Every Friday, we feature Tax Law & Policy Perspectives from Monte A. Jackel, UBalt Law’s graduate tax program scholar-in-residence. The posts reflect the views of the author and do not reflect the views of the University of Baltimore. Although we strive to be accurate in our posts, they do not constitute legal advice. Independent advice should therefore be sought if it is deemed advisable.
The area of partnership aggregate-entity is disjointed, and depending on the particular issue involved, the resolution of an issue can cut either way — either for the taxpayer or for the IRS. (See Monte A. Jackel, “Partnership Aggregate-Entity Cases, Rulings, and Analysis,” Tax Notes Federal, Mar. 27, 2023, p. 2089, and Jackel, SSRN, Mar.4, 2023, for background on the issue and a detailed discussion of the authorities.) There is no general rule or mode of analysis running through the court cases and IRS rulings to date, only some oft-repeated phraseology stemming from the legislative history in 1954 and 1984.
For example, the conference report to section 707 in the 1954 act (H.R. Rep.No. 83-2543, at 59 (1954) (Conf. Rep.) states that:
“No inference is intended . . . that a partnership is to be considered as a separate entity for the purpose of applying other provisions of the internal revenue laws if the concept of the partnership as a collection of individuals is more appropriate for such provisions.3
Further, the House and Senate reports to sections 741 and 751 in the 1954 act (H.R. Rep. No. 83-1337, at 70-71 (1954); S. Rep. No. 83-1622 (1954)) state that:“In effect, the partner is treated as though he disposed of such items [the hot assets] independently of the rest of his partnership interest.
And the 1984 act legislative history to section 751 (Joint Committee on Taxation, “General Explanation of the Deficit Reduction Act of 1984,” JCS-41-84 at 241-242 (Dec. 31, 1984)) states that:
“The ordinary income rules of section 751 are applied by regarding income rights . . . as severable from the partnership interest, and a partner is treated as disposing of such items independently of the rest of his partnership interest.”
There is no separate Internal Revenue Code provision that supports any of these three often-repeated platitudes.
There needs to be some uniform regulatory guidance on these issues or, better yet, an authorizing statute by Congress and then implementing regulations. The current so-called abuse-of-entity rule at reg. section 1.701-2(e) is one-sided and not particularly useful to either the taxpayer or the IRS. It suffers from the same arguable lack of authority as does the other part of reg. section 1.701-2. (See Jackel, Alison L. Chen, and James M. Maynor Jr., “Time to Revoke the Partnership Antiabuse Regulation,” Tax Notes, Jan. 29, 2018, p. 669; and Jackel, Chen, and Maynor, “Proving That the Partnership Antiabuse Reg Has No Place,” Tax Notes, May 14, 2018, p. 1027.)
As noted, the entire aggregate-entity area of law was first formally introduced in the 1954 act legislative history to sections 707, 741, and 751 without any IRC statutory support for what the legislative history says. Courts and the IRS have used this legislative history in deciding cases and issues, but the higher-level debate continues concerning whether it is solely the literal words of the code section that control in deciding an issue under the IRC, or whether those words are informed by and interpreted with the aid of legislative history, or whether the legislative history is completely ignored or downgraded in importance. Those legislative history sources are authorities to avoid accuracy-related penalties, for sure. The issue then becomes the proper effect of this legislative history to substantively resolve the relevant partnership aggregate or entity issue.
The IRS and some courts have indeed adopted the “deemed asset sale” or “deemed ownership” rule when a partner either sells the partnership interest or holds the partnership interest for purposes of various code provisions. Most recently, in the Rawat Tax Court case (Rawat v. Commissioner, T.C. Memo 2013-14, on appeal to the D.C. Circuit Court of Appeals), the Tax Court interpreted section 751(a) in this manner. This position was ultimately based on the legislative history of sections 741 and 751 from the 1954 code, quoted earlier. But, as also noted earlier, where does the IRC say there is a deemed sale of partnership assets in that case?
The answer is nowhere. The words of section 751(a) do not affirmatively state such a rule. Or at least that is the fundamental point of disagreement among commentators, the courts, and the IRS.
If it is true that a deemed sale of assets occurs when section 751(a) is involved, then there is a risk of inconsistent application of that rule, whether for or against the taxpayer or the IRS, depending on the issue involved outside of section 751(a). But if this reading of section 751(a) is overbroad, as some (including me) think it is, what is there to do about the fact that some courts and the IRS have previously taken the deemed sale or deemed ownership of partnership assets view, most recently in Rawat?
If the courts or the IRS are shown to be wrong in this deemed assets view, will the trend of the authorities that the IRS and the courts issue later change? What is to be done about courts misinterpreting what the law is based on legislative history when that legislative history is without statutory support in the IRC for the treatment at issue?
However, if a sale or holding of a partnership interest is not a sale or holding of the underlying partnership assets, but only a sale or holding of a separate intangible property (partnership) interest for purposes of a particular code provision, such as section 751, there will then be a significant number of existing IRS regulatory provisions that could become vulnerable to challenge.
It appears that there is no perfect solution to the mess that the Congress (through its non-code-supported legislative history in 1954 and 1984), some courts (applying deemed sale or deemed holding of partnership assets without explicit IRC support), or the IRS (same) have created. A hard-and-fast aggregate or entity rule, one way or the other, would create more damage and more complexity, not less.
It is time for a uniform set of standards, supported by explicit language in the IRC and underlying regulations, to govern this area of the partnership tax law.