Authored by Paul Dillon and Mike Schiavo
In October 2016, the IRS released long-awaited guidance on liability allocations under Internal Revenue Code section 752 and disguised sales under section 707. The first change addresses debt allocations under section 752 and affects and curtails so-called “bottom-dollar” guarantees. These changes became effective Oct. 5, 2016.
The second change affects the disguised sale rules under section 707. Strictly for purposes of this section, the regulations will treat all debt as nonrecourse. This change became effective in January 2017. The new rule will severely limit the effectiveness of leveraged partnerships and the debt-financed distribution exception to the disguised sale rules.
These rules will begin to have their first significant impact on 2017 returns and are discussed in greater detail below.
Under the temporary regulations, bottom-dollar payment obligations are not recognized for purposes of debt allocations under section 752. A bottom-dollar payment obligation, or bottom guarantee, is an arrangement in which a partner guarantees the least risky portion of the debt. Such transactions are typically entered into to defer recognition of a negative capital account, thereby delaying the recognition of “phantom income” (i.e., taxable income without corresponding cash).
Example: Guarantee of first and last dollars. A, B and C are equal members of a limited liability company, ABC, that is treated as a partnership for federal tax purposes. ABC borrows $1,000 from Bank X. Partner A guarantees payment of up to $300 if any amount of the full $1,000 liability is not recovered by the bank. Partner B guarantees payment of up to $200, but only if the bank otherwise recovers less than $200.
- A is obligated to pay up to $300 if, and to the extent that, any amount of the $1,000 partnership liability is not recovered by Bank X. Since A’s guarantee covers the riskiest portion of the debt, it would be respected under the temporary regulations, and the $300 liability would be allocated to A for basis purposes.
- However, because B is obligated to pay up to $200 only if, and to the extent that, the bank otherwise recovers less than $200 of the $1,000 partnership liability (a bottom-dollar guarantee), B’s guarantee does not satisfy the requirements under the temporary regulations and B’s guarantee is not recognized. As a result, B does not receive a special allocation of the $200 for basis purposes; rather, that debt is allocable to all partners as nonrecourse debt.
The temporary regulations preserve the seven-year transition rule included in the proposed regulations. Under the relief, “any partner whose allocable share of partnership liabilities under Regulation section 1.752-2 exceeds its adjusted basis in its partnership interest on the date” the regulations are effective will be deemed a “transition partner.” Transition partners can continue to apply the existing section 752 rules for seven years or until they restore their negative tax capital account. However, under the transition relief, the negative capital account being covered by the guarantee cannot go any further negative. Reviewing any bottom guarantee arrangements should be an important part of your year-end planning.
Under previous law, with careful planning, taxpayers could essentially sell a business without triggering current gain by entering into a leveraged partnership with a would-be buyer. The business/asset is contributed to the partnership, which then borrows money (essentially the sales price of the business) and distributes borrowed funds to the seller. The transaction does not constitute a disguised sale as long as the would-be seller is on the hook for the borrowing. The debt is then allocated back to the seller/contributing partner, who defers taxation on the “disguised sale.”
Under the new temporary regulations, all debt is treated as nonrecourse for purposes of disguised sales, thus curtailing the effectiveness of many leveraged partnership structures by limiting the applicability of the debt-financed distribution exception under Regulation section1.707-5(b). This is a major rule change which effectively eliminates leveraged partnerships. The new rule means that the maximum amount of debt that could be allocated to the partner is the debt that would be allocated to it based on its share of profits. A guarantee will no longer serve to shelter the gain for disguised sale purposes.
A second report to the president related to the Executive Order was issued Oct. 2, 2017. The report indicates that Treasury and the IRS are considering whether the proposed and temporary regulations relating to disguised sales should be revoked and previous regulations reinstated. However, unless and until that happens, the disguised sale regulations remain in effect.
In that same report, Treasury indicated that it intends to retain the rules related to bottom-dollar guarantees.
The information provided here is of a general nature and is not intended to address the specific circumstances of any individual or entity. In specific circumstances, the services of a professional should be sought. Tax information, if any, contained in this communication was not intended or written to be used by any person for the purpose of avoiding penalties, nor should such information be construed as an opinion upon which any person may rely. The intended recipients of this communication and any attachments are not subject to any limitation on the disclosure of the tax treatment or tax structure of any transaction or matter that is the subject of this communication and any attachments.