Internal Revenue Code Section 751 Research Paper
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The determination for marketable security with respect to disproportionate distribution is accomplished by reducing the amount of marketable securities that is treated as money using the following steps:
1. The excess of the partner's share of net gain that would be recognized if all securities of the type distributed held by the partnership immediately before the transaction were sold at fair market value over
2. The partner's share of gain that would be taken into account if the securities held by the partnership immediately after the transaction were sold.
While the term "marketable securities" includes interests in actively traded precious metals and other financial instruments that are set forth in the applicable IRC code and regulations, there are some exceptions to this provision, though, and it does not apply in three specific situations as noted below:
1. Contributed by partner. If the security itself was contributed to the partnership by the distributee-partner, the provision generally does not apply.
2. Not a security when acquired. The property distributed to the partner was not a marketable security when the partnership acquired it -- to the extent provided in the regulations.
3. Investment partnership. The partnership is an investment partnership [defined in section 731(c)(3)(C)(i)] and the partner is an eligible partner [defined in section 731(c)(3)(C)(iii)]. Look-through rules are provided for tiered partnerships.
By and large, the same techniques that are used with inventory are applied to marketable securities for the purposes of determining partnership distributions, with Section 751(b) being relevant in some cases as follows.
1. IRC section 704(c)(1)(B) may simultaneously apply if another partner contributed the marketable securities.
2. The code and the legislative history are silent on the provision's application to a termination under IRC section 708(b)(1)(B).
3. The disguised sale rules of IRC section 707(a)(2)(B) appear to take precedence.
4. To the extent marketable securities are treated as money, the same amount also is money for purposes of applying Internal Revenue Code section 737. This reduces the amount of gain recognized. In addition, the portion of the marketable securities not treated as money is treated as property for section 737 purposes.
5. IRC section 751(b) (disproportionate distributions) takes precedence.
The same regulatory guidance that covers disproportionate distributions in partnerships is applicable to limited liability companies as well. For instance, according to Magina, Plummer and Streer, disproportionate distributions in limited liability companies (LLC) take place when a distribution is made to a member that represents more or less than the member's share of ordinary income-producing property (as defined in IRC Section 751(a) as unrealized receivables or substantially appreciated inventory). These authorities add that, "When either a current or liquidating disproportionate distribution is made, IRC Section 751 applies to prevent the shifting of ordinary income among the LLC's members."
With respect to LLCs and as with partnerships, any excess of the unrealized receivables and substantially appreciated inventory distributed to members of the LLC that are above their respective proportionate share of these items is regarded to have been purchased from the LLC in return for the members' respective allocation of any cash and capital assets that were not actually received. Conversely, in those cases where LLC members receive an excess of cash or capital assets, such excess is considered to have been purchased from the LLC in return for their respective portion of ordinary income property that was not received.
Consequently, both the LLC members who receive the distribution as well as the LLC itself stand to experience gain or loss, but the gain or loss is recognized by the LLC flows-through and affects all members of the LLC even if they do not receive any distribution of property.
Beyond the foregoing considerations with respect to inventory, Weitzner and Sayre emphasize that the rules regarding distributions of marketable securities from partnerships also require careful application and administration. According to these authorities, "To prevent partners from exchanging their share of a partnership's appreciated assets for a disproportionate share of the partnership's marketable securities and thus deferring gain, the Uruguay Round Agreements Act -- related to the General Agreement on Tariffs and Trade -- added section 731(c) to the Internal Revenue Code."
These provisions are generally applicable for distributions from partnerships that were completed after December 8, 1994.
Identifying a Disproportionate Distribution
In order to determine if the distribution of partnership property was a pro rata or disproportionate share, the fair market value of the all partnership assets is taken into account instead of the bases in these corresponding assets. According to the IRS, "In order to
fall within the regular pro-rata distribution rules described in the above Sections on current and liquidating distributions, each partner's share of IRC Section 751 assets and other property (including cash) must remain unchanged after the distribution."
Internal Revenue Code Section 751(b) provisions become applicable in those cases where partners' respective share of IRC Section 751 and non-IRC Section 751 assets is altered; for example, in those cases where partners are provided with debt relief from the partnership but nothing beyond this relief, they are considered to have received a cash distribution. In those cases where there are IRC Section 751 assets involved (including the recapture of depreciation), there are disproportionate distributions involved.
The IRS sets forth a number of examination techniques that can be used to answer the following questions with the implications indicated in Table 1 below.
Examination Techniques and Issue Identification for Disproportionate Distribution of Assets
Implications (if applicable)
Do the Schedules K-1 indicate distributions?
If so, the Schedule M-2 should show those distributions. This will alert the examiner that there was either a current or liquidating distribution.
Do any of the Schedules K-1 reflect cash distributions?
If so, cash received in excess of the partner's basis in his/her partnership interest is taxable under IRC section 731(a).
What type of property was distributed?
A review of the balance sheet (Schedule L) for changes in asset and liability balances should help in this identification.
If there was a disproportionate distribution of IRC section 751 property, gain recognition may be required.
This is true if there is a partial liquidation or a complete liquidation. The examiner must be able to document the type and fair market value of each partner's share of the partnership's assets and the type and fair market value of the assets distributed.
Was there a change in ownership on the Schedules K-1?
If so, this may indicate a partial liquidation, complete liquidation, or sale of partnership interest.
Does it appear that a disproportionate amount of Section 751 assets were distributed? Were all IRC section 751 assets taken into account?
This will impact the recognition of ordinary income or capital gain to the partner or the partnership.
Was an IRC section 754 election in effect?
If so, make certain that the inside basis of the remaining assets was appropriately adjusted under IRC section 734(b).
Were the partners consistent in how they treated IRC Section 751 gains and losses on their own returns?
Representative interview questions that can be used to discern whether distributions were disproportionate include those set forth in Table 2 below.
Interview Questions to Identify Disproportionate Distributions of Assets
Implications (if applicable)
What types of assets were distributed? Which partners received particular assets?
Did the distributions result in a liquidation? Was a series of distributions made?
If so, under Treas. Reg. section 1.761-1(d), the partnership interest will not be considered as liquidated until the final distribution has been made.
Does the distribution constitute the retirement of a partner?
If so, refer to Chapter 7
Inquire as to whether an IRC section 754 election is in place. Does the return indicate an IRC section 734(b) adjustment to the basis of the nondistributed assets?
If so, request the calculation.
Was cash or marketable securities distributed? Did any of the partners receive debt relief?
If so, request a basis calculation for the distributee partner to make sure the amount of any money distributed did not exceed the partner's outside basis.
Source: "Partnership - Audit Technique Guide - Chapter 4 - Distribution." (Revised December 2007). Internal Revenue Service. [online] available: http://www.irs.gov/businesses/partnerships / article/0,,id=134693,00.html
The research was consistent in showing that the rules covering disproportionate distributions pursuant to Internal Revenue Code 751 are indeed complex that can have significant implications for partners and members of limited liability companies. The research also showed that distributions are disproportionate pursuant to Internal Revenue Code Section 751(b) in those instances in which partners receive more or less than their pro rata share of so-called "hot" assets. Fortunately, the research also showed that there are some solid guidelines available, including examination techniques and interview questions that can help determine when Internal Revenue Code Section 751 is applicable, but in most cases, it would appear reasonable to conclude that expert guidance is highly…
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