Guaranteed Payments to Partners

Guaranteed payments to partners are payments meant to compensate a partner for services or use of capital. In effect, they are the equivalent of a salary for partners or limited liability company (LLC) members. Such payments eliminate the risk of a partner making personal contributions of time or property for which they are never compensated if the partnership is not successful. "Guaranteed" refers to the fact that such payments — known as first-priority distributions — are made without regard to the partnership's profitability. In fact, such payments constitute a net loss for the partnership. In addition, they can create special and unexpected tax implications if they are not handled properly. Income from a guaranteed payment to a partner may be subject to self-employment tax, though that depends on the terms of payment.

Guaranteed payments to partners may seem rather simple, but the details can make them complicated. Improperly structured payments can lead to unexpected and expensive issues for both the partner receiving a payment and for the other partners. For example, a partnership could lose deductibility of a payment, and an ill-timed payment could increase the tax burden for a recipient, for whom the payment is treated as ordinary income. Consider the timing issues under a scenario that has the partner using the calendar year while the partnership's fiscal year ends September 30, 2018. If a partner were to receive a guaranteed payment after September 30, they would include the income in the following year. In effect, the payment by the partnership would be recorded as having been made in September 2019. For more special tax considerations related to guaranteed payments to partners, see The CPA Journal's advice on Avoiding costly mistakes on guaranteed payments to partners.

Guaranteed payments to partners are outlined in Section 707(c) of the Internal Revenue Code (IRC), which defines such payments as those made by a partnership to an individual partner for services or for providing capital and which are determined without regard to the income of the partnership. When such payments meet this definition, they are considered made to a non-partner for tax purposes for both the partnership (payer) and the recipient (payee). More pertinently, such a payment to a partner is treated as ordinary income. And for the partnership, such a payment is deductible under IRC Sec. 162 (ordinary or necessary business expenses) or capitalized under IRC Sec. 263.

Local governments sometimes levy a tax on unincorporated businesses. For example, New York City has the New York Unincorporated Business Tax (UBT), which applies to partnerships as well as sole proprietorships. While the tax burden can be significant, exempt from it is net income from renting or ownership of real estate. Therefore, real estate partnerships should consider the tax implications of any guaranteed payment to a partner.