Code of Federal Regulations · Section

§ 1.752-4 — -4 Special Rules

26 C.F.R. § 1.752-4

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(a) Tiered partnerships. An upper-tier partnership's share of the liabilities of a lower-tier partnership (other than any liability of the lower-tier partnership that is owed to the upper-tier partnership) is treated as a liability of the upper-tier partnership for purposes of applying section 752 and the regulations thereunder to the partners of the upper-tier partnership.

(b) Related person definition—(1) In general. A person is related to a partner if the person and the partner bear a relationship to each other that is specified in section 267(b) or 707(b)(1), subject to the following modifications:

(i) Substitute “80 percent or more” for “more than 50 percent” each place it appears in those sections.

(ii) A person's family is determined by excluding brothers and sisters.

(iii) Disregard sections 267(e)(1) and 267(f)(1)(A).

(iv) Disregard section 267(c)(1) in determining whether—

(A) Stock of a corporation owned, directly or indirectly, by or for a partnership is considered as being owned proportionately by or for its partners when the corporation directly bears the economic risk of loss as described in § 1.752-2(a)(3) for a liability of the partnership; and

(B) A capital interest or a profits interest in a partnership (lower-tier partnership) owned, directly or indirectly, by or for a partnership (upper-tier partnership) is considered as being owned proportionately by or for the upper-tier partnership's partners when the lower-tier partnership directly bears the economic risk of loss as described in § 1.752-2(a)(3) for a liability of the upper-tier partnership.

(v) Disregard section 1563(e)(2) in determining whether a corporate partner and a corporation are members of the same controlled group (as defined in section 267(f)) under section 267(b)(3) when the corporation directly bears the economic risk of loss as described in § 1.752-2(a)(3) for a liability of the partnership.

(2) Related partner exception. Notwithstanding paragraph (b)(1) of this section (which defines related person), if a person who owns (directly or indirectly through one or more partnerships) an interest in a partnership directly bears the economic risk of loss as described in § 1.752-2(a)(3) for a partnership liability, or portion thereof, then other persons owning interests directly or indirectly (through one or more partnerships) in that partnership are not treated as related to that person for purposes of determining the economic risk of loss borne by each of them for such partnership liability, or portion thereof. This paragraph (b)(2) does not apply when determining a partner's interest under the de minimis rules in § 1.752-2(d) and (e).

(3) Person related to more than one partner. For purposes of determining a partner's economic risk of loss for a partnership liability, or a portion thereof, when a person who directly bears the economic risk of loss as described in § 1.752-2(a)(3) for the partnership liability is related to more than one partner under paragraph (b)(1) of this section, each partner that is related to such person is considered to bear the economic risk of loss for the partnership liability, or portion thereof, in proportion to the partner's interest in partnership profits.

(4) Special rule where entity structured to avoid related person status—(i) In general. If—

(A) A partnership liability is owed to or guaranteed by another entity that is a partnership, an S corporation, a C corporation, or a trust;

(B) A partner or related person owns (directly or indirectly) a 20 percent or more ownership interest in the other entity; and

(C) A principal purpose of having the other entity act as a lender or guarantor of the liability was to avoid the determination that the partner that owns the interest bears the economic risk of loss for federal income tax purposes for all or part of the liability; then the partner is treated as holding the other entity's interest as a creditor or guarantor to the extent of the partner's or related person's ownership interest in the entity.

(ii) Ownership interest. For purposes of paragraph (b)(4)(i) of this section, a person's ownership interest in—

(A) A partnership equals the partner's highest percentage interest in any item of partnership loss or deduction for any taxable year;

(B) An S corporation equals the percentage of the outstanding stock in the S corporation owned by the shareholder;

(C) A C corporation equals the percentage of the fair market value of the issued and outstanding stock owned by the shareholder; and

(D) A trust equals the percentage of the actuarial interests owned by the beneficial owner of the trust.

(5) Examples. The following examples illustrate the principles of paragraph (b) of this section.

(i) Example 1: Person related to more than one partner. A, an individual, owns 100 percent of X, a corporation. X owns 100 percent of Y, a corporation. A owns a 40 percent capital and profits interest and X owns a 60 percent capital and profits interest in P, a limited liability company treated as a partnership for Federal tax purposes. P borrows $1,000 from Bank. Y guarantees payment of the entire $1,000 debt owed to Bank. A and X do not directly bear the economic risk of loss as described in § 1.752-2(a)(3) for the liability. Therefore, paragraph (b)(2) of this section does not apply for purposes of determining the economic risk of loss borne by A and X. Under paragraph (b)(1) of this section, Y is related to A and X. Therefore, under paragraph (b)(3) of this section, A bears the economic risk of loss of $400 and X bears the economic risk of loss of $600 for the $1,000 liability.

(ii) Example 2: Related partner exception. A, an individual, owns 100 percent of two corporations, X and Y. A and Y are members of P, a limited liability company treated as a partnership for Federal tax purposes. P borrows $1,000 from Bank. Each of A and X guarantees payment of the entire $1,000 debt owed to Bank. A and Y are not treated as related to each other pursuant to paragraph (b)(2) of this section because A directly bears the economic risk of loss as described in § 1.752-2(a)(3) for the $1,000 liability. Y is therefore not treated as related to X. Because A is the only partner that bears the economic risk of loss for P's $1,000 liability, A's share of the liability is $1,000 under § 1.752-2(a)(1).

(iii) Example 3: Related partner exception. A, an individual, owns 100 percent of two corporations, X and Y. X owns 79 percent of a corporation, Z, and Y owns the remaining 21 percent of Z. X and Y are members of P, a limited liability company treated as a partnership for Federal tax purposes. The partnership agreement provides that X and Y share equally in all items of income, gain, loss, deduction, and credit of P. P borrows $2,000 from Bank. Each of X and Z guarantees payment of the entire $2,000 debt owed to Bank. X directly bears the economic risk of loss as described in § 1.752-2(a)(3) for P's $2,000 liability; therefore, paragraph (b)(2) of this section applies and X and Y are not treated as related for purposes of determining the economic risk of loss borne by each of them for P's $2,000 liability. Because X and Y are not treated as related and neither owns an 80 percent or more interest in Z, neither X nor Y is treated as related to Z under paragraph (b)(1) of this section. Because X bears the economic risk of loss for P's $2,000 liability, X's share of the liability is $2,000 under § 1.752-2(a)(1).

(iv) Example 4: Related partner exception and person related to more than one partner. Same facts as in paragraph (b)(5)(iii) of this section (Example 3), but X guarantees payment of up to $1,200 of the debt owed to Bank if any amount of the full $2,000 is not recovered by Bank and Z guarantees payment of $2,000. Pursuant to paragraph (b)(2) of this section, X and Y are not treated as related to the extent of X's $1,200 guarantee because X directly bears the economic risk of loss as described in § 1.752-2(a)(3) for $1,200 of P's $2,000 liability. X's share of the liability is $1,200 under § 1.752-2(a)(1). In addition, because paragraph (b)(2) of this section does not apply to the remaining portion of the liability that X did not guarantee, X and Y are treated as related for purposes of the remaining $800 of the liability pursuant to paragraph (b)(1) of this section. Therefore, Z is treated as related to X and Y under paragraph (b)(1) of this section. Pursuant to paragraph (b)(3) of this section, because X and Y each has a 50 percent interest in all items of income, gain, loss, deduction, and credit of P, X and Y each bear the economic risk of loss for $400 of the remaining $800 liability, and thus each has a $400 share of the liability under § 1.752-2(a)(1). In sum, X's share of P's $2,000 liability is $1,600 ($1,200 plus $400) and Y's share of P's $2,000 liability is $400.

(v) Example 5: Entity structured to avoid related person status. A, B, and C form a general partnership, ABC. A, B, and C are equal partners, each contributing $1,000 to the partnership. A and B want to loan money to ABC and have the loan treated as nonrecourse for purposes of section 752. A and B form partnership AB to which each contributes $50,000. A and B share losses equally in partnership AB. Partnership AB loans partnership ABC $100,000 on a nonrecourse basis secured by the property ABC buys with the loan. Under these facts and circumstances, A and B bear the economic risk of loss with respect to the partnership liability equally based on their percentage interest in losses of partnership AB.

(c) Limitation. The amount of an indebtedness is taken into account only once, even though a partner (in addition to the partner's liability for the indebtedness as a partner) may be separately liable therefor in a capacity other than as a partner.

(d) Time of determination. A partner's share of partnership liabilities must be determined whenever the determination is necessary in order to determine the tax liability of the partner or any other person. See § 1.705-1(a) for rules regarding when the adjusted basis of a partner's interest in the partnership must be determined.

(e) Ordering rule. In determining a partner's share of a recourse partnership liability, the rules in paragraph (b)(2) of this section, if applicable, apply before the rules in paragraph (b)(3) of this section. The rules in paragraph (b)(3) of this section apply before the rules in § 1.752-2(a)(2).

(f) Example. The following example illustrates the application of paragraph (e) of this section.

(1) Facts. A, an individual, owns 100 percent of two corporations, X and Y. X, Y, and Z, a corporation, are members of P, a limited liability company treated as a partnership for Federal tax purposes. The partnership agreement provides that the partners share equally in all items of income, gain, loss, deduction, and credit of P. Z is not related to A, X, or Y. P borrows $1,000 from Bank. Each of A, X, and Z guarantees payment for the entire amount of P's $1,000 liability. Each of A, X, and Z has a payment obligation of $1,000 under § 1.752-2(b) for P's $1,000 liability.

(2) Analysis. (i) Under paragraph (e) of this section, first apply the rules under paragraph (b)(2) of this section, then apply the rules under paragraph (b)(3) of this section, and finally apply the rules under § 1.752-2(a)(2) to determine how to allocate P's $1,000 liability among X, Y, and Z under § 1.752-2(a)(1). Under paragraph (b)(2) of this section, X and Y are not treated as related to each other with respect to X's payment obligation for the $1,000 liability because X directly bears the economic risk of loss as described in § 1.752-2(a)(3). Therefore, X is treated as bearing $1,000 of the economic risk of loss for P's liability.

(ii) Because the rules in paragraph (b)(2) of this section do not affect A's relationship to X and Y, X and Y are related to A under paragraph (b)(1) of this section. Because A is related to both X and Y, each of X and Y is considered to bear the economic risk of loss for P's liability in proportion to X's and Y's interest in P. Because they both have a one-third interest in all items of income, gain, loss, deduction, and credit of P, each of X and Y bears $500 of economic risk of loss under paragraph (b)(3) of this section with respect to A's $1,000 payment obligation for P's liability.

(iii) Z has a payment obligation with respect to the $1,000 liability under § 1.752-2(b)(1) and thus, bears $1,000 of the economic risk of loss for P's liability.

(iv) After applying paragraphs (b)(2) and (3) of this section, X is considered to bear $1,500 of the economic risk of loss for P's liability and Y is considered to bear $500 of the economic risk of loss for P's liability. Z is considered to bear $1,000 of the economic risk of loss for P's liability. Because the aggregate amount of X's, Y's, and Z's economic risk of loss ($3,000) exceeds the amount of P's liability ($1,000), the economic risk of loss borne by X, Y, and Z is determined under § 1.752-2(a)(2). Under § 1.752-2(a)(2), X's economic risk of loss is $500 (($1,500/$3,000) × $1,000), Y's economic risk of loss is $167 (($500/$3,000) × $1,000), and Z's economic risk of loss is $333 (($1,000/$3,000) × $1,000). Therefore, under § 1.752-2(a)(1), X's share of P's liability is $500, Y's share is $167, and Z's share is $333.

26 C.F.R. § 1.752-3 26 C.F.R. § 1.752-5

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