Deducting Partnership Loss

Technical topics regarding tax preparation.
#1
MTS  
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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
 

#2
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1) Generally, loans to an LLC would be considered nonrecourse because members don't generally have personal liability for those items within the LLC. However, if they personally guaranteed the debt or loaned the money to the LLC directly, the debt would be recourse due to those dynamics.

2) PAL rules are based on those tests. Whether they are limited or general partners really doesn't matter. LP/GP is a legal issue. The PAL tests are annual tests. The results of those tests can change each year. Do you have their operating agreement? More importantly, you've mentioned this is a partnership and also mentioned loans to "an LLC", which leads me to believe the entity is an LLC. Based on that assumption, the question you have to ask is whether these individuals are managing members or not. The operating agreement will usually note whether the entity is "member-managed" or not. This is your answer. If you don't have an LLC and have a true limited partnership, then, yes, one must be a GP. If it is a general partnership, they are both GPs.
3) Again, the PAL tests are annual tests. How they were characterized last year really doesn't bear on the current year.
~Captcook
 

#3
Nilodop  
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... and their tax basis when adding in partner contributions and a loan is sufficient to claim the losses.. Is the loan from one partner, both, or a third party?

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 .... Later you say it's an LLC.
 

#4
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Thanks for the feedback. It's an LLC with 2 members, and not a true partnership. I mention partnership as I was thinking in terms of the tax return and how it's treated for tax purposes. Should have clarified that. The Op Agreement says it's a member-managed LLC. The loan was from a third party and had to be personally guaranteed by both partners as there aren't many assets in the business. Given this, I think my assumption on the loan being recourse debt still works OK. Then, looking at the PAL rules I think I'm back to where one member may qualify for material participation based on hours spent while the other will not although he did in the prior year. Missing anything here?
 

#5
MTS  
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I said partners again, and should have said the loan was personally guaranteed by both members.
 


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