03 February 2016
I am writing this post because I have seen several clients who have formed a business partnership without knowing there were tax filing implications for doing so. I am not trying to dissuade anyone from forming a partnership, but I think it would be helpful for people to know how that is going to impact their tax return preparation.
OK, let me get this disclaimer out of the way: I am not a lawyer. I don't give legal advice, and this blog post is not meant to be legal advice. This post isn't even tax advice. This post is meant to educate taxpayers on the tax ramifications of forming a partnership.
A partnership can be formed in several ways, but the one that seems to surprise the most people in my experience is when they form a Limited Liability Company (LLC) together. Limited Liability Companies have become very popular for the protection against personal liability they extend to small business owners. LLCs are organized under state laws, and many states - including Virginia - have made them relatively easy and affordable to form.
When an LLC is formed the state wants to know who the members of the LLC are. The members are the owners. If you list more than one member when you form your LLC then under federal tax law you have just created a partnership. (Unless you decide to incorporate, which I cover in more detail later.)
A simple scenario might be one in which Jim and John are friends and generally handy do-it-yourselfers. John has a truck, they both have some tools, and they decide to try to make a little money on the side by doing simple repair work at people's residences. They form an LLC to limit their liability, listing both Jim and John as members of the LLC.
In the eyes of the IRS they have just formed a partnership.
Why do Jim and John care that they have just formed a partnership? Because partnerships are required to file a separate federal income tax return - the Form 1065, US Return of Partnership Income. Like most states, Virginia also requires partnerships to file a separate tax return - Form 502, Pass Through Entity Return of Income.
Don't misunderstand - Jim and John's partnership does not have to pay any tax. A partnership is a pass through entity - all of the profits and losses are passed through to the partners. Jim and John will pay the taxes for the partnership through their individual income tax returns. BUT, the partnership must file the 1065 return so the IRS has a record of the profits and losses that were passed through to each partner.
The process works as indicated in the diagram below. The partnership files form 1065. At the time the 1065 is created Schedule K-1s are created for each of the partners. The K-1 contains the information about each individual partner's income and expenses from the partnership. Each partner would use the Schedule K-1 issued by the partnership when preparing his or her individual income tax return. The information from the K-1 generally gets placed on Schedule E of form 1040 of the individual return.
(There are other uses for Schedule K-1, by the way. It's not only used for partnerships, so if you hear someone talking about a schedule K-1 it doesn't always mean there was a partnership involved.)
Partnership tax returns are generally more complex than individual income tax returns. While Jim and John have a very simple partnership, the same tax form also has to be able to handle a partnership between Berkshire Hathaway (an American corporation) and Fiat (a foreign corporation). That partnership does not exist, but those two corporations could form a partnership, and if they did the partnership would have to file a form 1065.
To further complicate things, income on an individual tax return (form 1040) falls into different categories for tax purposes. For example, long term capital gains are taxed differently than wages. Those two types of income have different character. Because the income from the partnership is passing through to the individual partners, it is important for the character of income to be preserved. Long term capital gains from a partnership must pass to the partners as long term capital gains. Rents as rents, etc. In order for this to happen some of the income items on a form 1065 must be separately stated. This can make the Form 1065 a real pain in the neck to figure out.
In addition to the complexity of the return, the software to create the 1065 isn't cheap, either. There are some significant hassles for do-it-yourselfers. I'm not saying a small business owner couldn't figure out how to prepare and file his or her own Form 1065, but Jim and John would probably benefit from some professional assistance.
Is there a way to get out of filing a partnership return? Well, there's this: You file a form 8832 and have your partnership declared a corporation. You might have some very good reasons for doing this, but simplifying your tax situation is not one of them. Corporations file their own separate tax return and some of them also have to pay their own taxes. You wouldn't reclassify your partnership as a corporation as a method of streamlining your tax paperwork, because you will very likely have more paperwork with a corporation than with a partnership.
Partnerships and LLCs are some great tools for small business owners. Just be sure your eyes are open about the tax consequences if you form one. You are going to have to file some additional tax forms. If you have questions please contact me.