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  • Writer's pictureVinicius Adam

Question: What happens when a Partnership is Terminated but I want to continue operating the company as a single-member LLC?

Introduction

Changes in the membership of a Limited Liability Company (LLC) taxed as a partnership can have significant tax implications. Whether it’s the transition from a multi-member to a single-member LLC, or the restructuring of member interests and liabilities, each scenario requires careful consideration of IRS rules and regulations. This short article will explore the essential tax considerations and necessary filings to help both remaining and departing members navigate these complex transitions.



1. Change in Tax Classification:


When an LLC taxed as a partnership loses a member and becomes a single-member LLC, its tax classification changes. Under 26 CFR 301.7701-3, the default classification shifts from a partnership to a disregarded entity if the single owner does not elect otherwise. This change impacts how taxes are filed: moving from Form 1065, which is used by partnerships, to the owner’s personal tax forms (Schedule C, E, or F on Form 1040), unless a Form 8832 is filed to elect treatment as a corporation.


2. Filing the Final Partnership Tax Return:


A final Form 1065 must be filed for the tax year in which the LLC’s status as a partnership terminates. This form should include a statement that it is the final return and provide the reason for the termination, as specified in Rev. Proc. 2009-41. Accurate closure of the partnership’s tax obligations is crucial for compliance.


3. Assumption of Debts and Its Tax Implications:


When a remaining LLC member assumes additional debt from a departing member, several tax-related actions need to be considered:

  • Adjustment of Basis: The member assuming the debt adjusts their basis in the LLC upward by the amount of debt assumed, reflecting the increased economic burden (26 USC 752).

  • Gain or Loss Recognition: The departing member may recognize gain or loss based on the relief from liabilities. If the liabilities assumed exceed the departing member's basis, a gain is recognized. Conversely, if the basis exceeds the liabilities assumed, a loss is recognized (26 USC 741).

  • Character of Gain or Loss: The character of the gain or loss (capital or ordinary) depends on the nature of the LLC's assets relative to the liabilities assumed. Special rules apply if the partnership holds "hot assets" like inventory or unrealized receivables, which can result in ordinary income treatment.

  • Impact on Partnership’s Tax Return: The LLC may need to file an amended return or a supplementary statement to reflect the change in partnership liabilities and their reallocation among the partners.

  • Reporting Requirements: Both the continuing and departing members must report these transactions accurately on their respective tax returns. The LLC must also file Form 8308 if there’s a sale or exchange of a partnership interest.


4. Purchase of the Dissociating Member's Interest


When a dissociating member of an LLC sells their membership units to a remaining member, several key tax considerations and filings need to be addressed, both for the individual selling their share and for the member acquiring additional interest. Here’s a detailed look at what happens:


Tax Implications for the Selling Member


1. Recognition of Gain or Loss: The selling member will recognize a gain or loss on the sale of their membership interest. This gain or loss is calculated as the difference between the amount realized from the sale and the seller’s adjusted tax basis in the membership units. The amount realized typically includes any cash received plus the fair market value of any other property received, and it also considers any liabilities that the purchasing member assumes.


2. Character of the Gain or Loss: The nature of the gain or loss (whether it is capital or ordinary) largely depends on the type of assets the LLC holds. If the LLC holds primarily capital assets, the gain or loss is typically treated as capital. However, if the LLC holds "hot assets" such as inventory or unrealized receivables (per IRS Section 751), part of the gain or loss might be treated as ordinary income.


Tax Implications for the Purchasing Member


1. Basis Adjustment: The purchasing member’s basis in the LLC will be adjusted. Specifically, the basis of their membership interest will increase by the amount paid for the additional membership units. This adjusted basis will be important for future calculations of gain or loss when the member sells their interest or when distributions exceed the member's basis.


2. Assumption of Liabilities: If part of the purchase involves the assumption of certain liabilities by the purchasing member, this also affects their basis in the LLC. Assuming liabilities is treated as part of the purchase price, increasing the member’s basis in the LLC.


Reporting Requirements


1. Form 1065: For the LLC, while it may not be the final year of operation, adjustments need to be made on Form 1065, U.S. Return of Partnership Income. The LLC must report any changes in ownership and update the capital accounts accordingly. Schedule K-1s must be issued to all members, reflecting their share of income, deductions, and credits up to the date of the sale.


2. Form 8308, Report of a Sale or Exchange of Certain Partnership Interests: The LLC must file Form 8308 if there is a sale or exchange of a partnership interest that meets certain criteria. This form is used to report the sale of the membership units to the IRS and is attached to the LLC's Form 1065 for the relevant tax year.


Practical Considerations


Capital Account Reconciliation: The LLC needs to reconcile and adjust the capital accounts of the members to reflect the sale. This includes adjusting the accounts to remove the selling member and increase the purchasing member's account by the appropriate amounts.


Documentation: It is crucial for both the selling and buying members to maintain detailed and accurate records of the transaction, including how the purchase price was determined, the valuation of any received property, and the specifics of any liabilities assumed.


5. Form 8832: Entity Classification Election:


If the LLC chooses to be taxed as a corporation, Form 8832 must be filed. Key considerations for this filing include:

  • Filing Timing: The form can be filed any time during the tax year for which the election is to be effective, up to 75 days prior, or up to 12 months after the election date.

  • Address for Filing: It should be sent to the IRS service center designated in the instructions based on the entity’s principal business location.

  • Notification Requirement: A copy of Form 8832 must be attached to the federal tax return for the tax year of the election and all affected years.

  • Validity of Election: Once made, the classification remains effective until actively changed. A new election generally cannot be made within 60 months without IRS consent.

  • Attaching 8832 to Tax Returns: Revenue Procedure 2009-41 attach a copy of the Form 8832 for the eligible entity to its federal tax or information return for the taxable year of the person which includes the effective date of the entity's eligibility for the elected classification and tax returns subsequent to that date until confirmation is received from the IRS.

  • Confirmation from the IRS: Upon processing, the IRS issues a confirmation letter which should be kept with the entity’s records.


6. Late Election Relief


When an LLC or other eligible entity misses the deadline to file Form 8832 for electing its classification for federal tax purposes, it might still be able to make the election retroactively under certain conditions through the relief for late election provisions.


.Eligibility

To be eligible for late election relief, the entity must demonstrate that:

  • It has reasonable cause for not making the election on time.

  • It acted consistently with the classification sought in all its tax filings since the date the election was intended to be effective.

  • No tax returns were filed contrary to the election sought for the period of the intended election until the form requesting relief is filed.

  • No taxpayer is directly affected by the election or is prejudiced by the late election.


Procedure

Entities seeking relief should:

  • File Form 8832 as soon as possible after discovering the error.

  • Attach a statement to Form 8832 explaining the reason for the delay (reasonable cause) and stating that the entity and all its members, if applicable, have reported their income on all affected returns consistent with the election they are requesting for the period.

  • Specify the relief sought under Revenue Procedure 2013-30.


Time Limits

The request for relief must be filed within three years of the due date of the return (excluding extensions) for the first tax year the election was intended to affect. Alternatively, if no return was due for that year, within 3 years after the first return affected by the election was filed.


Effects of Late Election

If relief is granted, the classification chosen in the Form 8832 will be treated as effective from the date it was originally intended to take effect. This retroactive reclassification can affect previous tax years, potentially necessitating amendments to past returns to reflect the new classification.


Impact on Tax Filings

If the late election is approved, it could lead to changes in how the business entity is taxed, potentially requiring amended returns for previous years where the entity’s filings did not reflect the elected classification.


Documentation and Compliance Detailed documentation of the entity's consistent treatment of its tax status and the reason for the late filing is crucial. This includes maintaining records that support the entity's claim of reasonable cause.



Conclusion:


Navigating the tax landscape during LLC membership changes involves understanding complex IRS regulations and procedures. Members are advised to consult with tax professionals to ensure that all aspects of the transition, from filing the final partnership return to handling the tax implications of liability assumption, are managed accurately and in compliance with tax laws. By addressing these requirements proactively, LLC members can mitigate tax liabilities and position themselves favorably for future business endeavors.


The team of legal professionals at VAdam Law is dedicated to offering customized counsel tailored to your unique circumstances to ensure adherence to all regulatory obligations, and clear and comprehensive advise. If you would like to learn more about VAdam Law and schedule a free consultation, visit our online scheduling portal or call 24 hours a day at (954) 451-0792.


Authority Citations:

- Revenue Procedure 2009-41

- 26 CFR 301.7701-3

- 26 USC 708

- 26 USC 752

- 26 USC 741





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