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Stephen G.
Stephen G., Sr Income Tax Expert
Category: Tax
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Experience:  Extensive Experience with Tax, Financial & Estate Issues
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Im completing a final 1040 for a decendent who has a K-1 from

Customer Question

I'm completing a final 1040 for a decendent who has a K-1 from a publicly traded LP showing non-recourse liability (NRL). I need to compute the step-up in basis in order to determine the amount of ordinary business loss that is allowed, so I need to know if the basis include the NRL?
Submitted: 1 year ago.
Category: Tax
Expert:  Stephen G. replied 1 year ago.

Stephen G : Hi & thanks for using our service. I'll do my best to give you a complete & accurate answer. Please ask me to clarify anything that is not clear.
Stephen G : You basis is the FMV of the Publicly Traded LP at the decedent's date of death. However, that would be the basis in the hands of the Estate, and there would be no step-up in basis related to the final 1040 of the decedent. In any event there is no adjustment for non-recourse debt.
Stephen G : Normally, if you're talking about a K-1 for a year end date after the date of death, that activity would belong on a fiduciary return for the estate, unless the investment was jointly held.
Stephen G : Questions?
Stephen G : If you need to contact me again with any tax or financial questions, you can just ask for "Steve G" at the beginning of your question. Again, please remember to rate my response. Bonuses, where you think they are warranted, and excellent ratings, are always most appreciated. Thanks again for using JustAnswer.com.You may get a short survey from the site; if it isn't too much trouble I would appreciate it if you would answer it; the survey results are used to rate our performance;
Customer : Where's the answer?
Stephen G : Sorry, let me copy it here; evidently, you didn't receive it.
Customer : ok thanks
Stephen G : Your basis is the FMV of the Publicly Traded LP at the decedent's date of death. However, that would be the basis in the hands of the Estate, and there would be no step-up in basis related to the final 1040 of the decedent. In any event there is no adjustment for non-recourse debt.1:33 PMNormally, if you're talking about a K-1 for a year end date after the date of death, that activity would belong on a fiduciary return for the estate, unless the investment was jointly held.1:35 PMQuestions
Customer : I don't think you understood what I was asking. The K-1 shows ordinary business losses. Normally, they would be suspended/carried forward to a year when there was ordinary income to offset or the LP was sold.
Customer : more.... But the taxpayer died so my understanding is that the IRS allows those losses (along with the carry forward from previous years) to be taken to the extent they exceed the step up in basis.
Customer : more...I know the value at the date of death, but I need to know the basis before the step-up. My question
Stephen G : What is your reference for that?
Customer : For what?
Stephen G : That you can use the step-up in basis on the decedent's final return?
Stephen G : Unused losses expire with the decedent.
Customer : Proseries instructions say that "suspended passive losses will be allowed except to the extent of a step up in basis"
Stephen G : Correct
Stephen G : But not those for a partnership year subsequent to the date of death.
Customer : It's not a year subsequent. It's the final return of the tax year 2012
Stephen G : You would need the decedent's records to determine any unused basis.
Stephen G : When did the decedent die?
Customer : 2012
Stephen G : the date
Customer : 11/28/12
Stephen G : that's his year end for 2012
Customer : Yes
Customer : Wait a minute and I'll give you the facts
Customer : DOD = 11/28/12
Stephen G : If you are dealing with an PTP for calendar year 2012, that K-1 would belong on a fiduciary return.
Stephen G : In any case non-recourse debt does not increase basis.
Customer : Why not?
Stephen G : Because you never have to pay it; you haven't established any "tax basis" in it if it is outstanding. Once you pay it down, if ever, then you would have established basis. That's why it is called non-recourse.
Stephen G : Think of it this way; it's similar to holding common stock; the debt of the company is not an obligation of the shareholders.
Stephen G : With a partnership, the presentation is different, but in practice, it works the same.
Customer : So why do I keep seeing references that say that both recourse and nonrecourse debt increases basis?
Stephen G : I don't know what you're looking at; but if you tell me I can review what you are looking at and figure out what it means.
Customer : when you want it, you can't find it
Stephen G : Perhaps you are looking at comments re the general partner; the same debt could be recourse to a GP and non-recourse to a LP.
Customer : but your stock analogy makes sense
Stephen G : Any, exactly what are you trying to do?
Customer : Ok. like I was saying before....
Stephen G : What is the y/end of the PLP?
Customer : This is the final 2012 income tax return of someone who died in 2012. She got a k-1 for 2012. It shows ordinary losses of $1,700. Contributed capital was 42,000. Non-recourse liability was $29k. Value of the shares held at death = $72k. So, if the share had been sold just prior to death, the losses would have been allowed. When she died, according to my instructions, losses would have been allowed except to the extent of step up in basis. Excluding the non-recourse liability, the step-up is $30k (72-42), so losses are disallowed. With the non-recourse liability factored into the basis, the step up is $1,000, so $700 would be allowed.
Stephen G : First of all, as I stated, the calendar year 2012 K-1 doesn't belong on the 1040.
Stephen G : The losses are only $1,700.?
Customer : Yes. But there are about 10 more K-1's with similar stories.
Customer : Are all the k-1 losses assumed to have been incurred after date of death?
Stephen G : Well, if you are familiar with fiduciary income taxes, and these partnerships were in the name of the decedent alone, you need to be completing a 1041 as well as a 1040.
Customer : Yes, for the period after DOD.
Customer : Partnerships were in the name of a revocable trust.
Stephen G : The way it works isn't based upon when the losses were actually incurred, it is based upon what tax year the partnership year end falls in.
Stephen G : Same thing; the revocable trust became irrevocable at the date of death.
Stephen G : So, now you need a fiduciary return for the revocable (now irrevocable) trust, and all those K-1s will be reflected in the fiduciary return.
Customer : Yes. So, let me get this straight. The LP's that were sold before DOD, those K-1's are still reported on the 1040, correct/
Customer : ?
Customer : And the k-1's that were still held after DOD, those are reported on the 1041 of the Trust return? Correct?
Stephen G : Since you are now dealing with a trust and not an estate, you must use a calendar year.
Stephen G : So your first 1041 will be from 11/29/12 to 12/31/12.
Customer : Yes, done that. But didn't include the k-1's.
Stephen G : Correct; if they were sold prior to DOD they should include activity up to the date of sale.
Customer : ?? The 1040?
Stephen G : Yes, the 1040, I was responding to your question which said 1040.
Stephen G : After DOD K-1s go on 1041
Stephen G : The PTP held on the DOD get the step-up in basis; no separate adjustment for non-recourse debt.
Customer : Ok. Got that. Now back to the suspended losses, for the LP's held after DOD. What happens to them--the 2012 losses as well as the carryforwards from 2011.
Stephen G : The losses for 2012 are taken to the extent of the stepped-up basis. Then the C/F losses for 2011, etc. BECAUSE they were held in the trust which didn't die with the decedent.
Stephen G : If they were held with the decedent, the prior year suspended losses would be lost.
Customer : You got me confused again.
Stephen G : Well, remember initially you didn't tell me you were dealing with a revocable living trust; which becomes irrevocable at the date of death.
Stephen G : What's confusing now?
Customer : Many things.
Stephen G : Well, you'll have to do better than that :]
Customer : The instructions I cited before are for income tax returns. It says that the losses are allowed on the INOOME tax return of the decendent to the except to the extent there is a step up in basis. So why would the k-1's be reported on the income tax return of the decedent if what you say is true about them being reported on the fiduciary return.
Stephen G : Fiduciary returns can get complex pretty quickly when you have a revocable trust that becomes irrevocable; the distribution deduction; timing of beneficiary distributions, all can have a significant impact on the beneficiaries; if you haven't done a lot of these, or ones that aren't straight forward, perhaps you need to get some hands on assistance?
Stephen G : That statement is not inconsistent with anything?
Customer : Beneficiary distributions were not made until 2013, so I'll get help next year. But for now, let's stick with 2012.
Customer : You told me that the k-1's belong on the fiduciary return even before I mentioned that there was a revocable trust.
Stephen G : You have to understand, when someone asks questions we have no idea what their experience or background is unless we ask.
Customer : I get that.
Stephen G : That's true;
Stephen G : The revocable trust has nothing to do with that particular instruction.
Stephen G : What is it that you want to know specifically now?
Customer : But Proseries seems to think that there may be a reason to report k-1's on the income tax return of the decendent. You said not to do that. How is that consistent?
Stephen G : There are many K-1s that would go on the decedent's final return, depending upon the DOD and the y/end of the Partnership;
Stephen G : There are partnerships with other than calendar years for one thing.
Stephen G : But generally not PTP, they tend to be calendar years; at least the ones I've seen.
Customer : I told you the DOD already. I assume that the y/end of the Partnership 12/31/31 because I don't see anything to the contrary. Where does the k-1 get reported?
Stephen G : They would be reported on the 1041 for the trust unless the partnership was sold prior to the date of death, in which case they would be reported on the final 1040.
Customer : And, are the suspended losses carried forward to the fiduciary return? To offset future income, if any? (I know already asked this, but I didn't understand your answer)
Customer : Give me an example of when the K-1 would reported on the decendent's return.
Stephen G : Suspended losses for disposed of partnerships are taken to the extent of basis on the 1040 and the balance, if any, is lost.
Customer : Example with numbers,because I don't understand what your saying.
Customer : Proseries is not referring to disposed partnerships. It is referring to partnerships held at the time of death.
Stephen G : Suspended losses for partnerships still held by the trust are handled the same way that they would always be handled, carried forward to the extent unused, except that you would have a step-up in basis for those partnerships held at the DOD.
Customer : So, they're not lost at death as you said initially.
Stephen G : I don't know what you are referring to with ProSeries software instructions? I think it is the way you are reading it that is getting confused.
Stephen G : As I said, not if they are in a trust; if held individually, they are lost.
Customer : The instructions I gave you at the beginning: "Any unused losses will be allowed except to the extent there is a step up in basis of the partnership interest".
Customer : When the death box is checked, the Proseries allowed the losses that exceed the step up in basis.
Customer : this is quite separate from the box that says the LP was sold
Customer : So, when would someone check that box, if the K-1 for partnerships held at death shouldn't be reported on the 1040?
Stephen G : Examples with numbers? If your tax basis is 20,000. and your loss is 22,000. you can claim 20,000. and 2,000 is either lost if the PTP is sold prior to DOD, or it is C/F if it is still held at 12/31/2012. If there were a step-up to 25,000. (from 20K) then the full 22k would be deducted and you would have a remaining basis of $3,000.
Stephen G : If it allowed them, that is contrary to the instruction you quoted? "allowed EXCEPT to the extent there is a step-up in basis"???
Stephen G : Hold on a minute...............
Stephen G : From IRS Publication 559, page 5.........................
Stephen G : Partnership IncomeThe death of a partner closes the partnership's tax year for that partner. Generally, it does not close the partnership's tax year for the remaining partners. The decedent's distributive share of partnership items must be figured as if the partnership's tax year ended on the date the partner died. To avoid an interim closing of the partnership books, the partners can agree to estimate the decedent's distributive share by prorating the amounts the partner would have included for the entire partnership tax year.On the decedent's final return, include the decedent's distributive share of partnership items for the following periods.1. The partnership's tax year that ended within or with the decedent's final tax year (the year ending on the date of death).2. The period, if any, from the end of the partnership's tax year in (1) to the decedent's date of death.Example. XXXXX XXXXX was a partner in XYZ partnership and reported her income on a tax year ending December 31. The partnership uses a tax year ending June 30. Mary died August 31, 2012, and her estate established its tax year through August 31.The distributive share of partnership items based on the decedent's partnership interest is reported as follows.Final Return for the Decedent—January 1 through August 31, 2012, includes XYZ partnership items from (a) the partnership tax year ending June 30, 2012, and (b) the partnership tax year beginning July 1, 2012, and ending August 31, 2012 (the date of death).Income Tax Return of the Estate—September 1, 2012, through August 31, 2013, includes XYZ partnership items for the period September 1, 2012, through June 30, 2013.
Stephen G : Questions?
Stephen G : With respect to Passive losses and "At risk" investments ie. not non-recourse debt.
Stephen G : Passive activity rules. A passive activity is any trade or business activity in which the taxpayer does not materially participate. To determine material participation, see Publication 925. Rental activities are passive activities regardless of the taxpayer's participation, unless the taxpayer meets certain eligibility requirements.Individuals, estates, and trusts can offset passive activity losses only against passive activity income. Passive activity losses or credits not allowed in one tax year can be carried forward to the next year.If a passive activity interest is transferred because a taxpayer dies, the accumulated unused passive activity losses are allowed as a deduction against the decedent's income in the year of death. Losses are allowed only to the extent they are greater than the excess of the transferee's (recipient of the interest transferred) basis in the property over the decedent's adjusted basis in the property immediately before death. The part of the accumulated losses equal to the CAUTION!Page 6 of 49 Fileid: … tions/P559/2012/A/XML/Cycle03/source 12:06 - 8-Feb-2013The type and rule above prints on all proofs including departmental reproduction proofs. MUST be removed before printing.Page 6 Publication 559 (2012)excess is not allowed as a deduction for any tax year.Use Form 8582, Passive Activity Loss Limitations, to summarize losses and income from passive activities and to figure the amounts allowed. For more information, see Publication 925.
Stephen G : These are references to the IRS Publications which purports to be in "Plain English", which is all in agreement with what I have told you.
Stephen G : The only difference is that these statements and examples presume that the decedent held these investments in his/her own name, verses holding the title in a trust.
Stephen G : As I said, this is an area that involves understanding not only individual & fiduciary income tax returns but estate tax return and probate accounting requirements also, even if they don't apply to your particular circumstance.
Stephen G : The other twist in your situation is that you are dealing with PTP which do not end their tax years everytime a Limited Partner dies. The example above is included only so you can see that it is the partnership year end that determines which tax return the K-1 belongs in. The IRS example is for a general partnership.
Stephen G : Questions?
Stephen G : Here's another link that you may find informative in regards XXXXX XXXXX:
Stephen G : http://www.forbes.com/sites/baldwin/2010/12/02/tax-guide-to-master-limited-partnerships/
Stephen G : Questions?
Stephen G :

Can I clarify anything further for you?

Stephen G :

If you need to contact me again with any tax or financial questions, you can just ask for "Steve G" at the beginning of your question. Again, please remember to rate my response. Bonuses, where you think they are warranted, and excellent ratings, are always most appreciated. Thanks again for using JustAnswer.com.You may get a short survey from the site; if it isn't too much trouble I would appreciate it if you would answer it; the survey results are used to rate our performance;

Stephen G., Sr Income Tax Expert
Category: Tax
Satisfied Customers: 4046
Experience: Extensive Experience with Tax, Financial & Estate Issues
Stephen G. and 3 other Tax Specialists are ready to help you
Customer: replied 1 year ago.

Stephen--Thank you for all the time and info that you provided to me regarding taxation of the income from limited partnerships. I have one thing to add that goes back to my original question about the effect of nonrecourse debt on a partner's basis. You asked for a reference, and I wasn't able to remember the related where's and why's. Now I've found it in the k-1 supplemental information FAQ's which I'll quote:


1) Q: If I sell my Partnership units, how is my tax basis determined for computing gain or loss.


A: Your tax basis is the original amount paid for the Parnership units, adjusted as follows:


Increased by the cumulative amounts of income and gain


Reduced by the cumulate amounts of loss....


INCREASED BY THE NON RECOURSE LIABILITIES ALLOCATED TO YOU ON THE K-1.


.....


 


Also, later on....


Q. What is non recourse liability and how does it affect my tax basis in the Partnership?


A. A Partnership liability is treated as a nnorecourse liability to the extent that no partner or related person bears the economic risk of loss for such liability. A PARTNER'S TAX BASIS IN THE PARTNERSHIP INCLUDES ITS SHARE OF THE PARTNERSHIP'S NON RECOURSE LIABILITIES.


 


In view of your response to my question, what do you make of this.

Customer: replied 1 year ago.

I also did some more research and found a publication of the Joint Tax Committee, "Tax Guide to Master Partnerships" published in 1987. Here's the relevant quote:


A related rule provides a partner's distributive share of partnership
loss for a taxable year is deductible only to the extent of his
basis in his parnership interest (sec. 704(d». The inclusion of parnership
nonrecourse liabilities in a limited partner's basis for his
partnership interest in effect increases the amount of partnership
losses he can deduct for the year, although he may not have any
obligation to pay the liability.


 


So what do you make of that?

Customer: replied 1 year ago.
Relist: Other.
I found conflicting information.
Expert:  Lane replied 1 year ago.

Hi,

I think you may be over complicating this.

Was the decedent a limited partner or general partner?

(I'm guessing limited partner)

Let me go, and we can go from there

Lane
Customer: replied 1 year ago.

A limited partner. The k-1 instructions say that "a partner's tax basis in the partnerhsip includes its share of the partnership's nonrecourse liabilities."

Expert:  Lane replied 1 year ago.
Basically basis in your limited partnership units will increase by the amount of income you report each year from it, and any expenses/credits passed through will decrease the basis in partnership units.

Now similar issues will occur if the partnership takes on debt, though depending on whether this debt is recourse (LP would be on the hook if the partnership doesn't pay it) or non-recourse (Limited Partner is NOT), the basis would increase / decrease as the recourse debt changes over time (the basis would stay the same if it is non-recourse in nature).

This is why the basis includes the non-recourse debt... It's ow time to wind it up. (End the Partnership, in respect to the decedent)

LP's basis will also be impacted by additional funds the limited partner put into the partnership and funds he/she takes out, of course.


The taxable year of a partnership closes “with respect to a partner whose entire
interest....terminates (whether by reason of death, liquidation or otherwise.)” IRC § 706(c)(2)(A)

So, the partnership year closes with respect to a deceased partner and the partnership must allocate income or losses from the beginning of the partnership year to the date of death to the decedent.

Income and losses incurred afterward are allocated to the estate or successor partner.


Hope this helps
Customer: replied 1 year ago.

so, you are saying that nonrecourse debt does not get added to basis, even thought the k-1 supplement says it does?

Expert:  Lane replied 1 year ago.


His non-recourse debt IS part of his basis.

and now it's being allocated to the estate

 

Make sense?

 

 

Customer: replied 1 year ago.

ok. So, here are the numbers....


 


Losses from k1, current year ....1500


Losses from k1 suspended from last year ..500


Total losses -=2000


 


Capital account at DOD =40,000


Non-recourse liab. at DOD=30000


 


Value of partnership at Date of Death (from brokerage house)= 70,500


 


Computed basis= 40k + 30K= 70k


Step up in basis = 70.5k-70k = $500


 


Allowed losses = $2,000-$500= $1,500 (since losses can be taken at death except to the extent of step up in basis)


 


Is that what you mean?


 


 


 


 


 


 

Expert:  Lane replied 1 year ago.

You have it.

Thanks for hanging with us!

Lane
Customer: replied 1 year ago.

Are you aware that this is completely contrary to the answer I received from the first expert who said that I could not add the nonrecourse liability to the basis?

Customer: replied 1 year ago.

Are you aware that this is completely contrary to the answer I received from the first expert who said that I could not add the nonrecourse liability to the basis? And therefore would not be able to take any of the losses?

Expert:  Lane replied 1 year ago.



You're NOT adding it.

It's been there all along

It's manifesting

 

I think part of the confusion is that you can do this through with the 1041, or through the 1040 from K1 from the estate

 

Customer: replied 1 year ago.

That's where I don't get you. I've got 2 numbers. One is the the ending capital account which is the amount the taxpayer contributed (purchase price) plus income (losses) earned, less distributions. The other is non recourse liability. If the 2nd is included in basis, it has to be added, doesn't it?

Customer: replied 1 year ago.

That's where I don't get you. I've got 2 numbers. One is the the ending capital account which is the amount the taxpayer contributed (purchase price) plus income (losses) earned, less distributions. The other is non recourse liability. If the 2nd is included in basis, it has to be added, doesn't it?

Expert:  Lane replied 1 year ago.


Ok, lets back up and let me try to give some perspective.

Adequate basis, is only one hurdle that the a pass-through loss has to flow before knowing if it's deductible. After passing the basis test, the next test is the “at-risk” test. (§ 465)

After all, a partner may have sufficient basis for taking a loss but may not have a sufficient amount at risk for the loss to be deductible.

Here's the section of the code that applies"

"(2) Borrowed amounts.--For purposes of this section, a taxpayer shall be considered at risk with respect to amounts borrowed for use in an activity to the extent that he--(A) is personally liable for the repayment of such amounts, or(B) has pledged property, other than property used in such activity, as security for such borrowed amount (to the extent of the net fair market value of the taxpayer's interest in such property).No property shall be taken into account as security if such property is directly or indirectly financed by indebtedness which is secured by property described in paragraph (1)."

26 U.S.C.A. § 465 (West)
Customer: replied 1 year ago.

can WE TAKE ANY OF THE LOSSES OR NOT????


 


IF I DON'T ADD THE NC LIABILITY, NO.


IF I DO ADD THE NC LIABILITY, YES.


 


WHICH IS IT?????

Expert:  Lane replied 1 year ago.


You do not ADD the non-recourse debt.

My apologies, I mis-read your example above.

... though you were talking about loan TO the partnership, not loan OF the partnership.

NON-recourse debt is not at risk.

You can't use it to deduct a loss when the partner was never liable.

My apologies for the previous mis-read

It IS part of basis, but NOT deductible.

For your purposes do not add
Customer: replied 1 year ago.

TY


 

Expert:  Lane replied 1 year ago.


You are welcome.

If this HAS helped, I would appreciate a feedback rating of 3 (OK) or better … That's the only way they will pay us here.

Lane

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