September 3, 2009

Garnett Decision Rejects Treatment of Losses from LLC and LLP Interests as Presumptively Passive

The passive activity loss rules in general prevent individuals and certain other taxpayers from deducting passive activity losses against non-passive income. In most cases whether an activity is passive depends on whether the taxpayer materially participates in it. In the case of limited partnerships, Code Section 469(h)(2) treats a taxpayer with a limited partner interest as not materially participating in the partnership’s activity except as provided in regulations (the “per se rule”). Those regulations in turn allow a limited partner to establish material participation, but only by using one of three tests—the 500 hours-per-year test, the test that requires material participation during five of the preceding ten years, or the test that requires three prior years of material participation in the case of a personal service activity. Temp.Reg.Sec. 1.469-5T(e). Were it not for the per se rule, the taxpayer could establish material participation under any of those tests or any of four additional tests—one of which allows aggregation of “significant participation activities” to achieve 500 hours of participation. Garnett v. Commissioner, 132 T.C. No. 19 (June 30, 2009) holds, based on an analysis of state law governing the limited liability companies (“LLCs”) and limited liability partnerships (“LLPs”) at issue in the case, that interests in those entities are not subject to the per se rule. As a result, the taxpayers in the case are allowed to use any of the seven regulatory tests for material participation. The court reached the same conclusion with respect to certain interests of the taxpayers as tenants-in-common in rental properties.

The taxpayers in Garnett owned direct or indirect interests in seven LLPs and two LLCs engaged in various agricultural businesses. Under applicable state law, they had no personal liability for obligations of the entities. The IRS argued that such limited liability made the taxpayers’ interests limited partner interests for purposes of the per se rule. The Tax Court, however, pointed to the “general partner exception” of Section 1.469-5T(e)(3)(ii) under which an individual’s partnership interest is not treated as a limited partner interest if the individual is a general partner at all times during the relevant tax year. While that provision is aimed primarily at situations where the individual is both a general and a limited partner in the same partnership, the court found that the exception by its own terms is not limited to such dual-status cases. Noting the lack of a statutory or regulatory definition of “general partner”, the court looked to the legislative history of Section 469, which justifies the per se rule on the basis of state law principles that preclude a limited partner from participating in a partnership’s business while retaining limited liability protection. The court therefore concluded that the state law prohibition against limited partner participation in the partnership’s business—rather than limited liability—is the defining characteristic of a limited partner interest for purposes of the per se rule. Turning to the law of the state of formation of the entities (Iowa), the court noted that—in contrast to restrictions on the activities of limited partners—members of LLCs and LLPs can participate in management. Accordingly, the court concluded that taxpayers held their interests in the LLPs and LLCs as general partners for purposes of the per se rule. While the court acknowledged that a factual inquiry into the authority of taxpayers to act on behalf of their LLCs and LLPs may be appropriate in the context of determining material participation, it found such an inquiry unnecessary to determine the application of Section 469(h)(2).

Less than a month after the Garnett decision, the U.S. Court of Federal Claims decided Thompson v. U.S., 2009 TNT 138-4 (July 20, 2009), which also holds that an interest in an LLC is not an interest as a limited partner for purposes of the per se rule. While the court acknowledged certain legislative history suggesting that Treasury may have regulatory authority to treat “substantially equivalent entities” as limited partnerships for purposes of the per se rule, it found that an LLC is not such an entity. Whereas the Thompson decision is a final judgment while the Garnett decision is for partial summary judgment, should the government decide to appeal both cases it is likely the Thompson case would be decided first on appeal.

The Garnett and Thompson decisions may also benefit a real estate professional who qualifies for the “real property business” exception to the general rule that treats rental activities as automatically passive (Code Section 469(c)(2) and (c)(7)). This is because a real estate professional who holds an interest as a limited partner must still apply the per se rule before determining material participation (subject to a narrow de minimis exception contained in Treas.Reg.Sec. 1.469-9(f)(2)).

It is unclear what effect, if any, Garnett and Thompson may have on application of the self-employment tax to members of LLCs and LLPs. In this regard Code Section 1402(a)(13) excludes from self-employment earnings the distributive share of income of a limited partner, subject to an exception for certain guaranteed payments. Complicating any inquiry into this area are longstanding proposed regulations that create a separate series of tests for determining whether a taxpayer is a limited partner for self-employment tax purposes—tests relied upon today by some practitioners despite their status as proposed regulations. See Prop.Treas.Reg.Sec. 1.1402(a)-2(h).

Contributed by Glenn Madere, Esq. Glenn Madere is the Editor of The Readable Code and Regs: Partnerships (Blue Bell, PA: Readable Press, 2009)   Readable Press Website

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