This fact pattern is very puzzling.
I'm scratching my head trying to figure out how the capital accounts would still be positive if distribution of the profits from the real estate sale resulted in recognition of income. Capital accounts and outside basis will track the same way -- compare Treas. Reg. 1.704-1(b)(2)(iv)(b) with IRC 705 and IRC 722 -- and the most common way they significantly mismatch is when partners take non-recourse deductions (i.e., depreciation), in which case the capital account would be LOWER than outside basis. Put simply, if the father and son are left with a positive capital account after the sale of the partnership's only asset and subsequent distribution of the proceeds, I don't understand why they would have recognized gain on the sale of the real estate at all.
However, let's assume that father and son somehow recognized gain and were still left with a positive capital account after the distribution of the proceeds. First off, the fact the parties are related will put up a huge red flag. The Service will probably contend the difference between FMV and the purchase price is a gift, thereby providing no loss recognition. Second, the ability to continue participating in partnership distributions would mean that the sale is illusory because only partners of the partnership are able to participate in distributions. Overall, I would put the chances at the transaction achieving the intended tax results at exactly zero. Plus you have a non-privileged memorandum setting forth a pre-arranged plan or scheme to engineer favorable tax treatment without any economic substance.
Although the facts you have presented are enough to arrive at a pretty definitive conclusion, this fact pattern is very strange, and I would still love to know more details.
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Matthew E. Rappaport, Esq., LL.M.
(516) 558-3377
mer@merlawfirm.com
Original Message:
Sent: 10-03-2016 10:32
From: Frank Madigan
Subject: Question on potential related party sale.
I'm not surprised no one wants to touch this. There doesn't seem to be any way that the partnership/manager purchasing the member's interest for $1 is an arm's length transaction; and how is that interest separate from the right to participate in the contingent payout? Without knowing all the details I can't really say one way or the other if this is on the up and up, but it does sound fishy, at least the way you explain it. I would proceed with caution.
I would think that the correct way to account for this would be using the installment sale method. Presumably an unrelated 3rd party purchased the property from the partnership at arm's length?
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Frank Madigan CPA
FRENDEL, BROWN & WEISSMAN, LLP
New York NY
Original Message:
Sent: 09-27-2016 10:31
From: Michael Rubinstein
Subject: Question on potential related party sale.
Two clients, a father and son are investors in a real estate partnership managed by the brother and uncle of the investors. The real estate was sold this year at a profit, with substantial money held in escrow for possible environmental problems. After the sale and distribution of proceeds there is still substantial basis in each investor's capital account.
The accountants for the partnership have a memo that in effect states that it will take a few years to wind down the partnership and that the partnership or the manager of the partnership will purchase the capital account for $1 to general a loss to offset the taxes on the capital gain from "economic interest owners". The accountants further state that the partners that sell now will still be able to participate in the "remediation payout, should there be any."
So the questions arms? length? related party problems?
Thanks,
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Michael Rubinstein
Michael D. Rubinstein CPA, PC
Woodbury NY
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