Centralized Partnership Audit Rules Proposed

By Sally P. Schreiber, J.D.

The IRS issued proposed regulations (REG-136118-15) that implement the centralized partnership audit regime enacted by Section 1101 of the Bipartisan Budget Act of 2015, P.L. 114-74, and amended by the Protecting Americans From Tax Hikes Act of 2015, P.L. 114-113. [Update: These proposed regulations were never officially published in the Federal Register as a result of the regulatory freeze announced by the White House on Jan. 20.]

The new rules, which assess and collect tax at the partnership level, replace the cumbersome unified audit procedures that were enacted by the Tax Equity and Fiscal Responsibility Act of 1982, usually called TEFRA, and the electing large partnership rules. The new audit regime applies to partnership tax years beginning after Dec. 31, 2017, but partnerships can elect to apply them early.

The rule requiring any partnership adjustments (the imputed underpayment) to be paid by the partnership contains an exception that permits a partnership to elect to have the partners in the partnership tax year to which the adjustment relates (the reviewed year) take into account the IRS’s adjustments and pay any tax due as a result.

Another change from the TEFRA rules replaces the tax matters partner with a partnership representative. This representative must be a partner (or other person) with a substantial presence in the United States. The IRS may select any person as a partnership representative if the partnership does not have a designation in effect. The proposed rules explain how the IRS’s designation works and prohibit the partnership from revoking the designation without the IRS’s consent.    

The partnership representative may be an entity, but if the partnership chooses an entity, the proposed rules require the partnership to identify and appoint an individual to act on the entity’s behalf. The rules permit a partnership to appoint a partner or a nonpartner, including the partnership’s management company, as the partnership representative, provided the person otherwise qualifies. The proposed rules have detailed procedures for appointing the partnership representative on the partnership’s tax return and for changing it.

The proposed rules provide that the partnership representative has the sole authority to act on behalf of the partnership and all of its partners on the following matters: agreeing to settlements, agreeing to a notice of final partnership adjustment, making a Sec. 6226 election to pay the partnership liability at the partner level, and agreeing to a Sec. 6235 extension of the limitation period for making partnership adjustments. Even partners that have elected out of the centralized audit regime are bound. And there is no requirement that the IRS communicate with anyone but the partnership representative, placing the burden on the partnership to notify partners of any IRS proceedings.

Partnerships that are required to furnish 100 or fewer Schedules K-1, Partner’s Share of Income, Deductions, Credits, etc., and whose partners are individuals, corporations (including certain types of foreign entities), or estates can elect out of the new partnership-level audit regime. If a partnership furnishes more K-1s than required under Sec. 6031(b), those K-1s are not taken into account when determining if the partnership meets the 100-or-fewer K-1s threshold. The proposed rules explain how to make the election out of the regime.

Special rules determine the number of partners when a partner is an S corporation. Under the proposed rules, the number of shareholders of the S corporation partner are taken into account in determining the 100-or-fewer threshold. Another provision counts partners who are married as two separate partners because Sec. 6221(b) does not require them to be treated as one partner.

The proposed regulations define the term “eligible partner” as any person who is an individual, C corporation, eligible foreign entity, S corporation, or an estate of a deceased partner. The preamble states that the IRS rejected suggestions made in response to Notice 2016-23 that the IRS exercise its regulatory authority to expand the types of entities that could qualify as eligible partners. 

The proposed rules explain that the imputed underpayment is calculated by multiplying the total netted partnership adjustment by the highest rate of federal income tax in effect for the reviewed year under Sec. 1 or 11 (the individual or corporate rates). The product of that amount is then increased or decreased by any adjustment made to the partnership’s credits. If the result of this summation is a net positive adjustment, the resulting amount is the imputed underpayment, and, if it is a net nonpositive amount, there is no imputed underpayment. The proposed regulations provide rules regarding the grouping and netting of adjustments in calculating the imputed underpayment.

The proposed regulations provide rules for multiple imputed underpayments. The preamble states that the option to create multiple imputed underpayments provides flexibility for the partnership, the partners, and the IRS to address fact-specific issues that may arise as part of the administrative proceeding at the partnership level.

Under the proposed rules, a partnership that has received a notice of proposed partnership adjustment (NOPPA) can request a modification, but only the partnership representative may do so. However, if the NOPPA does not have an imputed underpayment, the partnership may not request an adjustment. However, if the NOPPA sets forth an imputed underpayment, the partnership may request a modification with respect to adjustments that do not result in an imputed underpayment.

These regulations are proposed to apply, when final, to partnership tax years beginning after Dec. 31, 2017 (which is the effective date of the centralized audit rules), and to partnerships that elect to have the rules apply early.

Sally Schreiber (Sally.Schreiber@aicpa-cima.com) is a Tax Adviser senior editor.

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