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New Partnership Audit Procedures — What Do They Mean for My Partnership or LLC? (Part 1 of 3)

on Tuesday, 11 April 2017 in The Closer - M&A, Securities & Corporate Counsel: Kevin P. Tracy, Editor

Congress enacted new partnership audit rules as part of the Bipartisan Budget Act of 2015 (the “Act”).  As outlined further below, these new audit rules make it easier for the IRS to audit and assess tax on entities taxed as partnerships, including general partnerships, limited partnerships, and LLCs.  This article is the first of three articles describing the modified partnership audit rules.  The IRS issued proposed regulations implementing the provisions of the Act.  These proposed regulations were not published due to the regulatory freeze announced by the White House on January 20, 2017.

Why the New Audit Rules for Partnerships?

Prior partnership audit rules (commonly known as the “TEFRA Rules”) prohibited the IRS from assessing tax on a partnership.  Instead, to collect tax for partnership items, the IRS was required to examine and adjust the income of each individual partner in a separate proceeding.  Congress and the IRS found that these separate audit proceedings often resulted in disparate treatment among partners.  Moreover, as partnerships became more complex and multi-tiered, the burden on the IRS increased.

While the number of “large” partnerships (those with more than $100 million of assets and ten or more direct and indirect partners) grew by over 257 percent between 2002 and 2011, partnership audit rates remained low.  The audit rate for similarly sized corporations in 2012 was 27.1 percent.  The IRS reported that audit rates for large partnerships languished at 0.8 percent.  Congress believed that the partnership audit rules hindered the IRS’ ability to effectively examine and assess tax against partnerships.

Said another way, Congress believed the IRS was missing out on available revenue that would be collected if partnerships were taxed as corporations.  Thus, it appears likely that the IRS will use the new rules to more actively audit partnerships than in the past.

What Are the Major Changes to Be Aware of?

The new partnership audit procedures make three major changes that we believe are noteworthy:

  1. Centralized Audit, Adjustment, and Collection.  The new rules allow adjustment of partnership items to cause tax to be assessed and collected against the partnership, rather than the individual partners.  For the first time, the IRS can make adjustments, assess tax, and take collection action against partnerships at the entity level.  We will provide more details on this in Part 2 of this article, which will be coming soon.
  2. New Partnership Representative Rules and Responsibilities.  The new rules amend the provisions regarding who can act on behalf of and bind the partnership in audit proceedings.  The new partnership representative that would act in proceedings with the IRS now has much more responsibility for tax matters of the partnership.  We will discuss considerations in naming a partnership representative in Part 3 of this article, which will be coming soon.
  3. New “Opt Out” Provisions.  New rules and procedures apply to determine when a partnership can “opt out” of the new audit rules.

Given that Congress has provided a clearer path for the IRS to collect revenue against partnerships, we believe partnerships (and, in particular, large partnerships) will see more audit activity in 2018.

What Should Partnerships Do Now?

The new partnership audit rules take effect January 1, 2018.  Many partnerships established under the TEFRA rules should consider taking the following steps to minimize potential audit exposure:

  • Name a Partnership Representative.  Existing partnerships should name a new “partnership representative” (similar in some ways to the “tax matter partner”) to work with the IRS if the partnership is audited.  Failure to do so could lead to the IRS choosing the partnership representative.
  • Review Partnership and Operating Agreements for Compliance.  It would be worthwhile for partnerships and LLCs to review existing partnership and operating agreements to ensure that applicable tax provisions have “substantial economic effect.”  This would include review of capital account maintenance, qualified income offset, minimum gain chargeback, and liquidation provisions to ensure compliance with applicable regulations.
  • Review Provisions that Could Result in Additional Self-Employment Tax or Compensation.  Partnerships and LLCs should review records to ensure that they minimize self-employment tax to partners and members.  In addition, care should be taken to alleviate the risk that partners rendering services to partnerships, especially those receiving capital interests in the partnership or LLC for services, could be subject to compensation treatment.

Performing some basic due diligence prior to audit could put your partnership or LLC on much more solid ground in the event an agent that is freshly trained in auditing partnerships comes calling.

What Effect Does the Regulatory “Freeze” Have on These Rules?

Because the new partnership audit rules are statutory in nature, the announced regulatory “freeze” should not have a significant effect on the new audit rules.  While final regulations will need to be published, we believe the IRS will use the unpublished proposed regulations as a guideline for audits under the Act.

Jesse D. Sitz


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