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It’s Time to Review and Update Your Partnership Agreement

    Aug 28, 2018

    When it comes to amending a partnership agreement, the process takes work, time, and adjustment—and is also likely a task that most of those involved would choose to avoid. It’s hard enough the first time to agree on all the items contained in the agreement – not to mention the drafting costs. Since 2018, the IRS has changed its methodology for auditing partnerships. As part of these changes, the IRS has the ability to levy tax at the partnership level. Therefore, partnerships should consider undertaking agreement updates as the consequences of noncompliance could be costly to its partners.

    Stay Up-To-Date on Current Regulations

    Since previous partnership audit rules were replaced with new ones, it's crucial to consult the new audit rules and revise your partnership agreement as needed.

    • Current Audit Rules: The current partnership audit rules create a liaison between the IRS and the partnership called the Tax Matters Partners (TMP). The TMP coordinates the flow of information with the IRS during a partnership audit. However, if the IRS makes any adjustments to the partnership return as part of that audit, the IRS ultimately has to find and assess each partner individually.
    • New Audit Rules: Looking to make partnership audits more profitable and efficient, the IRS, under the new regulations, did away with the TMP title and replaced it with a Partnership Representative (PR). The PR will have the authority to bind the partnership and all the partners in matters before the IRS, including collecting taxes from the partnership. Thus, the IRS will not have to track down each partner if any changes are made during a partnership audit.

    Elect a Strong Partner Representative

    Because the PR has sole authority to act on behalf of the partnership, this position has much broader powers than the old TMP designation. The partnership and all partners are bound by the actions of the PR for reaching IRS settlements, responding to notice of adjustments, and extending the statute of limitations. The power of the PR cannot be limited by state law, a partnership agreement, or any other agreement, and they are not bound to notify partners of decisions.

    Any person or entity (including a non-partner) who has a substantial presence in the U.S. may serve as the PR. Two scenarios are:

    • If an entity is selected to serve as PR, then the partnership must still appoint an individual to act on the entity’s behalf.
    • If the partnership does not designate its PR, then the IRS may select any person to serve as PR–and the partnership cannot change that designation without the IRS’ consent.

    Follow the New Audit Rules To Stay Compliant

    The IRS will complete the partnership audit and then calculate if there is an “imputed underpayment,“ which is the sum of the net IRS adjustments. The IRS assesses tax on this imputed underpayment at the highest federal tax rate in effect for the year reviewed. The partnership receives a notice of proposed partnership adjustments which is delivered to the PR. Depending on a number of factors, the PR determines whether to:

    • request an adjustment modification,
    • pay the imputed underpayment using partnership funds, or
    • push the adjustments out to the partners.

    Don't Miss These Updated Regulations

    Now is the time to start addressing the implications of these new rules and consider whether amending the existing partnership agreements is warranted. In addition to carefully choosing who the PR may be, partnerships also need to consider whether new language is needed to accommodate that new partners may be economically impacted by former partnership tax filings. Contact a CRI tax professional who can assist you with consulting other partners and their attorneys to address the new regulations.

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