Brian Borawski CPA, PC

Archive for the ‘Partnership’ Category

Many people feel that the two absolutes in life are death and taxes.  In my experience, if there’s something that comes to close to a third absolute it’s that you should never hold real estate within a structure that’s taxed as a corporation.  I can give you some examples of where it works out okay but still not as well as under a structure taxed as a partnership but I can give you a few different examples of where you can have some disastrous tax circumstances when holding real estate in a corporation.  The primary pair of reasons are basis rules and distribution rules.  As always, I’m keeping this simple so if you have a specific situation that applies to you, be sure to contact a professional.

Let’s say you get a great deal on a property.  You’re able to buy a $1 million piece of property for $500,000 and because of the great purchase price, you’re able to finance the entire $500,000 with  a bank loan.  Let’s take a look at what happens in two years when you try to distribute this piece of property out of your legal entity.

If you bought the property under an LLC that’s taxed as a partnership, you’d be in pretty good shape.  You’d probably (it would depend on the bank note) be able to pass through any losses from the partnership because your debt has given you basis.  In two years, if you distribute the property out of the LLC, it’s a tax free transaction and the property would come through with its basis and carrying period intact.

If you bought the property under a C-Corporation, you’d have a mess.  When you distribute property, it’s the same as if you sold it then distributed the proceeds so you’d have about a $500,000 gain that the C-Corporation would have to pay (plus any depreciation that you took in those two years).  On top of that, the distribution would be taxable to the shareholder at the value of the property or in this case, $1,000,000.  Those two layers of tax that will chew into that $500,000 in savings you picked up when you bought the property pretty quickly.

While not as bad as the C-Corporation example, if you had put it under a corporation that had made a Subchapter S election, you’d still have some tax to pay.  You wouldn’t have any basis in the corporation because the debt from the bank note isn’t eligible as basis.  You’d have the capital gains hit that would occur at the S-Corporation level (which would ultimately flow through to the owner’s personal return) but not the second layer of tax because the dividend would come through half tax free and half as a taxable S-Corp distribution because you’ve established some basis when the capital gain was taxed but not enough to cover the entire $1 million.

In short, putting into an LLC is pretty much a no lose situation.  Putting into a corporate structure, you could have a tax mess on your hands.  Be sure to discuss your personal situation with you tax adviser.

A few months ago, I discussed the differences between a stock sale and an asset sale.  In one of the examples, I touch on technical terminations and this concept deserves it’s own post.  Let’s start with an example.

Two friends set up an LLC and buy a piece of real estate with each owning 50% of the LLC,  The company files partnership returns (Form 1065) for several years, buys several new pieces of real estate and ten years later, it holds an apartment building, a commercial property and ten single family residences.  One partner decides he wants to go in another direction so he finds a buyer for his 50% interest, the sale is made, the old partner computes his gain on the sale and the new partner just steps into the old partner’s shoes, right??

Wrong

Code section708(b)(1) discusses two ways that a partnership terminates.  The first way is if no part of any business, financial operation, or venture of the partnership continues to be carried on by any of its partners in a partnership.  So if the partnership isn’t doing anything, it no longer exists.  The other way that a partnership is terminated is if within a 12-month period there is a sale or exchange of 50 percent or more of the total interest in partnership capital and profits.  That means in our example, the partnership has terminated and this has been called a technical termination because the partnership really continues to operate.

What does this mean?  First off, the partnership will have to file two tax returns in that one calendar year (assuming one technical termination).  If in our example the sale of the partnership happened on June 30, then you have a short period return going through June 30 with all of the normal due dates and then a second tax return from July 1 through the end of the year.

Second, depreciation starts over.  If you have commercial property that you bought for $1 million and over 20 years it’s depreciated, when the technical termination happens, then the new partnership’s cost basis would be the old partnership’s net taxable value (in this case, around $500,000).  The bad news is, the useful life resets so you’d then begin depreciating that $500,000 over a “new” 39 years.

In short, if you’re selling a partnership interest, talk to someone who knows partnerships.  You could do some planning to avoid a technical termination although even if you do fall into one, you have to know what to do with the short period tax returns.