§ 7704. — Certain publicly traded partnerships treated as corporations.
[Laws in effect as of January 7, 2003]
[Document not affected by Public Laws enacted between
January 7, 2003 and December 19, 2003]
[CITE: 26USC7704]
TITLE 26--INTERNAL REVENUE CODE
Subtitle F--Procedure and Administration
CHAPTER 79--DEFINITIONS
Sec. 7704. Certain publicly traded partnerships treated as
corporations
(a) General rule
For purposes of this title, except as provided in subsection (c), a
publicly traded partnership shall be treated as a corporation.
(b) Publicly traded partnership
For purposes of this section, the term ``publicly traded
partnership'' means any partnership if--
(1) interests in such partnership are traded on an established
securities market, or
(2) interests in such partnership are readily tradable on a
secondary market (or the substantial equivalent thereof).
(c) Exception for partnerships with passive-type income
(1) In general
Subsection (a) shall not apply to any publicly traded
partnership for any taxable year if such partnership met the gross
income requirements of paragraph (2) for such taxable year and each
preceding taxable year beginning after December 31, 1987, during
which the partnership (or any predecessor) was in existence. For
purposes of the preceding sentence, a partnership shall not be
treated as being in existence during any period before the 1st
taxable year in which such partnership (or a predecessor) was a
publicly traded partnership.
(2) Gross income requirements
A partnership meets the gross income requirements of this
paragraph for any taxable year if 90 percent or more of the gross
income of such partnership for such taxable year consists of
qualifying income.
(3) Exception not to apply to certain partnerships which
could qualify as regulated investment companies
This subsection shall not apply to any partnership which would
be described in section 851(a) if such partnership were a domestic
corporation. To the extent provided in regulations, the preceding
sentence shall not apply to any partnership a principal activity of
which is the buying and selling of commodities (not described in
section 1221(a)(1)), or options, futures, or forwards with respect
to commodities.
(d) Qualifying income
For purposes of this section--
(1) In general
Except as otherwise provided in this subsection, the term
``qualifying income'' means--
(A) interest,
(B) dividends,
(C) real property rents,
(D) gain from the sale or other disposition of real property
(including property described in section 1221(a)(1)),
(E) income and gains derived from the exploration,
development, mining or production, processing, refining,
transportation (including pipelines transporting gas, oil, or
products thereof), or the marketing of any mineral or natural
resource (including fertilizer, geothermal energy, and timber),
(F) any gain from the sale or disposition of a capital asset
(or property described in section 1231(b)) held for the
production of income described in any of the foregoing
subparagraphs of this paragraph, and
(G) in the case of a partnership described in the second
sentence of subsection (c)(3), income and gains from commodities
(not described in section 1221(a)(1)) or futures, forwards, and
options with respect to commodities.
For purposes of subparagraph (E), the term ``mineral or natural
resource'' means any product of a character with respect to which a
deduction for depletion is allowable under section 611; except that
such term shall not include any product described in subparagraph
(A) or (B) of section 613(b)(7).
(2) Certain interest not qualified
Interest shall not be treated as qualifying income if--
(A) such interest is derived in the conduct of a financial
or insurance business, or
(B) such interest would be excluded from the term
``interest'' under section 856(f).
(3) Real property rent
The term ``real property rent'' means amounts which would
qualify as rent from real property under section 856(d) if--
(A) such section were applied without regard to paragraph
(2)(C) thereof (relating to independent contractor
requirements), and
(B) stock owned, directly or indirectly, by or for a partner
would not be considered as owned under section 318(a)(3)(A) by
the partnership unless 5 percent or more (by value) of the
interests in such partnership are owned, directly or indirectly,
by or for such partner.
(4) Certain income qualifying under regulated investment
company or real estate trust provisions
The term ``qualifying income'' also includes any income which
would qualify under section 851(b)(2) or 856(c)(2).
(5) Special rule for determining gross income from certain
real property sales
In the case of the sale or other disposition of real property
described in section 1221(a)(1), gross income shall not be reduced
by inventory costs.
(e) Inadvertent terminations
If--
(1) a partnership fails to meet the gross income requirements of
subsection (c)(2),
(2) the Secretary determines that such failure was inadvertent,
(3) no later than a reasonable time after the discovery of such
failure, steps are taken so that such partnership once more meets
such gross income requirements, and
(4) such partnership agrees to make such adjustments (including
adjustments with respect to the partners) or to pay such amounts as
may be required by the Secretary with respect to such period,
then, notwithstanding such failure, such entity shall be treated as
continuing to meet such gross income requirements for such period.
(f) Effect of becoming corporation
As of the 1st day that a partnership is treated as a corporation
under this section, for purposes of this title, such partnership shall
be treated as--
(1) transferring all of its assets (subject to its liabilities)
to a newly formed corporation in exchange for the stock of the
corporation, and
(2) distributing such stock to its partners in liquidation of
their interests in the partnership.
(g) Exception for electing 1987 partnerships
(1) In general
Subsection (a) shall not apply to an electing 1987 partnership.
(2) Electing 1987 partnership
For purposes of this subsection, the term ``electing 1987
partnership'' means any publicly traded partnership if--
(A) such partnership is an existing partnership (as defined
in section 10211(c)(2) of the Revenue Reconciliation Act of
1987),
(B) subsection (a) has not applied (and without regard to
subsection (c)(1) would not have applied) to such partnership
for all prior taxable years beginning after December 31, 1987,
and before January 1, 1998, and
(C) such partnership elects the application of this
subsection, and consents to the application of the tax imposed
by paragraph (3), for its first taxable year beginning after
December 31, 1997.
A partnership which, but for this sentence, would be treated as an
electing 1987 partnership shall cease to be so treated (and the
election under subparagraph (C) shall cease to be in effect) as of
the 1st day after December 31, 1997, on which there has been an
addition of a substantial new line of business with respect to such
partnership.
(3) Additional tax on electing partnerships
(A) Imposition of tax
There is hereby imposed for each taxable year on the income
of each electing 1987 partnership a tax equal to 3.5 percent of
such partnership's gross income for the taxable year from the
active conduct of trades and businesses by the partnership.
(B) Adjustments in the case of tiered partnerships
For purposes of this paragraph, in the case of a partnership
which is a partner in another partnership, the gross income
referred to in subparagraph (A) shall include the partnership's
distributive share of the gross income of such other partnership
from the active conduct of trades and businesses of such other
partnership. A similar rule shall apply in the case of lower-
tiered partnerships.
(C) Treatment of tax
For purposes of this title, the tax imposed by this
paragraph shall be treated as imposed by chapter 1 other than
for purposes of determining the amount of any credit allowable
under chapter 1 and shall be paid by the partnership. Section
6655 shall be applied to such partnership with respect to such
tax in the same manner as if the partnership were a corporation,
such tax were imposed by section 11, and references in such
section to taxable income were references to the gross income
referred to in subparagraph (A).
(4) Election
An election and consent under this subsection shall apply to the
taxable year for which made and all subsequent taxable years unless
revoked by the partnership. Such revocation may be made without the
consent of the Secretary, but, once so revoked, may not be
reinstated.
(Added Pub. L. 100-203, title X, Sec. 10211(a), Dec. 22, 1987, 101 Stat.
1330-403; amended Pub. L. 100-647, title II, Sec. 2004(f)(1), (3)-(5),
Nov. 10, 1988, 102 Stat. 3602, 3603; Pub. L. 105-34, title IX,
Sec. 964(a), Aug. 5, 1997, 111 Stat. 892; Pub. L. 105-206, title VI,
Sec. 6009(b)(1), July 22, 1998, 112 Stat. 812; Pub. L. 106-170, title V,
Sec. 532(c)(2)(V)-(Y), Dec. 17, 1999, 113 Stat. 1931.)
References in Text
Section 10211(c)(2) of the Revenue Reconciliation Act of 1987,
referred to in subsec. (g)(2)(A), probably means section 10211(c)(2) of
the Revenue Act of 1987, title X of Pub. L. 100-203, which is set out as
a note below.
Amendments
1999--Subsecs. (c)(3), (d)(1)(D), (G), (5). Pub. L. 106-170
substituted ``section 1221(a)(1)'' for ``section 1221(1)''.
1998--Subsec. (g)(3)(C). Pub. L. 105-206 inserted at end ``and shall
be paid by the partnership. Section 6655 shall be applied to such
partnership with respect to such tax in the same manner as if the
partnership were a corporation, such tax were imposed by section 11, and
references in such section to taxable income were references to the
gross income referred to in subparagraph (A)''.
1997--Subsec. (g). Pub. L. 105-34 added subsec. (g).
1988--Subsec. (c)(1). Pub. L. 100-647, Sec. 2004(f)(3), inserted at
end ``For purposes of the preceding sentence, a partnership shall not be
treated as being in existence during any period before the 1st taxable
year in which such partnership (or a predecessor) was a publicly traded
partnership.''
Subsec. (d)(1). Pub. L. 100-647, Sec. 2004(f)(4), inserted at end
``For purposes of subparagraph (E), the term `mineral or natural
resource' means any product of a character with respect to which a
deduction for depletion is allowable under section 611; except that such
term shall not include any product described in subparagraph (A) or (B)
of section 613(b)(7).''
Subsec. (d)(3). Pub. L. 100-647, Sec. 2004(f)(5), amended par. (3)
generally. Prior to amendment, par. (3) read as follows: ``The term
`real property rent' means amounts which would qualify as rent from real
property under section 856(d) if such section were applied without
regard to paragraph (2)(C) thereof (relating to independent contractor
requirements).''
Subsec. (e)(4). Pub. L. 100-647, Sec. 2004(f)(1), inserted ``or to
pay such amounts'' before ``as may be required''.
Effective Date of 1999 Amendment
Amendment by Pub. L. 106-170 applicable to any instrument held,
acquired, or entered into, any transaction entered into, and supplies
held or acquired on or after Dec. 17, 1999, see section 532(d) of Pub.
L. 106-170, set out as a note under section 170 of this title.
Effective Date of 1998 Amendment
Pub. L. 105-206, title VI, Sec. 6009(b)(2), July 22, 1998, 112 Stat.
812, provided that: ``The second sentence of section 7704(g)(3)(C) of
the 1986 Code (as added by paragraph (1)) shall apply to taxable years
beginning after the date of the enactment of this Act [July 22, 1998].''
Effective Date of 1997 Amendment
Section 964(b) of Pub. L. 105-34 provided that: ``The amendment made
by this section [amending this section] shall apply to taxable years
beginning after December 31, 1997.''
Effective Date of 1988 Amendment
Amendment by Pub. L. 100-647 effective, except as otherwise
provided, as if included in the provisions of the Revenue Act of 1987,
Pub. L. 100-203, title X, to which such amendment relates, see section
2004(u) of Pub. L. 100-647, set out as a note under section 56 of this
title.
Effective Date
Section 10211(c) of Pub. L. 100-203, as amended by Pub. L. 100-647,
title II, Sec. 2004(f)(2), Nov. 10, 1988, 102 Stat. 3602, provided that:
``(1) In general.--The amendments made by this section [enacting
this section] shall apply--
``(A) except as provided in subparagraph (B), to taxable years
beginning after December 31, 1987, or
``(B) in the case of an existing partnership, to taxable years
beginning after December 31, 1997.
``(2) Existing partnership.--For purposes of this subsection--
``(A) In general.--The term `existing partnership' means any
partnership if--
``(i) such partnership was a publicly traded partnership on
December 17, 1987,
``(ii) a registration statement indicating that such
partnership was to be a publicly traded partnership was filed
with the Securities and Exchange Commission with respect to such
partnership on or before such date, or
``(iii) with respect to such partnership, an application was
filed with a State regulatory commission on or before such date
seeking permission to restructure a portion of a corporation as
a publicly traded partnership.
``(B) Special rule where substantial new line of business added
after december 17, 1987.--A partnership which, but for this
subparagraph, would be treated as an existing partnership shall
cease to be treated as an existing partnership as of the 1st day
after December 17, 1987, on which there has been an addition of a
substantial new line of business with respect to such partnership.
``(C) Coordination with passive-type income requirements.--In
the case of an existing partnership, paragraph (1) of section
7704(c) of the Internal Revenue Code of 1986 (as added by this
section) shall be applied by substituting for `December 31, 1987'
the earlier of--
``(i) December 31, 1997, or
``(ii) the day (if any) as of which such partnership ceases
to be treated as an existing partnership by reason of
subparagraph (B).''
Section Referred to in Other Sections
This section is referred to in sections 351, 475, 988 of this title;
title 29 section 1107.
