Retirement Watch Lighthouse Logo

Survival Guide for Family Limited Partnerships

Last update on: Aug 10 2020
survival-guide-for-family-limited-partnerships

The family limited partnership has been widely-used in estate planning for years. The benefits are so significant that for almost as long the IRS has been trying to curtail the tax advantages of Family Limited Partnerships.

While some of the IRS efforts have been successful, taxpayers also logged some victories. In addition, the IRS successes were in cases in which the taxpayers were sloppy, to put it mildly. Best of all, the series of cases give a clearer picture of how to create an FLP that will achieve estate planning goals and withstand a challenge.

FLPs are popular because they provide a unique combination of tax savings, control, and flexibility.

In a typical arrangement, the estate owner creates a limited partnership. Often, the owner (or owner and spouse) are the general partners, with an interest valued at 1% of the partnership’s value. The owner then transfers assets to the FLP, and in return receives limited partnership interests that equal 99% of the FLP’s value.

The next step is to transfer all or most of the limited partnership interests to the owner’s children and perhaps the grandchildren, or to trusts for their benefit. There are several ways to make the transfers.

Usually the owner gives the interests to the children. The gifts can be made over a period of years to take advantage of the annual gift tax exclusion. But that usually takes too long. Most often, one large gift is made to each child. This likely incurs gift taxes or uses up part of the owner’s lifetime estate tax credit, but it gets the value of the FLP and future appreciation out of the owner’s estate.

One benefit of the FLP is that under partnership law a general partner has almost all the power; limited partners have little power. The general partner manages the assets, determines distributions, and takes other actions. Many owners like this feature. They can continue to manage a business or real estate while removing the value from their estates. The general partner determines which assets are purchased or sold, when distributions are made to partners, and the amount of the distributions.

Because the limited partners have so little power and the partnership interests are difficult to sell, the FLP can result in significant gift tax discounts when the limited partnership interests are given. Remember, estate and gift taxes are applied to the value of property. The value might be reduced because of lack of control or minority interest, especially if no individual owns more than 50% of the limited partnership votes. There also can be a lack of marketability discount. Most FLP agreements limit the ability of a limited partner to sell an interest to outsiders, ensuring the lack of marketability discount.

Together the discounts often reduce the value of the limited partnership interests by 20% to 60% of the underlying value of their share of the partnership assets. A qualified appraiser determines the value of the partnership and the appropriate discounts. The discounts apply to gifts of limited partnership interests and also to any limited partnership interests held in the estate of the owner.

You can see the attraction of an FLP to an estate owner. The owner can retain significant control of the assets yet remove them from the estate at a reduced tax cost.

Of course, that also is why the IRS has vigorously objected to FLPs and denied the tax benefits in a number of cases. The courts have agreed with the IRS in several cases. But the IRS has not challenged the basic premises of the FLP. Instead, it has attacked the execution or application in particular cases.

Those cases, and some taxpayer victories, show how to set up and manage an FLP to reduce the risk of drawing IRS objections or losing in court.  Because of the IRS’s animosity toward the FLP, a taxpayer has to assume that the FLP will be audited. Steps must be taken to help the arrangement survive an audit. Bear in mind that the FLP is likely to be challenged after the owner is gone. The owner must create a record that helps defend the FLP. Here are the key features that help justify the FLP arrangement:

  • The most important factor is for the partnership to have a business purpose. There must be a purpose other than tax reduction.The best advice is not to put personal assets such as a home, furnishings, and personal checking accounts into the FLP. Some taxpayers act as though the FLP is a living trust and pour all their assets into it. Instead, contribute business assets or assets that arguably can be better or more efficiently managed through the FLP. Such assets are a business, real estate, or a sizeable investment portfolio. Another business purpose of an FLP is that the partnership provides an opportunity for family members to learn to work together managing the business or investments.

    The IRS says it tests these arguments. It looks for actual efficiencies and improved management. It also will interview the adult children who are limited partners to ensure that they have the ability and involvement to satisfy the business purpose.

  • It is important to separate partnership and personal assets. The cases lost by taxpayers often involve general partners who paid personal living expenses from the partnership checking account and continued unrestricted use of assets, such as homes and cars, after contributing them to the partnership. The creator of the FLP must retain enough assets to support personal lifestyle expenses and leave the FLP only for business and investment activities.
  • The children should contribute to the FLP. This isn’t required, but it helps. It is especially helpful if the business purpose argument is that the FLP is a more efficient way to manage a family investment portfolio. Some advisors believe there is no business purpose for putting an investment portfolio in an FLP unless all the partners contribute assets. Then, it can be argued that lower fees, access to better managers, and improved decision making help all the partners.
  • It is very important to follow the formalities. Have all the proper FLP paperwork created and maintained. Pay partnership expenses from a partnership checking account and personal expenses from a personal checking account. Hold all meetings that are required under state law and keep minutes of the meetings. If partnership law requires a vote for an action, be sure there is a meeting and a vote.
  • Consider appointing an independent general partner. This makes it more difficult for the IRS to argue that the FLP is a sham. The original property owner has to give up some control, but reduced control also makes it tougher for the IRS to deny the tax benefits.
  • It is best to create the FLP early. One advantage the IRS had in several court cases is that the owner created the FLP shortly before death and while gravely ill. That enhances the argument that the FLP was set up primarily for tax reasons and not for business reasons.
  • Be sure that the partnership valuation is defensible. The easiest way for the IRS to disrupt the tax benefits of an FLP is to argue that the partnership interests were grossly undervalued when gifts were made. If the FLP’s valuation is too aggressive, a dispute with the IRS is almost guaranteed as part of the estate tax audit.

FLPs can be a good source of tax savings and other estate planning benefits. But they are not for every estate. To be done right, the FLP often costs $15,000 or more to create, and annual expenses are required to maintain the FLP. Anyone who is not willing to follow the formalities of the FLP should not consider using one.

bob-carlson-signature

Retirement-Watch-Sitewide-Promo
February 2021:

Congress Comes for your Retirement Money

A devastating new law has just been enacted, with serious consequences for anyone holding an IRA, pension, or 401(k). Fortunately, there are still steps you can take to sidestep Congress, starting with this ONE SIMPLE MOVE.
X

Log In

Forgot Password

Search