Family partnerships can offer an advantageous method for splitting business income between family members who may be taxed at lower income rate brackets. This can result in substantial tax savings. However, because of the potential for widespread abuse of this device by shifting income to close relatives who may perform little or no actual work for a partnership, the Internal Revenue Code Section 704(e) (with related regulations and case law) place certain limitations upon family partnerships.
Under these limitations, the IRS can determine that the family partnership arrangement is invalid for tax purposes and disallow income-splitting. This article introduces the reader to the concept of a “family partnership” and outlines some of the general rules for determining whether family members will be recognized as valid partners.
Who is a Family Member for Purposes of IRC Section 704(e)?
Under IRC Section 704(e), “family members” include spouses, ancestors, lineal descendants, and any trusts for the primary benefit of such persons. It is important to note that brothers and sisters are not listed in this classification.
How Will a Family Member be Recognized as a Valid Partner?
In general, a family member may only be recognized as a partner of a family partnership if either of two conditions is met.
Under the first condition, if capital is a “material income-producing factor” and the partnership interest (allowing for full ownership and control) was acquired in a bona fide transaction, regardless of whether it was obtained by purchase or gift from another family member, a family member may be treated as a valid partner. Typically, capital will be considered a material income-producing factor if the partnership receives a significant portion of its gross income from utilizing capital resources (such as from investments in plant and equipment, or inventories). However, capital will usually not be treated as material income-producing factor if the partnership receives much of its gross income from service-oriented elements (such as commissions or fees). Additionally, the family member/partner must have a legitimate capital interest in the assets of the firm – a profits interest alone will not be sufficient.
Alternatively, pursuant to various cases interpreting IRC Section 704(e), if capital is not a material income-producing factor, but a family member contributes vital services to the partnership, the family member may be recognized as a legitimate partner of a family partnershp.
Transfer of a Partnership Interest to Children
One of the most common traps associated with income-splitting in family partnerships is the transfer of a partnership interest to the partner’s children. In such cases, the general rule is: where the capital is a material income-producing factor and a partnership interest is transferred, whether by gift or purchase, to children under the age of eighteen, a large portion of a dependent child’s income distribution received from the partnership may be subject to the “Kiddie tax” rules. Thus, unless the child’s income constituted earned income, it may be taxed at his parents’ tax rate. If a child performs legitimate services for the partnership, however, the Kiddie tax rules may be inapplicable.
Contact Sherayzen Law Office for Tax Planning with respect to Family Partnerships
The information contained in this article is general in nature, and does not constitute legal advice. In order to avoid making costly tax mistakes, you may wish to seek the advice of legal counsel.
If you currently have an interest in a family partnership or you would like to create one, contact Sherayzen Law Office, PLLC. Our experienced business tax firm will thoroughly analyze your case, create a customized ethical tax plan that fits your needs and implement this plan (including preparation of any legal and tax documents).