Chapter 11: Partnerships & Limited Liability Entities – 11/15/12 Lecture Partnership Income / Transfer of Property
Partnership Income & Losses through to the Partners so there is NO Entity Level Taxation. You can transfer Property into a Partnership at any time with NO tax consequences. There is no 80% Rule!! Only exception to this would be:
Partner A contributes PropertyPartner B contributes Property FMV$200,000FMV$200,000
Adj. Basis$ 80,000Adj. Basis$120,000
Then the Partnership DISTRIBUTES to Partner A the property contributed by Partner B, only THEN will you have tax consequences. The general rule is that there are NO tax consequences when a Partner receives NON-cash Property.
Four Different Types of Partnerships: Page 11-3 / 11-4
1. General Partnership (GP): The partners share profits & losses in some specified manner. In a GP, the partners have potential UN-limited liability.
2. Limited Partnership (LP): There are still General Partners, but any Partner who is NOT actively involved with making decisions or running the Partnership is a LIMITED Partner and these Limited Partners have Limited Liability. The Limited Partners can only be sued up to the extent of their investment in the Partnership and can lose nothing else.
3. Limited Liability Partnership (LLP): Partnership structure used in today’s world. In the LLP all Partners have Limited Liability whether a General Partner or Limited Partner. You still have the classification of General and Limited because someone (General Partner/s) is designated to make decisions. The IRS wants to know for tax purposes.
Remember: Even with Limited Liability, a General Partner is still PERSONALLY liable for their OWN wrong doing. Arthur Anderson (2001/2002): All Partners lost their capital investment in AA, but not their personal holdings. The AA Partners SPECIFICALLY involved with Enron COULD be sued
for their personal holdings.
4. Limited Liability Company (LLC): Sometimes an LLC will be a Partnership. State Law determines if the entity is called an LLC or LLP.
Form 1065 / Schedule K / Schedule K-1
Income reported on Lines 1A to 1E. No line item for Interest, Capital Gains, Dividends on 1065 and Other Income is NOT an option on the 1065. Items like Interest, Capital Gains, Dividends, etc. are items that are passed through “separately” to the Partners. These items are NOT reported on the 1065, instead they are reported to EACH Partner on a Schedule K-1. Income from 1065, Line 22 will be transferred to the Schedule K.
Schedule K shows the aggregate of all the numbers to be reported to the Partners in their individual Schedule K-1.
If a situation occurs where there are four Partners and each gets a 25% share of Ordinary Income of $100,000 shown on the Schedule K, then each partner would recognize $25,000 on Line 1 of their individual K-1 forms which gets recognized on their individual tax return. If there is a Loss then the Partner must be At-Risk and a Material Participant in order to take a Deduction. At-Risk & Material Participant rules come into play heavily with Partnerships.
Guaranteed Payments are different and paid SERPARATELY to Partners who perform SERVICES.
Schedule K-1: Section “L” – Partner Capital Account Analysis Current Year Increases (Decreases) is for Gains or Losses. Below the six lines the form asks the preparer what form of accounting the individual is using and “NORMALLY” it will be GAAP because this Capital Account is “NORMALLY” generated from the Financial Statements, NOT the Tax Return. An Income Statement prepared with GAAP is the basis for a Capital Account.
Capital Account is not defined clearly, but it differs from Tax Basis. These
two items will almost always be different. The purpose of the Capital Account is for the liquidation of the Partnership. You will not know your Tax Basis when you get your Schedule K-1. If you sell your portion of the Partnership then you need to know your Tax Basis which might need to be reconstructed. Chapter 11: Partnerships & Limited Liability Entities – 11/27/12 Lecture Illustration For Differences Between Capital Accounts & Tax Basis
Capital AccountsTax Basis
1. Cash Contribution $ 10,000$ 10,000
2. Land $100,000 FMV$ 60,000 Adj. Basis
3. Capital Gain $ 15,000$ 15,000
4. Tax Exempt Income $ 2,000$ 2,000
5. Charitable Contributions ($ 1,000) ($ 1,000) 6. Govt. Fine ($ 1,000) ($ 1,000) 7. Land Purchase-0-$ 22,50025% of $90,000 Note Payable 8. Pay Liability-0- ($ 2,500)25% of $10,000 Payment 9. Property $120,000$ 60,000
10. Loss ($250,000) ($250,000)25% of $1,000,000 Loss —————————————————————————————————————————- 11. Total ($ 5,000) -0- With $85,000 Loss Carried Forward
1. Cash Contributions are recorded at the same amount for both Capital Accounts and Tax Basis.
2. When you contribute Property to a Partnership your Capital Account is increased by the FMV of the Property. The Partnership takes the Adj. Basis of the Property received.
3. Capital Gains are recorded at the same amount for both Capital Accounts and Tax Basis.
4. Tax Exempt Income is recorded at the same amount for both Capital Accounts and Tax Basis.
5. Charitable Contributions are recorded at the same amount for both Capital Accounts and Tax Basis.
6. Government Fines are recorded at the same amount for both Capital Accounts and Tax Basis.
7. Land Purchases do NOT affect the Partner’s Capital Account because it does NOT affect the Partner’s Equity. The Partner’s Tax Basis increases by the Partner’s share of Liability. Reverse for a decrease of Liability. The higher the Partner’s Tax Basis means the Partner can take more Losses if necessary.
8. Paying any Liability does not count as an Equity Transaction. This does not affect Capital Accounts. Tax Basis is reduced by Partner’s share. In this case, 25% of $10,000 payment is a reduction of $2,500 in the Partner’s Tax Basis.
9. Partner Contributes Property: FMV$200,000
In this example ONLY for calculating Property in Capital Accounts/Tax Basis there are (4) partners with a 25% share. Property @ Capital Accounts = FMV – Liability$200,000 – $80,000 = $120,000 Property @ Tax Basis = Adj. Basis – (.75 * Liability)$120,000 – (.75 * $80,000) = $60,000
10. Gains/Losses are “generally” recorded at the same amount for both Capital Accounts and Tax Basis.
11. Capital Accounts can be Negative. Tax Basis can not be Negative so your Tax Basis will be “0”, but the Loss can be carried forward under the At-Risk Rules.
If the Partnership makes a Distribution then BOTH the Capital Account and the Tax Basis are REDUCED by the amount of the Distribution.
A Guaranteed Payment is similar to a Salary but a Partner can NOT be an employee of the Partnership. It is categorized as Self-Employment Income. There is NO Medicare, Tax, or FICA Withholding on the payment. The guaranteed payment must be paid whether the Partnership is Profitable or UN-Profitable. Happens often in Partnerships where one Partner performs more services than other Partners.
This information is found on the Schedule K-1, Line 14. This is a combination of Line 1 and Line 4 from above.
Line 1 will be considered Self-Employment Income if you are a MATERIAL PARTICIPANT. This will include your Pass-Through share of the Partnership Income plus any Guaranteed Payment that you receive.
Line 1 will be considered PASSIVE Income if you are NOT a Material Participant.
Line 14 is ONLY for the Self-Employment Tax. You are NOT reporting the amounts on Line 1 and Line 4 twice. You only report it once for Income Tax Purposes. Line 14 tells you what you have to declare for Medicare, Tax, FICA, etc.
When Partner A is doing more work than Partner B in a 50/50 Partnership one way to resolve the work differences is to compensate Partner A with a guaranteed payment. Both parties agree that Partner A is doing more work.
Partnership Income $100,000Guaranteed Payment$20,000-0- Guaranteed Payment to A($ 20,000)50% of Taxable Income$40,000 $40,000 Taxable Income $ 80,000Taxable Income$60,000 $40,000
Guaranteed Payment is an Item of Deduction for the PARTNERSHIP! The payment must be paid whether the Partnership is Profitable or UN-Profitable. Guaranteed Payments CAN be tied to GROSS RECEIPTS. Gross Receipts are not necessarily a guarantee of Income.
Partnership Allocations & Property With Built-In Gain or Loss Whenever a Partner contributes Property to a Partnership that has Built-In Gain (or Loss). Built-In Gain means that Property has gone up in value. If the Partnership ever sells the Property, the Built-In Gain must be allocated to the contributing Partner. NINE examples below. Partner A contributes the property in all examples. Gain/Loss allocated amongst (4) Partners who each have a 25% share.
Partner A’s Property A B C DAll Partners Have 25% Share FMV$100,000$40,000FMV – Adjusted Basis
Adj. Basis$ 60,000$12,500$12,500$12,500$12,500 $50,000 / 4 Sells$150,000 Sells – Adjusted Basis = $50,000
Partner A’s Property A B C DAll Partners Have 25% Share FMV$100,000$30,000Sells – Adjusted Basis
Adj. Basis$ 60,000
Partner A’s Property A B C DAll Partners Have 25% Share FMV$100,000
Adj. Basis$ 60,000($ 2,500)($ 2,500)($ 2,500)($ 2,500)LOSS to ALL (4) Sells$ 50,000Sells < Basis
Partner A’s Property A B C DAll Partners Have 25% Share FMV$ 50,000($10,000) Add’l LOSS to Partner A
Adj. Basis$ 60,000($ 2,500)($ 2,500)($ 2,500)($ 2,500)LOSS to ALL (4) Sells$ 40,000Sells < Basis
Partner A’s Property A B C DAll Partners Have
25% Share FMV$ 50,000($ 6,000)LOSS to Partner A
Adj. Basis$ 60,000Sells < Basis
Sells$ 54,000Sells < FMV by $6,000
Partner A’s Property A B C DAll Partners Have 25% Share FMV$ 50,000$ 5,000$ 5,000$ 5,000$ 5,000$20,000 / 4 Adj. Basis$ 60,000$80,000 – $60,000
Partner A’s Property A B C DAll Partners Have 25% Share FMV$200,000$50,000FMV – Adjusted Basis
Adj. Basis$150,000$10,000$10,000$10,000$10,000$40,000 / 4 Sells$240,000
Partner A’s Property A B C DAll Partners Have 25% Share FMV$200,000$30,000Sells – Adjusted Basis
Partner A’s Property A B C DAll Partners Have 25% Share FMV$200,000
Adj. Basis$150,000($12,500)($12,500)($12,500)($12,500)LOSS Sells$100,000Sells < Basis
Liquidating vs. Non-Liquidating Distributions
Non-Liquidating Distributions are when the Partner remains in the Partnership and the Partnership remains in business after the distribution.
Liquidated Distributions occur when either the Partnership goes out of business OR the Partnership distributes its Assets OR the Partnership remains in business when a Partner has their interest in the Partnership liquidated.
Usually there is NO Gain Recognition in EITHER Distribution unless Cash
Received exceeds the Partner’s Adjusted Basis and/or Liabilities. Why? Because the Partner has already been taxed on the Partner’s share of Partnership Income items that have flowed through to the K-1.
Items flowing through to the K-1 do not necessarily mean the Partner has RECEIVED anything for Income to be reported. Partners can be in Constructive Receipt and the IRS will tax as if Income was received.
Liability Relief is treated as a Cash Distribution. If your Liabilities go down, the IRS treats it as if you received cash. I.E. You have a $10,000 basis in a Partnership and your share of Partnership Liabilities that are paid by the Partnership are $15,000. You now have $5,000 of Income. Each dollar of Liability reduced is treated as a Cash Distribution. You are taxed whenever your Liability Relief EXCEEDS your Adjusted Basis in the Partnership. Liability Relief reduces your Tax Basis.
Non-Liquidating vs. Liquidating Distributions
A non – liquidating distribution means that the partner remains a partner in the partnership and the partnership remains in business after the distribution. A liquidating distribution occurs because either (1) the partnership goes out of business and the partnership distributes its assets or (2) the partnership remains in business but a partner has his/her interest in the partnership liquidated. Usually, there is no gain recognition in either distribution unless cash received exceeds the partner’s adjusted basis. Liability relief is treated as a cash distribution.
Non – Liquidating Illustrated
EXAMPLE 1: Jane has a $50,000 basis in her partnership interest. She receives cash of $30,000 and inventory with a $5,000 basis to the partnership and non – inventory property with a basis to the partnership of $10,000 and a fair market value of $25,000. She first reduces her basis by the amount of the cash distribution. She takes a transfer basis in the inventory of $5,000 and non-inventory property of $10,000. She has a $5,000 partnership basis remaining. (Original $50,000 basis less $30,000 cash, less $5,000 to
inventory and less $10,000 transfer basis in the non-inventory property.)
EXAMPLE 2: Assume in the prior example Jane’s basis was only $35,000 before the distribution. She reduces her basis by $30,000 for the cash distribution and allocates the remaining $5,000 basis to the inventory. Her basis in the non – inventory property is 0.
EXAMPLE 3: Assume Jane’s basis before the distribution is $25,000. She recognizes $5,000 gain after the cash distribution and takes a 0 basis in the inventory and a 0 basis in the non – inventory property.
EXAMPLE 4: Assume the same facts as example 1. Jane reduces her basis by the $30,000 cash distribution, allocates $5,000 to the inventory and $15,000 to the non – inventory property. Note that the partner’s basis allocated to inventory can never exceed the partnership’s basis in the inventory. Can non-inventory exceed the basis? Yes. Inventory? No.
EXAMPLE 5: Assume the same facts as example 1 except that the partnership only distributes $30,000 cash and $5,000 inventory. Jane has a $15,000 recognized loss on her tax return.
EXAMPLE 6: Assume the same facts as example 3. Jane has $5,000 gain and 0 basis in the inventory and 0 basis in the non – inventory property. Nothing discussed. Went to Example 7.
EXAMPLE 7: Assume the same facts as example 1 except that Jane receives $30,000, no inventory and a non – inventory desk with a basis of $50 and fair market value of $20. Jane’s basis in the desk is $20,000. Note that if the desk was inventory, Jane would take a $50 transfer basis and recognize a $19,950 loss. ($50,000 basis less $30,000 cash, less $50 transfer basis in the desk)
Citron. Porn Movies. Magic Marker example. Took “property” worth share in partnership. Abandonment out-clause is shot because you took property.
$50,000 basis in the Magic Marker means you can not take a Loss. Extreme example, but that is how the Liquidating Distribution rules can work. Illustration of Example 7.
Liability Relief Example
You are a Partner who has sold your Partnership with the following information, what do you get in CASH?
Get a check for $20,000 because the Liability Relief is part of the consideration you receive in this transaction.
Chapter 12: S-Corporations – 12/4/12 Lecture
When you start an S-Corporation you must meet the 80% Control Test. S-Corporation shareholders do NOT increase their Tax Basis or Liabilities of the S-Corporation. S-Corporation shareholders can increase their Tax Basis in the S-Corporation by making a LOAN to the S-Corporation. S-Corporation shareholders do NOT have Capital Accounts. Tax Basis is computed the same was a Corp / Partnership. I.E. Your tax basis in an S-Corporation is the adjusted basis of all Property transferred. Nearly all the S-Corporations Zimmerman saw were ONE shareholder.
Increases & Decreases in your Tax Basis in an S-Corporation: Are handled in the K-1, very similar to Partnerships. Items of Income that pass through to the S-Corporation shareholder INCREASE the S-Corporation shareholder’s Tax Basis. Items of Deduction / Loss that pass through to the S-Corporation shareholder REDUCE the S-Corporation shareholder’s Tax Basis. Almost the same as a Partnership.
If you have Tax Exempt Income, the S-Corporation shareholder’s Tax Basis INCREASES. If you have Non-Deductible items, the S-Corporation shareholder’s
Tax Basis DECREASES.
Increases & Decreases in the Tax Basis CAN be affected by the Fair Market Value of the Property.
If At Any Point In Time An S-Corporation Fails To Meet Criteria It Becomes A C-Corporation!! BAD!!!!!
Especially if the S-Corporation had losses that could be passed through to the Shareholder because as a C-Corporation the Shareholders will NOT have the option of writing off those losses.
Why Form An S-Corporation? Can You Avoid Taxes?
Social Security Tax on the first $110,100 is figured as $110,100 * .0765 in 2012. Which your Employer will match.
Self-Employment Tax on the first $110,100 is figured as $110,100 * .153 in 2012. (Tax doubled up from above.)
AFTER $110,100 of earnings, you will pay Medicare of 2.9%. (You pay 1.45%, employer pays 1.45%) The 2.9% rate is going up in 2013 to 3.8%.
That 2.9% is PART of the 15.3%!!!!!! 12.4% being paid in Social Security and 2.9% being paid in Medicare.
In 2012, any excess Income of $110,100 you pay 2.9%.
In 2013, at $200,000 of Income you pay 3.8% for Medicare. Employee picks up 2.35% and employer picks up 1.45%
IF YOU ARE SELF-EMPLOYED, you must pay both the Employee AND Employer’s portion of Medicare.
Self-Employed people will pay (on income up to $110,100) 15.3% before they calculate Income Tax.
If you own an S-Corporation then the Income that flows through to you from an S-Corporation directs you to Line 1 of the K-1. The Income that flows through is NOT subject to the Self-Employment tax.
You WILL have to pay Income Tax, can you AVOID paying Social Security Tax and Medicaid Tax? Not likely.
IRS says if you have $100,000 pass through to you, you’re the one who generated that Income for the S-Corporation so you HAVE to be an EMPLOYEE of the S-Corporation whether you like it or not.
How does the IRS determine what is Pass-Through Income and what is Salary? Nobody really knows. It has been litigated in multiple cases for years, but the IRS has always won.
Income of $300,000, pay yourself a salary of $100,000 and take $200,000 as pass-through to Line 1 on your K-1. $100,000 subject to Social Security Tax and Medicaid Tax. WILL THIS WORK? NO GUARANTEE.
Should You Tell Anyone To Form an S-Corporation? Forming the S-Corporation. Depends. The ONLY reason is to TRY and save some tax dollars by not paying Medicare. No 100% guarantees here.
If you’re going to form an S-Corporation then you form a Corporation under State Law. S-Corporation is a Federal Classification that may or may not be available in the State that you set it up. S-Corporations get taxed as C-Corporations in California. Need to know if the State you set up in recognizes the Pass-Through of the S-Corporation. THEN you apply for the S-Corporation status to the IRS using Form 2553.
ALL Shareholders have to consent to the forming of the S-Corporation. 100% consent. 99% will NOT work.
If your operating cycle starts on January 1st and you file by March 15th (2.5 months) and are approved then you have S-Corporation status from January 1st
of that year. If a new business? File within 2.5 months of your first day. If you drag your feet you will become a C-Corporation and have tremendous headaches trying to become an S-Corporation.
To Qualify For S-Corporation Status, The Corporation Must (Page 12-4): FIRST – Qualify as a SMALL BUSINES CORPORATION. Then…
Be a Domestic corporation (Incorporated & organized in the USA). No Foreign Corporations allowed. Be eligible to elect S-Corporation status.
Issue only ONE class of stock. No Common and Preferred Stock. One class of stock. Voting can be divided between Voting stock and Non-Voting stock depending on Material Participation. Loans become tricky here and can become Equity Investments. Loans that are not really loans TERMINATE the S-Corporation into a C-Corporation. Debt must be “real” debt with structure, interest, repayments, etc. Be limited to a MAXIMUM of 100 shareholders.
Have only individuals, estates, and certain trusts & exempt organizations as shareholders. A partnership, C-Corporation, or a different S-Corporation can NOT own stock in an S-Corporation. It is acceptable for an S-Corporation to own stock in a C-Corporation, an S-Corporation can be a partner in a partnership, but NOT the other way around. Have all shareholders be U.S. Citizens. NO Non-Resident Alien shareholders. If the IRS finds out there is ONE Non-Resident shareholder then the S-Corporation becomes a C-Corporation. Must watch international marriage because transfer of ownership to a foreign national will cause the S-Corporation to become a C-Corporation unless the married person becomes a U.S. resident BEFORE there is transfer of ownership. Especially in the Community Property states like CA or NV.
Chapter 12: S-Corporations – 12/6/12 Lecture
S-Corporations have Accumulated Adjustment Accounts. Known as Triple-AAA Accounts. If the S-Corporation has ever been a C-Corporation and converted from a C-Corporation to an S-Corporation this comes into play because C-Corporations have Earnings & Profit. Earnings & Profit are similar to
Retained Earnings. During the conversion from C-Corporation to S-Corporation there will very likely be Earning & Profits to account for. Triple-AAA Accounts requires the “order of distributions” from the S-Corporation as to when the Earnings & Profit will be reached after other distributions.
If an S-Corporation has been an S-Corporation for it’s ENTIRE existence then the Triple-AAA Account is irrelevant; it must still be tracked, but it is irrelevant even though no Earning & Profits were incurred. No tax consequences.
C-Corporation To S-Corporation With No Tax Consequences
It is possible for a C-Corporation to convert to an S-Corporation without any adverse tax consequences unlike when a C-Corporation converts to an LLC or a Partnership due to liquidation. There is NO liquidation when an C-Corporation becomes an S-Corporation. During either the first five or seven years if the converted S-Corporation were to sell OR distribute Appreciated Assets then the S-Corporation would have to pay a tax at the Corporate/Entity Level. This ONLY applies to S-Corporations that have been C-Corporations. Not an issue for S-Corporations that have always been S-Corporations.
Last Chance In 2012 For C-Corps To Convert To S-Corp For Taxes Earnings & Profits will be distributed to Shareholders and treated as Dividends being taxed at the 15% rate set to expire at the end of 2012. In 2013 this option will be taken away from C-Corporations. Drains the Earning & Profits out so the Shareholders are able to report those amounts at the lower 15% tax rate.
Shareholder Tax Basis In S-Corporations: Assets & Liabilities & Distributions Shareholder’s Tax Basis in the S-Corporation’s stock (Assets) works pretty much the same way as it does for Partnerships. Tax Basis will be increased by the same items (Assets) and decreased by the same items (Assets).
When Partnerships distribute Appreciated Property there are NO adverse tax
consequences. When S-Corporations distribute Appreciated Property there ARE adverse tax consequences. Rules of C-Corporations. Distributions are taxable to the Shareholders of the S-Corporation. Example of S-Corp Shareholders with 50% each.
A – 50%B – 50%
FMV – Property$80,000Tax Basis$100,000$100,000
Adj. Basis$50,000Gain$ 15,000$ 15,000
Property distributed to “A”Adj. Basis$ 35,000$115,000
1. Gain on the Property is distributed to the Shareholders according to their percentages even though only one Shareholder is acquiring the Property. In this case the Shareholder’s Tax Basis is increased even though “B” did not receive any tangible items and “A” received the Property.
2. This is a Taxable Transaction, so the Property transfers in at the FMV. “A’s” basis is reduced by $80,000 because something is being given worth $80,000. “A” has a SHIFT from the S-Corporation Tax Basis INTO the Property.
The Holding Period for “A” is the Date of Transaction. Difference between Partnership and S-Corporation.
Fiscal Year: Any Year OTHER than a Calendar Year. C-Corporations & C-Corp’s with Partnerships have Fiscal Years. It is possible that an S-Corporation or a Partnership that has Calendar Year Shareholders OR Calendar Year Partners will be on a Fiscal Year. If the S-Corp is on a Fiscal Year then they have accounting nightmares. 1986 Tax Act should have motivated all CPA’s to switch everyone to Calendar Year but not all did due to “extra billing opportunities”.
Example of a Calendar Year Shareholder involved in a Fiscal Year S-Corporation: Jane is a 25% Shareholder.
WATCH THE DATES!!! THIS WILL BE KEY ON THE EXAM!!
Jane’s Calendar Year 1/1/12 to 12/31/12
S-Corp Fiscal Year2/1/11 to 1/31/122/1/12 to 1/31/13
Taxable Income: $400,000 $600,000
How does Jane file her 2012 Tax Return?
Jane is responsible for reporting Income that was “KNOWN” at the END of 2012.The $600,000 is UNKNOWN at the END of 2012 because the Fiscal Year runs into and ends in 2013.
The $400,000 IS known at the end of 2012. This is the only solid, KNOWN, number that can be reported in 2012 for Calendar Year tax purposes.
Being a 25% Partner/Shareholder, Jane will report $100,000 as Income in 2012. $400,000 * .25 = $100,000.