EXECUTIVE SUMMARY

• When an owner of a passthrough entity dies, significant tax implications can arise both on an entity and individual level.
• For a partnership, the death of a partner can lead to tax issues involving the close of a partnership’s tax year with respect to the deceased partner, a possible change in the partnership’s year end, post-death allocation of income, Sec. 754 elections, and Sec. 743 adjustments, among other things.
• For an S corporation, the death of a shareholder creates a potential of inadvertently terminating the S election. In particular, the successor shareholder, whether it be the estate, a testamentary trust, or a beneficiary, might not recognize that it needs to take certain steps to remain a qualifying shareholder. S corporations can plan for the possibility that shareholders might die, using buy-sell agreements, among other things.
• For individual owners of a passthrough entity and their estate and/or trust, tax issues arising upon death may involve suspended losses, material and active participation of a trust or estate, and trust accounting for simple trusts, among other things.

Failing to adequately plan for the death of a passthrough entity owner can have a high financial cost.When an owner of a passthrough entity dies, certain tax implications may arise on both the individual and entity level. This article examines the various federal income tax issues to be mindful of in these circumstances. The discussion first focuses on the effect of a partner’s death on a Subchapter K partnership, then examines the consequences of a shareholder’s death on a Subchapter S corporation, and finally looks at the tax effects of death for the individual owner and the owner’s estate and/or trust.

Partnership’s tax matters after partner’s death

The death of a partner can create many complications for a partnership in the tax compliance and planning process. Below are some key issues for the partnership to consider when a partner dies.

Close of partnership’s tax year with respect to deceased partner

Prior to 1997, the death of a partner did not close a tax year with respect to a partner. As a result, any taxable income that would otherwise be allocable to the partner in the year of death was allocable to the partner’s estate (if the estate held the interest at year end) or its beneficiaries (where the interest was not sold or deemed sold by the estate).

Starting in 1997, changes to Sec. 706 meant that a partnership’s tax year would close with respect to the deceased partner. Therefore, the partnership must issue a final Schedule K-1, Partner’s Share of Income, Deductions, Credits, etc., to the partner with allocations up to the partner’s date of death. Sec. 706(d)(1) states if there is a change in a partner’s interest in the partnership during a tax year, then each partner’s distributive share of partnership items must be determined in such a way to consider their varying interests.

The varying interest rules afford partners and the partnership some flexibility in determining how to allocate partnership items, because the regulations provide for two overall methods to account for variations:2 an interim-closing method or a proration method. The interim-closing method is the default unless the partnership agreement or other agreement among the partners provides for the use of the proration method.

Note that the proration method requires adjustments for “extraordinary” items (such as sales of assets) that must be specifically allocated based on actual ownership on the date of those events. Conversely, a cash-basis taxpayer using the interim-closing method will need to adjust for cash-basis items collected after the date of the interim close — attributing an applicable portion of those items to the prior period.

Possible change triggered in the partnership’s year end

The tax year end of a partnership is generally a function of the tax year end of its partners. Transfers of interests of any kind can affect the partnership’s required year end. In general, a partnership’s year end is determined by the following rules:

1. The partnership must adopt the tax year of the partner (or group of partners with the same tax year) that owns an interest in profits and capital of greater than 50%;
2. If no partner (or group of partners with the same tax year) owns greater than 50% of profits and capital, then the partnership must adopt the tax year of all partners owning 5% or more of the partnership; and
3. If no partner owns greater than 5%, or if those that own greater than 5% do not have the same tax year, a calculation must be performed to compute the year that generates the “least aggregate deferral” of taxable income.

For example, assume that a partnership is owned 40% by a C corporation with a June 30 year end, with the remainder owned by individuals with a Dec. 31 year end. Partner A, who owned 20%, dies in 2016, and her estate (or her trust electing under Sec. 645 to be taxed as part of her estate) elects a June 30 year end. The estate does not distribute the partnership interest until May 15, 2017. Assume the interests are distributed to individuals with Dec. 31 tax years.

Sec. 706 only requires testing for a new tax year as of the first day of a tax year, so in 2016 no changes are required. However, on Jan. 1, 2017, partners with a June 30 tax year end hold 60% of the partnership. Therefore, a short-period return from Jan. 1, 2017, to June 30, 2017, is required. Although on July 1, 2017, the general rule would require another change, an exception exists that allows the partnership to wait up to two years to make this change.

Post-death allocation of income

After a partner’s death, the partnership may be required to allocate all post-death income to the beneficiary of an estate that received the interest, even if the estate held the interest for a period of time before the distribution. This is related to the fact that the changes to Sec. 706 implemented in 1997 did not affect the treatment of a transfer via inheritance or testamentary transfer. Therefore, a transfer to a beneficiary from an estate (or a trust electing to be taxed as part of an estate under Sec. 645) that is not reported as a sale by the estate does not close the partnership tax year with regard to the estate. The beneficiary should receive the Schedule K-1 and be allocated income for the full portion of the tax year that the interest was owned by the estate.

If non-pro-rata distributions of partnership interests are made to residuary beneficiaries, consideration should be given to choosing a termination date of Jan. 1. Otherwise, the tax consequences will not be divided evenly based on the percentage interests of the beneficiaries. Therefore, in many cases, if an estate (or a trust that has made a Sec. 645 election) that held a partnership has been opened and closed within the same tax year, it is likely that the estate would not receive a Schedule K-1. Instead, the Schedule K-1 should go to the decedent up to the date of death and to the beneficiary for the remainder of the tax year. However, if the estate holds the interest as of the partnership’s year end, it would receive a Schedule K-1.

Time limit on making Sec. 754 elections

A partnership must have a valid Sec. 754 election in place or make such an election in the year of death to allow the estate or beneficiary to benefit from a Sec. 743 step-up. However, relief is available for a missed election. The partnership has up to 12 months from the extended due date of the tax return to make such an election, regardless of whether an extension was actually filed.

This late election can be made in the form of an amended return (or administrative adjustment request (AAR) for partnerships subject to centralized partnership audit procedures under the Bipartisan Budget Act of 2015 for tax years ending after Dec. 31, 2017) filed within 12 months of the return’s due date with extensions. The phrase “Filed Pursuant to Reg. Section 301.9100-2” needs to be included in the header of the amended return or in the explanation section of an AAR.

Ability to report certain Sec. 743 adjustments in a later year

Under the Sec. 743 regulations, a partner in a partnership with a Sec. 754 election is required to notify the partnership in writing within one year of any transfer, and the partnership is not required to make or report the Sec. 743(b) adjustment until it is notified of the transfer.

If the transferee later provides the required information, the partnership must make any adjustments necessary to adjust the basis of the property as of the date of transfer on an amended return (or an AAR) or the next annual return of the partnership.

Therefore, if a valid Sec. 754 election is in place, the partnership can still compute the Sec. 743(b) adjustment without filing an amended return. Instead, the partnership must report the computed adjustment on the return in the year it is made aware of the failure and include a statement that the return is being filed pursuant to Regs. Sec. 1.743-1(k)(5). This method allows the partnership to provide the partner with sufficient information to amend her individual returns to account for the prior-year adjustments, generally in the form of a Schedule K-1 footnote, without filing amended returns (or AARs) for the partnership itself.

Limitation or reduction of Sec. 743 step-up

Sec. 743 step-up may be limited or reduced for cash-basis items and other income in respect of a decedent (IRD). In addition, the partnership may need to report IRD information to the estate and the new partner. IRD can include the decedent’s share of unearned income from a partnership interest. Therefore, this income is includible in the value of the decedent’s estate. IRD specifically includes any outstanding Sec. 736(a) payments (such as retirement payments) owed to the deceased partner.

In addition, the estate of a deceased partner of a cash-basis partnership may be required to include unrealized cash-basis income allocable to the deceased partner. However, some practitioners argue that this position is not supported by Sec. 691 and that cases that have included such items as IRD were in error. This position relies on an argument that such rules only apply to partnerships where capital is not a material income-producing factor for the partnership — which would treat cash-basis items as Sec. 736(a) payments.

IRD is not eligible for a step-up under Sec. 1014(c). Because of this, the deceased partner’s share of cash-basis assets included in the estate as IRD cannot receive a corresponding basis step-up under Sec. 743.

Thus, IRD will represent taxable income to the beneficiary or estate when recognized by the partnership. If this income has been subject to the estate tax, the beneficiary may take an itemized deduction for her allocable share of the estate tax attributable to any IRD included in the estate.  Therefore, if the partnership has any items of IRD, it should report the information to the estate or to the new partners on their Schedules K-1 so they are aware of the potential deduction.

S corporation’s tax matters after shareholder’s death

As with a partner’s death, the death of a shareholder can create many complications for an S corporation in the tax compliance and planning process. Below are some key issues for an S corporation to consider when a shareholder dies.

Reporting of income and loss in the year of death

In an S corporation, a shareholder’s pro rata share of income and loss is normally determined by allocating equal portions to each day of the year and then allocating those items to the shareholders based on the shares outstanding on each day. However, in a year where a shareholder’s interest in the S corporation terminates, such as upon death, the corporation can elect under Sec. 1377(a)(2) and Regs. Sec. 1.1377-1(b) to do an interim closing of the books, treating the S corporation’s tax year as two separate tax years for income allocation purposes. All affected shareholders and the corporation must consent to this election.

Is such an election beneficial? It depends on the facts. Administratively, the interim closing of the books may be costly to complete. But making the election may be worthwhile, particularly in situations where extraordinary items occur either pre-death or post-death. For example, if an S corporation generates a large gain pre-death, perhaps the ultimate beneficiaries of those shares would prefer that the decedent pay her full share of tax on that item rather than burdening the beneficiaries with a portion of the gain (and the related tax). If the decedent’s estate is subject to estate tax, the payment of tax on that gain on the decedent’s final income tax return will reduce the estate tax obligation. The best course is not always clear, so modeling the implications is important.

Inadvertent termination of the S election

Without question, the failure of S corporations and successor shareholders to fully consider the implications to the corporation’s Subchapter S status after a shareholder’s death is the most common cause of inadvertent terminations. Why? In many cases, the successor shareholder, whether that be the estate, a testamentary trust, or a beneficiary, does not recognize that it might need to take certain steps to remain a qualifying shareholder.¹⁷ By the time someone does recognize, for example, that a qualified Subchapter S trust or electing small business trust election has been overlooked, it may be too late.

Just as troubling is the fact that, in many cases, the S corporation may have no insight into what its shareholders are doing. The corporation will generally have no visibility into its shareholders’ estate plans, who will get shares upon death, and whether the parties are making timely elections. In some cases, the corporation might even be unaware that a shareholder has died. This means that a corporation’s S election can terminate before the corporation is even aware of the event that triggered the termination.

Consider a common scenario. Assume a decedent held S corporation shares in a revocable trust during life. Upon death the trust becomes an irrevocable trust, with its own income tax filing requirement. During the first tax year, assume the executor/trustee makes a timely Sec. 645 election to treat the trust as part of the estate. This election allows the executor/trustee to file one income tax return reporting the activity of the estate and the qualified revocable trust.

Does this trust need to make an election? If so, when does it need to do so?

The answer, of course, is — it depends. It depends on what happens with those shares and when it happens. If the shares are transferred to another trust immediately, an election might be due within 2½ months of that transfer. Alternatively, if the shares are retained for the maximum duration of the Sec. 645 period, an election might not be due for more than four years. The point to recognize is that any time a shareholder dies, the parties should pay immediate attention to the plan with respect to the shares and the potential need for, and timing of, any required election.

In some cases, Rev. Proc. 2013-30 will provide automatic relief for taxpayers to make late elections in these types of scenarios. But the window for relief under this revenue procedure closes three years and 75 days after the election’s intended effective date. The latest intended effective date for an irrevocable grantor trust is two years after the death of a grantor, thus possibly providing additional time to make the S election. Unfortunately, these types of oversights often are not discovered until many years later, which can trigger the need to seek relief via a private letter ruling.

Failing to make a required S election has the potential to be very costly to the parties involved. Therefore, staying on top of the timing of these elections is paramount.

S corporation gain on sale of assets and step-up in basis of shareholder’s shares

Unlike a partnership, which can take advantage of a Sec. 754 election to help a successor partner equalize her inside and outside basis, an S corporation has no similar option. When a shareholder dies, the shares’ basis is stepped up to fair market value (FMV). But there will be no adjustment to the inside basis of the S corporation’s assets.

As a consequence, the benefit of the step-up may be deferred until the shareholder disposes of the stock. This can create a potential trap that successor shareholders should consider. Consider what would happen if, at a later date, there is a sale of substantially all of the S corporation’s assets but the shareholder does not liquidate her interest in that same year.

For example, consider an S corporation whose inside net basis is $1 million that is owned by shareholders whose outside basis is $5 million (due perhaps to a basis step-up on a prior shareholder’s death). If the S corporation sells its assets, $4 million of gain will be triggered. This gain passes through to the shareholders and increases stock basis. If the shareholders fail to liquidate their interests in that same tax year, the basis step-up will not shield the $4 million of gain. Instead, the loss that will likely occur upon liquidation would be deferred, possibly to a year where the shareholders might have no offsetting gains. This will trap the loss and defer the related tax benefit until the shareholders can trigger other gains (assuming that is possible). Shareholders should be wary of this trap and try to time liquidations so they occur in the same tax year that the gain from the sale is reported.

Buy-sell agreement and importance of life insurance

A buy-sell agreement is an agreement between an S corporation’s shareholders and the corporation that specifies the terms upon which shares will pass upon certain events, such as death. A buy-sell agreement is critical because it can help provide assurance as to how shares will pass from a deceased shareholder and thereby prevent transfers that might otherwise trigger an inadvertent termination of an S corporation’s tax status.

Life insurance is a common tool to provide the necessary liquidity to fund these transactions. Such policies are typically owned either by the corporation or by its shareholders. The preferred ownership will often depend on the structure of the buy-sell agreement.

Buy-sell agreements are typically structured in one of two ways: as redemptions or as cross-purchases. With a redemption, the corporation will have first right (or obligation) to purchase shares of the deceased shareholder. A cross-purchase gives the other shareholders the option (or obligation) to purchase the shares of the deceased.

The consequences of a cross-purchase versus a redemption may not differ significantly. But the parties can run into trouble if the ownership of the life insurance policies is not in unison with the provisions of the buy-sell agreement. When the buy-sell agreement calls for the S corporation to redeem a deceased shareholder’s shares, the corporation should typically own and be the beneficiary of the life insurance policy. Alternatively, if the buy-sell agreement is structured as a cross-purchase, the shareholders typically should own and be the beneficiaries of the policies. Taxpayers that fail to coordinate the policies with the buy-sell agreement can create unnecessary tax issues for everyone involved.

Tax matters of the deceased owner, owner’s estate, and/or trust

Unique situations arise upon the death of an owner in a partnership or S corporation. Various carryovers, material participation rules, and basis adjustments must be considered when preparing a deceased owner’s final return, the return for the owner’s estate or trust, and tax returns for the beneficiaries of the estate or trust. Below are some key tax issues to consider on an individual level when a shareholder or partner dies.

Suspended losses upon death of an owner

Suspended passive losses: Upon the death of an owner, special rules will apply to suspended passive losses arising from a passthrough entity interest held at death. The unused losses are allowed as a deduction on the decedent’s final personal income tax return but only to the extent these losses are in excess of the difference between the basis of the interest in the transferee’s hands over the adjusted basis of the interest immediately before the death of the taxpayer. This “difference” in basis is more commonly known as the step-up or step-down of the basis of an asset upon death to its FMV. Essentially, this means that to the extent of the basis step-up, suspended passive losses will be permanently disallowed. Those unused passive losses will not carry forward to the decedent’s estate, trust, or its beneficiaries. Losses in excess of the basis step-up will be allowed on the decedent’s final tax return. If there is no basis step-up (for example, because the value of the interest has declined), the suspended losses will be fully deductible on the decedent’s final income tax return.

Example: J, a single taxpayer, died on Sept. 1, 2018. His suspended loss carryover from XYZ Ltd. Partnership was $10,000. At the time of death, J’s estate received a $2,500 step-up in the tax basis of XYZ. (J’s partnership interest was appraised at $20,000 and had an adjusted tax basis of $17,500.) Therefore, on J’s final Form 1040, U.S. Individual Income Tax Return, the remaining $7,500 of the suspended loss is deductible ($10,000 — $2,500 Sec. 1014 step-up).

Suspended losses due to lack of regular tax basis: Suspended losses due to lack of regular tax basis will disappear upon the transfer from an individual at death to her estate, trust, and beneficiaries.

Suspended losses due to lack of at-risk basis: Unused at-risk losses will also not carry forward to the decedent’s estate, trust, and beneficiaries. Instead, these amounts are added to the basis of the interest in the hands of the recipient. However, because this is done prior to the basis adjustment under Sec. 1014, there is no net change in basis.

Pre-death planning: There are various techniques that can be used if you have a terminally ill client. For example, if a taxpayer is terminally ill, consideration should be given to selling an interest with suspended losses if the benefit of triggering the carryovers exceeds any gain on disposition. Consideration should also be given to the potential ordinary income recapture embedded in the gain on a sale of a partnership interest. If a partnership interest is held at death, the pre-death built-in gain and ordinary income recapture related thereto will be eliminated.

Material and active participation of a trust or estate

Material participation in an activity can be relevant when determining whether losses will be allowed under Sec. 469 as well as when assessing whether the net investment income tax under Sec. 1411 may apply. The material participation rules under Sec. 469 and the related regulations do not attribute the participation of a deceased taxpayer to his or her estate and do not provide guidance regarding how an estate or trust can materially or actively participate.

The issue of material participation for a trust was first litigated in Mattie K. Carter Trust, a 2003 federal district court case. The court held that the trust’s participation should be determined by including the participation of agents who conducted business on behalf of the trust. The IRS rejected the court’s rationale and subsequently issued a private letter ruling and technical advice memoranda that focused on the trustee’s participation in a fiduciary capacity. A taxpayer may want to consider taking the position that the participation of its agents is sufficient to constitute participation of the trust but should be aware that the IRS will likely disagree with that position.

This issue was later litigated in Frank Aragona Trust, a 2014 Tax Court case. The case addressed the material participation of a trust in reference to its trustees. Three of the six co-trustees were full-time employees of the LLC that managed the rental properties owned by the trust. The court concluded that the trustees were regularly and continuously active in the business and, thus, the trust was active as well.

As a result of Aragona, trusts with one or more active trustees may consider taking the position that the trust meets the material participation requirements. Although Treasury intends to issue regulations under Sec. 469 as to what facts constitute material participation for a trust and an estate, it has yet to do so. There is no case law related to an estate’s material participation, but an executor may equate the decision in Aragona to an estate’s executor and consider taking a similar position.

Like Aragona, an electing small business trust’s (ESBT’s) participation is based on the ESBT trustee’s participation. The S portions of qualified Subchapter S trusts (QSST) are treated as grantor trusts under Sec. 678. As a result, participation is based on the current income beneficiary’s participation. However, when a QSST sells S corporation stock, material participation will be based on the trustee’s level of participation because that gain will be taxed to the trust, not the beneficiary.

Sec. 469(i)(4) does attribute the active participation for rental real estate activities of a deceased taxpayer to her estate for a two-year period with a potential reduction based on the surviving spouse’s use of the $25,000 offset for rental real estate activities. Active participation is determined based on the facts and circumstances of each situation. Factors that contribute to the determination include participation in management activities and day-to-day tasks of operation, etc.

Passive activity, basis, and at-risk suspended losses upon estate or trust termination or disposition of an interest

Passive activity, basis, and at-risk suspended losses during the administration and termination of an estate or trust typically will not reach the beneficiary of that estate or trust as an allowed loss. When an estate or trust distributes an interest with suspended losses due to lack of basis, those losses will disappear upon the transfer of interests to its beneficiaries.

Different types of estate bequests may occur during estate administration. A pecuniary bequest is a bequest of a fixed-dollar amount, and a specific bequest is a bequest of a specific asset or dollar amount. A residuary bequest is a bequest of the assets that are left after funding pecuniary bequests and specific bequests. There are special rules that govern the treatment of suspended at-risk and passive activity losses based on the type of estate distribution. A residuary bequest allows the basis of the activity distributed by the estate or trust to be increased by the amount of at-risk or passive activity suspended losses that are allocable to that interest.

However, when the disposition of the interest is in satisfaction of a pecuniary bequest (a fixed-dollar amount), there will be significantly different tax ramifications from funding a residuary bequest. A distribution by an estate, in satisfaction of a pecuniary bequest, is treated as a fully taxable transaction, and therefore the suspended passive activity losses will be deductible by the estate. Gain or loss will be recognized by the estate as a result of the deemed sale or exchange. The gain or loss recognized will either increase or decrease the amount at risk, potentially allowing for the possible use of part of or all of the at-risk suspended losses by the estate. A distribution by a trust (for which an election to be treated as part of the estate was not made) in satisfaction of a pecuniary bequest will be treated as a disposition involving a related party. Gain will be recognized by the trust as a result of the deemed sale or exchange. However, any loss will be subject to the related-party rules under Sec. 267 and Sec. 469.

Trust accounting income: Simple trusts

Entities generally make distributions that are less than the taxable income of that entity for the tax year. There is often an assumption that all of an entity’s income and deductions should be passed out to the beneficiaries of a simple trust (a trust that is required to distribute all of its trust accounting income). However, that is not the correct analysis. The required distribution from a simple trust will be based on the trust’s accounting income.

When a trust holds a business interest, classification of the cash and property distributions as “income” or “principal” are important accounting concepts that can significantly affect the beneficiaries. If classified as principal, the distributions can become trapped at the trust level, but, if classified as income, that amount will be allocated to the trust beneficiaries of a simple trust. The determination of income and principal should be analyzed by looking to the terms of the trust agreement and applicable local law under which the trust was created.

States widely will follow the revised Uniform Principal and Income Act of 1997 (RUPIA). Under RUPIA, the income component for a trust’s interest is based upon the cash distributions to the trust from that entity. An exception to the general rule of the RUPIA will be if the distribution is greater than 20% of the interest’s gross assets or is a liquidating distribution. In this case, an interest’s cash distributions will then be classified as principal and not income. Property distributions will typically be treated as principal. Actual distributions from a trust, even if not required, will result in the trust beneficiary being taxed on a portion or all of the trust’s income and in some cases capital gains.

Plan now

This article has explored the tax implications, both on an entity and individual level, of a shareholder’s or partner’s death. Benjamin Franklin once famously said there are two certainties in life: death and taxes. Passthrough entities and their owners should take prudent steps to plan for the former to help mitigate the latter. Failure to do so can have a high financial cost.