Volume 23 Issue 3 -- May/June 2011
It is quite common for LLC members to guarantee loans advanced to their LLC. While a member’s guaranty usually means that the amount of the guaranteed debt is included in the member’s basis in his or her LLC membership interest, does that mean that the member can take loss deductions against that debt? Many tax professionals may be surprised to learn that the answer is usually “No.”
While the same issues arise in traditional partnerships, because of the popularity of LLCs and the fact that they differ in certain significant ways from traditional partnerships, we will focus our attention on LLCs that are taxed as partnerships.
Suppose that Abe, Beth, and Corey form an LLC called Risky Ventures (“RV”). Each member puts in $10,000 in cash. RV obtains a $100,000 loan from a bank for working capital which only Beth personally guarantees. In the first year, RV has a net loss of $45,000, which is allocated equally among the members. What portion of this loss is deductible?
Under the partnership tax basis rules, Beth’s guaranty of the loan allows her to include the entire amount of the loan in her basis, whereas the other members may not include any portion of it in their basis computations. Hence, Abe and Corey’s basis is $10,000 each, meaning that they can each deduct only $10,000 of loss.
Because the $100,000 of debt is included in Beth’s basis, her basis in her membership interest is $110,000. Can she deduct all of her $15,000 share of the loss?
The answer depends upon the at-risk rules. The at-risk rules are the second of three deduction hurdles that an LLC member must surmount in order to deduct losses. The first, which we already mentioned, is the basis limitation. The third, which we will ignore in this newsletter, is the passive loss rule.
The at-risk rules limit the amount of any deduction by an LLC member to the “amount at risk.” While one might think that because the guaranteed loan is included in Beth’s basis under the partnership basis rules, she must also be considered at risk for that amount, but that is often not the case. The Proposed Regulations under IRC § 465 say
If a taxpayer guarantees repayment of an amount borrowed by another person (primary obligor) for use in an activity, the guarantee shall not increase the taxpayer's amount at risk. If the taxpayer repays to the creditor the amount borrowed by the primary obligor, the taxpayer's amount at risk shall be increased at such time as the taxpayer has no remaining legal rights against the primary obligor.
The reason for this result is that under the
law of most states, as between the guarantor and the primary debtor, the guarantor is considered only secondarily liable for the debt. If the guarantor has to pay when the primary debtor defaults, by law in most states a guarantor usually has a right to recover from the primary debtor any amounts that the guarantor pays.
For example, if RV defaults and Beth has to pay off the $100,000 loan, she has a right to recover $100,000 from the LLC itself. This right to recover from the LLC, unless contractually modified or eliminated, prevents the guarantor from being considered “at risk” for the amount of the debt. In reality, this right to recover from the LLC often has questionable value, but that is another issue, perhaps, for another newsletter.
Such questions often arise in conjunction with an LLC’s K-1s, which show a member’s share of LLC debt as “recourse” or “nonrecourse.” We are ignoring the somewhat specialized concept of “qualified nonrecourse indebtedness.” If a debt is listed as “recourse” on a member’s K-1, does that mean the member is at-risk for that amount?
Under the laws in most states, a loan made to an LLC is generally “nonrecourse” as to the members, unless the member has guaranteed it. A member may include guaranteed debt in the member’s basis in her LLC interest, but that does not mean that the member is at risk for that amount. Unfortunately, the IRS fails to make clear precisely which concept of “recourse” applies for purposes of the K-1.
Probably, the IRS intended “recourse” on the K-1 to cover only those debts that are included in the member’s basis. As a result, a liability that is marked “recourse” on a member’s K-1 need not be an amount at risk.
For example, RV issues a K-1 to Beth that shows she has a $100,000 share of a “recourse” liability, but as we have seen Beth is not “at risk” for the guaranteed debt. As a result, a debt may be listed as “recourse” but an LLC member cannot tell whether she is at risk for that amount merely by looking at her K-1.
If you have further questions about this subject, please contact the Tax & Business Professionals.
[In 2013, in internal guidance, the IRS appeared to softened its position on this issue in situations where there is a sole guarantor who is not otherwise protected against loss.]
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