Deductible Expenses for a Newly-Formed Partnership

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Are you planning on starting a partnership for business purposes? Usually, partnerships will incur various costs while forming a partnership. Some of these costs may be deductible or amortizable, others will not. This article will examine the deductibility of the most common costs in the formation of a partnership.

Partnerships often involve complex legal and tax issues, so it may be advisable to obtain legal counsel when forming a partnership. Sherayzen Law Office, Ltd. can assist you in all of your tax and legal needs.

Syndication Costs

Often, the formation of a partnership will involve various costs associated with marketing and selling partnership interests to prospective partners. These fees are termed “syndication” costs. Unfortunately for taxpayers, such costs are neither deductible nor amortizable under Internal Revenue Code Section 709. This will be the case regardless of whether the costs were incurred or actually paid.

Organizational Expenses

Unlike syndication costs, however, certain organization costs connected with forming a partnership may be deductible or amortizable. Under IRC Section 709, organizational costs include expenses that are: “(1) are incident to the creation of the partnership; (2) are chargeable to a capital account; and (3) would be amortized over the life of the partnership if they were incurred for a partnership having a fixed life.” Organizational costs may include certain legal and accounting fees associated with the formation of a partnership.

In general, a partnership may be allowed a $5,000 initial deduction for the organizational costs it incurs in its first year of business. However, if organization costs amount to more than $50,000, the $5,000 deduction will be reduced by any amount that exceeds the $50,000 threshold. Organization costs that are not deductible because of the threshold may be amortizable over a period of not less than 180 months, beginning with the month that the partnership begins operating its business. Note, special rules that are not covered in this article apply to partnerships formed before October 22, 2004.

It is important to also note that not all initial costs a partnership may incur or pay will be treated as organizational costs. Besides syndication costs (covered above), costs associated with acquiring and transferring assets to the new partnership, admitting or removing partners after the initial formation of a partnership, and various other costs may not be treated as organizational costs under these rules.

Startup Costs

Startup Costs are amounts that are paid or incurred after a business is formed, but before business operations actually start. In general, startup costs include pre-operation costs associated with employee training, advertising, promotion and market surveys, and related expenses. Costs associated with investigating the purchase of a partnership interest of a partnership may also be treated as startup costs by partners, provided certain rules are met.

A partnership may deduct $5,000 of startup costs in its initial year of operations. Startup costs that exceed $50,000 will reduce this amount, similar to operating expenses (explained above). A partnership may elect to amortize startup costs that have been reduced by the $50,000 limit over a period of 180 months, beginning with the month the partnership commences its operations. If a business is acquired, the period of amortization will begin the month after the business is purchased.

Contact Sherayzen Law Office for Partnership Organization and Tax Planning

If you are thinking about starting a partnership or your existing partnership is need of a sound tax plan, contact Sherayzen Law Office. Our experienced business and tax law firm will thoroughly analyze your current situation and create a customized plan to move your business toward achieving your business and tax goals.

Partnership Property Contribution and Taxable Exchange

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Partnerships offer many tax advantages for their partners. One such benefit is that when property is contributed to a partnership in return for a partnership interest, typically no gain or loss will be recognized. This general rule applies both to partnerships already in existence as well as newly-formed partnerships.

However, this is not always the case. This article will cover several common examples of instances in which a taxable exchange may result at some point.

Disguised Sales

Under Internal Revenue Code Section 707(a), in certain circumstances, the IRS will deem a supposed contribution of property to a partnership in exchange for a partnership interest to be a “disguised sale”. A disguised sale occurs when property that has appreciated in value is contributed, and soon after, the partner receives a distribution from the partnership. The IRS will view the distribution received as a payment for the property contributed.

Recently the IRS issued final regulations regarding disguised sales. In general, contributions and distributions made within a two-year period will be deemed to be sales. A disguised sale may also occur when a partner contributes property to a partnership, and the same property is then transferred to another partner either as a distribution, or as a liquidation of the second partner’s interest in the partnership. Additionally, a contribution may be treated as a disguised sale when, either before or after the contribution, different property is distributed to the contributing property within two years.

Under the regulations, however, if a distribution is made to a partner over two years after property is contributed and the distribution is reasonable in light of a variety of factors, the distribution will generally not be deemed to be a disguised sale.

Pre-Contribution Gain (Built-in Gain)

In general, taxable gains may also occur when contributed property that originally had a fair market value different from its basis (“pre-contribution” or “built-in” gain), and within seven years of the contribution date, the property is distributed to a different partner. In such instances, the distribution will be treated as a sale, and the contributing partner will recognize any net pre-contribution gain on the property. Any gain recognized by a contributing partner will increase his or her basis in the partnership interest.

Additionally, when a partnership distributes any property (besides cash) within seven years to a partner who has contributed built-in gain property, gain will be recognized on the lesser of: (1) the remaining net built-in gain of the contributing partner, or (2) any excess of the fair market value of property distributed over the partner’s adjusted basis in the partnership interest before the distribution. Any gain recognized by the partner will increase his or her basis in the partnership interest.
An exception to these general rules may apply where property is distributed back to the partner who originally contributed it. In such instances, the partner will not need to recognize built-in gain. Instead, the general partnership distribution rules will be applicable.

Contact Sherayzen Law Office for Help with Partnership Tax Issues

Partnership formation and operation can involve many complex issues, and it is often a wise idea to seek legal advice. Our experienced tax firm will thoroughly review your case, advise you on the available options and implement the customized tax strategy to your business. Contact Sherayzen Law Office to schedule a consultation to discuss your case.

Tax Withholding Update: Social Security and Medicare Tax for 2013

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Following the passage of the American Taxpayer Relief Act of 2012, the IRS issued Notice 1036 with respect to withholding tables for the year 2013, which includes the 2013 Percentage Method Tables for Income Tax Withholding.

Under the notice, the IRS requires the employers to implement the 2013 withholding tables as soon as possible, but not later than February 15, 2013. However, the use the 2012 withholding tables is permitted until employers implement the 2013 withholding tables; in such case, the employers should make an adjustment in a subsequent pay period to correct any under-withholding of social security tax by March 31, 2013.

One of the biggest news, of course, is the increase of the employee tax rate for social security to 6.2%. Previously, the employee tax rate for social security was 4.2%. The employer’s tax rate for social security remains unchanged at 6.2%. The social security wage base limit increases to $113,700. The Medicare tax rate is 1.45% each for the employee and employer, unchanged from 2012. There is no wage base limit for Medicare tax.

The second big news is that the withholding taxes will go up with Additional Medicare Tax for certain high-income wage earners. As described in an earlier article, starting January 1, 2013, Additional Hospital Insurance Tax (Additional Medicare Tax) of 0.9% will be imposed on employees who earn wages above certain thresholds. For the withholding purposes, the IRS requests that an additional 0.9% tax is withheld on wages paid to an employee in excess of $200,000 in a calendar year. The employer is required to begin withholding Additional Medicare Tax in the pay period in which he pays wages in excess of $200,000 to an employee and he should continue to withhold the Additional Medicare Tax each pay period until the end of the calendar year.

Note that Additional Medicare Tax is only imposed on the employee; there is no employer share of Additional Medicare Tax.

Classification Conversion of A Tax-Exempt Organization: 501(c)(6) and 501(c)(3) Organizations

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In a previous article, I already discussed some of the major differences between 501(c)(3) and 501(c)(6) organizations. However, this discussion was limited to characteristics of these organizations as opposed to dynamic developments that these organizations may experience during their existence. While most of these organizations tend to be stable once a particular type of tax-exempt organization is formed, this is not always the case. Sometimes, after a number of years in existence, an organization may modify its goals or its founders suddenly realize that they are limited in their practical options. For example, one large limitation of a 501(c)(6) organization is the inability of donors to deduct donations as charitable contributions on their tax returns. Conversely, members of a 501(c)(3) organization may desire to convert into another type of tax-exempt organization because of the substantial limitations on lobbying placed on such organizations.

At that point, a Board of Directors of such an organization may start to wonder about whether it is possible to convert the status of an organization, how to do it and whether there are any viable alternatives.  In this article, I will examine the possibility of converting a non-profit organization’s tax-exempt classification, focusing on 501(c)(3) and 501(c)(6) classifications.

General Conversion Process

First, in order to attempt the conversion from one classification to another, a tax-exempt organization will need to change its organizational documents (such as the Articles of Incorporation and the corporation’s Bylaws) to reflect the primary purpose of the new type of tax-exempt organization being sought and to comply with the requirements of such organizations. Usually, the Bylaws or the Articles of Incorporation govern the exact process of approval of the amendment of these important organizational documents. Frequently, these documents will say that a Board of Directors’ resolution is sufficient, but, often, an approval of the majority of members maybe required. If the organizational documents are silent on the amendment process, your state’s statute would need to be consulted on the amendment process.

Amending the documents is usually not enough. Changing the primary purpose of an organization may also entail eliminating, or at least substantially reducing, any prohibited or limited activities under the new desired classification. For instance, if you seek to convert a 501(c)(6) organization into a new 501(c)(3) organization, then, after changing the original organizational documents (and following any necessary rules in doing so) to comply with applicable 501(c)(3) requirements, will also need to limit substantial lobbying activities and any other activities that are prohibited or limited under 501(c)(3) rules. Usually, these activities require a wholesale overview of the organization’s activities by an attorney in order to determine what types of practices need to be modified and how.

Finally, in order to convert, a new form will need to filed with the IRS requesting the grant of the new tax-exempt status, demonstrating compliance with the relevant regulations. For example, in case of conversion to 501(c)(3), Form 1023 will need to filed, demonstrating compliance with IRS 501(c)(3) rules. This, in turn, will require paying an application fee as well as providing any applicable required verification documents. There is no guarantee that the IRS will recognize the new tax-exempt status being sought. This is why it is important for the application to be well drafted, demonstrating adherence to the relevant law and regulations.

Alternatives to Conversion

The motivations for seeking alternatives to full conversion from one classification to another are numerous. Nevertheless, the most popular reason for avoiding such conversion and seeking an alternative is the fact that an outright change in classification of an entity may significantly limit the ability of such organization to achieve their goals.

It is not easy to discuss alternatives to conversion, because the particular circumstances of an organization will determine what alternatives are available and whether they are more desirable than the process of conversion.

Yet, one can identify two general trends (which may or may not apply to a particular organization), which I will state here in their ideal form. First, some organizations attempt to create a hybrid organization which contains completely separate components – one that strictly follows the rules of a 501(c)(3) and another that adheres to the 501(c)(6) rules. This alternative will require separate application forms and fees, but it may give the most flexibility to the Board of Directors (assuming the IRS grants the requested status).

On the other hand, as a second alternative, a lot of organizations opt to create a new organization altogether in order to avoid legal complications. The idea here is that the members of the Board of the old corporation will form the majority of the members of the Board of the new corporation. Beware, while this alternative may solve one type of legal complications, it may actually bring a host of others.

Conclusion

Conversion from one tax-exempt classification to another can be very complex and usually requires an in-depth knowledge of the Internal Revenue Code, IRS regulations and case law. Therefore, you will need to consult an experienced attorney familiar with both business and tax aspects of these issue.

If you have any questions concerning tax-exempt classifications of non-profit corporations, contact Sherayzen Law Office for legal help. Our experienced tax firm can assist you in resolving any problems in this area of law.

Differences between 501(c)(3) and 501(c)(6) Organizations

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Are you thinking of creating a tax-exempt organization under federal income tax law? Tax-exempt organizations can provide extraordinary benefits to their members and society, but forming such organizations may entail significant knowledge of the law, as well as the ability to pay expensive application fees.

In this article I will briefly explain the basic differences between two common types of tax-exempt organizations, 501(c)(3) and 501(c)(6).

General Rules of Tax-Exempt Organizations

In general, net earnings may not inure to the benefit of individuals or private shareholders under either a 501(c)(3) or a 501(c)(6). Form 990 (Return of Organization Exempt From Income Tax) is the standard annual return required to be filed (and other forms, such as Form 990-EZ may be filed, depending upon size or characteristics of the organization).

In order to be granted tax-exempt federal income status, organizations must demonstrate when applying to the IRS that they meet various applicable tests. The rest of this article will explore some of the basic differences between 501(c)(3)’s and 501(c)(6)’s when it comes to these rules, such as the general purpose, and common interest requirements, as well as the advantages and disadvantages such organizations may have when it comes to tax deductions and influencing legislation through lobbying.

General Purpose – 501(c)(6)

Typically, a 501(c)(6) organization must demonstrate that improvement of business
conditions is the general purpose of the organization (this information should be included with the application form). The improvement of business conditions should relate to one or more “lines of business”, rather than the performance of “particular services” for individual persons. A line of business commonly refers to either a certain geographic area’s entire industr, or to all of its components of an industry, but would not include a group comprised of businesses that market a particular brand within an industry. Performance of particular services such as advertising that carries the name of members, interest-free loans, assigning exclusive franchise areas, operation of a real estate multiple listing system, or operation of a credit reporting agency, are examples of what would not be sufficient to show an improvement in business conditions.

General Purpose – 501(c)(3)

In contrast, 501(c)(3)’s include entities organized for charitable, educational, religious, literary, scientific, or other limited (such as amateur athletic organizations, or prevention of cruelty to children or animals) purposes.

Common Interest – 501(c)(6)

A 501(c)(6) organization must be able to show in the application documents that a common business interest of the community, or the conditions of a particular trade, will be advanced. Some examples as noted by the IRS of a common business interest would be: promotion of higher business standards and better business methods and encouragement of uniformity and cooperation by a retail merchants association; education of the public in the use of credit; establishment and maintenance of the integrity of a local commercial market; and encouragement of the use of goods and services of an entire industry. Some examples of membership associations include chambers of commerce, real estate boards, boards of trade, or professional sports leagues. Form 1024 is filed to apply for tax-exempt status for such organizations.

Common Interest – 501(c)(3)

Unlike a 501(c)(6), owners of a 501(c)(3) generally do not need to share a common interest. Form 1023 is filed to apply for tax-exempt status for such 501(c)(3) organizations.

Tax Deductions for Donations – 501(c)(6)

Contributions to 501(c)(6) organizations are not deductible as charitable contributions on a donor’s federal income tax return. However, donations may be deductible provided that they are ordinary and necessary trade or business expenses in the conduct of the taxpayer’s business.

Tax Deductions for Donations – 501(c)(3)

In contrast to 501(c)(6) organizations, taxpayers may deduct gifts, cash, or other items as charitable deductions to 501(c)(3) organizations on their federal income tax returns.

Lobbying – 501(c)(6)

501(c)(6) organizations are allowed to engage in substantial lobbying activities in order to attempt to influence legislation. However, 501(c)(6) organizations may need to disclose to their members the percentage of annual dues paid related to lobbying.

Lobbying – 501(c)(3)

In contrast, lobbying activities are significantly limited for 501(c)(3) organizations. If it is determined that an organization engages in a substantial part of its activities in lobbying, it may risk the loss of its tax-exempt status. An organization will be considered to be attempting to influence legislation, “[I]f it contacts, or urges the public to contact, members or employees of a legislative body for the purpose of proposing, supporting, or opposing legislation, or if the organization advocates the adoption or rejection of legislation.”

Depending upon the facts, it may be possible for a tax-exempt organization to have a separate components (such as entity having separate 501(c)(3) and 501(c)(6) components) in order maximize allowable lobbying, or other, activities. But both components would need to go through separate application processes in order for this to occur.

In future articles, we will cover the possibility of converting a tax-exempt organization into a different type of tax-exempt entity. However, this process, like the application process can be complex, and an experienced attorney is often necessary.

Contact Sherayzen Law Office for Tax and Business Questions About 501(c) Organizations

Due to the complexity of the topic, this article only provides a very general background to the differences about these two common types of 501(c) organizations, and it should not be relied upon to make a decision in your particular situation. If you have any further questions with respect to 501(c) organizations, please contact Sherayzen Law Office for legal and tax help.