of such property to the contributing partner at the time of the contribution increased by the
amount (if any) of gain recognized under section 721(b) to the contributing partner at such time.”

 Assumption of Liability Greater than Contributing Partner's Basis: The partnership will not receive inside basis
increase when the partnership assumes a liability and the partner recognizes a gain on that assumption of
liability. This will create an inside-outside basis discrepancy unless they make an election under §754. If there is
a §754 election, the basis of the contributed property is increased by the gain recognized to the partner.

§ 1223 Holding period of property – important in order to obtain long-term capital gains.

 For partner, holding period tacks on if the basis of the property exchanged is the same AND either (1) a capital
asset as defined in 1221 OR (2) property described in 1231.
 For partnership, holding period tacks on if the basis of the property exchanged is the same.
§ 704 Partner’s distributive share: (c)(1) Contributed property. Generally prevents the pre-contribution gain or loss
from being shifted to the other partners by requiring the partnership to allocate that gain or loss solely to the
contributing partner when it subsequently disposes of the property or distributes it to another partner.
Rev. Ruling 99-5 Example:

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  If A is alone as an LLC and B joins, the entity goes from being a “nothing” to a partnership and will be treated as
a partnership formation.
 If B purchases 50% of A’s ownership interest in the LLC for $5,000, there is a gain. A will have to pay tax on that
gain.
 If B contributes $10,000 in exchange for a 50% ownership interest in the LLC, there is no gain. A will be treated
as contributing all the assets and B contributing all of the cash.
 Non-compensatory options: It can get more complicated when B is granted a non-compensatory option to
acquire a partnership interest. § 721 does not apply to the transfer of property to a partnership in exchange for
a non-compensatory option; however, it applies to the exercise of the option. The holder of the option is not
treated as a partner for tax purposes unless the option provides substantial rights.
 Debt-for-Equity Exchanges: § 721 generally applies to a creditor of a partnership who contributes a
partnership’s recourse or nonrecourse indebtedness to the partnership in exchange for a capital or profits
interest in the partnership. The partnership recognizes discharge of indebtedness.

Introduction to Partnership Accounting

Page 45 Problem
A contributes $50K cash, B contributes land with a basis of $40K and a FMV of $50K, and C contributes securities with a
basis and FMV of $50K. Basis and book value may start off the same and change because of different depreciation
methods for accounting and tax purposes. Beginning balance sheet:
Assets Liabilities
Adjusted Book Value Adjusted Book Value
Basis Basis
Cash $50K $50K Debt None
Land $40K $50K Equity A $50K $50K
(partners’
capital)
Securities $50K $50K B $40K $50K
C $50K $50K
Total $140K $150K $140K $150K

(a) Leasing land for $15K and selling securities. Cash increases by $65K. $15K is split equally between the partners
(because they agreed to sell all equally). Rent income passes through to all partners equally. Under 705, basis of
partnership interest increases by the amount of tax paid (each partner pays tax on $5K and their basis are increased by
that amount).
(b) Partnership borrows $300K and then buys more land for $330K. No tax consequences. New liability of $300K. New
asset of $330K. Additional $30K comes from cash, so cash goes down to $85K. Partners basis each increased by $100K
because of the increase in partnership liabilities; DOES NOT increase book value – can take losses for more than they
contributed.
 § 752 Treatment of certain liabilities. Partners’ outside basis is increased when the partnership obtained a loan
(or other liabilities).
a. Biggest difference between partnerships and S corporations.
b. Do not use an S corporation if it will be highly leveraged.
c. Pretend like they take out a loan personally and contribute the cash.
 § 704(d) cannot take a loss in excess of adjusted basis. This is typically not a problem with help from 752. This
makes sure that partners get the benefit of the Crane rule and gets their pass through losses.
a. For example, if you take a loan and then lose it all, you would not get to take those deductions without
752.

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(c) Partnership distributes $20K to each partner. Cash decreases by $60K. Partners not taxed on distribution because
they can use their large amount of basis. § 731. Basis is decreased by amount of distribution. § 733. So basis and book
value both reduced by $20K for each partner.
(d) Partnership sells Parcel #1 for $65K. Parcel #1 had a basis of $40K and FMV $50K. Now sold for $65K (book value of
assets have been undervalued for some time). B contributed it with $10K gain. Partnership is recognizing $25K gain.
$10K taxed to B, the leftover $15K is split amongst the partners. Cash goes up, basis increased by amount passed
through, and book value increased by $5K for each partner.

 § 704(c) gain/loss passes through to partner that contributed.

(e) Parcel #2 now has a FMV $420K, the assets and capital accounts are restated to current value, and new partner D
contributes $70K to the partnership in exchange for a 25% general partnership interest. So increase book value of
property to $420K, which would increase the partner’s book value capital accounts.
 § 752. New partner gets some basis because she has a share in partnership liabilities equal to the amount she
put in.
a. (b) The other partners get a decrease in basis b/c they all have a decrease in liability. Treated as a non-
taxable distribution. Look to section 731 and 733.
b. § 704(c). The gain on parcel #2 passes to A, B, and C but not D, because the property appreciated before
he got there.

Treatment of Liabilities
Impact on Partner’s Outside Basis
Page 28 Problems
A, B, C, and D each contribute $25K to the ABCD partnership, which then acquires a $1 million building, paying $100K
cash and borrowing $900K on a nonrecourse basis.
a. If the parties are equal general partners, what is each partner’s outside basis? – nonrecourse debt allocated
equally to each of their bases. $225K added to each of their $25K basis.
b. What result if the partnership is a limited partnership, A is the sole general partner and all the partners share
profits and losses equally? – nothing changes because the debt is named nonrecourse. None of the partners are
liable.
c. What result in (b) if the partnership were personally liable for the debt? – partner with most economic risk of
loss gets the most basis.

§ 752 Treatment of certain liabilities

(a) Treats any increase in a partner’s share of partnership liabilities as if it were a cash contribution by the partner to the
partnership, increasing the partner’s outside basis under § 722.
(b) Treats any decrease in a partner’s share of liabilities (partnership assumption of a partner’s liability) as if it were a
cash distribution to the partner, decreasing his outside basis under §§ 705, and 733.
(c) A liability to which property is subject shall be treated as a liability of the owner to the extent of the FMV.
 Consistent with the Crane rule that a partner’s outside basis includes his share of a partnership’s liabilities (same
as basis in house includes mortgage).
 Regs. § 1.752-1
1. (a)(1). A partnership liability is a recourse liability to the extent that any partner bears the economic risk
of loss for the liability. Test is stated in 1.752-2.
2. (a)(2). But if no partner bears the economic risk of loss, the liability is classified as nonrecourse. For
example, partners of an LLC bear no risk on debts of the company.
3. (a)(4). Liabilities that are deductible, such as accounts payable, are disregarded.
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  Regs. § 1.752-2
1. (a). A partner’s share of recourse liabilities equals the portion of the liability for which the partner bears
the economic risk of loss.
2. (b). To determine a partner’s economic risk of loss, ask who would be obligated to pay the liability if all
the partnership’s liabilities are payable in full and all of the assets, including cash, are worthless. Assume
the worst case scenario.
i. To determine economic risk of loss, follow the worst case scenario and see what partner owes
what [-2(b)(1)]. This typically leads to general partners having to share the loss while limited
partners’ loss is limited to the amount contributed.
3. Partner with most liability gets the most basis.
 Regs. § 1.752-3(a). Nonrecourse debts are generally allocated among the partners in accordance with each
partner’s share of partnership profits rather than losses b/c none of them have liability. (also includes minimum
gain and gain that would be allocated for partnership property subject to nonrecourse liabilities.)

§ 724 Character of gain or loss on contributed unrealized receivables, inventory items, and capital loss
property
When unrealized receivables and inventory items are contributed by a partnership, later sale only realizes ordinary gain
or loss. All of the gain or loss is ordinary (does not depend on past holding period).

 Only applies to first 5 years for inventory, no 5 year period for receivables.
 Ex. partner who is a dealer in cars contributes a car. When the partnership sells the car, the gain will be ordinary
even if under normal rules it wouldn’t be.
 This is to prevent people from contributing dealer property to attempt to get a capital gain/loss.

Contributions of Encumbered Property

§ 722: re-characterizes a contribution of encumbered property as a cash transaction.
§§ 731 & 733: treats a distribution of cash as a return of capital, which reduces the partner’s outside basis by the
amount of the distribution (but not below zero).
Recourse Liabilities (contributing partner basis increased & decreased): A contributes encumbered property with FMV
of $150,000, an adjusted basis of $50,000, and a mortgage of $30,000. B contributes $120,000 cash. If A and B are
general partners, each bear the risk of loss for $15,000. A’s new basis is $35,000 and B’s new basis is $135,000.
Recourse Liabilities in excess of Basis (contributing partner is taxed): A contributes encumbered property with FMV
$15,000, an adjusted basis of $10,000, and a mortgage of $30,000. B contributes $120,000. A’s new basis should be
negative $5,000 BUT § 733 prevents this by providing that a distribution may not reduce a partner’s basis below zero
AND § 731(a)(1) treats this excess $5,000 as capital gain (under § 741). So the contributing partner has to pay tax.

 Partnership takes carryover basis from the contributing partner. § 723. Therefore, if this happens the other
partners will have a higher basis than the partnership. But a partnership can elect to increase the basis (with a
lot of baggage).
Non-Recourse Liabilities: same result if profits are shared equally. Under the regulations, a partner’s interest in
partnership profits is determined by taking into account all facts and circumstances relating to the economic
arrangement of the partners. 3 level analysis for nonrecourse debt. Regs. § 1.752-3(a).
Non-Recourse Liabilities in Excess of Basis: Because of Tufts, the amount realized by the partnership on the disposition
of the land subject to nonrecourse debt is at least the amount of the debt even if the debt exceeds the value of the
property. When allocating liability to determine basis, the contributing partner is allocated the gain that would be
realized if the property was sold when contributed. A contributes encumbered property with basis of $10,000 subject to
$30,000 nonrecourse liability, so $20,000 of that is allocated to A. The other $10,000 is allocated as to profits.
Page 52 Problems

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(1) A and B contribute $30,000 each, C contributes land with FMV $60,000 subject to recourse debt of $30,000. All
general partners with equal interest in profits and losses.
a) Tax consequences if land basis is $40,000? – A and B basis increases by $10K each, so their basis is $40K each.
C’s basis decreases by $20K and becomes $20K (because he is liable for 1/3 but is also walking away from 2/3 –
so 40+10-30). The partnership’s basis is $40K. Regs. § 1.752-2(a).
b) Tax consequences if land basis is $10K? – A and B’s basis becomes $40K each. C’s basis is 0 (10+10-30). And C
recognizes a gain of $10K ($30K distribution - $20K basis). § 731. C pays tax on $10K and his basis is still zero and
the partnership’s basis becomes $10K.
c) Tax consequences if land basis is $40K and nonrecourse, partners agree to 1/3 profit sharing? – analysis includes
3 parts (minimum gain, taxable gain from 704(c), and relating to share of profits). Under 704(c), C contributed
this property, ask whether there would be any gain if the partnership just walked away from the debt – in this
case no - $30K - $40K. Regs. § 1.752-3(a). So same result as problem (a).
1. In some situations, there may be a gain if selling the property back to the bank (value of mortgage –
basis).
d) Tax consequences if same as (b) but nonrecourse? – if the partnership walked away from the debt, there would
be a gain of $30K - $10K = $20K. All $20K would be taxed to C. So his basis is increased by $20K first before doing
anything else. The other $10K of basis is split between all three of them to equal $23,333 for C. C’s basis = $10K
+ 23,333 – 30K (decreased liabilities) = $3333. Partnership basis = $10K
(2) A joins B, C, and D and everyone has a ¼ interest. A contributes an account receivable with 0 basis and $20K face
value. The partnership also assumes $6K of A’s accounts payable. What are the tax consequences? – nothing happens.

 Receivables: $0 Basis; $20K FMV. When the partnership collects the receivable, it will pass through to him later
on. So basis does not change now.
 Accounts Payable (assume recourse): $6K – the kind of liability that if he paid it he could deduct it, so maybe
shouldn’t be penalized. Therefore, these types of debts are not included in liabilities and does not affect the
contributing partner’s basis or the other partners. Regs. § 1.752-1(a)(4). However, if on the accrual method of
accounting (very rare), it would be a liability.

Contributions of Services
Receipt of a Capital Interest for Services
 A partner who contributes services in exchange for an interest realizes ordinary income under § 61(a).
Therefore, the partner takes a § 1012 “tax cost” basis in the partnership interest equal to the amount that is
included in income.
 In most circumstances, this situation will not be taxed.
 There is a difference between capital interests and profits interests. A partner contributing services for a capital
interest is given a portion of the other partner’s capital accounts and entitled to a share of assets upon
liquidation.
 Receiving a capital interest creates the recognition of ordinary income, but under § 83, income is realized
immediately if unrestricted or deferred if it is not yet vested. The partner can elect to immediately recognize the
gain though.
 The partnership cannot take a deduction. This may even cause the partnership to recognize a gain. If the
partnership’s sole asset is land and a partner contributes services, it is treated as a two-step process: (1) the
transfer of a one-third interest in the land to the partner and (2) the contribution of that interest back to the
partnership.
McDougal v. Commissioner – the tax consequences are the same when a partner receives a capital interest in exchange
for past services rendered. Partnership treated as paying him a 1/10th interest (realizing event b/c using appreciated
property to pay off a debt). They must recognize a gain, but can also take a deduction (if not capitalized).

10
 1. Facts: the McDougals purchased a horse for $10K. At the time of the purchase, McDougal promised McClanahan
(horse trainer) a half interest in the horse once the McDougals had recovered the costs and expenses of
acquisition. McClanahan was paid during this time and after they recovered the costs on October 4, 1968.
2. The court found that a joint venture was formed on this date and McClanahan received a half interest in the
partnership. The McDougal’s and the partnership’s basis was each $5K minus ½ of the depreciation taken.
McClanahan’s basis was the amount considered to have realized on the transaction ($30K). Prior to the
exchanged interest, the deductions for McClanahan’s services were attributed to the McDougals.
Page 61 Problems
C gets capital interest whose sole asset is a commercial building with FMV $150K and adjusted basis $90K, which has
been depreciated on the straight line method. A & B have $45K outside bases in their interests. C has performed real
estate management services for the partnership over the past year and has agreed to perform additional services in the
future. FIRM basis $90K; FIRM FMV $150K.
(a) Tax consequences to C and the partnership (A&B) if in year one C receives a 1/10 capital interest in the partnership
as compensation for his management services over the past year? – NO BIG TAX AFFECT OVERALL, BUT INCREASE IN
ASSET BASIS.
 Transfer of 1/10 interest in the land to C who then contributes back to the partnership. 1/10 of $150K is $15K. §
83(a) comes in (assuming totally vested and not subject to forfeiture). Ordinary income = FMV of interest
received – amount paid for interest. Treated as independent K income. Amount paid as tax becomes C’s basis
and then amount of interest.
 The partnership also has a taxable event (as in existence before the new partner joins, so it is passed through to
A & B). This triggers gain, but not all $60K of the gain (just 1/10th of it). $6K realized ($15K amt. realized - $9K adj.
basis = $6K). A & B both pay for $3K of gain, basis is increased by amount taxed.
 Partnership also gets a deduction for whatever C puts down as income, when he puts it down as income [§
83(h)]. This deduction more than offsets the gain. Deduction can only be made immediately if an ordinary and
necessary business expense. Basis goes down for deduction.
 Then pretend the interest is transferred back, 721, 722, and 723 steps up the basis of the asset ($96K 
increased by the $6K of gain).
 Proposed Reg. § 1.83-3(e) & Proposed Reg. § 1.721-1(b): not much support, but these would get rid of the gain
element of this transaction. C would still be taxed and A&B would get their deduction, but would eliminate the
fake asset transfer to and back.
Land: $90K basis/$150K bv A $45K basis/$75,500 bv
B $45K basis/$75,500 bv
C

Land: $96K basis/$150K bv A $40,500 basis/$67,500 bv
B $40,500 basis/$67,500 bv
C $15K basis/$15K bv

(b) What result in (a), if C receives his capital interest in exchange for legal services performed in connection with the
acquisition of the building (essentially asking what would happen if the services provided are capital)? - The firm cannot
take an immediate deduction, must depreciate over time.
(c) What result in (a), if C receives his interest as compensation for services to be rendered in the succeeding three years
provided, however, that if C ceases to render services before the end of year three, C or any transferee of C must
relinquish his interest in the partnership. Assume for this problem that the building will have a value of $450K and an
adjusted basis of $90K at the end of year three. – If C elects under § 83(b) to be taxed in the current year, the results
would be the same. If C did not elect, the same analysis but his gain would be $45K instead of $15K.
11
Receipt of a Profits Interest for Services
Originally, taxed share of profits as earned: “the mere receipt of a partnership interest in future profits does not create
any tax liability.” However, where the profit interest is sold before any profits are obtained, the gain on the transfer
should be treated as ordinary income rather than capital b/c it is in effect an anticipation of future income. Hale v.
Commissioner.

 Facts: Hale Co. wanted to sell its partnership interest in Walnut Co. where they were in a partnership for the
sole purpose of building properties and later selling them. The gain is ordinary income because that is what
would have been obtained when the partnership ended anyways.
Then, taxable on receipt of a profits interest: this court held “a service partner is currently taxable on receipt of a
profits interest—provided that the interest is susceptible of valuation at the time of its receipt.” The partner must
recognize ordinary income. Diamond v. Commissioner.
 Facts: Diamond was to get the financing together and Kargman was to cover other expenses to buy some
property that they would later sell. Diamond would get 60% of the profits. Soon after this agreement, Diamond
transferred his interest to a 3rd party for $40K. The court determined he was taxable when the agreement was
made b/c he had performed his services and it did not matter that all he got was a profit interest. He could then
amortize that value as profits were received. However, this does not apply when the interest is unascertainable.
NOW, Rev. Pro. 93-27: receipt of a profit interest in return for services to or for the benefit of a partnership in a partner
capacity or in anticipation of being a partner is not taxable, UNLESS:
 The profits interest relates to a substantially certain and predictable stream of income from partnership assets,
such as income from high-quality debt securities or a high-quality net lease;
a. Ex. the only asset is interest income from U.S. treasury bonds (not much chance of not getting paid this
interest). Probably doesn’t include “average rent” from a rental property.
 Within two years of receipt, the partner disposes of the profits interest; OR
 If the profits interest is a limited partnership interest in a “publicly traded partnership” within the meaning of
section 7704(b) of the IRC.
a. Typically taxed as a c corporation, but some are still taxed as partnerships.
b. Rev. Pro. 2001-43 clarified some things: if an exception applies, section 83 does not.
Page 75 Problems
1. AB partnership is a law firm. Associate C is offered a 1/3 partnership interest in the future profits. C is not
required to make any capital contribution. Is C taxable upon admission to the partnership? – NO
a. Can cause problems where people buy partner interests in private equity firms, which make mostly
capital gains. So a taxpayer can avoid ordinary income and gain capital gains.
2. Experienced real estate manager C receives a non-forfeitable 1/10 profits interest in the AB general partnership,
whose sole asset is a commercial building (FMV $1 mill) in return for his agreement to render management
services in his capacity as a partner. Net rentals from the building recently have been averaging $100K per year.
C has been asked to manage the building in the hope his expertise will increase the rental income and lead to a
profitable sale of the property.
a. What are the tax consequences to C upon receipt of the profits interest? – Maybe taxed if there is a
“substantially certain and predictable stream of income from partnership assets” such as rental income.
BUT probably doesn’t include “average” rental income, which indicates it may fluctuate. Depends on
how reliable this income stream is.
b. What are C’s tax consequences upon receipt of the interest if, prior to becoming a partner, rendered
services to the partnership in connection with obtaining financing and soliciting tenants for the building?
– No tax consequences for past services rendered. Rev. Pro. 93-27.
c. What result in (a) if C sells his profits interest for $50K within one year and prior to receiving profits? -
taxed

12
 d. What results in (c) to the partnership (and to A & B)? – Partnership takes a deduction and other partners
are taxed.
e. What result to C and to the partnership in (a) if C’s profits interest was subject to forfeiture until C
rendered services for the partnership for a period of five years? – No § 83(b) election needed, not taxed
until vested.

Proposed Regulations
 These regulations will provide that a partnership interest is “property” for purposes of § 83. The service partner
is not a real partner until vested or makes a § 83(b) election.
 Safe Harbor Election: a partnership can make this election for a “safe harbor partnership interest,” which
cannot be the exclusions (1)-(3) in Rev. Pro. D93-27. If vested, must recognize the liquidation value of the
interest (if right after transfer the partnership liquidated) minus the amount paid for the interest. If not vested,
either delayed recognition until vested or you can make a section 83(b) election to recognize it immediately. A
capital interest would have a liquidation value but a profit interest liquidation value would be zero.
 To effect and maintain a safe harbor election, the partnership must (1) prepare a document and (2) include the
partnership agreement with provisions showing that (a) the partnership can do this and (b) all partners and the
partnership agree to comply with the safe harbor.
 Service Partner Capital Account: equals the amount contributed + the amount included in income under § 83.
 Recognition of Gain or Loss by the Partnership: no gain or loss recognized on the transfer or substantial vesting
of a compensatory partnership interest. However, this does not apply to the transfer of property that results in
the creation of a partnership.
 Partnership Deduction: any deduction for the service of the partner (not required to be capitalized) is taken in
the year in which the partner included it as income. This deduction is allocated to the historic partners.
 Subject to Forfeiture: if a partner has a nonvested interest but makes a § 83(b) election, they will be allocated
items of partnership gains or losses, etc. The proposed regulations state these will be respected if the
partnership agreement states the partnership will make forfeiture allocations if the interest is forfeited. Upon
forfeiture, the partnership must include any deductions made for that partner as income.

Organization and Syndication Expenses

§ 709
(a) Organizational expenses and expenses in connection with the promotion and sale of partnership interests
(syndication fees) are not deductible.
(b) The partnership may elect to deduct up to $5K of organization expenses in the taxable year in which it begins
business. This amount is reduced by the amount of organizational expenses in excess of $50K. Expenses not deducted
are amortized over a 180-month period. If the partnership liquidates within 180-months, it may deduct the unamortized
portion of its organizational expenses (not capitalized syndication expenses) as a loss under Section 165.

 (b)(3) Organizational expenses are expenditures that are: (1) incident to the creation of the partnership; (2)
chargeable to capital account; and (3) of a character which, if expended to create a partnership having an
ascertainable life, would be amortizable over that life.
a. Reg. § 1.709-2: examples include legal fees, fees to establish an accounting system, and filing fees.
b. Excluded: fees for acquiring assets or transferring assets, expenses connected with a contract relating to
operations, and syndication expenses.
Page 82 Problems
LP organized in Dec. to construct and operate a luxury hotel. Developer will be the general partner and contribute $100
cash for his interest. LP interests of $100K each have been sold by Broker to twenty investors, each of whom has been
furnished with a voluminous prospectus describing the offering. All the investors are clients of Financial Planner, an
affiliate of Broker, who acts as an investment advisor to wealthy individuals.

13
To what extent are the following expenses, all of which are to be paid in the current year out of the $1 mill contributed
by the limited partners, property classified as “organizational expenses” under Section 709(b)(3)?
a) A $100K “placement fee” paid to Broker for his efforts in selling the LP interests? – NOT OE b/c not currently
deductible or amortizable, a “syndication expense.”
b) A $50K “organizational fee” paid to Developer for his services in connection with the organization of the
partnership and negotiating the terms of the P agreement? – YES OE b/c “organizational expense includes feeds
for services incident to the organization of the partnership, such as negotiation and preparation of a partnership
agreement.”
c) $40K paid to attorney for drafting P agreement, filing the necessary papers and preparing the offering
documents? – Depends, drafting partnership agreement and filing papers for partnership formation are
organizational expenses, but registration fees for securities and legal fees of an underwriting, placement agent
or issue or for advice for offering documents are syndication expenses that must be capitalized.
d) $10K paid to Accountant for preparing the financial projections included in the offering documents? – NOT OE
b/c accounting fees for preparation of representations to be included in offering materials are syndication
expenses and must be capitalized.
e) $10K paid to Printer for printing the LP offering prospectus? – NOT OE b/c printing an offering prospectus is an
amount paid to promote the sale of partnership interests and is a nondeductible syndication expense. This type
of expense is not amortizable.
f) $20K paid to Tax Attorney for tax advice to the prospective investors and for preparation of a tax opinion letter
concerning issues affecting the partnership? – Depends.
g) $40K as an initial fee to Financial Planner for matters related to more than just setting up the partnership? –
Depends.

Operations of a Partnership: General Rules

Tax Consequences to the Partnership: Aggregate & Entity Principles
The Partnership as an Entity
§ 701. Partners, not partnership, subject to tax: “A partnership as such shall not be subject to the income tax imposed
by this chapter. Persons carrying on business as partners shall be liable for income tax only in their separate or individual
capacities.”

 Adopts an aggregate approach by providing that a partnership is not a taxable entity. However, partnerships are
treated as an entity for purposes of reporting and determining partnership income or loss (partnership must file
tax return and is treated as an entity for administrative and judicial procedures).
§ 702. Income and credits of partner

 (a) Each partner shall take into account separately his distributive share of the partnership’s gains and losses
from the sales or exchanges of capital assets.
1. Lists (1) – (8) things that must be taken into account.
2. These will be separately stated b/c the partner needs to know his share of capital gains b/c he can use
his personal capital losses against it.
 (b) Provides that the character (ordinary or capital) of a partnership item taxed to the partners is to be
determined as if such item were realized directly from the source from which realized by the partnership, or
incurred in the same manner as incurred by the partnership.
1. Questions involving the holding period or property or the characterization of gains and losses generally
are determined at the partnership level. For example, if a capital asset is sold, a newer partner would
recognize the gain from the sale of the asset based on the partnership’s holding period, not his time in
the firm.

14
§ 703. Partnership computations [probably an unnecessary provision]

 (a) Requires a partnership to determine its own taxable income and provides rules designed to preserve the
character of capital gains, charitable contributions, foreign taxes and other items that may be subject to special
treatment in the hands of the partners.
a. Treat the partnership like an individual, not a corporation or trust. But certain deductions not allowed
and must separately state things in 702(a)
b. Deductions excluded:
i. Personal exemption
ii. SALT taxes
iii. Charitable contributions – to preserve the FMV deduction to the partners (benefit to donate
appreciated property b/c you get to take a deduction equal to the FMV). This provision is here
to ensure the partner’s basis is not reduced too much (only reduced by the basis of the property
contributed).
iv. Net operating loss deductions – this just doesn’t happen at the partnership level.
 (b) The partnership will select its accounting method and make various elections for the partners. And the
partnership will have its own taxable year, which may be separate from the partners. EXCEPT for:
a. Discharge of indebtedness, and
b. Deduction and recapture of certain mining exploration expenditures.
Demirjian v. Commissioner (3rd Cir.) – the partners had to recognize a gain of $54K b/c the partnership failed to make a
§ 1033 election and making the election on their own behalves was not sufficient.

Assignment of Income
Schneer v. Commissioner (taxed on what you take out, not what you bring in) – when a partner leaves one partnership
and joins another and assigns FUTURE income from his past partnership to his new partnership, the FUTURE income is
partnership income and passes through to the distributive shares. The income must relate to the business practice of the
partnership. However, where the income is already earned but not yet received OR already earned and already received,
it is taxed to the partner who earned it.
 Facts: this partner was to earn income from clients at his past firm, but he still had to consult with the old firm
and it was not necessarily earned until these things happened. Therefore, he was not assigning already earned
income.
 This court had to reconcile Lucas v. Earl (cannot assign income to others, must be taxed to you) and Rev. Rul. 64-
90 (fees received by partner is included in partnership income).
 Concurrence: this should be taxable to the partner, but then his contribution to the partnership gets a deduction
and all is distributed to all partners.
 Dissent: should be taxable to the partner b/c he failed to show this was not income for past services.
 Dissent: thinks the question should be whether the income was earned by the partnership or by the partner
acting as an individual.
 If he did get a capital account for this, then 704(c) would apply and all income would pass to him.

The Taxable Year

§ 706
 (a) If partner & partnership has different taxable year, requires a partner to include his share of partnership
income, losses and other items in his tax return for the taxable year in which the partnership’s year ends.
Partner report income for any taxable year of a partnership that ended during the partner’s taxable year.
1. Ex. if partnership year ends at the very beginning of the calendar year and the partner uses a calendar
year, it allows the partner 11 months of deferral. This is prevented now, see below.
 (b) Requires a partnership to determine its taxable year by reference to a series of mechanical rules related to
the taxable years of its partners unless the partnership can establish a “business purpose” for using a different
taxable year.
15
 1. If one or more partners having a majority interest have the same taxable year, the partnership must also
use that year; OR
2. The partnership must use the same taxable year as ALL its “principal partners” (5% or more interest) if
they are the same; OR
3. Use the taxable year that results in the least aggregate deferral of income to the partners UNLESS the
Secretary by regulations prescribes another period (this is essentially useless now b/c the regulations say
the option that results in the “least aggregate deferral” must be used).
 “Business purpose” exception tests:
1. 25% test: a natural business year exists if 25% or more of the partnership’s gross receipts for the
selected year are earned in the last two months. This test must be satisfied in each of the preceding
three 12 month periods.
2. Facts and Circumstances Test: factors that DO NOT meet this test include (1) the use of a particular year
for regulatory or accounting purposes, (2) the seasonally hiring patterns of a business, (3) the use of a
particular year for administrative purposes, such as retirements, promotions, or salary increases, and (4)
the fact that a business involves the use of price lists, a model year, or other items that change annually.
i. Not likely to get this exception under this test.
 § 444 Election: partnerships may elect a taxable year other than the year required by the mechanical test in §
706(b) under certain conditions, including the payment of an entity level tax designed to eliminate the benefits
of deferral at the partner level. But can only go three months back.

Problems Page 104

What taxable year must newly formed Partnership adopt under § 706(b) in each of the following alternatives?

1. All partners are calendar year taxpayers?

a. The calendar year b/c that is what all the partners do. [706(b)(1)(B)(i)].
2. Partnership has a 20% corporate general partner which uses a July 31 fiscal year and 20 individual 4% limited
partners all of whom are on a calendar year?
a. Calendar year [706(b)(1)(B)(i)].
3. What result in (2) if on the first day of year four, 10 of the limited partners sell their interests to the corporate
general partner?
a. Use a July 31 fiscal year b/c the majority interest uses it. [706(b)(1)(B)(i)]. When this sale happens, the
partnership has to then change its calendar year. Partnership would have to file a short period return
(stub period). If forced to make a change because of this, you do not have to change for another three
years. [706(b)(4)(B)].
4. What result in (2) if 10 of the limited partners use a September 30 fiscal year and the other 10 use a calendar
year? [706(b)(1)(B)(ii)].
a. No majority interest, but the general partner is the only principal partner (all limited partners only have
a 4% interest). Therefore, the partnership must have a July 31 year with no 3 year grace period.
5. What result in (2) if Partnership wants to adopt a September 30 fiscal year under 706(b) in order to have
sufficient time to gather tax information for its calendar year partners?
a. § 444 election but will have to pay for benefits of deferral, this is not a good business purpose.
6. What result in (2) if over the prior five years Partnership has been in the retail business and does 20% of its
annual business in December and 10% of its business in January in post-Christmas sales. Partnership has been
using a calendar year. It wishes to change to a January 31 fiscal year. May it do so? If so, is it a § 444 election and
a § 7519 required payment necessary?
a. This meets the business purpose test.

Tax Consequences to the Partners

General Rules
§701: each partner is taxed on his or her share of partnership income or loss.
16
§702(a): must state partner income separately and certain deductions not allowed.

 Reg. § 1.702-1(a)(8)(ii) – if it makes any difference, state it separately. Ex. Investment income.
§703(a): partnership computes taxable income in the same manner as an individual.
§705(a): requires adjustments to partners’ outside basis.
 Increased by: partnership’s taxable income and tax-exempt income.
 Decreased by: partnership distributions in § 733, the partner’s share of partnership loss, and his share of
partnership expenditures which are not deductible and not capitalized (ex. to ensure the partners have to deal
with the fact that the partnership can only deduct 50% of business expenses).
Problems on Page 107
(a) How and when will AB, A & B report the income and who will be liable for the taxes? [702(a)]
 Short-term gain/loss stated separately
 Long-term gain/loss stated separately
 1231 gain/loss stated separately (capital gain/loss when selling capital assets for more than you purchased them
for)
 Charitable contributions stated separately
 Dividends stated separately
 1231 casualty gain/loss stated separately
 Interest on margin account [investment interest] – interest paid when borrowing money to make investments
are allowed as a deduction only to the extent of income from investments (excluding capital gain income) [Reg.
§ 1.702-1(a)(8)(ii)]
 The rest is lumped together, except for tax-exempt interest.
(b) Assume this is the first year of partnership operations, A’s basis in his partnership interest is $70K and B’s basis in her
partnership interest is $40K. What will be the tax consequences of AB’s first year of operations to A and B?
 Income to both in the amount of $29,600 passed through. Outside basis goes up by that amount (amount
lumped together, separating doesn’t matter). A’s basis is now $99,600; B’s basis is now $69,600. And then
increased by tax-exempt income. So basis increases by $250 for each.
(c) What would be the result in (b) if the partnership distributed $20K in cash to each partner at the end of the year?
 No income, unless money received exceeds outside basis. But basis goes down. §§ 731, 732, 733.
(d) Would it matter if the § 1231 gain on the sale of the machine would have been ordinary income if A had sold it
individually?

Electing Large Partnerships (ELP)

§ 771 Application of subchapter to electing large partnership. “The preceding provisions of this subchapter to the
extent inconsistent with the provisions of this part shall not apply to an electing large partnership and its partners.”
§ 772 Simplified flow-through. Partner’s distributive share is recorded in a less burdensome way.
§ 773 Computations at partnership level. Similar to the usual rules, income determined as if an individual, elections
made by partnership. However, less exclusions apply and more stuff happens at the partnership level, such as
determining capital gains and charitable contributions.
§ 775 Electing large partnership defined.

17
  (a) An ELP is generally any partnership with 100 or more partners in the preceding taxable year that makes an
election to apply the simplified rules for reporting distributive shares. This does not include persons holding
interests through another partnership.
 (b) Exclusions. Service partnerships, such as law and accounting firms cannot make ELP elections.

Limitations on Partnership Losses

Basis Limitation
§ 704(d) Limitation on allowance of losses. “A partner’s distributive share of partnership loss (including capital loss)
shall be allowed only to the extent of the adjusted basis of such partner’s interest in the partnership at the end of the
partnership year in which such loss occurred. Any excess of such loss over such basis shall be allowed as a deduction at
the end of the partnership year in which such excess is repaid to the partnership.”
 Reg. § 1.704-1(d): if the partnership has both ordinary and capital losses, the partner’s loss is allocated to reflect
the composition of the partnership’s loss.
 The carryover loss terminates when the partner sells his interest or dies, but it may carryover to a donee
partner.
Problem Page 111
C & D are partners who share income and losses equally. C has an outside basis of $5K in his partnership interest and D
has an outside basis of $15K in her partnership interest.
(a) During the current year the partnership has gross income of $40K and expenses of $60K. What are the tax results to
C and D?

 Both have $10K share in loss. D’s basis will be $5K. C will have excess that will have to be carried over.
(b) What are the results to C & D in the succeeding year when the partnership has $20K of net profits?
 D’s basis will become $15K. C can use some of his loss carryover and his basis will be $5K and he will only be
taxed on that amount.
(c) How might C have alleviated his problem in the first year?
 Contribute money to increase his basis or have the partnership borrow money to do so.
(d) What result in (a) if the net $20K loss consists of $15K of ordinary loss and $5K of long-term capital loss?
 The extent of C’s loss can be $5k so multiply that by (7.5/10) to determine the amount of ordinary loss (3.75K)
AND 1.25K capital loss. C’s carryover loss will be 3.75K ordinary loss (7.5-3.75) and 1.25K capital loss (2.5-1.25).
(e) What result to S, C’s son, in (a) if C gives his interest in the partnership to S on the first day of a year in which the
partnership has profits of $20K?

 Probably cannot give the carryover to his son. Lifetime gift donees generally cannot take your losses [§1015].

At-Risk Limitation
§ 465 Deductions limited to amount at risk: Partners are subject to the section 465 at-risk rules, which limit the amount
of deductions from a broad range of business and investment activities to the amount that is at-risk. These rules are
applied at the partner level and are applied separately to each “activity” in which a partnership is engaged.
 Amount “at-risk” list in 465(b) (moves up and down with income/loss distributions like outside basis)
a. Cash contributed
b. Basis of property contributed
c. Amount of debt for which taxpayer is personally liable (assume partnership worthless but all partners
are solvent)
18
 d. Nonrecourse loan from commercial lender secured by real estate
e. NOT loans from activity’s owners or related parties
 Initial at-risk amount is what typically goes into calculating basis but DOES NOT include nonrecourse loans and
property encumbered by them.
a. However, there is an exception for qualified nonrecourse financing (nonrecourse loans secured by real
property granted by a commercial lender or the government).
 Excess losses within an activity can be carried over and deducted when the taxpayer becomes at risk, the
partnership disposes of the activity, or the taxpayer disposes of his partnership interest. If a loss is deferred, the
partner’s outside basis is still reduced by the loss.
 Hubert Enterprises, Inc. v. Commissioner – provision in partnership that required partners to restore a deficit
capital account balance did not place these partners at-risk. Therefore, partners cannot take a deduction under
465 for these amounts.
Problems Page 115
(1) LP is a limited partner in a newly formed partnership which is engaged in the following activities:
1. R&D activity to which LP contributed $10K; LP’s share of partnership nonrecourse liability attributable to this
activity is $10K. LP’s share of loss from the R&D activity is $12K for the current year.
2. A motion picture production activity to which LP contributed $20K cash; LP’s share of income from this activity
for the current year is $25K.
a. LP’s outside basis at the beginning of the year was $40K and his share of net gain was $13K. What are
the tax consequences to LP under § 465? - $2K from activity #1 needs to be carried over.
(2) ABC limited partnership purchased an apartment building for $540K paying $90K cash (contributed equally)) and
financing the balance with a $450K nonrecourse loan secured by the building. Assume A, B, and C are all unrelated and
the partnership holds no other assets. To what extent are each of the partners at risk if the loan is:
1. From a commercial bank in which none of the parties owns an interest.
2. From the seller of the apartment complex.
3. From B’s brother, who is in the money lending business and makes the loan at a rate of interest 25% below
comparable rates charged to unrelated borrowers.
4. The same as (c), except the loan is at regular commercial rates of interest.

Passive Loss Limitations

§ 469 Passive activity losses and credits limited: These rules are applied at the partner level, not partnership. And they
are only applied after the 704(d) and 465 limitations. Breaks life into 3 categories: active businesses (employment),
passive activities (rental, etc.), and portfolio (stock market, etc.).
 (a) Deductions and credits from passive activities can only be taken to the extent of income from passive
activities.
 (b) Excess losses can be carried forward to future years.
 (c) Passive activity means any activity (A) which involves the conduct of any trade or business, and (B) in which
the taxpayer does not materially participate.
1. (2) Includes any rental activity.
a. (c)(7) Rental activity exception for taxpayers in the real property business.
b. (i) Rental activity exception for “mom and pop” rentals – they can take a deduction of $25K. AGI
cannot exceed $100K, phase out.
2. (3) Passivity activity does not include a working interest in any oil or gas well which the taxpayer holder
directly or through an entity that doesn’t limit the taxpayer’s liability with respect to the drilling or
operation. Only applies to general partners.
 (g) Disallowed losses from a particular activity (but not credits) may be deducted in full on a taxable disposition
of the entire activity.

19
  (h) A taxpayer shall be treated as materially participating in an activity only if the taxpayer is involved in the
operations of the activity on a basis which is (A) regular, (B) continuous, and (C) substantial.
1. (2) Limited partners are per se passive (includes non-managing LLC members). Regulations provide
exceptions for active LPs and LLC members.
Limited Partners: presumed to materially participate only if: (1) participate in more than 500 hours in the taxable year,
(2) materially participated during any of the preceding 5 years, or (3) the activity is a personal service activity and the LP
materially participated in the activity for any three tax years. But a limited partner’s share of income received for the
performance of series is not treated as income from a passive activity.
ELPs: a partner in an ELP takes into account separately the partner’s share of taxable income or loss from (1) passive loss
limitation activities and (2) other activities. A partner’s distributive share of an ELP’s taxable income or loss is treated as
being from a single passive activity so an ELP doesn’t have to separately report items from each activity.
Publicly Traded Partnerships: a partner’s passive losses from a PTP that is taxed as a partnership may be deducted only
against passive income from the same PTP.
Problems Page 122
(1) Producer owns a 40% GP interest and 20% LP interest in PG-14 Associates, a motion picture production partnership
which also pays Producer a $100K annual salary for her services as a full-time (1500 hours per year) producer. After
deducting Producer’s salary, the partnership has a $300K net loss in the current year. Producer’s aggregate outside basis
for her partnership interests at the beginning of the year is $350K. Producer’s outside basis is attributable to cash
contributed to PG-13 Associates.
a. What are the tax consequences to P for her interests for the current year?
b. What result in (a) if P spends most of her time farming and only devotes 300 hours during the year to PG-13?
c. What result in (b) if P had devoted 1500 hours to PG-13 during each of the previous 5 years?
d. What result in (b) if the partnership’s loss for the year is only $200K b/c it also realizes $60K of dividend income
and $40K of net gains from sales of marketable securities?
e. What result in (b) if P also has $75K of income from an interest in a “burned out” real estate LP interest?
f. What result in (b) if P also has a $25K loss from a rental real estate LP interest?
g. What result in (b) if P also has a $50K loss from an investment in a GP that owns a working interest in an oil and
gas property?
h. Same as (g) except P holds her interest in the oil and gas partnership as a LP?
(2) During the current year LP has investments in four limited partnerships as follows:
a. Motion picture productions limited partnership in which LP has an outside basis of $10K attributable to LP’s cash
contribution to the partnership. LP’s distributive share of loss in this partnership for the current year is $25K.
b. An equipment leasing limited partnership in which LP has a $100K outside basis attributable to a $15K cash
contribution and an $85K nonrecourse liability. LP’s share of loss for the year is $200K.
c. A real estate limited partnership in which LP has a positive outside basis and his share of partnership income is
$30K for the year.
d. A R&D limited partnership in which LP has an outside basis of $60K attributable to his $60K cash contribution to
the partnership. LP’s share of the partnership’s loss for the year is $40K.
(3) Consider to what extent LP may deduct his share of losses from these partnerships for the current year, assuming he
has no carryovers under sections 704(d), 465, or 469.

Partnership Allocations

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 Introduction
Relevant Code Provisions
§ 702: partner puts down his share of distributive share on his personal tax return.
§ 704(a): a partner’s distributive share of income, gain, loss, deduction or other tax items shall be determined by the
partnership agreement.

 (b): if there is no allocation agreement, distributive shares are determined “in accordance with the partner’s
interest in the partnership,” taking into account “all facts and circumstances.”
a. Use this if there is no partnership agreement, or the allocation under the agreement does not have
substantial economic effect.
i. Substantial economic effect requires (1) maintaining capital accounts in a certain way, (2) honor
the capital accounts upon liquidation, and (3) negative capital accounts must be paid back on
liquidation.
§ 761(c): defines the partnership agreement as including any modifications up to the time for filing the partnership’s tax
return. This allows “special allocations,” which differ from the partners’ respective interests in partnership capital.

Special Allocations under § 704(b)

The Substantial Economic Effect Concept
Orrisch v. Commissioner – under the old rule, a special allocation would be disregarded if its primary purpose is tax-
avoidance rather than a usual business purpose. In this case, the court found that the special allocation of depreciation
deductions to one of two partners was adopted for tax-avoidance and therefore disregarded. If there is a “substantial
economic effect,” the primary purpose is not tax-avoidance. When determining allocation, the court just looks to the
usual allocation of profits and losses. The court required the deduction for depreciation to be allocated between the
parties in the same manner as other deductions.
1. Everything must even out in the end (focused on what would happen if the partnership liquidated). This is still a
focus of the IRS. Now, we look at the partners’ capital accounts b/c it can tell you what will happen in the end.
2. Now you can allocate all depreciation to one partner, but they must be the one to feel it if the property declines
in value.

The § 704(b) Regulations: Basic Rules

3 Ways to have an Allocation be Respected. Reg. 1-704(b)(1)(i):
(1) The allocation can satisfy the standards for having substantial economic effect. Reg. 1-704(b)(2).
 (b)(2)(ii). “Economic effect” means the allocation must be consistent with the economic business deal of the
partners – an objective test. The partner to whom the allocation is made must receive such economic benefit or
bear such economic burden.
a. Primary test – (b)(2)(ii)(b): economic effect if the partnership agreement provides that (1) capital
accounts must be determined and maintained in accordance with Reg. § 1.704(b)(2)(iv); (2) upon a
liquidation of the partnership or of any partner’s interest, liquidating distributions must be made in
accordance with the positive capital account balances of the partners, and (3) if a partner has a deficit
balance in his capital account following the liquidation of his interest in the partnership, he must be
unconditionally obligated to restore the deficit by the later of (a) the end of the taxable year of the
liquidation of the partner’s interest, or (b) 90 days after the date of liquidation.
i. This test is not favored by limited partners b/c they do not want to agree to (3) to pay back the
partnership for deficits. (b)(2)(ii)(c) allows the partners to only comply with (1) and (2) if the
partner signs a promissory note when the balance becomes negative or if state law requires him
to do so. Essentially, (3) is not required if neither partner’s capital account ever goes below zero.

21
 ii. (b)(2)(iv). Maintenance of Capital Account: to have this test met, capital accounts must be
maintained properly and defined in accordance with the regulations. Must be increased by (1)
amount of money contributed, (2) the FMV of property contributed, and (3) allocations to
partner of partnership income and gain (including income and gain exempt from tax). Decreased
by . . . These rules typically require determining the “book value” of the capital accounts, which
means it may differ from a partner’s outside basis. For example, property contributed and
distributed is valued at its FMV, not adjusted basis. Determined when income passes through.
1. To prevent inflated FMV, if the partners have adverse interests they may determine the
amount, or they must use the usual “willing buyer/willing seller” analysis.
b. Alternate Economic Effect - (b)(2)(ii)(d): if (1) and (2) are met above, this test allows the economic
effect standard to be met without (3). Under this test, an allocation will have economic effect to the
extent that it does not create or increase a deficit in the partner’s capital account and the partnership
agreement includes a provision known as a “qualified income offset” – which requires any partner with
a deficit capital account as a result of unexpectedly receiving a distribution to be allocated items of
future income until the deficit is eliminated.
i. To prevent partners from careful timing of distributions that could ruin this test, special rules
require partners to reduce their capital accounts by
1. Reasonably expected oil and gas depletion allowances;
2. Reasonably expect loss or deduction from special circumstances [704(e)(2), 706(d), and
Reg. 751-1(b)(2)(ii)]; AND
3. Distributions that are reasonably expected as of the end of the partnership year.
ii. Basically you get deductions until capital account hits zero. At that point you get no more
distributions and you are taxed on distributions and the other special things listed above
(distributions are generally not taxed).
c. Economic Effect Equivalence - (b)(2)(ii)(i): if the first two tests are not met, this is the fallback.
Allocations are deemed to have economic effect if the partnership agreement, interpreted by reference
to applicable state law, ensures that a liquidation of the partnership as of the end of each partnership
taxable year will produce the same economic results as if the primary test was used.
 (b)(2)(iii) “Substantial” is subjective and the economic effect of an allocation is substantial if there is a
reasonable possibility that the allocation will affect substantially the dollar amounts to be received by the
partners from the partnership independent of tax consequences.
a. Special rules for shifting and transitory allocations: two circumstances where the allocations will be
insubstantial regarding offsetting allocations in the same taxable year (shifting) and offsetting
allocations in the span of two or more taxable years (transitory).
i. (b)(2)(iii)(b) Shifting – if when making the allocation in the agreement, there is a strong
likelihood that capital accounts will be unaffected, but there will be a reduction in tax liability
after taking into account the partner’s individual tax consequences unrelated to the partnership.
This may occur where partners want to utilize capital or ordinary losses to offset their personal
income.
ii. (b)(2)(iii)(c) Transitory – an example is allocating all income to one partner in year one and
splitting it between the other two for the following two years.
1. We assume FMV is declining as much as its book value for this purpose.
b. General Rule for Substantiality: not substantial if, at the time the allocation became a part of the
agreement (1) the after-tax economic consequences of at least one partner may, in present value terms,
be enhanced compared to such consequences if the allocation were not contained in the partnership
agreement AND (2) there is a strong likelihood that the after-tax economic consequences of no partner
will, in present value terms, be substantially diminished compared to such consequences if the
allocation were not contained in the partnership agreement.
c. Safe Harbors [DID NOT GO OVER]:
i. Five-year Rule: if the offsetting allocation will not be made within 5 years, it will not be
considered transitory.
22
 ii. Basis Equals FMV (value equals basis): assuming basis equals FMV allows that there cannot be a
strong likelihood that original cost recovery deductions will be offset by the later offsetting
allocations of gain on sale.
(2) Taking into account all facts and circumstances, the allocation can be in accordance with the partner’s interest in the
partnership – should be allocated in manner that partners share the economic benefits and burdens. This is determined
with an item-by-item approach, not overall interest. Reg. 1-704(b)(3).
1. Factors to determine partner interest:
a. The relative contributions of the partners to the partnership;
b. The interests of the partners in economic profits and losses if they differ from their interests in taxable
income or loss;
c. The interests of the partners in cash flow and other non-liquidating distributions; AND
d. The rights of the partners to distributions of capital upon liquidation.
2. If allocation is upset b/c the partnership agreement fails to include an unlimited deficit make-up, the disallowed
portion of the allocation (b/c it cannot be negative) is determined by comparing (1) the manner in which
distributions and contributions would be made if all partnership property were sold at book value and the
partnership were liquidated following the end of the taxable year in which the allocation relates, WITH (2) the
manner in which distributions and contributions would be made if all partnership property were sold at book
value and the partnership were liquidated immediately following the end of the prior taxable year.
(3) The allocation can be deemed to be in accordance with the partner’s interest in the partnership under one of several
special rules that apply to specific tax items. Reg. 1-704(b)(4).
1. Allocations of Depreciation Recapture: a partner’s share of recapture gain generally is equal to the lesser of (1)
the partner’s share of the total gain from the disposition of the property, OR (2) the total amount of
depreciation previously allocated to the partner with respect to the property.
2. Allocations of Tax Credits: not generally reflected in capital accounts and cannot have economic effect. Tax
credits and recapture of tax credits must be allocated in accordance with the partners’ interest in the
partnership.
Page 160 Problems

(1) A and B each contribute $100K upon formation of a limited partnership. A is a general partner and B is a limited
partner. The partnership purchases an office building on leased land for $200K and elects straight-line cost recovery.
Assume that the property has a 10-year recovery period. The partnership agreement allocated all items of income and
loss equally with the exception of the cost recovery deductions, which are allocated entirely to B. Assume that both
partners are unconditionally obligated to restore a deficit to their capital accounts upon a liquidation of the partnership.
a) Assume that apart from cost recovery deductions, the partnership’s rental income is equal to its operating
expenses. What must the partners’ respective capital account balances be at the end of year one if the
allocation of cost recovery deductions is to have economic effect?
1. The partnership only has a $20K net operating loss deduction for the year. Basis and BV of property is
decreased by $20K. B’s basis and BV must decrease by $20K. So all depreciation deduction to B, keep
capital accounts per regulations, and honor capital accounts.
b) Assume the partnership sells the building on Jan. 1 of year two and immediately liquidates. Again, with an eye
toward qualifying the allocation, how must the proceeds be distributed if the building is sold for $180K? For
$200K?
1. If sold for $180K, B must get $80K and A must get $100K. Distributed in accordance with their capital
accounts. If depreciation does not turn out to be real, most partnership agreements include
“chargeback” provisions stating the person who takes the deduction gets all the gain if there is any. If
sold for $200K, B gets $80K, A gets $100K and then B must pay tax on the extra $20K.

23
 c) Assume the agreement further provides that gain on disposition will be allocated to B to the extent of the cost
recovery deductions specially allocated to her. What result when the partnership sells the building on Jan. 1 of
year two for $200K?
1. This is talking about the “chargeback” provision. Without this, they would split the $20K.
d) Assume that B is not required to restore a deficit in her capital account, but the partnership agreement includes
a “qualified income offset.” If the partnership continues to operate the building, what is the result to A and B in
year one? In year six?
1. In year one, B would not have a deficit but in year six he would. Without the qualified income offset or
promise to restore, his account would be negative but he would have no requirement to restore it so he
does not feel the economic impact. However, if your allocations never make the capital account
negative, #3 of the big three is not really needed. So (1) and (2) can be used alone with a qualified
income offset as long as the capital account never goes negative (start allocating the depreciation
deductions to the other partner in year six). Once it goes negative, he will be taxed on distributions.
e) What results in both years under the facts in (d), if in addition B has contributed her promissory note for $100K
to the partnership?
1. Economic Effect Equivalence test [(b)(2)(ii)(i)]. Can do this.
f) What results under (e) if in year six the building has a $400K FMV and A & B acting as partners, agree that they
will borrow $200K on a recourse basis, using the building as security, and distribute the proceeds equally to
themselves early in year seven?
g) What result in (e) if in year six the value of the building is $300K and A and B acting as partners agree that when
its value reaches $400K they will take out a $200K recourse mortgage and distribute the proceeds equally?
h) Assume that B is not required to restore a deficit in her capital account and that the partnership agreement does
not contain a “qualified income offset.” IF the partnership continues to operate the building, what is the result
to A and B in year one? In year six?
i) What results in both years under (h) if in addition B has contributed her promissory note for $100K to the
partnership?
(2) C & D are equal partners in a general partnership formed to design and produce clothing for sale to retailers located
throughout Europe and the United States. D is a nonresident alien. At the beginning of the tax year, the relative dollar
amounts of United States and foreign source income cannot be predicted. Any foreign source income allocated to D is
exempt from United States taxation. Assume that all of the following allocations have economic effect.
a) What result if the partnership agreement provides that all U.S. source income will be allocated to C, and all
foreign source income will be allocated to D?
a. Not a shifting allocation b/c the capital accounts are substantially affected.
b) What result if the agreement provides that all income will be shared equally but that D will be allocated all the
foreign source income up to the dollar amount of her 50% share of income?
a. This is a shifting allocation b/c there is no substantial economic effect. The capital accounts will be the
same but they are reducing tax liability.
c) Assume, instead, that at the beginning of the tax year it can be predicted that the relative dollar amounts of U.S.
and foreign source income will be roughly equal. What result if the agreement provides, as in (a), that all U.S.
source income will be allocated to C and foreign source income to D?
a. Transitory allocation.
(3) E & F form a limited partnership to purchase and lease a computer for $1 million. E, the limited partner, contributes
$990,000 and F, the general partner, contributes $10K. The agreement provides that section 168 cost recovery
deductions will be allocated entirely to E and that all other items of income or loss will be allocated 99% to E until he has
been allocated income equal to his share of cost recovery deductions and partnership losses. Thereafter, E & F will share
income and loss equally. Assuming the capital account, liquidating distribution, and deficit restoration tests are met, will
the allocations be respected? See Reg. 1.704-1(b)(5) examples (2) and (3).

Allocations Attributable to Non-Recourse Debt

Overview
24
  No allocation of deductions attributable to nonrecourse debt can have substantial economic effect (because no
matter what, the debtor can walk away – no partner is suffering).
 Reg. § 1.704-2. The regulations allow these deductions to be allocated to partners to whom the related
minimum gain will be allocated (who will pay tax later b/c there is a reduction in the basis for the deduction)
(minimum gain chargeback). Can basically allocate these deductions as you want.
 Recourse Debt Example: A & B put in $100 each. The partnership borrows $1K on a recourse basis and buys
equipment with 4 year straight line depreciation ($250/year). Big 3 are met. Everything shared equally so each
partner takes $125 loss. This is allowed and both have negative capital accounts.
 Since an allocation of nonrecourse deductions must be accompanied by a minimum gain chargeback, the
regulations treat a partner’s share of partnership minimum gain as an increase to the partner’s obligation to
restore a deficit capital account balance for purposes of the alternate test for economic effect. These concepts
are incorporated into a four-part safe harbor test to have allocations of nonrecourse deductions to be upheld.
Definitions

 Reg. § 1.704-2(d) Partnership minimum gain: amount of gain that a partnership would realize if it disposed of
each of its properties that is subject to a nonrecourse liability for no consideration other than satisfaction of the
debt (the excess of the nonrecourse liability over the adjusted basis of the property securing the debt).
 Reg. § 1.704-2(c) Nonrecourse deductions: deductions that relate to a net increase in partnership minimum
gain. Most often cost recovery deductions that reduce the adjusted basis below the amount of the nonrecourse
debt secured by the property. If minimum gain is created from a refinancing, there are nonrecourse deductions
assuming the additional loan amount is not distributed.
 Distribution of nonrecourse liability proceeds allocable to an increase in minimum gain: if there is a
refinancing but the additional loan money is distributed, there is no nonrecourse deduction created. The
regulations allocate the partner’s share of the minimum gain to them, which decreases the partner’s capital
account.
 Reg. § 1.704-2(g) A partner’s share of partnership minimum gain: the sum of the nonrecourse deductions
allocated to the partner and the partner’s share of distributions of nonrecourse liability proceeds allocable to an
increase in minimum gain, reduced by the partner’s share of any prior net decreases in partnership minimum
gain. Partners need to keep track of their respective shares of partnership minimum gain.
 Reg. § 1.704-2(f) Minimum gain chargeback: the purpose is to balance the books and recapture the
nonrecourse deductions previously allocated to a partner that did not result in a corresponding economic
burden. Also occurs when the amount due on a nonrecourse liability is reduced or when it is converted to
recourse. If the partner contributes money to pay the nonrecourse debts, the capital account increases and his
share of the partnership minimum gain decreases. When changing to recourse, there is no chargeback to the
partner who bears the risk of the recourse liability.
a. If depreciation was split 80/20 and later changes to 50/50, the minimum gain chargeback still requires
the “minimum gain” to be split 80/20.
Safe Harbor Test – Reg. § 1-704-2(e)
Allocations of nonrecourse deductions will be respected if:
 Throughout the life of the partnership, the partnership agreement must satisfy the requirements of either The
Big Three test or the alternative test for economic effect.
 Beginning in the first taxable year in which the partnership has nonrecourse deductions and thereafter for the
life of the partnership, nonrecourse deductions must be allocated in a manner that is reasonably consistent with
allocations (having substantial economic effect) of some other significant partnership item attributable to the
property securing the nonrecourse liabilities of the partnership (other than allocation of minimum gain).
 Beginning in the first year in which the partnership has nonrecourse deductions or makes a distribution of
proceeds of a nonrecourse liability allocable to an increase in partnership minimum gain, the partnership
agreement must contain a minimum gain chargeback (as required by paragraph (f)).
a. Reg. § 1-704-2(f)
25
  All other material allocations and capital account adjustments under the partnership agreement must comply
with the basic section 704(b) regulations.
If this test is not met, determined under all facts and circumstances test. 1.704-1(b)(3).
Problem on Page 172
G&L form limited partnership. G contributes $80K, L contributes $320K. The partnership borrows $1.6 million to buy a
building worth $2 million. The loan is depreciable. Depreciation is $200K/year. Partnership agreement gives 20% to G,
80% to L until the partnership breaks even (no more start up loss) and then it will be 50/50. Only G is required to restore
capital account and there is an income offset for L and minimum gain chargeback provision. Rights to distributions will
be 20/80 until break even, then it will be 50/50.
a) Assume that rental income from the property of $150K equals operating expenses (including interest on the
nonrecourse debt) of $150K. Determine the allocation of the partnership’s cost recovery deductions in each of
the first three years of operations and determine the partners’ capital accounts at the end of each year.
a. Partners now have tons of basis (G: $400K, L: $1.6 mill). Depreciation of $200K in the first year allocated
20/80 (G: $40K loss; L: $160K loss). Basis down (G: $360K, L: $14.4 mill) and capital account down (G:
$40K, L: $160K). Year two depreciation of $200K, but capital accounts are now at zero. The basis of the
building is now equal to the amount of the loan. In year three the capital accounts would be negative
and the basis of the property is less than the loan. In year three, still allocate the $200K depreciation
20/80 and both accounts are allowed to go negative.
b) Same as (a), except the partnership agreement provides that L will be allocated 99% and G 1% of all the
partnership’s cost recovery deductions.
a. Everything else is 80/20, except this 99/1. However, there is no significant partnership item being
allocated 99/1 also as required by (e). Still under Reg. § 1.704-1 until there is actually minimum gain
(property’s new basis is less than amount of debt). Even though one partner’s capital account is negative
in year two, the lenders money is not being lost yet. So still in -1 until year 3. And since there is only a
qualified income offset, L cannot take his capital account negative. In -2 in year 3 and its fine as long as
the 99/1 is ok and the minimum gain is also allocated that way.
c) Same as (a), except that the partnership agreement provides that L will be allocated 70% and G 30% of all the
partnership nonrecourse deductions.
d) Is there an allocation under the minimum gain chargeback in (a) if at the end of year four G contributes $80K
and L contributes $320K to the partnership, which uses the funds to pay down $400K of the liability.
e) Is there an allocation under the minimum gain chargeback in (a) if during year four the partnership converts
$600K of the $1.6 million nonrecourse liability to a recourse liability? Determine the partners’ capital accounts
at the end of years four and five.
f) What results in (a) in year four if in that year, when the property has depreciated in value, the partnership incurs
an additional $300K of nonrecourse liability and it distributes the proceeds $60K to G and $240K to L?

Target Allocations
Many partnerships use target allocations (allocations of income, gain, loss, and deduction explicitly made in a manner
that adjusts the capital account balance of each partner to equal the amount that the partnership will distribute to the
partner when the partnership liquidates by tiers that do not reference capital accounts). These allocations do not meet
the big three requirements or alternate test, but are usually consistent with the partners’ interests in the partnership
standard. These are fine, because people are not trying to avoid tax consequences but just want a certain economic
deal.

Allocations with Respect to Contributed Property

Introduction
§ 704(c)(1)(A): Items of income, gain, loss or deduction with respect to property contributed by a partner to a
partnership shall be shared among the partners as to take account of the variation between the basis of the property to

26
the partnership and its FMV at the time of contribution (passes thru to partner who contributed the property). Because
there is no substantial economic effect, there is no change to the capital account.
 The regulations apply to 704(c) property (property that at the time of its contribution has a FMV that differs
from the partners’ adjusted basis). The property has a built-in gain (FMV > adjusted basis) or built-in loss (FMV <
adjusted basis).
 Three permissible methods of allocation: (1) the traditional method, (2) the traditional method with curative
allocations, and (3) the remedial method.
 A partnership may disregard or defer the application of 704(c) if there is a small disparity between the book
value and adjusted basis (<15% difference).

Sales & Exchanges of Contributed Property

704(c) Allocation Methods

 Reg. § 1.704-3(b) Traditional Method: generally requires a partnership to allocate any built-in gain or loss to the
contributing partner. The “ceiling rule” states that total gain or loss allocated to the partners may not exceed the
tax gain or loss realized by the partnership. So if there is a built in loss, just allocate the tax gain to the
contributing partner, but then you DO NOT allocate the loss equally. Ex. basis of property is $12K, FMV is $20K.
It is sold for $15K. A gets a $3K tax gain.
 Reg. § 1.704-3(c) Traditional Method with Curative Allocations: allows a partnership to make reasonable
curative allocations of other partnership tax items of income, gain, loss, or deduction to correct ceiling rule
distortions. It has no economic effect on the partners’ capital accounts.
a. Reasonable if: (1) it does not exceed the amount necessary to offset the effect of the ceiling rule and (2)
the income or loss allocated is of the same character and has the same tax consequences as the tax item
affected by the ceiling rule.
b. Ex. basis of property is $12K, FMV is $20K. It is sold for $15K. A gets a $3K tax gain. You cannot take an
equal fake deduction also, but can make future curative allocations. In the future essentially, the
contributing partner will pay tax on income allocated to the non-contributing partner.
c. This is probably the best method b/c deductions are handled in a more logical way than with remedial
methods.
 Reg. § 1.704-3(d) Remedial Method: allows the partnership to restore its books to good health by creating the
tax gain or loss of the appropriate type needed to offset ceiling rule distortions. These also do not affect capital
accounts. The goal is to make a total tax allocation to the noncontributing partner equal to that partner’s share
of book gain or loss. The remedial allocation must have the same effect as the item limited by the ceiling rule.
But the contributing partner is taxed on the amount the other partners are given.
a. Ex. basis of property is $12K, FMV is $20K. It is sold for $15K. A gets a $3K tax gain. Share a $5K loss.
Contributing partner pays tax on the non-contributing partner’s deduction.
Characterization of Gain or Loss on Disposition of Contributed Property
 § 724 seeks to prevent the conversion (from ordinary to capital or vice versa) of gain or loss through
contributions of property to a new or existing partnership.
 § 724 applies to three categories:
a. Unrealized receivables [defined in § 751(c)] are rights to payment for goods or services that have not
been previously included in income. § 724(a) provides that any gain or loss recognized by the
partnership on the disposition of unrealized receivables will be ordinary.
b. Inventory items [defined in § 751(d)(2)] include not only the familiar category of noncapital assets but
also any other property which, upon sale by the contributing partner, would not be considered as a
capital or 1231 asset. Inventory items retain their ordinary income characterization for five years and
then are determined at the partnership level.
c. Capital loss property includes any capital asset held by the contributing partner which had an adjusted
basis in excess of its FMV immediately before it was contributed to the partnership. The built-in loss at
the time of contribution is a capital loss for 5 years and is then determined at the partnership level.
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  § 724(d)(3) prevents partnerships from changing the characterization by exchanging property (like like-kind
exchanges).

Depreciation of Contributed Property

Traditional Method: depreciation deductions are shared equally between the contributing and noncontributing
partners. The ceiling rule applies and creates distortions in book and capital values (can only take depreciation
deductions by valuing the remaining life of the adjusted basis, not the FMV).

 Reg. § 1.704-1(b)(2)(iv)(g)(3). Use same depreciation for book value as you did for basis. If you take 1/10 of basis
for deductions, need to take 1/10 of FMV for book value.
 Reg. § 1.704-3(b).
Traditional Method with Curative Allocations: allows corrections by allocating future items of gain/loss to balance out
issues from the ceiling rule.

 Reg. § 1.704-3(c). Must be consistent and use the same method with each 704(c) property.
The Remedial Method: the portion of the partnership’s book basis in contributed property that equals the tax basis of
the property at the time of contribution is depreciated under the same method used for tax depreciation (over
remaining basis amount—168(i)(7)). The amount by which the book value exceeds the tax basis is depreciated using
another applicable depreciation method.
 Reg. § 1.704-3(d)(2). Split remaining basis based on remaining period. Excess is based on method as if newly
purchased. BV equals those and split equally. Non-contributing partner gets tax deduction for the remaining
period until the building’s basis equals $0. Then give BV depreciation to non-contributing and make the other
partner pay tax (like curative allocations).

Other Applications of 704(c) Principles

 § 704(c) principles are applied when a new partner is admitted to an existing partnership. These rules come into
play if there is appreciated property held by current partners and their capital accounts are re-allocated before
the admission of a new partner.
 Any difference in the book gain or loss from the sale of the property later will only be allocated to the original
partners.

Distributions of Contributed Property

§ 704(c)(1)(B) prevents partners from distributing contributed property to avoid tax consequences if the transactions
occur within seven years of the property being contributed.

Anti-Abuse Rules for Loss Property

§ 704(c)(1)(C) provides that if contributed property has a built-in loss then (1) the built-in loss is to be taken into account
only in determining the amount of items allocated to the contributing partner and (2) in determining the amount of
items allocated to other partners, the partnership’s basis in the contributed property shall be treated as being the FMV
of the property at the time of contribution. This will prevent partners from benefiting from a built-in loss in property
contributed by another partner.
Page 191 Problems

(1) A, B & C form an equal partnership. A contributes accounts receivable for services rendered (AB - $0, FMV - $10K; B,
a real estate dealer, contributes lots held primarily for sale (AB - $5K, FMV - $10K); and C, and investor, contributes land
(AB - $20K, FMV $10K). Unless otherwise stated, the partnership is not a dealer in receivables or land, all contributes
assets have been held long-term by the partners prior to contribution, and the traditional method of allocation is
applied with respect to all contributed property. What tax results in the following alternative transactions:
Capital account = FMV of property contributed.

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 a) The partnership sells the receivables contributes by A for $10K?
1. Same result as if just collected the receivables. All $10K is passed thru to A. § 724 – the gain is ordinary
because it would have been ordinary for A. A’s basis goes up to $10K.
b) The partnership sells the lots contributed by B for $10,600?
1. B would be taxed on $5200 and his basis would go up to $10,200. A and C would both get $200 of gain
they have to pay tax on. The additional $600 is covered by 604(b) and here everything is shared equally.
§ 724 – B is a dealer so ALL the gain is ordinary income.
c) The partnership sells the lots contributed by B for $9,100?
1. 1.704-3(b). $4100 tax gain, but $900 economic loss. Using the traditional method, B is taxed on the
$4100 gain and that is it. The book value loss is shared equally, but there is no tax loss. B’s basis would
increase $4100, but his (and A&C’s capital accounts all decrease by $300).
d) Same as (c) except the partnership elects to use the remedial method of allocation.
1. 1.704-3(d). A & C each get $300 loss, but B is taxed on that $600. B also gets a $300 loss. A’s basis and
capital account is now $9700. B’s is the same. C’s basis is $19700 and his capital account is $9700.
e) The partnership is a real estate dealer and sells the land contributed by C for $17K?
f) Same as (e) except the sale is for $7K?
g) Would the result in any of the above transactions change if all sales had occurred six years after the property
was contributed?
(2) A contributes $100K cash to the AB partnership and B contributes a building with an adjusted basis of $50K and a
FMV of $100K. Unless otherwise stated, apply the traditional method with respect to all contributed property.
a) If the building is depreciable, has a ten-year remaining recovery period and is depreciated under the straight-line
method, how much tax and book depreciation will be allocated to each partner?
a. Depreciation is based on property’s basis (so $5K per year). $5K is given to A per year. Make sure non-
contributing partner has tax equal to book.
b. 1.704-1(b)(2)(iv)(g)(3) [page 1329]. $10K reduction in book value. Use same method – take 1/10 for
deductions, take 1/10 for book value. 1/10th of 100 is 10. A’s basis is reduced by $5000, B gets no
depreciation deduction and his basis stays the same. A & B’s BV are each reduced by $5K.
c. 1.704-3(b). States that non-contributing partner’s depreciation deductions should be equal to book
value decreases.
b) Same as (a) except that B’s basis in the building is $60K?
a. $6K basis depreciation each year. $10K of book depreciation each year. Split book value so then the first
$5K goes to A, the other $1K goes to B.
c) Same as (a) except that B’s basis in the building is $40K?
a. $4K basis depreciation each year. $10K of book depreciation each year. A would just not get enough
deductions to keep his basis equal to his book value under the traditional method. However, this can be
fixed with the curative allocations (future depreciation deductions allocated to A). 1.704-3(c).
b. 1.704-3(d)(2). Or you can use the remedial method. BV has to be decreased with two different
proportions. $40K is based on 10 years ($4K/year). $60K is based on 20 years ($3K/year). Each partner’s
BV decreases by $3.5K. This is done for 10 years and A gets $3.5K of depreciation a year and B gets $500.
After 10 years, the buildings basis will be $0 but there will still be $30K BV. At that point, there is no
more tax depreciation so A is given the BV depreciation and B will pay the tax (like a curative allocation).
d) Same as (a) except that B’s basis in the building is $120K?
a. $12K basis depreciation each year. $10K of book depreciation each year. A’s basis and bv is reduced by
$5K. B gets the extra $7K basis depreciation.
e) If in (a) the building is sold for $90K after it has been held (and depreciated) by the partnership for 2 years, how
must the partnership allocate the tax gain on the sale?
f) Same as (e) except the building is sold for $60K?
g) What result in (c) if the recovery period for the building is 20 years and the partnership elects the remedial
method of allocation?

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(3) A and B, both dealers in real estate, find a parcel of land to purchase for $100K as an investment. They believe it can
be sold in two years for $200K. They either will buy the land as tenants-in-common for $100K and jointly contribute it to
a partnership or contribute $50K each to an equal partnership, which then will buy the land.

Allocation of Partnership Liabilities

Reg. § 1.752-2 & 3
Applicable here, because if the big three is followed, then a partner that must reimburse a negative capital account and
they would have an economic risk of loss.

Introduction
Liability: an obligation to the extent that incurring the obligation (1) creates or increases the basis of any of the obligor’s
assets (including cash), (2) gives rise to an immediate deduction to the obligor, or (3) gives rise to an expense that is not
deductible in computing the obligor’s taxable income and is not property chargeable to capital.

Recourse Liabilities
Generally allocated in proportion to the partners’ respective shares of partnership losses on the theory that loss-sharing
ratios are the best indication of which partners would be responsible for paying the liabilities if the partnership is unable
to so. However, this becomes more complicated when there are limited partners. See problem 1 below.

Non-Recourse Liabilities
Generally allocated among the partners in accordance with their respective shares of partnership profits. This becomes
more complicated with special allocations, partnership minimum gain and section 704(c) built-in gain.
1. 1.752-3(a)(1)-(3) Three-step approach: a partner’s share of nonrecourse liabilities is the sum of (1) the partner’s
share of partnership minimum gain determined in accordance with the section 704(b) regulations, (2) in the case
of nonrecourse liabilities secured by contributed property, the amount of gain that the partner would recognize
under section 704(c) if the partnership disposed of that property in a taxable transaction in full satisfaction of
the liabilities and no other considerations, and (3) the partner’s share of any remaining (“excess”) nonrecourse
liabilities, determined in accordance with his share of partnership profits.
2. (3) Share of Partnership Profits: just specify how it should be allocated in the partnership agreement by stating
“the partners’ interest in partnership profits for section 752 purposes.” If not in the agreement, it is determined
by taking into account all facts and circumstances. Special allocation must match some significant income item.
3. (1) Share of Partnership Minimum Gain: liabilities are allocated in accordance with each partner’s share of
partnership minimum gain. So if all deductions are given to A and there is a minimum gain chargeback provision,
he will be liable and the liability will be allocated to him. (This helps make sure there is enough basis for
partner’s who take these deductions.)
4. (2) Share of Section 704(c) Gain: the nonrecourse liability is allocated to the same partner to whom the
minimum built-in gain is allocated under Section 704(c). This ensures that a partner never runs out of basis for
its nonrecourse depreciation deductions.
a. Rev. Ruling 95-41: if a partner contributes depreciable property with a nonrecourse loan with $6K of
built-in gain, that partner’s individual liabilities are decreased by $6K and his share of the partnership’s
nonrecourse liabilities is determined under 1.752-3:
i. First Tier Allocation: determined on basis of tax basis, not book value.
ii. Second Tier Allocation: includes the amount of taxable gain that would be allocated to that
partner if the property was disposed of in full satisfaction of the debt ($6K-$4K = $2K). However,
the partnership agreement states this will be shared equally so there will be a disparity between
the book and tax allocations. Or the partnership can adopt the remedial allocation method. It
could also use the traditional method with curative allocations.
iii. Third Tier Allocation: excess nonrecourse liability is then allocated because there is an excess of
$4K gain ($10K-$4K = $6K - $2K = $4K).
5. Part-Recourse & Part-Nonrecourse: each are allocated separately under the different sets of rules.

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Problems on Page 210

(1) A, B & C each contribute $20K to form the ABC general partnership. The partnership agreement satisfied the primary
test for economic effect under 704(b). Partnership profits and losses are allocated 40% to A, 40% to B, and 20% to C. The
partnership uses its $60K cash and borrows an additional $40K on a recourse basis and purchases land for $100K.
a) How will the $40K liability be allocated and what will be each partner’s outside basis?
1. 1.752-2(b)(i)-(v). Doomsday scenario is used to determine who is at risk. Apply what the partners would
owe each other (this would include the big three).
i. Partnership assets are all worthless, and sold for zero consideration (property sold for $0, loss of
$100)
ii. Pass through the loss using 704 (A & B are allocated a loss of $40K each, and C is allocated a loss
of $20K; basis of bank debt - $40K – is allocated equally between A&B because they agreed to
suffer more of the loss and their capital account balances are both negative by $20K).
iii. Partnership liquidates
iv. Lender enforces all rights against partnership and partners
v. Partners enforce all rights against each other (all have money)
b) What result in (a) if A, B, and C has contributed $10K, $20K, and $30K to the ABC partnership?
1. Capital account balances are: A (-$30K); B (-$20K); C ($10K). Basis is allocated $50K to A&B, but $10K
goes to C – 3/5 of bank debt goes to A and 2/5 goes to B.
c) What result in (a) if A & B are limited partners who are not obligated to restore a capital account deficit but the
partnership agreement includes a qualified income offset?
1. Can’t pass loss to A & B greater than their capital account. Allocated based on all the facts and
circumstances b/c they cannot allocate 40/40/20. A & B would be allocated $20K each and C would be
allocated $60K. C gets the $40K basis.
d) What result in (c) if A contributes $15K of stock to the partnership as security for the liability and all income, gain
or loss on the stock is allocated to A? What result if A contributes his $15K note as security for the liability?
e) What result in (c) if A personally guarantees the $40K liability?
1. Assume all partners have money and will go against each other. If the lender goes after the guarantor, it
has to pay, but then has the right to go against the original borrow (right of subrogation). So we still just
allocate all the basis to C and ignore the guarantee b/c in the end A would have the right to go against C.
A guarantee can make a big difference in an LLC or where there are no general partners.
(2) G & L form a limited partnership. G, the limited partner, contributes $10K and L, the limited partner contributes
$90K. The partnership purchases a building on leased land, paying $100K cash and borrowing $900K on a nonrecourse
basis from a commercial lender, securing the loan with a mortgage on the building. The terms of the loan require the
payment of market rate interest and no principal for the first 10 years. The building is depreciable at the rate of $50K per
year for 20, and that other partnership income equals expenses for the years in question. The partnership agreement
contains a qualified income offset, and G is required to make up any capital account deficit. Except as otherwise
required by a minimum gain chargeback provision, the agreement allocates profit and loss 90% to L and 10% to G until
such time as the partnership recognizes items of income and gain that exceed the items of deduction and loss that it has
recognized equally between G & L. Assume that it is reasonably anticipated that the equal allocation will begin after 10
years. The partnership agreement states that G & L each has a 50% interest in the partnership profits for purposes of
752.
a) How is the $900K liability allocated in year one?
b) How will the liability be allocated at the end of year three?
c) How will the liability be allocated at the end of years one and three if excess nonrecourse liabilities are allocated
in a ratio of 90% to L and 10% to G?
d) What result in (a) if the debt is guaranteed by G, who has no right to reimbursement from the partnership? Does
the result change if G has a gross assets of only $6K?
e) What result in (a) if the debt is guaranteed by L, and L has a right to reimbursement from the partnership?
f) What result in (a) if G is the lender?
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