REG-05 87ec71a
REG-05 87ec71a
REG-05 87ec71a
5
Flow-Through Entity Taxation and
Multi-jurisdictional Tax Issues
Module
1 S Corporations 3
2 Partnerships: Part 1 17
3 Partnerships: Part 2 27
4 Partnerships: Part 3 39
S Corporations REG 5
1.1 Formation
When a corporation is formed, it is by default taxed as a C corporation. It is treated as an
S corporation for tax purposes if a valid S corporation election is filed. Form 2553
Realized and recognized gain/loss to the corporation and shareholders upon contribution of
assets in exchange for stock are computed in the same manner as for a C corporation.
Facts: Ray contributes property with FMV of $20,000 and an adjusted basis to Ray of
$10,000 in exchange for stock in Falcon Corporation, an existing S corporation. Immediately
after the transfer, Ray owns 20 percent of Falcon's stock.
Required: Determine Ray's realized gain or loss on the exchange and his basis in the
S corporation stock.
Solution: $10,000 realized gain ($20,000 FMV – $10,000 adjusted basis of property
contributed). Need 80% to be tax-free
Ray will have a $10,000 realized gain. Because Ray did not have 80 percent or more
ownership in Falcon after the exchange, he is required to recognize the gain on the
exchange of property for stock.
Ray will have a $20,000 basis in Falcon ($10,000 carryover basis plus $10,000 gain
recognized). Falcon's basis in the property received is also $20,000.
2 Eligibility
1. Qualified Corporation
The corporation must be a domestic corporation. An S corporation may own any interest
in a C corporation (even 100 percent), but the S corporation may not file a consolidated tax
return with the C corporation. An S corporation may also create a qualified S subsidiary in
which the S corporation owns 100 percent of the stock; the two S corporations would file as
one entity for tax purposes.
4.2 No Tax on Corporation: Each shareholder reports income and pays tax (K-1)
Generally, there is no tax at the corporation level; all earnings are passed through to
shareholders and taxed at the individual shareholder level. There are certain exceptions.
The net unrealized built-in gain is the excess of the fair market value of corporate assets over
adjusted basis of corporate assets at the time the corporation converts from a C corporation
to an S corporation. When those assets are later disposed of, the S corporation may have to
pay tax on the built-in gain. The amount of built-in gain recognized in any one year is limited to
the total net unrealized built-in gain less any built-in gain previously recognized.
Exemptions From Recognition of Built-in Gain
An S corporation is exempt from a tax on built-in gains under any of the following
circumstances:
yy The S corporation was never a C corporation.
*
yy The sale or transfer does not occur within five years of the first day that the S election
No S corp. is effective.
tax on
yy The S corporation can demonstrate that the appreciation in the asset being sold or
built-in transferred occurred after the S election.
gain IF yy The S corporation can demonstrate that the distributed asset was acquired after the
S election.
yy The total net unrealized built-in gain has been completely recognized in prior tax years.
Calculation of Tax
The tax is 21 percent (the C corporation tax rate) of the lesser of:
yy Recognized built-in gain for the current year; or
yy The taxable income of the S corporation if it were a C corporation.
Facts: The Duffy Corporation, an S corporation, is owned equally by three shareholders, Rick,
Tim, and Peter. The corporation is on a calendar-year basis. On February 1, Year 5, Peter sold
his one-third interest in Duffy Corporation to George. For the year ended December 31, Year 5,
the corporation had ordinary business income of $120,000 and no separately stated items.
Required: Calculate each shareholder's ordinary business income allocation for the year.
Solution: For Year 5, the income of the corporation should be allocated as follows:
Rick ($120,000 × 1/3) $ 40,000
Tim ($120,000 × 1/3) 40,000
Peter (31 days / 365 days × $40,000) 3,397 1 month 1x/3 income
George (334 days / 365 days × $40,000) 36,603 11 months 1x/3 income
Total $120,000
5.1.3 Section 199A Qualified Business Income (QBI) Deduction = 20% deduction of net income
A below-the-line deduction of 20 percent of qualified business income may be available on
ordinary business income flowed-through from an S corporation.
Facts: Gray Corporation, an S corporation, had the following items of income and
deduction for the year: Net income
Gross income $150,000 $150,000
Cost of goods sold 70,000 <70,000>
Interest income 10,000 Schedule B -
Section 1231 gain 5,000 Schedule D -
Salary expense 40,000 <40,000>
Depreciation expense (MACRS) 10,000 <10,000>
Charitable contributions 5,000 Schedule A -
$30,000
Required: Calculate Gray Corporation's ordinary business income and separately stated
items for the year.
Solution: Ordinary business income: $30,000 (gross income of $150,000 less COGS of
$70,000, salaries of $40,000, and MACRS depreciation of $10,000)
Separately stated items:
Interest income $10,000
Section 1231 gain 5,000
Charitable contributions 5,000
Pass Key
Unlike partnerships, S corporation shareholders do not include any S corporation debt in their
stock basis. However, an S corporation shareholder does have separate debt basis in loans from
the shareholder to the S corporation. = Include (debt basis)
Stock basis cannot be reduced below zero. This affects both the pass‑through of S corporation
losses/deductions and the tax treatment of distributions to shareholders.
Basis
5.4 Limitations on Pass-Through of Losses : Deduct up to +
Direct loans
For an S corporation shareholder to deduct a loss, the shareholder must clear four hurdles,
in this order:
1. Tax basis limitation
2. At-risk limitation
3. Passive activity loss (PAL) limitation
4. Excess business loss limitation
The tax basis and at-risk limitations are applied at the entity level, and limit the ability of
S corporation shareholders to flow through losses to individual income tax returns. The PAL and
excess business loss limitations are applied at the individual tax return level.
Pass Key
Gearty has debt basis of $15,000 for the loan to the S corporation, so his total tax basis is
$62,000 ($47,000 stock basis + $15,000 debt basis). However, the loan to the S corporation
is not included in his at-risk amount. Because he obtained the funds through a nonrecourse
loan and is not personally liable, he is not at risk of financial loss. Gearty's at-risk amount is
$47,000, the amount of his stock basis only.
Beg. basis
Facts: Anna's stock basis in her S corporation stock at the end of Year 1 is $30,000. Anna
also loaned the S corporation $10,000 from her personal savings in Year 1. In Year 2, the
S corporation incurred an ordinary business loss, and Anna's share of the loss was $75,000. Year 2
The S corporation had ordinary business income in Year 3, and Anna's share was $50,000. Year 3 income
There were no other changes to Anna's stock basis (separately stated items, contributions,
or distributions), and the S corporation did not make any payments on the loan from Anna
in Years 2 and 3.
Required: Calculate the amount of ordinary income or loss that is flowed through to
Anna's individual income tax return each year and her tax basis in her S corporation stock
at the end of Year 2 and Year 3.
Solution:
Year 2: Anna can flow through $40,000 of her $75,000 share of the Year 2 S corporation
loss for deduction on her individual income tax return (subject to the PAL and excess
business loss limitations). The loss can be flowed through to the extent of her $30,000 stock
basis and $10,000 debt basis, reducing the basis of both to zero at the end of Year 2. The
remaining $35,000 ($75,000 – $40,000) is suspended until her tax basis is reinstated.
Year 3: The $50,000 ordinary business income is flowed through to be taxed on Anna's
individual income tax return. The income reinstates her debt basis to $10,000 first, then
the remaining $40,000 increases her stock basis. The suspended loss of $35,000 can now
be flowed through for deduction on her income tax return (subject to the PAL and excess
business loss limitations). Her Year 3 ending stock basis is $5,000 ($40,000 – $35,000).
Her Year 3 ending tax basis is $15,000 ($5,000 stock basis + $10,000 debt basis).
Feline Corporation, a calendar year S corporation since its formation in Year 1, has two equal
shareholders, Carlin and Radon. During Year 5, Carlin received distributions from Feline
Corporation of $22,000. At December 31, Year 5, after all adjustments to stock basis had been
made except for distributions, Carlin's basis in his Feline stock was $18,000. For Year 5, Carlin
will treat $18,000 of the distributions as a nontaxable return of capital (reduction of basis of
stock) and $4,000 in excess of his stock basis as a long-term capital gain.
The New Elect Corporation was a C corporation until it elected S status on January 1, Year 2. New
Elect had accumulated C corporation E&P of $20,000 at December 31, Year 1. For the period
Year 2 to Year 8, New Elect had ordinary business income of $100,000 and had made shareholder
distributions of $60,000. New Elect's AAA balance at December 31, Year 8, was $40,000
($100,000 – $60,000). In Year 9, New Elect had ordinary business income of $50,000 and made
distributions to shareholders of $120,000. The tax result of the Year 9 distribution is as follows:
1. To extent of S Corporation AAA
($40,000 + $50,000 Year 9 income = $90,000) Nontaxable
2. To extent of C corporation E&P ($20,000) Taxable dividend
3. Excess ($10,000) ontaxable reduction in basis of stock,
N
any in excess of stock basis is taxable LTCG.
$120,000
6 Termination of S Election
Facts: Small Corporation is a calendar year S corporation, which has maintained a valid
S election since the corporation was formed 10 years ago. On February 1 of the current
year, Small admits Large Corporation, a C corporation, as a 40 percent shareholder.
Required: Determine the impact of Small Corporation's admittance of Large as a
shareholder on the S election.
Solution: Because Large Corporation is a C corporation, Small would no longer meet the
requirements of an S corporation, and its S election would be terminated on February 1,
the date Large Corporation is admitted as a shareholder. Small Corporation's income in the
year of termination must be allocated between a short S corporation tax year and a short
C corporation tax year.
- Wait 5 years
6.4 Reelecting S Status - Ask IRS permission
Once an S corporation election has been terminated, the corporation must wait until the beginning
of the fifth year after the year of termination before it can elect S corporation status again.
7 Liquidation of an S Corporation
Note: Distributions to related parties (as defined in IRC Section 267) do not qualify for loss recognition.
If the shareholder assumes corporate liabilities or receives property subject to a liability, the
amount realized is reduced by the amount of the liabilities assumed:
Cash received
K-1
FMV of property received
< Liabilities assumed >
Amount realized
< Basis in stock >
Increase
Taxable gain (loss)
The shareholder's stock basis in this calculation is determined after all of the other activity
of the S corporation for the year has been taken into account (share of taxable income, etc.).
The character of the gain/loss recognized to the shareholder will depend on the
shareholder's holding period in the S corporation stock and whether the stock is a capital
asset to the shareholder.
W's gain on the distribution is $20,000 ($100,000 FMV of building received as a distribution
less $80,000 stock basis).
NOTES
Question 1 MCQ-01966
Bristol Corp. was formed as a C corporation on January 1, Year 1, and it elected S corporation
status on January 1, Year 3. At the time of the election, Bristol had accumulated C corporation
earnings and profits, which have not been distributed. Bristol has had the same 25 shareholders
throughout its existence. In Year 6, Bristol's S corporation election will terminate if it:
a. Increases the number of shareholders to 100.
b. Adds a decedent's estate as a shareholder to the existing shareholders.
c. Takes a charitable contribution deduction.
d. Has passive investment income exceeding 90 percent of gross receipts in each of
the three consecutive years ending December 31, Year 5.
Question 2 MCQ-01955
Lane Inc., an S corporation, pays single-coverage health insurance premiums of $4,800 per
year and family coverage premiums of $7,200 per year. Mill is a 10 percent shareholder-
employee in Lane. On Mill's behalf, Lane pays Mill's family coverage under the health
insurance plan. What amount of insurance premiums is includable in Mill's gross income?
a. $0
b. $720
c. $4,800
d. $7,200
1 Partnerships
Facts: A taxpayer contributes land in exchange for a partnership interest. The land has an
adjusted basis of $30,000 and FMV of $50,000 at the time of transfer.
Required: Determine the amount of gain or loss recognized by the taxpayer.
Solution: No gain is recognized by the taxpayer on the transfer.
Facts: A taxpayer receives a 20 percent partnership profits interest in exchange for services
provided. On the day he is admitted to the partnership, the partnership's assets have a
basis of $20,000 and a liquidation value of $80,000. FMV = -0-
Required: Determine the amount of income, gain, or loss recognized by the taxpayer.
Solution: The taxpayer will not have to recognize income at the time the profits interest is
exchanged for the services provided.
Facts: A taxpayer receives a 20 percent partnership capital interest in exchange for services
provided. On the day he is admitted to the partnership, the partnership's assets have a
basis of $20,000 and a liquidation value of $80,000.
Required: Determine the amount of income, gain, or loss recognized by the taxpayer.
Solution: He will recognize ordinary income of $16,000 (20 percent of $80,000).
2 Basis
Cash contributed
Property contributed (adjusted basis)
Services provided (FMV, if capital interest)
Existing
< Liabilities transferred to partnership, assumed by other partners >
liabilities that
+ Partner's share of partnership liabilities
were in the
Partner's initial basis in partnership interest
partnership &
new partner
2.1.2 Allocation of Partnership / LLC Debt will take on
A partner's share of partnership debt is included in his or her basis in the partnership interest.
How partnership or LLC debt is allocated to partners or LLC members depends on two things:
the type of debt and the type of owner.
Recourse debts: Debts for which a partner has personal liability, which means that
the creditor can go after the partner's personal assets if the debt is not satisfied by the
partnership. A general partner is personally liable for the recourse debts of the partnership.
A limited partner or LLC member has limited liability, so they are generally not personally
liable for the debts of the partnership unless they personally guarantee the debt. Recourse
debts are only allocated to partners or LLC members who have personal liability for = Only general
the debt.
partner's share
Nonrecourse debts: Typically secured by property. The creditor only has the right to
take the secured property, not the personal assets of partners or LLC members, if the
partnership defaults on the debt. Nonrecourse debts are allocated to all partners or LLC
members based on their relative profit-sharing ratio. General & limited partner's share
Allocation of Partnership Debt to Partners
Type of Owner Recourse Debt Nonrecourse Debt
General partner Yes (personal liability) Based on profit-sharing ratio
Limited partner Only if personal guarantee Based on profit-sharing ratio
LLC member Only if personal guarantee Based on profit-sharing ratio
1 AB Partnership has two equal partners, General Partner A and Limited Partner B. If AB
Partnership takes out a $100,000 loan, how does it impact Partner A and Partner B's basis
in their partnership interests?
If the loan is a recourse loan, the entire $100,000 loan is allocated to Partner A, and
increases her basis in her partnership interest, because she is a general partner and has
personal liability for the debts of the partnership. None of the recourse loan is allocated
to Partner B because she is a limited partner and does not have personal liability for
partnership debts.
If the loan is a nonrecourse loan secured by property, the debt is allocated between the
two partners based on their 50 percent profit-sharing ratio. Each partner increases her
basis in her partnership interest by $50,000 ($100,000 × 50%).
2 Assume instead that the business is an LLC, with two equal LLC members: = Limited liability company
If the loan is a recourse loan, neither LLC member increases her basis in her LLC interest (no personal
for the loan, unless one (or both) owners personally guarantee the LLC recourse loan. liability)
LLC members, like limited partners, do not have personal liability for partnership debts.
If the loan is a nonrecourse loan secured by property, the debt is allocated between the
two LLC members in the same manner as a partnership. Each LLC member increases her
basis in her LLC interest by $50,000 ($100,000 × 50%).
Pass Key
Corp. tax
Reduce basis
by 100% of
liability put in
Becker and Peter admit Tim to their partnership as a one-third partner. Tim contributes
a building that is worth $500,000 but has a basis of $100,000. There is a mortgage of
$225,000 on the building, assumed by the partnership.
Basis
$ 100,000 "Rollover" cost basis
< 150,000 property
R4_Building_Contributed
> Liabilities assumed by others ($225,000 × 2/3)
with excess liability
A partner's basis in a partnership interest can never begin with a negative balance (when
liabilities assumed by partnership are greater than the adjusted basis (NBV) of assets
contributed). The excess liability is treated as taxable boot, and the recognized gain
increases the partner's basis in the partnership interest to a "zero" starting point.
Facts: In Year 1, Joan contributed property with an adjusted basis of $100,000 and an FMV
of $150,000 to Morton Partnership in exchange for a 20 percent partnership interest. In
Year 3, Morton Partnership sold the property to an unrelated party for $180,000.
Required: Calculate the amount of gain recognized by Joan in Year 1 and Year 3 related to
the contributed property.
Solution:
Year 1: Joan does not recognize any gain for the difference between the FMV and adjusted
basis of the property contribution. However, the $50,000 built-in gain ($150,000 FMV – $100,000
adjusted basis) will be specially allocated to Joan when the property is subsequently sold. The
partnership's basis in the property is Joan's adjusted basis of $100,000.
Year 3: The total gain allocated to Joan is $56,000.
Pass Key
"Outside basis" is the basis a partner has in the ownership interest in the partnership.
This partnership interest has a tax basis similar to ownership interests in other property.
"Inside basis" refers to the basis that the partnership itself has in the assets it owns.
This inside basis can come from contributions made by the partners. As a general rule,
the basis of an asset contributed by a partner would carry over and be the basis of the
asset in the hands of the partnership. In addition, inside basis can come from asset
purchases the partnership makes with partnership funds.
Facts: In Year 1, Jeff contributes the following items in exchange for a one-third interest in
KNC Partnership:
$10,000 cash.
Building with FMV of $300,000 and adjusted basis to Jeff of $100,000. The building is
subject to a liability of $90,000. x 2/ = $60,000
3
In Year 2, Jeff contributes another building with FMV of $600,000 and an adjusted basis
to Jeff of $300,000.
The partnership had $150,000 of net income in Year 2. x 1/3 = $50,000
Required: Determine Jeff's initial outside basis in his partnership interest in Year 1, and
his outside basis in his partnership interest at the end of Year 2. Also determine the
partnership's inside basis and holding period in Jeff's contributed assets.
Solution:
Jeff's initial outside basis in his KNC Partnership interest is $50,000, calculated as follows:
$10,000 cash, plus $100,000 adjusted basis of building, less $60,000 liabilities assumed
by other partners ($90,000 × 2/3).
KNC's inside basis in the building contributed by Jeff in Year 1 is the adjusted basis in
Jeff's hands, $100,000. KNC's holding period in the building will start when the property
was initially acquired by Jeff.
Jeff's outside basis in his partnership interest at the end of Year 2 is $400,000, calculated
as follows:
$50,000 beginning basis, plus $300,000 adjusted basis of contributed building, plus
$50,000 share of partnership income in Year 2 ($150,000 × 1/3).
The partnership will again take a carryover basis of $300,000 and carryover holding
period in the new building.
Jeff's partnership basis
Cash $10,000
Building NBV 100,000
Less: liability others assume <60,000>
($90,000 x 2 /3 ) 40,000
Year 1 basis 50,000
2nd building: NBV 300,000
Less: liabilities others assume <-0->
© Becker Professional Education Corporation. All rights reserved. 300,000 Module 2 R5–23
Share of income ($150,000 x 1 /3 ) 50,000
Year 2 basis $400,000
2 Partnerships: Part 1 REG 5
Formation
Cash Operation
FMV services = Taxable
B Beginning Capital Account
NBV assets
< liability transferred
Taxation
Distribution
to partnership > % assumed
by other Liquidation
partners
Ordinary business
income
S
Nondeductible expenses
NBV
E Ending Capital Account
+ % Partnership Liabilities
(recourse and nonrecourse) Your share of liabilities
increases your "basis"
Ending Tax Basis in
Partnership Interest
Pass Key
A partnership is not subject to income taxes, but it still must file a partnership
tax return (Form 1065). A Form 1065 is an informational return (including Formation
Schedules K and K-1) that provides detailed information about partnership
Operation
income and expenses and indicates the amount and type of each partner's
distributive share of ordinary business income (loss) and separately stated
Taxation
income, gain, loss, and deduction items. Each partner is liable only for taxes
due on his distributive share of partnership income, as reported on Schedule Distribution
K-1, regardless of whether the distribution is actually made to the partner.
Liquidation
4.1 Accounting Periods of the Partnership
Adoption of Partnership Tax Year
y Calendar Year (Generally Required): A partnership return is due on March 15.
y Fiscal Year: Consistent with tax year of majority of partners.
When Partnership Terminates
A partnership terminates when:
Partnership
ends on y Operations cease.
that date
y There are fewer than two partners (i.e., the partnership becomes a sole proprietorship).
Question 1 MCQ-11785
Able, Bill, and Connor admit Dan as a 25 percent partner in the ABC&D partnership. Able,
Bill, and Connor each own 25 percent after Dan is admitted as a partner. Dan contributes a
parcel of land with a basis to Dan of $50,000 and a fair market value of $150,000. The land
is subject to a liability of $60,000 assumed by the partnership. Able, Bill, Connor, and Dan
are all general partners and will share profits and losses equally.
What is Dan's gain recognized and basis in his partnership interest, and what is the impact
of Dan's contribution on the other partners' basis in their partnership interests?
Question 2 MCQ-11786
Ball and Baig are equal general partners in the firm of Games Associates. On January 1 of
the current year, each partner's basis in their Games partnership interest was $50,000.
During the year, Games borrowed $80,000, for which Ball and Baig are personally liable.
Games sustained an ordinary business loss of $30,000 for the current year. The basis of
each partner's interest in Games at the end of the current year is:
a. $35,000
b. $50,000
c. $65,000
d. $75,000
1.1 Reporting Partnership Income (Schedule K-1) Each partner gets one
A partner must include on an individual income tax return the partner's distributive share of
ordinary business income or loss and each separately stated item of income, gain, loss, and
deduction. The following chart shows which partnership items will be reported separately
on Form 1065 and which will pass through to each individual partner's income tax return
as separately stated items to be treated by each individual partner according to his or her
own circumstances.
Each partner reports their share of net Appears On
income/loss on Schedule E 1065 K K-1
Business income
< Business expenses >
< Guaranteed Payments > Expense to partnership
1. Ordinary business income or loss
E
2. Guaranteed payments to partners To that partner as income
3. Net rental real estate income or loss E
4. Interest income B
5. Dividend income B
6. Capital gains and losses D
7. Net Section 1231 gain (loss) D
8. Charitable contributions A
9. Section 179 expense deduction Depreciation
10. Investment interest expense
11. Partners' health insurance premiums (included as part of
Adjustments guaranteed payments)
on partner's
tax return 12. Retirement plan contributions for employees
13. Retirement plan contributions for partners
14. Tax credits (reported by partnership but claimed by partners)
Solution: Ordinary business income for the year is $175,000, calculated as follows:
Gross business income $250,000
Salary expense (50,000)
Rent expense (15,000)
Depreciation expense (MACRS) (10,000)
The separately stated items reported on Schedule K are:
Dividend income $ 8,000
Section 179 expense (30,000)
Charitable contributions (20,000)
Pass Key
A frequently tested concept on the CPA Examination is the timing of taxable income to a
partner. An easy way to remember the timing of taxable income and basis impact is to
associate the partnership interest to a bank account:
2 Loss Limitations
As with an S corporation shareholder, a partner in a partnership must clear four hurdles in order
to deduct a loss:
1. Tax basis limitation
Partnership level issues
2. At-risk limitation
3. = Real estate losses
Passive activity loss (PAL) limitation
4. Excess business loss limitation = NOL
The tax basis and at-risk limitations are applied at the entity level, and limit the ability of partners
to flow through losses to their individual income tax return. The PAL and excess business loss
limitations are applied at the individual tax return level.
Facts: On January 1, Year 1, Becker and Conviser formed a partnership with each
contributing the following property:
Basis FMV
Becker $30,000 $30,000
Conviser 6,000 30,000
The partners have agreed to share profits and losses equally. During Year 1, each partner
withdrew $3,000; and for the year ended December 31, Year 1, the partnership's ordinary
business loss was $8,000.
(continued)
(continued)
Required: Determine how much of the ordinary business loss each partner can flow
through to their individual income tax returns for deduction in Year 1.
Solution: Conviser's Year 1 loss would be limited to his basis, $3,000, calculated as follows:
Becker Conviser
Original contributions (NBV) $30,000 $ 6,000
Less: distributions (3,000) (3,000)
Basis at end of tax year before loss pass-through 27,000 3,000
Each partner's share of $8,000 ordinary business loss $ (4,000) (4,000)
Conviser's loss limited to basis (3,000)
Basis in partnership interest at end of tax year $23,000 $ 0
Suspended loss due to insufficient tax basis carried forward
until basis is reinstated (4,000 – 3,000) $(1,000)
A loss in excess of a partner's at-risk basis is suspended until the at-risk basis is reinstated in
future years, and is carried forward indefinitely. Any suspended losses due to insufficient at-risk
basis remaining when the partner disposes of the partnership interest can be offset against any
gain from selling the partnership interest.
Facts: ABC Partnership has three equal partners. A and B are general partners, and C
is a limited partner. In the current year, ABC Partnership borrowed $60,000 in qualified
nonrecourse financing (QNF) debt, $30,000 in other nonrecourse (secured) debt, and
General $20,000 in recourse (unsecured) debt. ABC (basis increase)
partners ABC (basis increase) (at-risk increase)
A&B Required: Calculate the increase in each partner's tax basis in their partnership interest
(basis increase) and their at-risk basis for the partnership debt.
(at-risk increase) Solution: The recourse debt is allocated equally between the two general partners because
they have personal liability for the partnership's recourse debts. None of the recourse
debt is allocated to the limited partner because the limited partner does not have personal
liability for the partnership's recourse debts. The recourse debt is included in both the tax
basis and the at‑risk basis for the two general partners.
The qualified nonrecourse financing (QNF) and other nonrecourse debt are allocated to all
the partners based on their one-third profit-sharing ratio. Both types of nonrecourse debt
are included in the partners' tax basis in their partnership interest but only the QNF debt is
included in their at-risk basis.
Partner A: (General partner)
Increase in tax basis: $40,000
($20,000 recourse × 1/2) + ($60,000 QNF × 1/3) + ($30,000 other nonrecourse × 1/3)
Same Increase in at-risk basis: $30,000
($20,000 recourse × 1/2) + ($60,000 QNF × 1/3)
Partner B: (General partner)
Increase in tax basis: $40,000
($20,000 recourse × 1/2) + ($60,000 QNF × 1/3) + ($30,000 other nonrecourse × 1/3)
Increase in at-risk basis: $30,000
($20,000 recourse × 1/2) + ($60,000 QNF × 1/3)
Partner C: (Limited partner)
Increase in tax basis: $30,000
($60,000 QNF × 1/3) + ($30,000 other nonrecourse × 1/3)
Increase in at-risk basis: $20,000
($60,000 QNF × 1/3))
Facts: Rachel, a single taxpayer, created a limited liability company (LLC), which she elected
to have taxed as a partnership, to sell her handmade necklaces. Rachel had an initial cash
contribution to the business of $20,000. Additionally, Rachel was allocated $5,000 of recourse
debt that she had personally guaranteed and $8,000 of nonrecourse debt (not qualified
nonrecourse financing). In the first year of operation, Rachel was allocated $35,000 of
ordinary business loss from the LLC. Rachel has no other active or passive business activities.
Required: Calculate Rachel's tax basis and "at-risk" amount in the LLC. Calculate how much of
the loss from the LLC she can deduct on her individual income tax return considering all four of
the business loss limitations.
Solution: Rachel's tax basis in the LLC is $33,000 ($20,000 cash contribution + $5,000
recourse debt + $8,000 nonrecourse debt). Rachel's at-risk amount is $25,000 ($20,000 cash
contribution + $5,000 recourse debt). Exclude the nonrecourse of $8,000
First, Rachel's loss is limited to her tax basis in the LLC of $33,000. Rachel must then consider
the at-risk limitation. The $33,000 loss, which cleared the tax basis hurdle, is now limited to her
at-risk amount of $25,000. Rachel may pass through for deduction $25,000 of the $35,000 loss.
The $2,000 loss suspended by the tax basis limitation ($35,000 – $33,000) is carried forward and
can only be used when her tax basis is reinstated. The $8,000 loss limited by the at‑risk criteria
is carried forward until the partner generates additional at-risk amounts to utilize the loss.
The business is not a passive activity so Rachel is not subject to the PAL limitation. Rachel does
not have any other business income or losses, so her combined business loss is $25,000. This
amount is well below the $289,000 excess business loss limitation amount for single taxpayers
(2023), so she can deduct the $25,000 loss on her individual income tax return.
3.1.1 Basis in Partnership Interest Greater Than Adjusted Basis of Property Distributed: Use NBV
to reduce
When a partner's basis in the partnership interest (after any cash distribution) is greater than the basis
adjusted basis of property distributed, the partner's basis in the partnership interest is reduced
by the adjusted basis in the property. The partner's basis in the property distributed is the same
as the partnership's basis in the property.
3.1.2 Basis in Partnership Interest Less Than Adjusted Basis of Property Distributed: Stop at
zero basis in
When a partner's basis in the partnership interest (after any cash distribution) is less than the partnership
adjusted basis of property distributed, the partner's basis in the property distributed is reduced.
A distribution cannot reduce the basis in the partnership interest below zero. The partner's basis
in the property distributed is equal to the remaining basis in the partnership interest (after any
cash distribution). The basis in the partnership interest after the distribution is zero.
Cash
<Basis>
3.2 Cash Distribution Excess = Gain
If a partner receives a cash distribution that is greater than the partner's basis in his or her
partnership interest, the partner recognizes a capital gain for the excess. A distribution cannot
reduce the basis in the partnership interest below zero. For a property distribution, the partner
can take a lower basis in the property distributed to prevent the partnership basis from
being reduced below zero. However, the basis in cash cannot be reduced, so a gain must be
recognized by the partner to prevent the partnership basis from being reduced below zero.
Facts: Olinto's basis in his partnership interest was $30,000. He received a nonliquidating
operating distribution of $24,000 cash plus a parcel of land with a fair market value of
$12,000 and partnership basis of $9,000.
Required: Determine Olinto's basis in the land distributed and his basis in his partnership
interest immediately after the distribution.
Solution: Olinto's basis in the land is $6,000 and his basis in his partnership interest after
the distribution is zero.
The basis of property received in a distribution, other than in liquidation of a partner's
interest, will typically be the same as the basis in the hands of the partnership immediately
prior to distribution. However, in no case may the partner's basis in the property
distributed exceed the basis in his partnership interest (after any cash distribution).
Basis in partnership interest adjusted prior to distribution $ 30,000
Amount of cash distributed (24,000)
Remaining basis after cash distribution 6,000
Property distributed: land (partnership's basis $9,000) (6,000)
Stop at zero
Basis in partnership interest after distribution $ 0
The basis in the partnership interest may not be reduced below zero. Therefore, the land has
a basis of $6,000 in the hands of the partner, the remaining basis in his partnership interest.
Note: No gain
3.3 Distribution of Multiple Assets
When multiple assets are distributed to a partner and the partner's basis in his or her partnership
interest is less than the adjusted basis of the assets distributed, the partner's remaining basis in
his or her partnership interest must be allocated among the assets distributed. This prevents the
partner's basis in the partnership interest from being reduced below zero.
Basis is assigned first to cash, then "hot assets," then other property. Hot assets are assets that result in
ordinary income when sold, including inventory and unrealized receivables (for cash basis taxpayers).
Facts: Olinto's basis in his partnership interest was $30,000. He received a nonliquidating
operating distribution consisting of the following assets:
Required: Determine Olinto's basis in the property distributed and his basis in his
partnership interest immediately after the distribution.
Solution: The partnership's total basis in the assets distributed of $38,000 is more than
Olinto's basis in his partnership interest of $30,000, so Olinto's basis in the property
distributed will be reduced. The distribution cannot reduce his basis in Olinto's partnership
interest below zero. The $30,000 basis in his partnership interest is allocated first to cash,
then hot assets distributed (inventory), then other property distributed (land).
A limited liability company (LLC) is a separate legal entity from its owners. As with corporate
shareholders, LLC "members" are not personally liable for the obligations of the business. All
members of an LLC have "limited liability," which is different from a limited partnership, where
at least one general partner is personally liable for all partnership debts.
4.1 Formation
The business owner files articles of organization with the state where the LLC is organized, which
is similar to the formation of a corporation. The following list summarizes some of the key points
a business owner should consider when trying to decide whether or not to organize a business
as an LLC:
An LLC provides similar protection from liabilities as a corporation but does not have the
"double taxation" of a corporation if the LLC is taxed as a partnership.
LLC members generally have the right to amend the LLC operating agreement, provide input,
and manage LLCs, yet corporate shareholders generally do not have these same rights.
An LLC cannot become a public company. It must convert to a corporation before issuing
an IPO.
S corporations have restrictions on the type and number of shareholders they may have.
LLCs do not have these same restrictions.
A sole proprietorship may become a single member LLC if it files articles of organization
with a state.
Question 1 MCQ-11787
Jody's basis in her partnership interest was $50,000 immediately before she received a
current (nonliquidating, or operating) distribution of $20,000 cash and property with an
adjusted basis to the partnership of $40,000 and a fair market value of $35,000.
What is Jody's basis in the distributed property?
a. $0
b. $30,000
c. $35,000
d. $40,000
Question 2 MCQ-11788
Jody's basis in her partnership interest was $50,000 immediately before she received a
current (nonliquidating, or operating) distribution of $20,000 cash and property with an
adjusted basis to the partnership of $40,000 and a fair market value of $35,000.
What amount of taxable gain must Jody report as a result of this distribution?
a. $0
b. $5,000
c. $10,000
d. $20,000
1 Liquidation of a Partnership
There are three ways in which a partner may liquidate a partnership interest:
Formation
1 Complete withdrawal (liquidating distribution)
Operation
2 Sale of partnership interest
3 Retirement or death Taxation
In a complete liquidation, the partner's basis for the distributed property is Liquidation
the same as the adjusted basis of the partner's partnership interest, reduced
by any cash or cash equivalents received. The adjusted basis needs to be
determined immediately before the partner's liquidation, after all other items of partnership
income/loss and liabilities assumed have been taken into account for the year.
Rule
Beginning capital account
Partner's share of income < loss > up to withdrawal Zero out
to get out
Partner's capital account
Partner's share of partnership liabilities
Adjusted basis in partnership interest at date of withdrawal
< Cash distribution >
Remaining basis to be allocated to assets distributed
Basis $24,000
Cash <5,000>
Remain to RE $19,000
Illustration 1 Liquidating Distributions: Impact on a Partner
Tag's basis in his KJT partnership interest was $24,000. Tag received a liquidating
distribution of $5,000 in cash and real estate with an FMV of $20,000 and an adjusted basis
to the partnership of $10,000. Tag has a basis in the real estate of $19,000 ($24,000 basis in
his partnership interest less $5,000 cash received).
Basis $24,000 Alternative scenario: If Tag had instead received $25,000 in cash as well as the real estate,
Cash <25,000> Tag would recognize a $1,000 gain ($24,000 basis in his partnership interest less $25,000
Gain -$1,000 cash received). The real estate received would have zero basis to Tag.
Alternative scenario: If Tag had received $20,000 in cash and no real estate, Tag would Basis $24,000
recognize a loss of $4,000 ($24,000 basis in his partnership interest less $20,000 cash Cash <20,000>
received), because there were no other assets distributed which allocate his remaining End. loss $4,000
basis in his partnership interest.
Got nothing else
Alternative scenario: If the property Tag had received was unrealized receivables or
inventory instead of real estate, he would recognize a $9,000 loss ($24,000 basis in his
Basis $24,000 property interest less $5,000 cash received less $10,000 basis of property received). Tag
Cash <5,000> would have a basis in the unrealized receivables or inventory of $10,000, the same as the
19,000 basis in the hands of the partnership.
AR inv. <10,000>
Loss $9,000
1.2 Distribution of Multiple Assets
When multiple assets are distributed to a partner in a liquidation, the remaining basis in the
partner's partnership interest must be allocated among the assets distributed. Basis is assigned
first to cash, then hot assets, then other property. If multiple assets are distributed within a
property category (hot assets and/or other property), the basis is allocated among the assets
using a three-step process. The three-step process used depends on whether the partner's basis
in the partnership interest (outside basis) is less than, or more than, the partnership's basis in
the assets distributed (inside basis).
Facts: Gearty's basis in his partnership was $229,000. He received a liquidating distribution
consisting of the following assets:
s
Les
Cash $ 4,000 $ 4,000
Inventory 10,000 15,000
Land—Lot A 200,000 150,000 Lower FMV <$50,000>
Land—Lot B 100,000 300,000 Higher FMV $200,000
Total $314,000 $469,000
Required: Determine Gearty's basis in the property distributed and his basis in his
partnership interest immediately after the distribution.
Solution: Gearty's basis in his partnership interest of $229,000 is less than the
partnership's total basis in the assets distributed of $314,000, so his basis in the property
received will be reduced. His basis in his partnership interest must be zero (0) after the
liquidating distribution.
The $229,000 basis in his partnership interest is allocated among the assets using the
three-step process:
Facts: Same facts as Example 1, but Gearty's basis in his partnership interest is $529,000.
Required: Determine Gearty's basis in the property distributed and his basis in his
partnership interest immediately after the distribution.
Solution: Gearty's basis in his partnership interest of $529,000 is more than the
partnership's total basis in the assets distributed of $314,000, so his basis in the property
received will be increased. His basis in his partnership interest must be zero (0) after the
liquidating distribution.
The $529,000 basis in his partnership interest is allocated among the assets using the
three-step process:
Pass Key
The CPA Examination will require candidates to understand the difference in basis rules for
nonliquidating and liquidating distributions.
Reduction of Basis in
Distribution Basis of Property Received Partnership Interest
Adjusted basis of property
Nonliquidating Adjusted basis of property
(stop at zero)
Liquidating Partnership interest Must "zero-out" account To get out
As a general rule, the partner has a capital gain or loss when transferring a partnership interest
because a partnership interest is a capital asset to the partner.
Facts: Kristi sold her interest in the KJT partnership to a new partner, John, for $15,000
cash. John agreed to assume her $5,000 share in partnership liabilities.
Required: Determine the amount realized on the sale of Kristi's partnership interest.
Solution: The amount realized in the transaction was $20,000 ($15,000 cash plus $5,000
relief from partnership liabilities). The $20,000 will be compared with the basis of Kristi's
partnership interest in order to determine her gain or loss.
Facts: Partner A, a 20 percent partner, sells her entire partnership interest to New Partner B
on March 31 of the current year. The partnership reported $80,000 of partnership income for
the entire tax year.
Required: Determine A's and B's shares of partnership income for the year.
Solution:
Old: Partner A: $80,000 × 20% share × 90 days / 365 days = $3,945 (rounded) = 3 months
New: Partner B: $80,000 × 20% share × 275 days / 365 days = $12,055 (rounded) = 9 months
365
3 of 3 3 Retirement or Death of a Partner
Payments to a retiring partner (or to the interest successor of a deceased partner) in liquidation
of his or her entire partnership interest are allocated between payment for an interest in
partnership assets and other payments.
Payments for the interest in partnership assets result in capital gain or loss.
If payments are measured by partnership income, they are treated as partnership income
regardless of the period over which they are paid. Thus, such payments are taxable as
ordinary income to the retired partner as if he or she continued to be a partner.
Partnerships have the option to make a Section 754 election when there is a transfer of a
partnership interest by sale or exchange, or upon the death of a partner. This election can be
made when there is a difference between a partner's share of inside basis in the partnership
assets and the partner's outside basis in his or her partnership interest.
Transfer of Partnership Interest
In the case of a Section 754 election being made by reason of sale or exchange, a
Section 743(b) basis adjustment follows. The Section 743(b) adjustment equals the
difference between the value of the outside basis to the transferee partner (e.g., purchase
price) and the partner's share of the partnership′s inside basis of the assets. This
adjustment, which can be either positive or negative, is prorated over the partnership assets
under the rules set forth in Section 755 (beyond the scope of this material). The goal of the
adjustment is to make the transferee have an inside basis in the partnership assets equal to
his or her outside basis. The adjustment is specially allocated only to the transferee and has
no effect on the partnership′s income or loss. Once the election is made, it remains in effect
for all future transactions (being revoked only with permission from the IRS). Alternatively,
even in the absence of a Section 754 election, the IRS mandates a 743(b) adjustment when
there is a substantial built-in loss at the time of purchase (inside basis exceeds outside basis
by $250,000 or more).
Facts: Oscar purchased Bernice's 25 percent interest in Handly Partnership for $500,000.
At the time of sale, Handly made a 754 election to adjust the basis of the partnership asset.
Immediately before the sale, the inside basis in the partnership asset (a building) was
$1,200,000 and the fair market value was $2,000,000.
Got $300,000 $500,000
Required: Calculate the basis adjustment required under Section 743(b), and describe the
consequences of a future sale of the asset.
Solution: The 743(b) basis adjustment is $200,000 ($500,000 purchase price of partnership
interest less $300,000, which is Oscar's 25 percent interest in the $1,200,000 inside basis of
the partnership assets), allocated entirely to Oscar. The basis adjustment is entirely a tax
concept and does not impact the book value of the partnership′s assets.
If the building is subsequently sold at fair market value of $2,000,000, a tax gain would
be recognized in the amount of $600,000 ($2,000,000 less $1,400,000 adjusted basis
with step‑up). The $600,000 gain would be allocated to the other partners besides Oscar.
No gain is allocated to Oscar.
Bernice "old" partner was paid $500,000
Oscar "inside" 1,200,000 x 25% - 300,000
5 Liquidation of an LLC Adjustment $200,000
The liquidation of an LLC and the consequences to its members will be treated the same as
either a corporation or a partnership, whichever form the LLC elected to take for federal income
tax purposes upon formation.
Question 1 MCQ-11789
On December 31 of the current year, after receipt of his share of partnership income,
Clark sold his interest in a limited partnership for $30,000 cash and relief of all partnership
liabilities. On that date, the adjusted basis of Clark's partnership interest was $40,000,
consisting of his capital account of $15,000 and his share of the partnership liabilities
of $25,000. The partnership has no unrealized receivables or substantially appreciated
inventory. What is Clark's gain or loss on the sale of his partnership interest?
a. Ordinary loss of $10,000.
b. Ordinary gain of $15,000.
c. Capital loss of $10,000.
d. Capital gain of $15,000.
Question 2 MCQ-11790
The adjusted basis of Vance's partnership interest in Lex Associates was $180,000
immediately before receiving the following distribution in complete liquidation of Lex:
Fair Market
Basis to Lex Value
Cash $100,000 $100,000
Real estate 70,000 96,000
Question 3 MCQ-11791
Baker is a partner in BDT with a basis in his partnership interest of $60,000. BDT made a
liquidating distribution of land with an adjusted basis of $75,000 and a fair market value of
$40,000 to Baker. What amount of gain or loss should Baker report?
a. $35,000 loss
b. $20,000 loss
c. $0
d. $15,000 gain
Question 4 MCQ-11792
Fern received $30,000 in cash and an automobile with an adjusted basis and fair market
value of $20,000 in a liquidating distribution from EF Partnership. Fern's basis in the
partnership interest was $60,000 before the distribution. What is Fern's basis in the
automobile received in the liquidation?
a. $0
b. $10,000
c. $20,000
d. $30,000
Multi-jurisdictional
Tax Issues REG 5
Federal
1 Affiliated Groups and Transfer Pricing
An affiliated group of businesses having operations in several countries and conducting
sales between affiliates could have a pricing structure that (i) intentionally or unintentionally
understates income in some or all of those countries, including the United States; and (ii) results
in some countries not receiving as much income tax.
Holding Company, a U.S.-based company, owns 100 percent of the stock of three subsidiaries,
each in a different country:
M Company, a manufacturer in Country M having an income tax rate of 10 percent
W Company, a wholesaler and distributor in Country W having an income tax rate of 20 percent
R Company, a retailer in the U.S. having an income tax rate of 30 percent
Facts:
1. Country M and Country W use the U.S. dollar for their currencies.
2. M Company manufactures and sells widgets both to W Company and to unrelated parties.
W Company sells those widgets at wholesale to unrelated parties. W Company also sells
those widgets to R Company. R Company sells the widgets at retail to unrelated parties for
$9 per widget.
3. M Company's cost of goods sold is $1 per widget.
Assumptions: For purposes of this example (and to simplify this example), assume the following:
1. None of the subsidiaries has any selling, general, or administrative expenses.
2. Countries M and W do not impose any withholding on dividends paid by companies in
those countries to shareholders in other countries.
3. There is no income tax on dividends received.
Set forth below is how Holding Company, in order to minimize income taxes, would ideally want
to structure each sale between the subsidiaries:
Sells to W Outsider Outsider
To R Consolidated
M Company W Company R Company Corporate Group
Tax rate: 10% 20% 30%
Sales $9.00 $9.00 $9.00 $9.00
COGS (1.00) (9.00) (9.00) (1.00)
EBT $8.00 $0 $0 $8.00
Tax Non USA (0.80) Non USA 0 0 (0.80)
N.I. $7.20 $0 $0 $7.20
(continued)
Want all the
income reported
here & pay the lowest tax
© Becker Professional Education Corporation. All rights reserved. Module 5 R5–49
5 Multi-jurisdictional Tax Issues REG 5
(continued)
Although Country M's taxing authorities would not be displeased with this pricing structure (as
the corporate group's entire profit is subject to Country M's income tax), the IRS (and the taxing
authorities in Country W) would not be pleased with this pricing structure because the corporate
group is not paying any income tax to the United States (or to Country W).
To address this situation, the Internal Revenue Code (Sections 482 and 6662(e)(3)) provides the
IRS with the authority (i) to adjust the income and deductions (including COGS) of M Company,
W Company, and R Company to prevent evasion of taxes or to clearly reflect income; and (ii) to
impose penalties with respect to those adjustments. As a result, with respect to R Company's
sales of widgets, the IRS would most likely reduce R Company's COGS, and R Company would
then pay income tax to the U.S. Treasury.
Additional Explanatory Note: The corporate group knows that every widget that the group (via
R Company) sells to end users/customers will bring the group $9. So, if we ignore IRC Section 482,
the group wants to set up an intercompany pricing arrangement that will minimize the group's
income taxes due, per sale, to all countries. The best way to do so is to have M sell to W at $9;
next W sells to R at $9; and then R sells to the end customer at $9. In this manner, the entire profit
of the corporate group is reported by M, the company subject to the lowest income tax rate.
1.1 Definitions
U.S. federal tax
A "controlled taxpayer" is any one of two or more taxpayers owned or controlled directly or
indirectly by the same interests, and the definition includes a taxpayer that owns or controls = SUB
the other taxpayers.
"Uncontrolled taxpayer" means any one of two or more taxpayers not owned or controlled
directly or indirectly by the same interests.
"Controlled" includes any kind of control, direct or indirect, whether legally enforceable or
not, and however exercisable or exercised, including control resulting from the actions of
two or more taxpayers acting in concert or with a common goal or purpose. A presumption
of control arises if income or deductions have been arbitrarily shifted.
For purposes of the IRS's authority to make these adjustments with respect to controlled
transactions, "taxpayer" means any person, organization, or business, whether or not
subject to any tax imposed by the IRC.
Parent SUB
"Controlled transaction" or "controlled transfer" means any transaction or transfer between
two or more members of the same group of controlled taxpayers. SUB SUB
"Uncontrolled transaction" means any transaction between two or more taxpayers that are
not members of the same group of controlled taxpayers. Company Ouside
"Uncontrolled comparable" means the uncontrolled transaction or uncontrolled taxpayer customer
that is compared, under any applicable pricing methodology, with a controlled transaction
or with a controlled taxpayer. (Example: Under the comparable profits method, an
uncontrolled comparable is any uncontrolled taxpayer from which data are used to
establish a comparable operating profit.)
These organizations, trades, or businesses need not be incorporated, organized in the United
States, or affiliated. The IRS's authority to make these adjustments also extends to members of
an affiliated group that file a consolidated U.S. income tax return.
Related
A U.S.-based taxpayer shares costs with an affiliate that either:
party
yy is not subject to U.S. income tax; or
yy does not file a consolidated income tax return with the U.S.-based taxpayer.
In addition to federal income tax, a company is also subject to tax in its state of residence, as
well as in any state in which it has nexus.
The following are examples of activities that may trigger nexus in a state in which a
company operates:
Now yy Owning or leasing tangible personal or real property.
you are yy Sending employees into the state for training or work.
subject yy Soliciting sales in a state.
to yy Providing installation, maintenance, etc., to customers within a state (even through
state a third party).
income tax yy Accepting or rejecting sales orders within the state, or accepting returns.
Facts: Hundley Corporation sells computers and is incorporated and resides in California.
In addition to California, Hundley solicits sales in Oregon, Arizona, and Colorado. It provides
installation services to its customers in Arizona, and it conducts employee training at a
facility in Colorado.
Required: Determine with which states Hundley has nexus.
Solution:
California (state of residence and incorporation)
Arizona (provides installation services to customers)
Colorado (conducts employee training)
Hundley likely will be protected from nexus in Oregon by P.L. 86-272, as its only activity in
the state is solicitation of sales for tangible personal property.
Facts: A corporation selling shoes at retail in two states has invested excess cash, which is
not working capital, in high-grade stocks and bonds. The corporation plans to liquidate the
investment in 10 years and use the proceeds to pay for the construction in 10 years of a
planned distribution center.
Required: Determine whether the investment income from the stocks and bonds should
be classified as business income or allocated as nonbusiness income.
Solution: Because the investment in stocks and bonds does not relate to the primary
business activities of the corporation, in this situation, the corporation may be able to
allocate entirely to the corporation's home state all dividend income and interest income
(and capital gain or loss from the liquidation). No other state would be able to tax these
items of nonbusiness income.
1 2 3
Property and rent expense Payroll paid to employees Sales from sources = Income
located within the state within the state
+
within the state
+ ÷3 to
Total pro
operty Total payroll Total sales
that
state
Facts: A corporation has commercial domicile in Kansas and has the following breakdown
of property, payroll, and sales in the states where it operates:
The portion of line 28 income representing allocable dividends and interest income
(nonbusiness income) described above is $10,000; the remaining portion of line 28 income
is $100,000 and relates to business income (and thus is apportionable income). So, total
line 28 income is $110,000.
Required: Determine the corporation's taxable income in each state with nexus.
Solution: In order to determine taxable income for each state, first calculate their
apportionment factors.
Kansas: Missouri:
Property factor: 80% ($400,000 / $500,000) Property factor: 10% ($50,000 / $500,000)
Payroll factor: 40% ($40,000 / $100,000) Payroll factor: 30% ($30,000 / $100,000)
Sales factor: 30% ($300,000 / $1,000,000) Sales factor: 40% ($400,000 / $1,000,000)
Total factor: 50% [(80% + 40% + 30%) / 3] Total factor: 27% [(10% + 30% + 40%] / 3)
Oklahoma: Nebraska:
Property factor: 6% ($30,000 / $500,000) Property factor: 4% ($20,000 / $500,000)
Payroll factor: 20% ($20,000 / $100,000) Payroll factor: 10% ($10,000 / $100,000)
Sales factor: 20% ($200,000 / $1,000,000) Sales factor: 10% ($100,000 / $1,000,000)
Total factor: 15% [(6% + 20% + 20%] / 3) Total factor: 8% [(4% + 10% + 10%] / 3)
In this situation, the home state of Kansas could tax $60,000 of the corporation's line 28
amount: (i) $10,000 nonbusiness income allocated entirely to the home state; and (ii) $50,000
apportioned to the home state (50% apportionment factor × $100,000 apportionable
business income).
The remaining states have taxable income as follows:
Missouri: $27,000 (27% apportionment factor × $100,000 apportionable business income)
Oklahoma: $15,000 (15% apportionment factor × $100,000 apportionable business income)
Nebraska: $8,000 (8% apportionment factor × $100,000 apportionable business income)
Hold Company, located solely in Delaware, owns 100 percent of the stock of OP Company,
operating solely in State X. Hold Company's only business is (i) owning the stock of OP
Company and (ii) lending money to OP Company. Hold Company and OP Company file a
U.S. consolidated income tax return. Because of Hold Company's limited activities, under
Delaware law and under State X law, Hold Company is not liable for income tax to either
state. Because OP Company operates solely in State X, OP Company is not liable for state
income tax in Delaware.
At the end of each business day, OP Company declares and pays a dividend equal to all of
OP Company's cash on hand at the end of that day. At the beginning of each next business
day, Hold Company lends to OP Company sufficient cash for OP Company's operations for
that day. The interest rate is an arm's-length rate. Under the terms of the loan agreement,
OP Company does not have to repay any principal for 10 years.
As a result of Hold Company's daily loans to OP Company, each year OP Company incurs
deductible interest expenses of $10,000,000. Because Hold Company and OP Company file
a U.S. consolidated income tax return, the interest expense incurred by OP Company and
the interest income recognized by Hold Company offset each other. Because the interest
rate that Hold Company charges OP Company is an arm's-length rate and because the two
corporations file a U.S. consolidated income tax return, the IRS makes no transfer pricing,
controlled taxpayer adjustments.
Because of the daily dividends paid to Hold Company followed by the daily loan from Hold
Company to OP Company, on a "separate return" basis, OP Company's line 28 income has
been reduced by OP Company's $10,000,000 interest expense; so OP Company's income
subject to tax by State X also has been reduced by $10,000,000 (State X bases its state
income tax on the taxpayer's separate return line 28 amount).
However, if State X taxing officials have the authority to combine OP Company and Hold
Company, the state tax benefit of OP Company's $10,000,000 interest expense deduction
will be offset by Hold Company's $10,000,000 interest income. The combined line 28
amount will now reflect the true income of OP Company, and OP Company will pay to
State X the appropriate amount of state income tax.
Foreign Foreign subsidiary: This is a separate legal entity, incorporated under the laws of the
foreign host country. Accordingly, the subsidiary profits are taxed by the host country.
taxed now Federal tax consequences related to the foreign subsidiary are:
y Income earned by the subsidiary is not taxed until the earnings are brought back to the USA
United States in the form of a dividend. In this way, the U.S. company has control over
when foreign profits are recognized.
Federal y Certain types of income earned are not allowed to be deferred and are subject to
tax immediate taxation (e.g., passive investment income).
later y Because the foreign subsidiary is a separate legal entity and taxation on profits may be
deferred, it is important that transactions between the U.S. parent and foreign subsidiary
follow the rules of transfer pricing, or penalties will be imposed.
The IRC identifies nine items of income that should be treated as sources of income from
within the United States:
1. Interest: Interest from the United States or the District of Columbia and interest
on bonds, notes, or other interest-bearing obligations of noncorporate residents or
domestic corporations.
2. Dividends: The source of dividends is generally determined by the residence of the
corporation paying the dividend.
3. Personal Services: Compensation for labor or personal services performed in the United
States; there is a special exception for individuals temporarily performing services in the U.S.
They must meet the following requirements:
yy The labor or services are performed by a nonresident alien individual temporarily
present in the United States for a period or periods not exceeding a total of 90 days
during the taxable year;
yy Such compensation does not exceed $3,000 in the aggregate; and
yy The compensation is for labor or services performed as an employee of or under a
contract with:
—a
— nonresident alien, foreign partnership, or foreign corporation, not engaged in trade
or business within the United States; or
U.S.
—an
— individual who is a citizen or resident of the United States, a domestic partnership,
income or a domestic corporation, if such labor or services are performed for an office or
place of business maintained in a foreign country or in a possession of the United
States by such individual, partnership, or corporation.
4. Rents and Royalties: Rentals or royalties from property located in the United States or
from any interest in such property, including rentals or royalties for the use of or for the
privilege of using in the United States patents, copyrights, secret processes and formulas,
goodwill, trademarks, trade brands, franchises, and other like property.
5. Disposition of U.S. Real Property Interest: Gains, profits, and income from the disposition
of a United States real property interest.
6. Sale or Exchange of Inventory Property: Gains, profits, and income derived from the
purchase of inventory property outside the United States (other than within a possession of
the United States) and its sale or exchange within the United States.
7. Underwriting Income: Amounts received as underwriting income (as defined in
Section 832(b)(3)) derived from the issuing (or reinsuring) of any insurance or annuity contract.
8. Social Security Benefits
9. Guarantees: Amounts received, directly or indirectly, from:
yy a noncorporate resident or domestic corporation for the provision of a guarantee of
any indebtedness of such resident or corporation, or
yy any foreign person for the provision of a guarantee of any indebtedness of such person,
if such amount is connected with income which is effectively connected (or treated as
effectively connected) with the conduct of a trade or business in the United States.
After the determination of the source of the income (U.S. or foreign), a taxpayer may be required
to allocate and apportion allowable deductions to determine U.S. taxable income and foreign
source taxable income. The foreign source taxable income will be used to calculate the foreign
tax credit limitation.
Question 1 MCQ-02232
International
Tax Issues REG 5
Under a worldwide tax system, the primary mechanism for mitigating double taxation is the
foreign tax credit. The United States allows U.S. taxpayers to take a foreign tax credit for income
taxes paid to a foreign government.
The foreign tax credit is allowed for a foreign tax that the U.S. deems to be an income tax
(or tax "in lieu of" income tax). This generally includes taxes on wages, interest, dividends,
and royalties. It does not typically include sales taxes, value added taxes, property taxes, or
customs taxes.
The credit allowed for that category is the lesser of the limitation for that category or the
foreign taxes related to that category. The total FTC is then the sum of the credits allowed
for all categories.
A corporation calculates and reports its foreign tax credit on Form 1118 Foreign Tax
Credit—Corporations, and individuals, estates, and trusts use Form 1116 Foreign Tax Credit
(Individual, Estate, and Trust).
Taxpayers can elect to deduct foreign taxes rather than claim the credit, which can
be a good decision if the taxpayer does not expect to utilize the credit in the 10-year
carryforward period.
Under a territorial tax system, the primary mechanism for mitigating double taxation is a
participation exemption or dividends-received deduction.
A participation exemption allows the taxpayer to exempt foreign income from taxation.
A dividends-received deduction (DRD) allows the taxpayer to offset dividend income from
foreign sources with a deduction.
Unlike a worldwide tax system, no residual taxes are imposed on a taxpayer earning income
in a low-tax jurisdiction, meaning the taxpayer is subject to the same rate of tax as other
persons operating in the foreign jurisdiction.
A U.S. corporation is allowed to exempt foreign-source dividend payments from U.S. taxation by
taking a 100 percent dividends-received deduction against such income if it owns 10 percent or
more of the dividend-paying foreign corporation.
No residual tax is imposed on dividend repatriations from foreign jurisdictions and the U.S.
government will not collect taxes on the foreign income.
A 10 percent shareholder that is not a U.S. corporation is not eligible for the DRD.
When a U.S. person invests abroad, it is considered an outbound transaction. The income
earned outside U.S. borders is generally referred to as foreign-source income.
The definition of a U.S. person includes:
U.S. citizen
U.S. resident alien
U.S. partnership
U.S. corporation
U.S. trusts and estates
U.S. persons can generally defer U.S. taxes on foreign-source income until such income is
repatriated to the United States (e.g., in the form of a dividend). The benefit of deferral usually
applies to income earned abroad through active operations.
GILTI
Global Intangible Low-Taxed Income Inclusion
Example 2
and Deduction
Facts: Hughes Corp. (a U.S. corporation) owns 15 percent of EKM Corp. (a CFC). EKM's net
income for Year 1 is $1,500,000 and the adjusted basis of its tangible property at the end
of each quarter is $1,000,000 (first quarter), $1,250,000 (second quarter), $1,225,000 (third$1,500,000
quarter), and $1,150,000 (fourth quarter). <115,625>
Required: Determine Hughes Corp.'s GILTI inclusion and deduction.
10% Avg. assets 1,384,375
Solution: EKM Corp.'s GILTI income is its net income ($1,500,000) less 10 percent of its
average adjusted basis of depreciable tangible property: 10% × [($1,000,000 + $1,250,000 x 15%
GILTI $207,656
+ $1,225,000 + $1,150,000)/4] = $115,625. EKM Corp.'s GILTI income is $1,384,375, which is
$1,500,000 less $115,625.
Because Hughes Corp. is a 15 percent U.S. shareholder, it will include 15 percent of EKM
Corp.'s GILTI income, 15% × $1,384,375 = $207,656.
Hughes Corp. is eligible for a 50 percent GILTI deduction because it is a corporate
shareholder. Its GILTI deduction is $103,828, which is $207,656 × 50%.
Facts: Blue Corp., a CFC with no prior U.S. property investments, makes a $1 million loan to
its U.S. parent in the second quarter of Year 1. The loan remains outstanding at the end of
Year 1.
Required: Determine Blue Corp.'s increase in earnings invested in U.S. property in Year 1.
Solution: Blue Corp. has an increase of $750,000 invested in U.S. property.
Each U.S. shareholder would be taxed currently on their pro rata share of Blue Corp.'s
increased investment in U.S. property during the taxable year.
Year 2 8%
Year 3 8%
Year 4 8%
Year 5 8%
Year 6 15%
Year 7 20%
Year 8 25%
100%
Facts: British Bunting Inc., a British company, has a U.S. branch in Austin, Texas. The
branch makes routine sales to U.S. customers. The gross profits of the U.S. branch are $100
and the cost of goods sold are $40.
Required: Determine British Bunting's U.S. taxable income.
Solution: British Bunting's U.S. taxable income is $60 ($100 gross profit less $40 cost of
goods sold), which will be taxed at U.S. graduated tax rates.
Facts: Esther, a citizen of the United Kingdom, stayed in the United States for 122 days in
each of the last three years: Year 1, Year 2, and Year 3.
Required: Determine whether Esther is treated as a U.S. resident for Year 3.
Solution: Esther is treated as a U.S. resident because she is present in the United States for
more than 31 days during Year 3, and she is present for at least 183 days for the three-year
period beginning in Year 1, after applying a weighted average:
test 3. Compliance Test: The individual failed to comply with U.S. federal tax obligations for five
preceding taxable years.
Facts: Cathleen is a U.S. citizen who has lived in the United States her entire life. She is the
founder of Cupcakes Inc., a U.S. company. Her stock in the company is worth $7 million and
her basis in the stock is $250,000. In 2023, Cathleen renounces her citizenship and moves
to Bermuda. Assume that the gain exclusion for 2023 is $821,000.
Required: Determine Cathleen's U.S. tax consequences of this action.
Solution: Cathleen qualifies as a"covered expatriate "because her net worth
exceeds $2 million. She will be treated as if she sold her stock at fair market value
the day before her expatriation. Cathleen's long-term capital gain is $5,929,000
($7,000,000 FMV − $250,000 stock basis − $821,000 exclusion).
The TCJA also includes provisions to reduce a U.S. company's incentive to expatriate:
Dividends received by a U.S. corporation from a surrogate foreign corporation are not
eligible for the 100 percent dividends-received deduction.
Any individual shareholder who receives a dividend from a corporation that is a surrogate
foreign corporation is not entitled to the lower rates on qualified dividends.
7 Tax Treaties
Tax treaties are bilateral income tax conventions entered into by the United States and a
foreign country.
Tax treaties carry the same weight as domestic law and often modify otherwise applicable
U.S. tax rules.
Tax treaties modify the rules for investment-type income by reducing the withholding rate
below 30 percent.
Tax treaties also modify statutory rules related to business income, residency, and source-
of-income rules.
The U.S. treaty network includes income tax conventions with approximately 60 countries.
Most of these countries have a comprehensive income tax system in place.
Question 1 MCQ-08766
Alpert Corp. (a U.S. corporation) manufactures dental equipment in Arizona. It makes sales
of dental equipment during the year to the following customers:
I. Rupert Corp. (a foreign corporation) for use in its dental centers in Texas
II. Janis Corp. (a foreign corporation) for use in its dental centers in Canada
III. Rogers Corp. (a foreign corporation and related party) for use in its dental centers
in Mexico
IV. Commodore Corp. (a U.S. corporation) for use in its dental centers in Canada
Question 2 MCQ-08767
Which of the following payments to a foreign person is not subject to U.S. withholding tax
requirements?
a. An interest payment from a savings account at a U.S. bank
b. A dividend payment from a U.S. corporation
c. A customer payment for the sale of inventory within the U.S.
d. A payment to a foreign financial institution that does not provide information
about U.S. persons