MauledAgain

The discussion of partnership operating distributions begins with clarification of terminology. Students learn that one set of rules applies to liquidating distributions and another set applies to distributions that are not liquidating distributions. They learn that distributions that are not liquidating distributions often are called operating distributions but that technically, they can be divided into distributions that reduce but do not eliminate a partner’s interest in the partnership and those that do not affect a partner’s interest. It is this last group that comprises the topic.

At this point, I take the students through a 15-step checklist that identifies the essential questions that must be addressed when analyzing a partnership distribution. I give this checklist to the students because if I leave them on their own to create it, the odds are that most of them will end up with something that hurts, rather than helps, their learning process. Even though two of the steps are not applicable, I leave them in place so that the same checklist can be used when we reach distributions that reduce a partner’s interest and when we reach liquidating distributions. Several of the steps are simple, but others contain sub-steps. Unless one works through the analysis in logical sequence, one will end up jumping around in ways that cause some steps to be omitted and some to be considered multiple times. I emphasize the need to work with the checklist because I’ve seen too many exam answers that demonstrate the mess that is generated when methodical analysis is forsaken, and I make that point as forcefully as I can. This is followed by working through a problem set involving distributions of cash and property, simultaneously and then in sequence, that touches upon partnership draws, but that leaves the partners with unvarying interests, no contributed property, and no 751(b) issues.

Omitted from this topic, other than taking their place in the checklist are the section 704(c)(1)(B) and section 737 contributed property rules, the 751(b) ordinary income asset rules, the section 731(c) marketable security rules, the section 732(c) basis allocation rules, and the section 734 basis adjustment rules. Of these, the first two will get attention in subsequent topics, whereas the others are simply omitted from the entire course.

The topic concludes with an analysis of section 735, including a comparison to its counterpart section 724, which is not quite identical. This is followed by a problem set that illustrates the tax treatment of a partner’s disposition of distributed property. Although the class does explore the puzzling case of gifted distributed property, it does not go into the ramifications of a partner’s disposition of distributed property that carries a depreciation recapture taint. That’s just too much for a course of this sort.

Next: Corporate Stock Distributions

In comparison to the tax treatment of C corporation operating distributions, the principles applicable to S corporation operating distributions are far less likely to leave students overlooking analytical steps. The world of S corporation distributions is divided into two parts, one involving S corporations that have no accumulated C corporation e&p and the other involving S corporations that do.

The rules for the former group that are covered in the course are about as simple as things can get in the tax law, and one short problem is sufficient to illustrate how they work. For the latter group, the concept of the accumulated adjustment account is introduced, and students are taken through a series of examples that illustrate many of the possibilities in terms of the size of the distribution and the size of AAA.

The class does not learn about the impact of tax-exempt income on AAA, the election to distribute earnings first, or restricted bank director stock. These are the sorts of issues that are among the first to go when shoehorning business entity taxation into a 3-credit course.

Next: Partnership Operating Distributions

From a pedagogical perspective it makes the most sense to deal with operating distributions before covering sales of entity interests, redemptions, liquidating distributions, or liquidations. Even though a shareholder might sell stock without ever having received a distribution, and even though a partner might reduced his or her interest in the partnership before any distributions are made, some of the principles that are learned with respect to operating distributions serve as a foundation for understanding those other topics.

Discussion of C corporation operating distributions begins with the necessity of distinguishing distributions from other transactions, such as disguised salary or interest, and the making and payment of loans. Transfers to third parties that can turn out to be constructive distributions to the shareholder also are examined.

Students are then taken through section 301, particularly subsection (c). For some reason, this provision has vexed students throughout the years and throughout class sessions, semester exercises, and final examinations. Section 301(c) resurfaces when redemptions are studied, and yet for some reason what appears to be a straight-forward pattern confuses far more students than one would expect. Consequently, I emphasize this particular provision and immerse the class into it. Section 311 also is emphasized, because students often overlook its existence.

Earnings and profits present far less trouble for students, perhaps because most of the law applicable to e&p does not get attention. Students learn how e&p differs from accumulated taxable income, but no attempt is made, for example, to work through computations of depreciation for regular tax purposes and for e&p purposes, to say nothing of depreciation for AMT purposes. Attention is focused on subsections (a) and (b) of section 312, dealing with the impact of distributions on e&p. In determining what remains in the course and what is jettisoned, e&p deficits ended up staying in the course, so students must deal with the oddities of Revenue Ruling 74-164. They get an opportunity to examine an IRS position that is wrong, but that favors taxpayers and thus is unlikely to be challenged.

This topic concludes with several problem sets. One involves cash distributions made under a variety of e&p conditions. The other involves property distributions, and the impact of section 311(b).

Next: S Corporation Operating Distributions

Having worked through section 704(b) special allocations, the class turns to section 704(c). The good news is that section 704(c) is much easier to understand, at least at the level studied in the course, than section 704(b). Students had encountered contributed property when dealing with partnership formations, and had a brief introduction to the section 704(c) contributed property allocation rules when learning how to compute partners’ shares of liabilities under the section 752 regulations. Though the initial encounter was limited to the traditional method, at this point discussion also includes the curative and remedial methods, illustrated through examples. It also makes sense to include at this point a look at section 724, because it applies when partnerships dispose of contributed property. This subtopic concludes with a problem set that deals with sales of contributed property. The course does not cover allocation of depreciation deductions arising from contributed propery, both because of time constraints and because that is a topic too complicated for an introductory course.

After dealing with section 704(c), discussion advances to the section 706(d) varying interest rule. To cope with the limitations of a 3-credit course, this subtopic is handled with a brief lecture and two examples. This approach works because the issues and the principles are not unlike those arising when interests in an S corporation change.

Following discussion of varying interests, the class turns to section 704(e). Misleadingly titled “family partnerships,” it reaches beyond family transactions to cover not only partnership interests created by gift no matter the relationship but also recognition of a person as a partner even if no gift is involved. Once students understand this incoherency in section 704(e), it becomes a bit easier to understand the reach of the provision and its limited scope. Two problem sets involving very simple fact patterns are used to demonstrate what section 704(e) does and does not do.

The partnership allocation topic closes with a discussion of section 707, which deals with transactions between partners and partnerships. Specifically, the focus is on transactions in which the partner acts other than in the capacity as a partner and on guaranteed payments. Because students should have learned in, and remembered from, the basic tax course how sections 267 and 1239 function, they are left on their own to learn section 707(b), which is the partnership equivalent of those two provisions. Several problems, dealing with subsections (a) and (c) of section 707, close out the partnership allocation topic.

At this point, I direct students to look at the summary that I provide to them in the course materials that overviews partnership allocations. I do this so that they can recover a sense of the big picture after having been immersed in five subtopics each of which is replete with details and technicalities even after being screened to simplify the discussion for the purposes of an introductory course.

Next: C Corporation Operating Distributions

The partnership allocation topic is, without a doubt, the most difficult portion of the Introduction to Taxation of Business Entities course. Specifically, the prize goes to special allocations, with the other four subtopics presenting much less of a challenge.

I explain to the class that the sequence in which we study the partnership allocation subtopics is in reverse order from the sequence in which one would work through a set of facts to determine how partnership items must be allocated. The reason for this strange decision is that learning the issues is easier if one begins with section 704(b) special allocations. I share with the class the experiment I tried some years ago, teaching the subtopics in application order, and how that made the learning process even more difficult.

The first subtopic is section 704(b) special allocations. I take out as many issues as I can. So we don’t look at depletion, we don’t dig deeply into the alternate test, we take a somewhat superficial look at fact-based issues such as economic effect equivalents and factors in accordance with interest in the partnership. Because the subtopic is so complicated, I take time to explain how to parse the regulations, how to identify things that unnecessarily contribute to the complexity, and how to work around them, such as giving names to things identified in the regulations only by long citations. I highlight the “(ii)(i)” problem, something that, like PIGs, involves a discussion I’ll leave to another day. I also suggest, and provide a partial template for, a flowchart sorting out the various prongs, tests, branches, and pathways that proliferate throughout the section 704(b) regulations.

Before getting to problems, I work the students through a lecture that is filled with examples that illustrate why the three-prong test exists. I do the same with substantiality, although that issue might be the most convoluted of all the issues that are covered in the course. When going over capital account accounting rules, I limit the scope to the effects of contributions and distributions of money and property and the effect of allocations of income and other items. At this point the class considers a very simple problem set that lets them focus on basic principles.

Coverage of the section 704(b) subtopic concludes with an exploration of nonrecourse deductions. Students return once again to the concept of partnership minimum gain, and then learn how deductions are characterized as nonrecourse. This aspect of the subtopic makes students aware of the danger in thinking that drafting partnership agreement allocation provisions is a simple task, demonstrated by the example of the unexpected nonrecourse deduction. After going through the safe harbor test and minimum gain chargebacks, we do a simple problem, and a variation, that illustrates nonrecourse deduction analysis without gettting overly complicated.

Next: Contributed Property, Varying Interest, and More Partnership Allocation Subtopics

The notion of allocations in the C corporation context isn’t so much a matter of allocation as it is a question of who is taxed on income that ostensibly is the income of a C corporation. Because of time constraints, I don’t do much other than to explain the general purpose and application of sections 482, 269, and 269A. Covering those provisions in five minutes as I do is a price that is paid for having a 3-credit course.

When it comes to S corporations, the allocation issue gets much more attention. The principles applicable to determining pro rata share, to complete termination of a shareholder’s interest during the year, and of reductions or increases in a shareholder’s interest during the year are carefully worked out. A problem is studied in which one of three shareholders sells part of her stock, and in a variation, all of her stock, to a fourth person. The projection screen fills with a flood of numbers, but it doesn’t seem to faze the students. That will happen soon enough.

Next: Allocations in the Partnership Context

It might appear that studying loss limitations before looking at allocations is backwards, but understanding how loss limitations work puts the allocation issues into perspective. It is easier to understand allocations once the consequences of an allocation are appreciated.

This topic begins with a categorical examination of each entity and an identification of the loss limitations that apply. For C corporations, it’s a matter of reminding students about section 1211, and pointing out the limited applicability of the at-risk and passive loss limitations. For S corporations and partnerships, it’s a matter again of refreshing students’ recollections of section 1211, describing the basis limitations, and noting that the at-risk and passive loss limitations are significant elements in computing the taxable income of many partners and S corporation shareholders.

A problem that deals with the section 704(d) basis limitation for partnerships illustrates the issues that arise both for partnerships and S corporations. The concept of multiple disallowed loss carry-forwards intrudes and illustrates the challenges of keeping track of more than a few facts at one time.

Then, because at-risk and passive loss limitations are not limited to business entity transactions, but aren’t given much, if any, attention in the basic tax course, I take the students through a short lecture in which I try to explain the basic principles of those limitations without getting mired in details. I do, however, take them far enough into the policy behind the limitations and the unexpected consequences of how section 469 operates so that they can understand what PIGs are. I’ll leave that discussion to another day.

Next: Allocations in the Corporate Context

After completing the formation topics, the course next addresses how corporations and partnerships are taxed on their operations. There are three subtopics, one for each entity.

Very little time is invested in the taxation of C corporation operations, for the simple reason that in the basic course students learned about gross income and deductions. Mention is made of deductions allowable only to corporations and those disallowed to them, but no time is invested in computing tax liability. Introduction to Taxation of Business Entities does not focus on other corporate taxes, such as the accumulated earnings tax.

Turning to S corporations, students are told that entity-level taxes exist, but in an introductory course limited to 3 credit hours, the LIFO recapture, built-in gains, and excess net passive income taxes must be left aside. Instead, students focus on the concept of shareholders being taxed on income earned by the corporation even if the income is not distributed. That concept is more difficult for them to grasp than is the idea of separately stated items. The impact of pass-through taxation on the shareholders’ adjusted bases in their stock also is examined, because basis is the glue that holds the taxation structure together. The subtopic closes with a problem that is about as close to “doing a tax return” as one finds in this course.

The third subtopic involves partnerships. Because there are so many concepts and rules identical and similar to those in the S corporation area, students find the material easier to grasp than they would if they were meeting these issues for the first time. But there are differences, and I encourage students to identify them so that they do not fall into the trap of thinking that “S corporations and partnerships are treated in the same way.” This subtopic also closes with a problem that resembles “doing a tax return,” although the specific items are slightly different from those in the S corporation problem because it provides an opportunity to illustrate several more separately stated items.

Next: Loss Limitations

The partnership formation topic is divided into three subtopics. The first subtopic involves transfers of cash and propety to a partnership in a transaction bereft of liabilities. The facts are very similar to those presented when dealing with the first subtopic in the corporate formation topic. Students are encouraged to create a grid or matrix in which they identify principles that are identical, similar, or different with respect to corporations and partnerships. Another advantage of using transactional sequencing is that the depreciation recapture and installment sale provisions examined in connection with corporate formation are fresh in students’ minds and can more easily be applied to partnership formation transactions.

The second subtopic involves liabilities. The conundrum from the teacher’s perpsective is that to understand section 752 and its regulations, students and practitioners need to understand the allocation of nonrecourse liabilities and allocations with respect to contributed property. That topic, however, has not yet been reached, and to move allocations to a position preceding formation would generate different, though similar, circularity challenges. The solution is to introduce the students to the concept of partnership minimum gain, which they discover is a variation on the minimum gain concept they learned in the basic course even if not by that name, and to provide the students with a brief overview of section 704(c). Students work through variants of recourse and nonrecourse liabilities, with adjusted basis less than or greater than the amount of the liability. Students are advised to assimilate the material after it is covered in class, and to return to it after the allocation topics are addressed.

The final subtopic involves contribution of services to a partnership. With the law still evolving, students get to see what it’s like to practice when there is no clear answer. We look at the proposed regulations and the proposed revenue procedures, and in recent years I’ve trimmed away much of the historical discussion because of time constraints. Until something is done with the carried interest legislation, it gets very abbreviated attention, and it’s unclear if there will be space in the course for a full study of whatever does get enacted.

Next: Taxation of Entity Operations

After working through the entity identification material, the course addresses the federal income tax consequences of forming corporations and in doing so, also covers the consequences of making additional contributions to corporations. The first subtopic involves transfers of cash and property to corporations by shareholders who are in control and in which there are no liability transactions. Students get to examine most of section 351, but there’s no time to deal with subsections (c), (e), and (g). This limitation means, for example, that students must assume that references to preferred stock do not include references to nonqualified preferred stock. Students also work with the basis provisions in sections 358 and 362. Because of the nature of the properties being contributed, students review, or, for some, learn for the first time, how the depreciation recapture provisions apply to dispositions of depreciable property.

Discussion then turns to transactions in which the requisite control is an issue. Students consider situations in which contributions in exchange for stock take place at different times, and examine whether transactions on different dates should be treated as simultaneous.

The next subtopic that gets examined is the receipt of boot during the formation transaction. One of the fact situations that the students must examine involves an installment note from the corporation. Though this pushes the students to the edge of an introductory course, it provides an opportunity to build on the very limited study of installment notes that they experienced in the basic course.

The final subtopic is an analysis of how liabilities affect the tax consequences. Section 357 is examined in the context of multiple fact settings. When students examine the Peracchi case, they solidify their appreciation for the error of thinking that there is a clear answer for every issue in tax law.

Next: Partnership Formation

After finishing with the introduction, the course turns to identification of the entity. Although sometimes the context of a question or problem makes this issue moot, in other instances it is the essence of the inquiry. In any analytical process, it is a determination that must be made early on.

Most of this topic involves working with the so-called “check-the-box” regulations and with the requirements for obtaining S corporation status. No attention is given to foreign entities. I make use of the opportunity to demonstrate how the check-the-box regulations can be mapped out in flow-chart form, providing an insight into interpretation of regulatory language.

Working through the definition of a small business corporation and the requirements for making an S election lets students learn about pitfalls in practice, particularly the difficulties of taxpayers and their tax advisors who do not make timely elections or who cause small business corporation status to be jeopardized. Because of time constraints, I do very little with trusts as S corporation shareholders, and do not go into qualified subchapter S trusts, or electing small business trusts. Students struggle a bit with discussion of how S corporation payment of shareholders’ state income tax liabilities on S corporation income can generate the dreaded second class of stock, but it’s an important lesson in why those lacking S corporation expertise ought not be advising S corporations and their shareholders during formation stages.

Next: Corporate Formation

One of the first decisions I needed to make with respect to the course was a choice between what I call categorical sequencing and what I call transactional sequencing. Categorical sequencing means that the course begins with the tax treatment of one of the entities, then moves to the next, and then finishes with the third, there being six different possible sequences. Transactional sequencing means that the course begins with an examination of how each entity is treated with respect to a particular transaction, almost always beginning with formation, and then moving through other transactions, using a comparative approach.

My decision was to use transactional sequencing. Several factors contributed to my choice. First, this is how students encounter the issues from a planning perspective when they are in the practice world. When a client arrives with a business plan, the client usually does not show up as one particular entity or the other, and the practitioner must help the client weigh the advantages and disadvantags of choosing one entity over the other. In this respect, the course is preparing the students for Business Planning or a similar capstone course. Second, this approach offers an excellent opportunity for comparative analysis, which is a superb way of learning law and many other things. Third, in the event we fall behind in the course, there is less likelihood that a good chunk of what’s relevant for one of the entities would be overlooked, which is a genuine risk when using categorical sequencing.

Because I use transactional sequencing throughout the semester, I use categorical sequencing to go through the introduction. In the course introduction, I take the students through a bird’s-eye view, or perhaps satellite view, of the basic tax principles applicable to each entity. It is, as I tell the students, what I would present if given 50 minutes of time in a CLE program and asked to overview taxation of business entities. At best they are getting a sense of structure and some vocabulary along with some concepts. At worst they get a sense of scope and arrangement. I promise them, in a guarantee to which I adhere, that they will re-visit every bit of black-letter law that they encounter during the overview. I compare it to going through the Franklin Institute, which is a science museum in Philadelphia, and looking in each room to get a sense of the Institute’s size and scope and to decide what rooms deserve closer attention during the rest of the day.

During the overview, I try to reinforce the students’ understanding of the difference between compliance and planning, and the similarities and differences between the analytical processes each demands. I warn them that it is most helpful to ask themselves whether they are dealing with a compliance or a planning issue when they encounter a question or a problem during the course or while in practice.

Next: Identifying the Entity

Today I begin a series describing how and why I have structured the Introduction to Taxation of Business Entities course that I teach in the way that I do. Three years ago, in a similar series beginning with Structuring the Basic Tax Course: Part I, I analyzed in the same way my teaching of Introduction to Federal Taxation. Like that previous series, this is Part I because I intend for there to be more. When I started the previous series, I warned that if “something dramatic happens in the tax world, or if there is something else on which I need to opine that strikes me as more important, I will interrupt this series and then resume.” No such interruption took place, and hopefully none will this time around.

Not every law school offers one course dealing with the taxation of business entities. Those that do call it by different names. The course I teach is a 3-credit course. Some law schools teach it as a 4-credit course. Despite those differences, what I share here should be useful no matter the name or the number of credit hours. Other law schools provide separate courses, one dealing with Partnership Taxation and one dealing with Corporate Taxation, again with the courses going by different names. A few schools provide a separate course on S Corporation Taxation, though most put it into one of the other courses, sometimes Partnership Taxation because the taxation of S corporation operations more closely resembles the taxation of partnership operations, and sometimes Corporate Taxation because the tax principles applicable to formation, liquidation, and some other topics more closely resembles or are identical to those applicable to C corporations.

A bit of history is helpful because it provides insight into how Introduction to Taxation of Business Entities became the course it is at the present time. Years ago, there were two courses, one dealing with Partnership Law and Taxation and the other dealing with Taxation of Corporations and Shareholders. Both were 3-credit courses. The tax treatment of S corporations and their shareholders was pretty much overlooked until I took over Partnership Law and Taxation and squeezed a few class hours of coverage into that course.

For several reasons, it was decided that the two courses, Partnership Taxation and Taxation of Corporations and Shareholders, would be combined. I suppose I could have taught both, but in those days an overload of the sort that would have been created did not find favor among faculty or administrators. It would be even less appealing today, although I suspect that in a few years, that sort of teaching load will no longer be considered an overload.

Nonetheless, it was decided that the merged course would be a 3-credit course. Roughly one-half credit worth of material was moved into Corporations I, the first of two state law corporation courses. Much later, those two 3-credit corporations courses were merged into one 4-credit Business Organizations course. With the addition of LLCs into the mix and the elimination of two credits worth of material from this portion of the course, what’s left of partnership law doesn’t resemble what was shifted to it from the 3-credit Partnership Law and Taxation course many years ago.

So all of these developments left me with the decision of what to cut in trying to reduce 5.5 credit hours worth of coverage to 3 credit hours. How I worked that out will be revealed as I work my way through this series.

Because only so much can be cut, and students need to be prepared to walk into the practice world with substantive tax exposure, analytical skills, and problem-solving abilities that match their counterparts graduating from law schools with two 3-credit courses, a good argument can be made, and has been made, that this 3-credit course is actually a 4-credit course. It is. It also has the reputation of being the most difficult course in the J.D. curriculum. It very well may be. But this area of taxation may very well be one of the most difficult areas of law practice. Despite some griping at the outset, by the end of the semester, almost all of the students – who are self-selected tax and business types and thus a very different group from those who are in the basic tax courses “because it’s on the bar exam” – conclude that despite the requisite diligence, they have learned far more than they expected and have acquired a good sense of what awaits them when they reach the practice world.

As I do in the basic tax course, I present, at the outset, a definitive description of what the course involves, what I expected of the students, and how their accomplishments, including but not limited to their grade, will reflect the sort of effort they choose to make. I try to do this in half of a 50-minute class, but usually it takes 35 or 40 minutes. For students who were in my section of the basic tax course, this is familiar ground, and often I tease them by suggesting that one of them could do this part of the course. None volunteer. For almost all of those taking a course from me for the first time, it is the eye opener and attention getter I want it to be.

Next: Sequencing and Overviewing the Course