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Table of Contents
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List of Forms by Chapter - Chapter 1 — Formation of General and Limited Partnerships in Illinois and Income Tax Aspects
- I. [1.1] Introduction
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II. [1.2] Formation of General Partnerships - [1.3] Basic Law
- [1.4] Formation of a Partnership
- [1.5] Drafting General Partnership Agreement
- [1.6] Preamble
- [1.7] Name and Business Address of Partnership
- [1.8] Term
- [1.9] General Purpose
- [1.10] Contributions to Capital
- [1.11] Profits and Losses
- [1.12] Salaries and Draw
- [1.13] Management
- [1.14] Books of Account
- [1.15] Bank Accounts
- [1.16] Expulsion of Partner
- [1.17] Disability
- [1.18] Dissolution and Winding Up of Partnership or Liquidation of Partner’s Interest
- [1.19] Arbitration of Disputes
- [1.20] New Partners
- [1.21] Miscellaneous Provisions
- [1.22] Conversion of Partnership into Limited Liability Company or Limited Partnership
- [1.23] Merger of Partnership and Limited Liability Company
- III. [1.24] Formation of Professional and Personal Service Partnerships
- [1.25] Characteristics of Professional or Personal Service Partnerships
- Initial Partnership Considerations
- [1.26] Initial Conference
- [1.27] Discussion of Advantages and Disadvantages
- [1.28] Collecting Information and Estimating Costs
- [1.29] Delegation of Responsibility
- [1.30] Comparison of Corporation and Partnership or Limited Liability Company Tax Benefits
- [1.31] Partnership Provisions Commonly Found in Professional Service Partnerships
- [1.32] Contributions to Capital
- [1.33] Partner’s Share of Profits and Losses
- [1.34] Payment to Retiring or Withdrawing Partner
- [1.35] New Partners
- [1.36] Maintenance of Professional Records
- [1.37] Comparison Chart
- [1.38] Parity Under Qualified Plan Rules for Corporate and Noncorporate Employers and Remaining Distinctions
- Other Employee Benefit and Nontax Distinctions Between Corporate and Noncorporate Entities
- Employee Benefit Distinctions
- [1.39] Accident and health plans
- [1.40] Health insurance premiums
- [1.41] Dependent care assistance plans
- [1.42] Cafeteria plans
- [1.43] Employee business expenses
- [1.44] Nontax Benefits of Incorporation
- [1.45] Limited liability
- [1.46] Malpractice insurance protection
- [1.47] Vicarious liability of professional service providers
- Reasons To Terminate or Not Elect Corporate Existence
- [1.48] Qualified Retirement Plans
- [1.49] Additional Corporate Costs and Higher Tax Rates
- [1.50] Sale of Personal Service Business
- IV. Limited Partnerships
- In General
- [1.51] Uniform Limited Partnership Act (2001)
- [1.52] Formation: Certificate of Limited Partnership
- [1.53] Amending the Certificate of Limited Partnership
- [1.54] Statement of Termination
- [1.55] Execution of Certificates
- [1.56] Filing in Office of Secretary of State
- [1.57] Approval of Conversion into Another Form of Entity
- [1.58] Merger of Limited Partnership and Other Entities
- [1.59] Admission of Additional Limited Partners
- [1.60] Liability
- [1.61] Admission of Additional General Partners
- [1.62] Events of Withdrawal of Partner
- [1.63] Contributions
- [1.64] Sharing of Profits and Losses
- [1.65] Distributions
- [1.66] Assignment of Partnership Interest
- [1.67] Dissolution
- [1.68] Foreign Limited Partnerships
- [1.69] Direct Actions and Derivative Actions
- [1.70] Administrative Matters
- Miscellaneous
- [1.71] Name
- [1.72] Record-Keeping Requirements
- [1.73] Service of Process on Limited Partnership
- [1.74] Applicability of Uniform Limited Partnership Act (2001)
- Sale of Partnership Interests
- [1.75] Raising Capital: Securities Aspects
- [1.76] Definition of “Security”
- [1.77] Intrastate Offerings
- [1.78] Private Placement Offerings
- [1.79] Manner of Offering
- [1.80] Information Requirements
- [1.81] Limitations on Resale
- [1.82] Integration
- [1.83] Classification of Investors
- [1.84] Notification Requirements for Private Placement
- [1.85] Insignificant Deviations
- [1.86] State Securities Law Compliance
- Drafting Limited Partnership Agreement
- [1.87] Issues To Be Addressed
- [1.88] Provisions Commonly Used in Limited Partnership Agreements
- [1.89] Name of Partnership
- [1.90] Loans
- [1.91] Outside Activities
- [1.92] Liability of General Partner to Limited Partner: Indemnity
- [1.93] Capital Contributions
- [1.94] Management of Partnership Business
- [1.95] Transferability
- [1.96] Books of Account
- [1.97] Agent for Service of Process
- [1.98] Family Limited Partnerships
- [1.99] Formation
- [1.100] Creditor Protection
- [1.101] Income Tax Considerations
- Transfer Tax Considerations
- [1.102] Valuation Discounts
- [1.103] Restrictions on Valuation Discounts
- [1.104] Annual Exclusion Gifts
- [1.105] Economic Substance of Transaction
- [1.106] Appraisal of Assets
- V. [1.107] Income Tax Aspects of General and Limited Partnerships
- Basic Rules of Partnership Taxation
- [1.108] Definition of “Partnership” for Tax Purposes
- [1.109] Income Tax Returns
- [1.110] Partnership Accounting
- [1.111] Partnership Income and Partner’s Income
- [1.112] Partner’s Distributive Share
- [1.113] Partnership Assets
- [1.114] Basis of Partnership Assets
- [1.115] Basis of Partner’s Interest in Partnership
- Tax Considerations of Partnership Transactions
- [1.116] Contribution of Property to Partnership
- [1.117] Partnership Distributions
- [1.118] Recapture of Depreciation
- [1.119] Recapture of Investment Credit
- [1.120] Partnership Interest for Services
- [1.121] Contributions of Property Subject to Liabilities
- [1.122] Contributions of Installment Obligations
- [1.123] Guaranteed Payments
- Other Matters
- [1.124] Code §179 Election To Expense Certain Depreciable Assets
- [1.125] Syndication Expenses and Organization Fees
- [1.126] At-Risk Provisions
- [1.127] Prepaid Expenses
- [1.128] Exchange of Partnership Interests
- [1.129] Character of Gain or Loss
- [1.130] Disclosure of Reportable Transactions
- [1.131] Partnership of Corporations
- [1.132] Incorporating a Partnership
- Tax Considerations in Drafting Partnership Agreements
- [1.133] Profits Interest of Each Partner
- [1.134] Capital Interest of Each Partner
- [1.135] Tax Basis for Each Partner’s Interest in Partnership
- [1.136] Property To Be Contributed by Each Partner to Partnership
- [1.137] Controlled Partnerships
- [1.138] Purchase of Deceased or Retired Partner’s Interest in Partnership
- VI. Appendix
- Chapter 2 — Partnership Agreements
- I. [2.1] General Description of Partnerships and the Necessity of Written Partnership Agreements
- II. [2.2] Nonwaivable Provisions
- III. [2.10] Supplemental Principles of Law
- IV. [2.11] Income Tax Provisions
- Tax Provisions Regarding Non-Pro Rata Allocations of Tax Items
- [2.12] Substantial Economic Effect Requirement
- [2.13] Impact of Allocations That Do Not Have Substantial Economic Effect
- [2.14] Impact of Partnership Agreement on Allocations
- [2.15] Required Allocation Provisions To Satisfy Economic Effect Test
- [2.16] Capital Account Maintenance Rules
- [2.17] Liquidation of Interests
- [2.18] Liquidation of Interest in Accordance with Positive Capital Accounts
- Obligation To Restore Deficit Capital Account
- [2.19] General rule
- [2.20] Exception — qualified income offset
- [2.21] Property Contributions
- [2.22] Valuation of Property Contributions
- [2.23] Built-In Gain or Loss Must Be Allocated to the Contributing Partner
- [2.24] Allocation of Deductions in Contributed Property
- [2.25] Partnership Provisions Permitting Revaluations of Partnership Property
- [2.26] Partnership with Depreciable Property Subject to Nonrecourse Financing — Minimum Gain Charge-Back Requirement
- [2.27] Tax Matters Partner and Partnership Representative
- [2.28] Goodwill in a Service Partnership
- [2.29] “Salaries” to Partners of a Service Partnership
- [2.30] Illinois Personal Property Tax Replacement Tax
- V. [2.31] Default Rules
- [2.32] Definitions
- [2.33] Knowledge and Notice
- [2.34] Choice of Law
- [2.35] Partnership Property
- [2.36] Partner Authority
- [2.37] Capital Accounts
- [2.38] Profits and Losses
- [2.39] Payments and Advances to Partners
- [2.40] Management Rights
- [2.41] Use of Partnership Property by Partners
- [2.42] Compensation for Services
- [2.43] Distributions in Kind
- [2.44] Rights to Information
- [2.45] Duties of Care
- [2.46] Restrictions on Competition
- [2.47] Actions by the Partnership and Partners
- [2.48] Continuation of Partnership Beyond Definite Term or Particular Undertaking
- [2.49] Transferable Interest in Partnership
- [2.50] Partner’s Dissociation
- [2.51] Judicial Expulsion
- [2.52] Insolvency
- [2.53] Partner’s Power To Dissociate — Wrongful Dissociation
- [2.54] Effect of Partner’s Dissociation
- [2.55] Partner’s Dissociation When Business Not Wound Up
- [2.56] Requirement To Purchase Dissociated Partner’s Interest
- [2.57] Identity of Purchaser
- [2.58] Manner of Payment
- [2.59] Filing of Statement of Dissociation
- [2.60] Use of Partner’s Name in Firm Name
- [2.61] Winding Up Partnership Business
- [2.62] Events of Dissolution
- [2.63] Continuation of the Partnership After Dissolution
- [2.64] Persons Authorized To Wind Up the Partnership Business
- [2.65] Power To Bind Firm After Dissolution
- [2.66] Filing a Statement of Dissolution
- [2.67] Partners’ Liability to Other Partners upon Dissolution
- [2.68] Settlement of Accounts and Contributions Among Partners
- VI. [2.69] Other Provisions To Consider
- VII. [2.70] IRS Circular 230 Notice
- VIII. Appendix
- Chapter 3 — Statutory Dissociation and Winding Up
- Chapter 4 — Limited Liability Partnerships
- I. Introduction
- II. Formation of a Limited Liability Partnership
- [4.3] General Partnership Must Register as a Limited Liability Partnership
- [4.4] Name of the Limited Liability Partnership
- [4.5] Applying for Registration as a Limited Liability Partnership
- [4.6] Form of the Statement of Qualification
- [4.7] Content of the Statement of Qualification
- [4.8] Execution of the Statement of Qualification
- [4.9] Filing the Statement of Qualification
- [4.10] Fees for Filing the Statement of Qualification
- [4.11] Amendments and Corrections to the Statement of Qualification
- III. Operation and Termination
- IV. [4.15] Partnership Income Tax Treatment
- V. Scope and Effect of Liability Limitations
- VI. Litigation Concerns
- VII. [4.22] Limited Liability Partnerships in Bankruptcy
- VIII. Limited Liability Partnership Usage
- IX. [4.26] Foreign Limited Liability Partnerships
- [4.27] Name of the Foreign Limited Liability Partnership
- [4.28] Form of the Statement of Foreign Qualification
- [4.29] Execution and Filing of the Statement of Foreign Qualification
- [4.30] Fees for the Registration Application
- [4.31] Amendments and Corrections to the Registration
- [4.32] Limited Liability Partnerships in Other Jurisdictions
- X. [4.33] Illinois Limited Liability Partnership Status in Foreign Jurisdictions
- XI. Issues for Drafting Limited Liability Partnership Agreements
- XII. [4.37] Conclusion
- Chapter 5 — Family Limited Partnerships
- I. Introduction
- [5.1] Scope of Chapter
- [5.2] Family Limited Partnerships in General
- [5.3] Estate Planning Purposes
- [5.4] Attacks by IRS on Family Limited Partnerships
- [5.5] Code §§2703 and 2704 — Disregarding Restrictions on Right To Sell Property and Liquidate
- [5.6] Application of Step Transaction
- [5.7] Code §2036(a) — Estate Tax Inclusion of Partnership Interests due to Retained Interests of Decedent
- II. [5.8] Formation
- III. [5.16] Operation of Partnership
- IV. Transfers of Partnership Interest
- V. [5.34] Liquidation and Dissolution
- VI. [5.37] Comparison to Limited Liability Company and Other Forms of Family Enterprises
- VII. [5.38] Future Use of Family Limited Partnerships in Estate Planning
Authors
- James W. Dodge
James W. Dodge
James W. Dodge is the Executive Director of the State of Illinois Legislative Reference Bureau in Springfield, where he drafts legislation for the Illinois General Assembly. Mr. Dodge is a professor of law for Concord Law School at Purdue University Global, where he teaches contracts, business organizations, and estates, wills, and trusts. He is also the Commissioner of the Uniform Law Commission and a member of the Academy of Legal Studies in Business. Mr. Dodge received his B.S. from the University of Illinois and his J.D. from Southern Illinois University School of Law.
- Kirk A. Hoopingarner
Kirk A. Hoopingarner
Kirk A. Hoopingarner is a Partner at Quarles & Brady LLP, in Chicago, where he focuses his practice on trusts and estates and tax-exempt organizations. Mr. Hoopingarner is a Fellow of the American College of Trust and Estate Counsel and a member of the Chicago Estate Planning Council. Mr. Hoopingarner received his B.A. from Hope College and his J.D. cum laude from the University of Michigan Law School.
- John B. Waters
John B. Waters
John B. Waters is Of Counsel to Roetzel & Andress, LPA, in Chicago, where he practices in the areas of corporate and tax law. He is a member of the American Bar Association Section of Taxation and the Illinois State Bar Association Federal Taxation Section. He received his B.S. from Iowa State University, his M.N.E. from North Carolina State University, his J.D. from the University of Idaho College of Law, where he was Symposium Editor of the Law Review, and his LL.M. in taxation from DePaul University.
Business Partnerships (ARCHIVED 2018 EDITION)
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