An unincorporated organization with two or more members is generally classified as a partnership for federal tax purposes if its members carry on a trade, business, financial operation, or venture and divide its profits. However, a joint undertaking merely to share expenses is not a partnership. For example, co-ownership of property maintained and rented or leased is not a partnership unless the co-owners provide services to the tenants.

The rules you must use to determine whether an organization is classified as a partnership changed for organizations formed after 1996.

Organizations Formed After 1996

An organization formed after 1996 is classified as a partnership for federal tax purposes if it has two or more members and it is none of the following.

  • An organization formed under a federal or state law that refers to it as incorporated or as a corporation, body corporate, or body politic.
  • An organization formed under a state law that refers to it as a joint-stock company or joint-stock association.
  • An insurance company.
  • Certain banks.
  • An organization wholly owned by a state, local, or foreign government.
  • An organization specifically required to be taxed as a corporation by the Internal Revenue Code (for example, certain publicly traded partnerships).
  • Certain foreign organizations identified in section 301.7701-2(b)(8) of the regulations.
  • A tax-exempt organization.
  • A real estate investment trust.
  • An organization classified as a trust under section 301.7701-4 of the regulations or otherwise subject to special treatment under the Internal Revenue Code.
  • Any other organization that elects to be classified as a corporation by filing Form 8832.

For more information, see the instructions for Form 8832.

Limited Liability Company

A limited liability company (LLC) is an entity formed under state law by filing articles of organization as an LLC. Unlike a partnership, none of the members of an LLC are personally liable for its debts. An LLC may be classified for federal income tax purposes as either a partnership, a corporation, or an entity disregarded as an entity separate from its owner by applying the rules in Regulations section 301.7701-3. See Form 8832 and section 301.7701-3 of the regulations for more details.

A domestic LLC with at least two members that doesn’t file Form 8832 is classified as a partnership for federal income tax purposes.

Organizations Formed Before 1997

An organization formed before 1997 and classified as a partnership under the old rules will generally continue to be classified as a partnership as long as the organization has at least two members and doesn’t elect to be classified as a corporation by filing Form 8832.

Community Property

Spouses who own a qualified entity (defined below) can choose to classify the entity as a partnership for federal tax purposes by filing the appropriate partnership tax returns. They can choose to classify the entity as a sole proprietorship by filing a Schedule C (Form 1040) listing one spouse as the sole proprietor. A change in reporting position will be treated for federal tax purposes as a conversion of the entity.

A qualified entity is a business entity that meets all the following requirements.

  • The business entity is wholly owned by spouses as community property under the laws of a state, a foreign country, or a possession of the United States.
  • No person other than one or both spouses would be considered an owner for federal tax purposes.
  • The business entity is not treated as a corporation.

Author: John Stancil (My Bald CPA) is Professor Emeritus of Accounting and Tax at Florida Southern College in Lakeland, FL. He is a CPA, CMA, and CFM and passed all exams on the first attempt. He holds a DBA from the University of Memphis and the MBA from the University of Georgia. He has maintained a CPA practice since 1979 with an emphasis in taxation. His areas of expertise include church and clergy tax issues and the foreign earned income credit. He prepares all types of returns, individual and business.

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