I have a new client who formed a partnership in 2017 with one other individual and opened a hairstyling/barber shop. They are equal partners and both listed as general partners on the prior year (2017) tax return. They hired employees for the work and don't spend time there on a daily basis, but they do make all management decisions, including financial decisions, running payroll and spending time at the store (at least once a week for one partner, less often for the other). They have a loss for the year, and their tax basis when adding in partner contributions and a loan is sufficient to claim the losses. I have a few questions when it comes to meeting the other requirements for claiming the loss:
1. In meeting the 'at risk' requirements, my research/understanding is that generally loans to an LLC are treated as recourse debt. Is that an accurate assumption? Using that assumption for their partnership loan, there is sufficient 'at risk' to deduct the losses.
2. Moving along to PAL rules and whether there is material participation, my initial thought was that the partner who spends time at the store routinely (at least weekly) would qualify for material participation under the 'regular, continuous, substantial' participation test or the number of hours test (need to see if he has a log of time spent to meet that). However, I struggle on whether they should be considered general or limited partners. Is there additional information to consider in determining whether they should be considered general partners or limited partners? Must one of the 2 be a general partner, and is having both listed as general partners reasonable/correct? If so, it makes it a bit easier to meet one of the tests and claim material participation as a general partner.
3. For 2017, both partners filed as materially participating, and deducted losses on their personal returns. They both spent a lot of time working on getting the store up and running. One partner now spends less time on the business, so are there issues to consider for the current or prior tax years if/when a partner becomes a passive participant?
Thanks