Ok. So as noted in my initial comment, partnership tax is complicated and you may want to consult with a tax professional on this matter. Having said that, I will provide some direction and comments:
- What is involved in this situation is an LLC member redemption.
- When selling or redeeming a member interest, the tax law looks through the actual interest to what underlying assets of the partnership are deemed to be sold.
- One of the complicating items involved is that based on your facts there are "hot assets" (Section 751 property). In your case, the hot asset is depreciable property. This type of property is included in the definition of unrealized receivables.
- The LLC will need to compute the redeemed member's share of hot assets (depreciation recapture under Section 1245 and 1250) and provide this information to the redeemed member. This is very important as this will impact the character of the gain by the member.
- Since there are hot assets, the LLC will also need to complete form 8308 and include this with their tax return. In addition, you will need to attach a copy of this form with the final K-1 of the redeemed member.
- Since you indicate that the amount paid is in excess of the capital account, the LLC will need to record an internal book gain. Keep in mind that this is a book gain and not a tax gain; so this amount will be an M-1 on the form 1065 for the LLC.
- Since you indicate that the amount paid is in excess of the capital account, the LLC will need to decide if it wants to make a Section 754 election to step-up the basis of the assets. If this election is made, then the LC will also need to include a statement to provide the information required under Section 734.
As you can see there are a number of issues. Hopefully the above provided some direction.
Attached is a link to form 8308
*A reminder that posts in a forum such as this do not constitute tax advice.
Also keep in mind the date of replies, as tax law changes.
