#10: Oops I've Accidentally Created A Partnership- Now what?

Let's first start with a few key facts about partnerships. So a partnership is filed on form 10 65. It is a completely different tax return from your 10 40, from your personal tax filing. And as a whole, it requires a lot more information then reporting the same activities would on your personal return. So if you have a partnership, if you're reporting a 10 65, You have to track more things, including a capital account. You have to track basis. You have to keep a balance sheet.

And to really do all of that correctly. You pretty much need to have actual books and you need to have correct bookkeeping done in bookkeeping software. Not just sort of pulling together your receipts at your end. It's really hard to do that and have everything tie out correctly with all of the information needed on an entity tax return. So when you have a 10 65, a partnership tax return. Everything gets reported on that return. Right? So if you have a rental.

The rental goes on the 10 65, all of the income and expenses. Everything goes on to that partnership tax return. And then once that return is finished. A K one is generated for each partner in the partnership. This is kind of like receiving a W2 from your job. It is each partner's recap. It is their summary. Of income or loss for the year. And any other kind of little details that matter. It will have a few other pieces of information.

But so the partnership is where everything is reported and it calculates, and it figures out the end number. And then each partner receives a K one. That says, Hey, here's your share. This is your amount of income, or this is your amount of loss. So that K one. Is then entered on the personal tax return. On the 10 40 and that's where it's accounted for. So partnership itself, you don't pay tax on the partnership. It then creates a form.

And you reported on your personal return and that's where any net tax impact happens. So here's where things get a little squirrely. Is a personal tax return, right? Your personal 10 40 tax return. Is due April 15th. A partnership. Is due March 15th. This makes sense, because to finish your personal return. You would need that K one from your partnership. So the partnership has to be done first. So what happens pretty frequently?

Is if someone doesn't know where, like, if you don't realize that you had created a partnership. And it's now April tax. Repair's going to do your personal taxes that aren't due for a few more weeks. And when going through your documents, What they find. Is the setup of this LLC. And it turns out to be a partnership. Well, shoot, this is problematic. Because now we have a partnership. And we learned, it takes a lot more information. There's a lot more you have to do for it.

We don't have any of that because we weren't expecting it. And it's late. So what can we do? So there are a few things we can do when we run into this situation, because I am telling you guys, it happens far more often than you think.

Before we get into the solutions. Let's walk through some of the more common ways that this comes up. Like, how does this happen? How do people create an accidental partnership? At a starting point. An LLC. That has two or more members creates a partnership. So if you create an LLC with just your name, It's disregarded. To the IRS. It doesn't exist. Betterly it does nothing. It doesn't change your taxes at all. It doesn't change where you file at all. It just creates this legal separation.

The rental or the business, whatever it was, gets reported, the exact same way as it would, if you did not have the LLC. Once you add a second person. It's a partnership and we have that whole separate return on form 10 65. So one of the most common ways we have an accidental second person. Is with a married couple. It is incredibly common for a married couple to just think like they're so used to doing everything together. So they set up the LLC and they just put both of their names on it.

Like that seems like a totally reasonable thing to do. And it's not wrong. But most of the time we've created a partnership. So that I would say is one of the most common ways I see an accidental partnership come up. When it wasn't the intention right there, wasn't a goal of creating a partnership. They didn't know they were going to have another tax return. It was just a, did not realize that was the outcome of putting both of their names on the paperwork.

So here is solution number one, if you've got an accidental partnership. So if this is the circumstance that applies to you. Or applies to your client, right? We have a taxpayer and spouse. Accidentally put both their names on the LLC. What do we do? Solution number one. In a community property state. If there's an LLC where the only members are the taxpayer and spouse. They can instead choose to be treated as disregarded. Because of those unique state laws and community property states.

Where everything is sort of shared. The way this is handled. Is that in a community property state, only a taxpayer and spouse who are both members on an LLC can instead choose to have it treated as disregarded. So they can be viewed as one unit. So it's treated the same way as if there was only one owner. Of that LLC. And you would file it exactly the same way. What allows you to do this is rev proc 2002 dash 69.

And what happens here is that instead of having a file that's separate partnership tax return. If we have an LLC. Only two members are the taxpayer and the spouse, and they're in a community property state. We can use this rev proc and file it as though it was a single member LLC. Instead. So that's your first solution. But this really only helps. For community property states, right?

So let's talk about some of the other ways this happens that this comes up accidentally and other solutions and what we can do about it. The next most common accidental partnership. I see. Is the accidental partnership that can happen without an LLC. So two people who are just carrying on a trader business together, you're just running a business like a shared business together, an active business. That creates a partnership.

So if you and a friend are renovating properties together, You're flipping houses together, buying it in both of your names, fixing it up, selling it, splitting the profit, doing it over and over. That can create a partnership and that would require a 10 65 tax return. So even though there wasn't an LLC. Even though there wasn't a multi-member LLC. Two people carrying on an active trader business together, it can create a partnership and require a partnership filing. But again, I have good news.

And I have some potential solutions for you. First option for a solution. There's an exception to this. Specifically for rental properties. It is stated in the code that the mere co-ownership of a property. For the reason of it being held for lease or for rent. Does not create a partnership. Unless there are also services provided. So if you and a friend. Buy a property together that you're going to just rent out.

And then each year you're going to each report your half on your personal tax return. That's totally. Okay. On a rental property. We've got this exclusion, you and someone else. So two people can own a property together. That's held for rent. And not create a partnership. If you and someone else buy a property together to renovate flip sell, and you're doing that over and over again. We might have a partnership, so active trader business partnership.

If all you're doing is coning a rental together. We don't have a partnership. So that's the first piece of good news, right? That's the first solution is. If it's a rental, we don't have to worry about this same problem. The next option. Is if. We are operating an active trader business, right? Again, if two people are operating an active trader business together, it normally creates a partnership. Unless. It is a taxpayer and spouse who are operating this business together.

And there are no other members of the business, right? It is only the taxpayer and spouse. So in this circumstance, we have a nother option here. We have something else we can do for a solution. So if it's only a taxpayer and spouse who are operating an active business together, they have the option of instead filing a qualified joint venture. So instead of having a file on form 10 65, instead of having to report like a partnership.

They can report a qualified joint venture, which qualifies for any unincorporated business. And what happens in that case is that each spouse. Reports their own schedule C. So like if they're flipping houses, they each report their own schedule, see their own business on the return. And they each report half of everything. Both spouses do have to be participating in the business.

And it does have to be split up between the two forms that way on the one personal return, they file a 10 40 together. But we have two different businesses. They each have pretty much half of the business. And they each get credit paid in toward social security for that self-employment income. So that's your second solution. Right? First solution is. If what is being operated together is a rental. We don't have a partnership. Second one is if the people operating an active business together.

Our taxpayer and spouse. We have the option of instead reporting as a qualified joint venture. Okay. So now what you guys are thinking as well, Natalie, none of those things apply to me. Right? What if I just created an LLC with my spouse or with a friend we're not in a community property state. We bought some rentals, like, what is the solution here? Like what do I do? I didn't realize we did this. How do we fix it? Do we have to file this 10 65? What are my options?

Now we're going to go into a series of questions. To see how to best fix this, to see what your options are. First question. So you and someone else created a two person, LLC. You put both of your names on the LLC. You're now learning. This is a partnership. What happens? Did that partnership? Actually own the rentals or did you. Right. So the first kind of get out of jail free card.

I would be, if you and someone else created this LLC together, which would normally require a partnership tax return. You set it up because you're going to, you know, purchase rentals and run rentals together. But you never put the rentals in the LLC. Right. If that LLC doesn't actually own those properties. You do not have to file that partnership like that partnership is not an actual partnership. If it is not. Owning the assets. It is not functioning. It is not actually doing something.

So your first option here for something to look at, to see if you really have to file this partnership tax return. Is that if you set up that multi-member LLC to operate these rentals in, were the rentals actually ever put in the LLC? A partnership shouldn't report assets and report the rental income and report rentals. It doesn't own. So if those were never moved into there, You've got an option to look at there.

Talk about it with a tax professional, or if you're a tax professional, look over this and discuss it with your client. If that partnership doesn't actually own the rentals. We might be good. Right? You guys own these rentals, you co-owner rental. And like we learned earlier, More than one person. Co owning a property for the sake of rental or leasing it. Does not by default bank a partnership. So you might be good. That could be totally fine.

Because you didn't actually take the second step of putting the properties, titling them into the LLC. Second question. Did the partnership have any income or deductions or credits during the year? So if you dive in to the code section on this and to CFR one dot 6 0 3, I think it is. It specifically states. That a partnership. That does not have any income or deductions or credits for the year does not have a requirement to file. This comes up pretty often as well.

If you set up this LLC with yourself and your spouse or yourself and a friend, you're going to buy rentals together. You set it up in November. Nothing has happened. You haven't bought a property yet. You maybe bought a property. But it's not in services or rental yet. All of those costs before you're in service, just get added to the basis of the property typically. So there are a lot of circumstances where if you've created a partnership.

But if it didn't actually have any income or expenses or reportable things for that year, You might not have a filing requirement. So that is kind of your second thing to check. First one, does this partnership actually on the properties? Second one, does it actually have income or expenses? Because if it doesn't. You might not need to file.

if none of those come into play, we do actually have to file a partnership. But now it's late. We found out about it after the fact. Now, what do we do?

Each partner has to either be an individual. Or the estate of a deceased partner. Each partner's items of income, deductions and credits have to be allocated in the same proportion as all other items of income, deductions and credits. So we can't have a bunch of special allocations. And the partnership has to have not elected to be subject to the consolidated audit procedures under IRC 6 2 2 1 and 6 2 3 3. So this relates to the centralized partnership audit regime.

Which most partnership should probably elect out of. We'll talk about that in a sec. So as long as you're not opted in, you've elected out of the centralized partnership. Audigy. And this last one is key. Each partner. Reported his or her share of partnership income on his or her timely filed income tax return. So what this means. Is if you're a tax professional or if you're a client of your tax professional is looking through your stuff.

It's April 10th and that's when they find this partnership. Your 10 40 isn't due till April 15th. It's not late yet, but your partnership is. As long as this late partnership. Met these other criteria. And you reported the correct income and expenses on each partner's 10 40. That was filed by that April 15th deadline. Or you had extensions in place. You've meet these criteria. So if a surprise partnership, an accidental partnership. Is discovered late, which happens all the time.

There is a good chance you can use rev proc 84 dash 35 to remove that late filing. If you meet these criteria. The last item that I will touch on. Is that C par centralized partnership audit regime. again, most things in tax. Based on your specific circumstance. So check with your tax professional. Or if you're a tax professional, you should know that this is going to be different for everyone.

But what this allowed, a partnership to make changes and pay tax on those changes at the partnership level. If there was an error or change discovered. Because otherwise, right? Like if a partnership had. 500 partners. Something is wrong. It needs to be changed in the partnership. Every one of those 500 partners gets a new K one. That means they also have to all change their personal tax returns and amend their personal returns also. So that's where this came into play. And when that happens.

The change happens at the partnership level, the partnership pays the tax. There can be some downside to this, because if it was at the partnership level, based on the highest rate that they could put their, well, there might be partners whose tax rate personally would have been much lower. So effectively they're paying more tax than they would of. But as a, as a starting point. Most small partnerships. If you qualify to elect out of this treatment.

There's a good chance that that's what you'll want to do. Because if you did not elect out of this, you can't use that late file relief. If you did not elect out of this, you can't amend your return. So if you find something wrong in a prior year partnership tax return. It can't just be amended the same as always. There's an entirely different form. There's a entirely different procedure for submitting for this change. And then it happens at the partnership level. So talk to your professional.

See if that's what's best for you, but ask about this. If you have a partnership tax return. Ask your tax professional. If they elected out. Of this centralized partnership audit regime. So you are allowed to elect out. As long as a few criteria are met. The partnership has to have less than a hundred partners. And they have to all be eligible partners. An eligible partner includes an individual. A C Corp or a foreign entity that would be a C Corp. If it was domestic. An S corporation.

Or the estates of deceased partners. If those are the only types of partners in the partnership and there's a hundred or less. You have the option to elect out of that whole treatment? And keep it so that you can still a men tax returns if you want. The partnership tax returns. And then if there's an issue or something found you would amend the partnership return and all the partners would amend their personal returns and pay their own difference in tax personally.

At each person's separate tax rate. Ineligible partners. So if the partnership has any partners that are from this list, you can't opt out. You are subject to that centralized partnership audit regime. No matter what, if you have any of these type of partners, so ineligible partners. Are going to include other partnerships. He trusts. Foreign entities that would not be treated as a C Corp if they were domestic. Disregarded entities and states have individuals other than deceased. Partners.

Oh, so why do I mention this as well? Because there are a lot of legal firms. That liked to set up elaborate partnership structures that include many of these ineligible partner types. So it is really common to have a partnership where one of the partners is another partnership. We have a tiered partnership. Or a disregarded entity. You have an LLC under a partnership or a trust under a partnership. This is very common. So I'm not saying it's right or wrong.

I'm just saying if your attorney suggests that, or if this is part of your structure is a partnership with a partner that is. A partnership, a trust or a disregarded entity. Make sure you also understand the tax implications and the filing implications of not being able to elect out of that centralized partnership audit regime.

So in conclusion, Accidental partnerships happen pretty often. They're pretty common. And there are several solutions for how you can fix them. And that might work for you. So to go through and recap these solutions real quick. The first option. Is that if any community property, state. And the only members of that multi-member LLC are the taxpayer and spouse. They have the option under rev proc 2002 69 to be treated as disregarded instead.

The next solution is that if a partnership was created because two or more people are carrying on an active trader business together, your solutions here. R that if it was only to own a piece of property for rent, You do not have a partnership. Or if the only people operating that trader business are a taxpayer and spouse, then they have the option to instead file as a qualified joint venture. Where they each just report a business on the 10 40. They don't have to file a partnership return.

Your last solutions are, if you do have to file. You do have a late 10 65, you found out about it after the fact. Look into rev proc 84 dash 35. To see if you qualify for late relief for submitting that 10 65 late. And kind of the bonus item. 'cause you can't qualify for rev proc 84 35. If you can't. Elect out of this. Is take a look at that CPAR, that centralized partnership audit regime and see if you have elected out of it. Or not, or if you can, based on what type of partners do you have.

So in short partnerships are in a bad thing. There's lots of reasons to intentionally create them. It just happens accidentally pretty often. If you have a partnership tax return, it is due by March 15th. And you can still file a six month extension. A partnership tax return does require quite a bit of more information. So you will probably need additional bookkeeping. And you're going to have to pay for a second tax return as well as separate 10 65 tax return. So think about this as well.

When setting up your structure, or when talking to attorneys about your legal structure and how it's going to help you on the protection side. Because this can add up pretty quickly. Unintentionally. So I'll leave off today's episode with a quick story. Of something I saw this week on Facebook. So someone posted in a group, a real estate investor group, and they said, I just got the bill for having my taxes done. And it's going to be like $12,000. This is crazy.

Like we have six rental properties. We have six LLC is like, this is madness. There's nothing too complicated about it. People are all over the place, right? Like that's ridiculous. You're getting ripped off. That's crazy. I can't believe that much. But we ask a few more questions. Guess what? They had set up every LLC in every single LLC held one rental. Every single LLC was an LLC owned by both the taxpayer and the spouse. So every single rental had its own partnership return.

If you want to file your own partnership return on TurboTax. I think they charge like $1,200 for you to do it yourself. So if you're going to go to a tax firm with six partnerships, Paying 12 grand, which is, you know, two grand or return plus their personal, that's not out of the realm of a reasonable price. It's that these taxpayers didn't realize. They had accidentally created a half dozen partnerships. Additionally since they didn't know that's what happened.

I'm guessing they also didn't have really good books and tracking to do a partnership either. So that tax firm probably had to put a fair amount of time into some bookkeeping to kind of pull together that information. So that's kind of, my morning story is accidental partnerships happen. Try to prevent it. If you have two or more people on an LLC, it is almost always going to create a partnership. Or if you are just operating an active business with another person.

It is likely going to create a partnership. I hope some of these solutions are helpful for you. So as always, I am so thankful to you guys for listening. Please make sure if you found some value in this episode, or if you're sitting there and thinking of the person you accidentally created a partnership with, please share this episode with them. Share it like it. Give us a follow. And if you are a tax professional, please join us in the online Facebook group.

If you're a real estate investor, I've got a separate group for real estate investors links to everything are in the show notes. Thanks so much for listening and I will talk to you guys next week.