By Gene Byler
As a Certified Public Accountant (CPA), I am required to take continuing education requirements to keep up to date on the newest financial accounting and tax laws. State and federal laws and policies sometimes change often, and to best serve and protect our clients, we must stay current.
To that end, I attended a two-day Ohio Society of CPAs conference in Cleveland. One of the updates I received was related to the new partnership audit rules that became law in November 2015. This is the biggest change affecting partnership taxation since the creation of the Limited Liability Company (LLC).
About the new partnership audit laws
Under prior audit rules, the IRS dealt with each individual partner in the partnership or LLC, which made the task difficult. So difficult that the IRS rarely conducted audits. However with the new law change, the IRS, in most cases, may assess any additional tax or its related penalties and interest against the partnership as a whole, thus eliminating the need to assess each partner.
Since this assessment will be made against the partnership in the year that the audit is concluded, and payment will be made from the partnership assets in that year, the assessment will be the responsibility of the partners in the year the audit is concluded. That’s instead of to those who were partners in the year under audit.
Any income difference will be taxed at the highest individual tax rate (currently 39.6%). Although there are opt-out rules, there is no best solution.
This legislation also introduces the new role of “Partnership Representative” who will act on behalf of the partnership (and therefore the partners) when dealing with the IRS. This authority includes the ability to bind the partnership and the partners in audits and other proceedings, including settlement authority and decisions on procedural issues such as whether to proceed to litigation. These powers are significantly broader than the old Tax Matter Partner (TMP).
How it could affect partnership agreements
All these changes create significant issues that may require amendments to an LLC’s operating agreement. These modifications could include:
Consider a proactive response
These new rules are complex and are still evolving. A discussion with your tax adviser would help you make the best decisions for your partnership on how to best address them. It’s a matter of when, not if, that we will see a significant increase in partnership audits by the IRS. Your business could be next, and we can help you be proactive before it happens.