On the advice of his attorney, Dr. Andres, a local pediatrician, contributed several office
buildings, which he had previously owned as sole proprietor, to a new Andres Partnership
in which he became a one-third general partner. He gave the remaining limited partnership
interests to his two sons, Miguel and Esteban. Last year, when the partnership was
formed, the boys were 14 and 16. The real estate is well managed and extremely profitable.
Dr. Andres regularly consults with a full-time hired manager about the business,
but neither of his sons has any dealings with the partnership. Under the terms of the partnership
agreement, the boys can sell their partnership interest to no one but their father.
Distributions from the partnership have been large, and Dr. Andres has insisted that the
boys put all their distributions into savings accounts to pay for their college education.
Last year’s return (the partnership’s first) was filed by Mr. Jones, a partner in the local
CPA firm of Wise and Johnson. Mr. Jones, who was Dr. Andres’s accountant for a decade,
retired last summer. Dr. Andres’s business is extremely profitable and is an important part
of the client base of this small-town CPA firm. Ms. Watson, the young partner who has
taken over Dr. Andres’s account, asked John, a second-year staff accountant, to prepare
the current year’s partnership return.
John has done considerable research and is positive that the Andres Partnership does
not qualify as a partnership at all because the father has retained too much control over
the sons’ interests. John has briefly talked to Mr. Jones about his concerns. Mr. Jones said
he was really rushed in the prior year when he filed the partnership return and admitted
he never looked into the question of whether the arrangement met the requirements for
being taxed as a partnership. After hearing more of the details, Mr. Jones stated that John
was probably correct in his conclusion. Dr. Andres’s tax bill will be significantly larger if
he has to pay tax on all the partnership’s income. When John approached Ms. Watson
with his conclusions, her response was, “Oh, no! Dr. Andres already is unhappy because
Mr. Jones is no longer preparing his returns. He’ll really be unhappy if we give him a big
tax increase, too.” She paused thoughtfully, and then went on. “My first thought is just to
leave well enough alone and file the partnership return. Are you positive, John, that this
won’t qualify as a partnership? Think about it and let me know tomorrow.”
Required: Prepare a list of points you want to go over with the tax partner that would
support finding that the business activity is a partnership. Prepare a second list of points
that would support finding that the business activity is not a partnership.
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