Professional Documents
Culture Documents
RECOURSE
Is the partnership a General Partnership?
NONRECOURSE
Does the partnership own depreciable assets secured by the nonrecourse liability?
QUALIFIED NONRECOURSE
Allocate same way as nonrecourse liabilities.
YES
In a General Partnership, all partners have personal liability for the recourse debts of the entity. Debt should be allocated according to the hypothetical liquidation approach discussed on page 2.
(Treas. Reg. 1.752-2(a)) (See Example 1 on page 3)
NO
Is the partnership a Limited Partnership?
YES
Have depreciation deductions reduced the tax basis of the asset secured by the liability below the principal balance of the liability?
NO
YES
Have any of the limited partners either 1) personally guaranteed the recourse debt and waived their right for reimbursement or 2) does the partnership agreement provide that the limited partner is required to make an additional capital contribution to the partnership?
NO
Is the partnership an LLC? Did any of the LLC members agree per the partnership agreement to either 1) guarantee the debt or 2) restore a decit balance in their capital account upon liquidation?
YES
Each partner must be allocated an amount of the liability equal to their share of the minimum gain (debt principal balance in excess of tax basis of the asset).
(Treas. Reg. 1.752-3(a)(1)) (See page 2 for denition) (See Example 5 on page 3)
NO
Did either partner contribute an appreciated asset to the partnership that is secured by a nonrecourse liability?
YES
An LLC member can be allocated recourse debt of the partnership to the extent of their obligations under 1 and 2 above. The remaining liability must be treated as nonrecourse debt and allocated accordingly.
YES
A limited partner can be allocated recourse debt of the partnership to the extent of their obligations under 1 and 2 above. The remaining liability must be allocated amongst the general partners pursuant to the hypothetical liquidation method.
(Treas. Reg. 1.752-2(b)) (See Example 2 on page 3)
YES
The contributing partner must be allocated nonrecourse liabilities to the extent of any difference between the principal balance of the nonrecourse liability and the adjusted tax basis of the property at the time of the contribution under 704(c). Any remaining liability is to be allocated according to prot ratio.
(Treas. Reg. 1.752-3(a)(2)) (See Example 6 on page 3)
NO
Allocate the nonrecourse liability based on prot ratios.
(Treas. Reg. 1.752-3(a)(3))
NO
All recourse liabilities should be allocated among ONLY the general partners according to their risk of loss under the hypothetical liquidation approach.
(See Example 3 on page 3)
NO
Except for the limited circumstances discussed above, the general rule is that LLC debt (state law recourse or nonrecourse) cannot be allocated among members as recourse debt because none of the members has any economic risk for the debt. For state law recourse debt, a creditor may sure the LLC but may not enforce the debt against the members. Thus, unless a member takes on the additional risk, all LLC debt is treated as nonrecourse for tax purposes.
6.
Ex: A and B form a GP an d contribute $20,000 cash each. They use the $40K and borrow $60K to buy a building for $100K. Each partner is jointly and severally liable for the $60K loan. The
EXAMPLES
Allocation of Recourse Debt in General Partnership In general partnership AB, Partners A and B share prots 50/50 but losses 80/20. A contributes $20K, B contributes $20K, and the partnership borrows $60K on a recourse basis. The partnership buys a building for $100,000. Upon a hypothetical liquidation, the 1) $60K becomes due, 2) the building becomes worthless, 3) the partnership sells the building for $0, recognizing a $100,000 loss, and 4) that loss is allocated $80K to A and 20K to B pursuant to the partnership agreement. After the loss, As capital account is ($60) 20K-80K while Bs capital account is $0 (20K-20K). Since A bears the economic risk of loss to the extent of the $60K, A should be allocated all $60K of the liability.
Allocation of Recourse Debt in Limited Partnership; Limited Partner had DRO Limited Partnership ABC has a general partner A, with a capital account of $75 and a limited partner B, with a capital account of $25. B has specically agreed in the partnership agreement to restore any negative capital account upon liquidation of the partnership. Partnership ABC borrowed $100 on a recourse basis and allocates losses 75% to A and 25% to B. Upon a hypothetical liquidation, Partnership ABC would recognize a $200 loss, and the loss would be allocated $150 to A and $50 to B. As capital account becomes ($75) and Bs becomes ($25). Because B is required to restore any decit in his capital account, he bears the risk of loss for the $25 negative capital account, and is allocated $25 of the liability. A is allocated the remaining $75.
Allocation of Recourse Debt in Limited Partnership; Limited Partner Does not Have DRO Limited Partnership ABC has a general partner A, with a capital account of $75 and a limited partner B, with a capital account of $25. B is not obligated to restore any negative capital account upon liquidation of the partnership. Partnership ABC borrowed $100 on a recourse basis and allocates losses 75% to A and 25% to B. Upon a hypothetical liquidation, Partnership ABC would recognize a $200 loss, and the loss would be allocated $150 to A and $50 to B. As capital account becomes ($75) and Bs becomes ($25). Because B is not required to restore any decit in his capital account, he does not bear the risk of loss for the $25 negative capital account, and the entire $100 of debt is allocated to A.
Allocation of Recourse Debt in LLC; one Member Guarantees the Debt G and H are the sole members of GH, LLC. They share prots and losses 60/40. G has personally guaranteed all LLC liabilities. G contributed $60 to the LLC, and H $40. The LLC borrowed $100 and purchased a building. Upon a hypothetical liquidation, Partnership ABC would recognize a $200 loss, and the loss would be allocated $120 to A and $80 to B. As capital account becomes ($60) and Bs becomes ($40). However, because G has guaranteed the debt personally, he bears the full risk of loss and is allocated the full $100 of debt.
Alternatively, G does not guarantee the debt, but instead agrees to restore any decit capital account upon liquidation. In the facts above, A would be allocated only $60 of the debt as recourse debt, and the remaining $40 would be treated as nonrecourse debt to be allocated under the applicable rules.
Allocation of Nonrecourse Debt in GP; Partnership has Minimum Gain A and B for Partnership AB, a general partnership. A contributes $20 and B contributes $180. The partnership borrows $800 on a nonrecourse basis and purchases a building for $1,000. The loan is secured by the property. A, as the general partner, is obligated to restore a negative capital account. B, as the limited partner, is not. A is allocated 90% of all depreciation deductions but income is split 50/50. Depreciation is $90 per year. In year 3, when the building has a tax basis of $730, the partnership has minimum gain, as the debt balance ($800) exceeds the tax basis of the assets securing it ($730). This $70 of minimum gain would be allocated $63 to A and $7 to B, as that is how they were allocated the depreciation deductions. Accordingly, A should be allocated the rst $63 of debt and B the rst $7. The remaining $730 of debt should be split 50/50 according to the prot ratios.
Allocation of Nonrecourse Debt in LLC; Partnership has 704 Contribution A and B form the AB, LLC on a 60/40 basis. A contributes law with a FMV of $100,000 and a tax basis of $25,000, secured by a nonrecourse $40,000 mortgage. B contributes $40,000 cash. If the property were disposed of for nothing but the relief of the nonrecourse liability, AB would recognize $15,000 of gain ($40,000 debt relief - $25,000 basis). This gain would all be allocated to A under 704(c). As a result, A should be allocated the rst $15,000 of the nonrecourse liability, with the remaining $25,000 being split 60/40 between A and B.