IRS Seeks Comments to Promulgate Regulations for New Tax Examination and Collection Regime for Partnerships and LLCs
Late last year, Congress completely overhauled the rules by which the Internal Revenue Service (“IRS”) examines partnerships and limited liability companies (“LLC”) (please see our client alert dated December 10, 2015). With the stroke of a pen, Congress repealed over three decades of the Tax Equity and Fiscal Responsibility Act of 1982 (“TEFRA”) rules relating to the tax examination of partnerships, the so-called unified audit and litigation procedures.In its place the Bipartisan Budget Act of 2015 (“BBA”) installed a set of rules to simplify, for the IRS, the examination of partnerships and LLCs and the collection of any tax resulting from such examination.
The new rules (1) create a very powerful “partnership representative” to replace the “tax matters partner;” (2) strip partners of notice and participation rights (with respect to any partnership-level examination and litigation); and (3) default to a collection procedure, of any additional tax and penalties, at the partnership level (instead of at the partner level). In light of the new legislation, partnerships and partners should now evaluate the current provisions of their partnership and LLC agreements and make fundamental changes to the tax representation and procedure provisions.
While the concepts and policy goals for the new rules were brewing for some time, the actual drafting of the law was done fairly quickly. Accordingly, Congress had to enact technical corrections, 45 days later, in the Protecting Americans from Tax Hikes (“PATH”) Act of 2015. But the PATH Act did not catch many of the technical problems and certainly did not solve any of the statutory ambiguities.
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