The Treasury Department and IRS today released for publication in the Federal Register temporary regulations (T.D. 9766), and by cross-reference, proposed regulations (REG-114307-15) that are intended to clarify the employment tax treatment of partners in a partnership that owns a disregarded entity.
Current regulations provide that a disregarded entity is treated as a corporation for employment tax purposes and provide an exception to that treatment in the case of a disregarded entity that is treated as a sole proprietorship. In the case of the sole proprietorship, the owner of the disregarded entity is subject to tax on self-employment income. An example illustrates the exception. Taxpayers have interpreted the language of the regulations to allow partnerships that own a disregarded entity (treated as a corporation) to treat partners as employees of disregarded entity.
Today’s regulations were promulgated in proposed and temporary form, with a liberal effective date, to address the employment tax classification of a disregarded entity owned by a partnership.
The temporary and proposed regulations clarify that a disregarded entity that is generally treated as a corporation for purposes of employment taxes is not treated as a corporation for purposes of employing its individual owner (who is treated as a sole proprietor) or for purposes of employing an individual who is a partner in a partnership that owns the disregarded entity. In such instances, the regulations provide that the entity is disregarded as an entity separate from its owner, and that the partners are subject to the same self-employment tax treatment as partners in a partnership that does not own a disregarded entity.
The preamble to the temporary regulations includes a request for comments as to whether Rev. Rul. 69-184 (which applies to to tiered partnership situations) ought to be modified to allow partnerships to treat partners as employees in certain circumstances—for example, employees in a partnership who obtain a small ownership interest in the partnership as an employee-compensatory award or incentive. Comments are requested concerning the implications of such changes on employee benefit plans and on employment taxes if Rev. Rul. 69-184 were to be modified to permit partners to be employees in certain instances.
The temporary regulations are effective on the later of: (1) August 1, 2016; or (2) the first day of the latest-starting plan year following May 4, 2016, of an affected plan (based on the plans adopted before, and the plan years in effect as of May 4, 2016) sponsored by an entity that is a disregarded entity. This is intended to allow adequate time for partnerships to make payroll and benefit plan adjustments.
Read a May 2016 report [PDF 166 KB] prepared by KPMG LLP that addresses application of the Self Employment Contributions Act (SECA) to net income derived from self-employment—including by partners in partnerships and limited liability partnerships (LLPs), members in limited liability companies (LLCs), and sole proprietors. An entity may not realize that LLC or LLP members are subject to SECA.
Despite the language of the regulations, tax professionals believe that unfortunately the effective date provisions likely do not allow sufficient time for partnerships to adjust their systems to this change in guidance.
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