Private Letter Ruling No. 2006-25009 (PLR 200625009)
Internal Revenue Service (I.R.S.)
Private Letter Ruling
Issue: June 23, 2006
March 1, 2006
Section 7701 -- Definitions
Date 1 =
This letter responds to a letter dated June 15, 2005, and subsequent correspondence, requesting on behalf of Company and LP a ruling that an undivided fractional interest in Property is not an interest in a business entity under Section 301.7701-2(a) of the Procedure and Administration Regulations for purposes of qualification of the undivided fractional interest as eligible replacement property under Section 1031(a) of the Internal Revenue Code. As requested, copies of this letter are being sent to your authorized representatives.
According to the information submitted, Company and LP (co-owners) are unrelated business entities that have held title to Property as tenants in common and operated Property in accordance with a tenants-in-common agreement since Year 1. Company and LP entered into a contract with C, an affiliate of Company, to manage Property for a market-rate fee equal to a % of certain gross receipts from Property, and with D, another affiliate of Company, to negotiate and modify leases with tenants, subject to co-owners' approval. The agreement with C must be renewed annually by consent of both Company and LP. The agreement with D is terminable by either party at any time and market-rate lease commissions paid by tenants are fully passed through to a broker who works closely with D but is not an employee of or related to D. Moreover, Company and LP have made only customary repairs to Property, have not expanded or enlarged Property, and have not sold any portion of Property and reinvested the proceeds.
Property is leased to approximately c lessees, one of whom is X, an affiliate of LP. X leases approximately b% of Property and conducts a business that is unrelated to management and leasing of Property. All other lessees are unrelated to Company and LP. The rent payable under each lease is not dependent on the profits of any lessee. The lessees are required to repair, maintain, and insure their premises and pay all utilities and taxes related to premises. C collects rents, offsets expenses and distributes the proceeds pro rata to Company and LP, negotiates and modifies leases (subject to approval by Company and LP). Company and LP, through C, perform only customary services as defined in Revenue Ruling 75-374, 1975-2 C.B. 261, in operating Property.
The tenants-in-common agreement between Company and LP, and other agreements, provide that Company and LP each have a right to 50% of all income and an obligation to pay 50% of all expenses. Under the terms of the agreements, each of the co-owners retains the right to approve the hiring of any manager, the sale or other disposition of the Property, any leases of all or a portion of Property, the creation or modification of any blanket lien, the hiring of a property manager, resolving any claims, lawsuits, or demands of any type or nature whatsoever potentially affecting Property, and encumbering or pledging as collateral an interest in Property. If either co-owner advances funds necessary to pay expenses associated with the Property, the other co-owner must repay such advance within 31 days of the date the expense, obligation or liability was paid.
Each owner has the right to sell an interest in Property but, if the sale would result in a change in control of Property, a specified buy-sell procedure must be followed. A change in control is deemed to occur if any person or entity, other than A or descendants (as to Company) or B or descendants (as to LP) becomes the owner of securities or of membership interests in a co-owner representing 50% or more of the combined voting power of the co-owner's then outstanding ownership interests. The buy-sell procedure is as follows. The co-owner desiring to transfer or sell (the initiating co-owner) must give the other co-owner (the responding co-owner) a pre-offer notice that includes an initial due diligence disclosure (including but not limited to the most recent physical inspection report of the physical condition of the Property prepared by a professional building inspector not affiliated with the initiating co-owner, the most recently prepared environment report on the Property, a current rent roll, and a current profit and loss statement for its interest in the Property) and shall provide written notice of the initiating co-owner's intent to sell its interest in Property (a pre-offer notice). For a period of 30 days (the pre-offer period) the parties are to negotiate in good faith the terms of the sale or transfer and to obtain certain other inspections of the physical condition of the Property. If the co-owners do not reach agreement during the pre-offer period, the initiating co-owner may serve a formal offering notice on responding co-owner at a stated dollar amount. The purchase price shall be the stated dollar amount less that portion, corresponding to the seller's percentage interest in Property, of the principal balance and accrued interest outstanding on the closing date of any loan secured by Property which is assumed by the purchaser. The responding co-owner has 90 days to elect to sell its interest or to purchase the offering co-owner's interest in Property for the purchase price in the offering notice. If the responding co-owner does not exercise either option within the option period, then the responding co-owner is conclusively deemed to have elected to sell his interest in the Property in accordance with the terms of the offering notice. Closing will occur 150 days after the date of the offering notice. Since Company and LP own a number of properties together, the first time a pre-offer notice is submitted, the 30 day period for negotiating is extended to 150 days. In addition, Company and LP have agreed to limit to 2 the number of properties that can be subject to a pre-offer notice within any 180 day period. Moreover, certain events are stipulated to extend the time periods by a specified period.
The co-owners retain the right to partition the Property but agree to invoke the buy-sell procedures (described above) prior to exercising the right. Moreover, the co-owners agree that the Property may be partitioned through arbitration. Property is subject to a loan extended by an unrelated lender that is guaranteed by certain affiliates of Company and LP, including X. If any co-owner or affiliate pays more than the co-owner's 50% share of the amount due under the loan agreement, pursuant to a guarantee or otherwise, that co-owner has a right to be indemnified by the other co-owner for the amount in excess of a 50% share of the expense.
LAW & ANALYSIS
Section 301.7701-1(a)(1) provides that whether an entity is an entity separate from its owners for federal tax purposes is a matter of federal law and does not depend on whether the entity is recognized as an entity under local law. Section 301.7701-1(a)(2) provides that a joint venture or other contractual arrangement may create a separate entity for federal tax purposes if the participants carry on a trade, business, financial operation, or venture and divide the profits therefrom, but the mere co-ownership of property that is maintained, kept in repair, and rented and leased does not constitute a separate entity for federal tax purposes.
Section 301.7701-2(a) provides that a business entity is any entity recognized for federal tax purposes (including an entity with a single owner that may be disregarded as an entity separate from its owner under Section 301.7701- 3) that is not properly classified as a trust under Section 301.7701-4 or otherwise subject to special treatment under the Code. A business entity with two or more members is classified for federal tax purposes as either a corporation or a partnership.
Section 761(a) provides that the term "partnership" includes a syndicate, group, pool, joint venture, or other unincorporated organization through or by means of which any business, financial operation, or venture is carried on, and that is not a corporation or a trust or estate.
Section 1.761-1(a) of the Income Tax Regulations provides that the term "partnership" means a partnership as determined under Sections 301.7701-1, 301.7701- 2, and 301.7701-3.
In Revenue Ruling 75-374, 1975-2 C.B. 261, the Service concludes that a two-person co-ownership of an apartment building that was rented to tenants did not constitute a partnership for federal tax purposes. In the ruling, the co-owners employed an agent to manage the apartments on their behalf; the agent collected rents, paid property taxes, insurance premiums, repair and maintenance expenses, and provided the tenants with customary services, such as heat, air conditioning, trash removal, unattended parking, and maintenance of public areas. The ruling concludes that the agent's activities in providing customary services to the tenants, although imputed to the co-owners, were not sufficiently extensive to cause the co-ownership to be characterized as a partnership. In addition, in Revenue Ruling 79-77, 1979-1 C.B. 448, the Service concluded that the transfer of a commercial office building subject to a net lease to a trust having three individuals as beneficiaries was a trust for federal tax purposes and not a business entity.
In Revenue Procedure 2002-22, 2002-1 C.B. 733, the Service provided certain conditions under which it would consider a request for a ruling that an undivided fractional interest in rental real property is not an interest in a business entity for federal tax purposes. The conditions relate to tenancy in common ownership of the property, number of co-owners, no treatment of the co-ownership as an entity, co-ownership agreements, voting by co-owners, restrictions on alienation, sharing of proceeds and liabilities upon sale of the property, proportionate sharing of profits and losses, proportionate sharing of debt, options, no business activities by the co-owners, management and brokerage agreements, leasing agreements, loan agreements, and payments to sponsors. In addition, the revenue procedure sets forth a list of documents, supplementary materials, and general information required for a ruling.
Company and LP's co-ownership arrangement satisfies all of the conditions set forth in Revenue Procedure 2002-22. Specifically regarding voting, Section 6.05 of Revenue Procedure 2002-22 provides, in part, that the co-owners must retain the right to approve the hiring of any manager, the sale or other disposition of the Property, any leases of a portion or all of the Property, or the creation or modification of a blanket lien. Any sale, lease, or re-lease of a portion or all of the Property, any negotiation or renegotiation of indebtedness secured by a blanket lien, the hiring of any manager, or the negotiation of any management contract (or any extension or renewal of such contract) must be by unanimous approval of the co-owners. Relating to hiring a manager, Section 6.12 of Revenue Procedure 2002-22 provides, in part, that the co-owners may enter into management or brokerage agreements, which must be renewable no less frequently than annually, with an agent, who may be the sponsor or a co-owner (or any person related to the sponsor or a co-owner), but who may not be a lessee.
Company's Co-tenancy Agreement provides that any sale, lease, or re-lease of a portion or all the Property, any negotiation or renegotiation of indebtedness secured by a blanket lien, and the hiring of a manager, requires the approval of both co-owners. C is required to seek the approval of both co-owners for any matter outside day-to-day operational activities.
Specifically regarding business activities, Section 6.11 of Revenue Procedure 2002-22 provides that the co-owners' activities must be limited to those customarily performed in connection with the maintenance and repair of rental real property (customary activities). See Revenue Ruling 75-374. Activities will be treated as customary activities for this purpose if the activities would not prevent an amount received by an organization described in §511(a)(2) from qualifying as rent under §512(b)(3)(A) and the regulations thereunder. In determining the co-owners' activities, all activities of the co-owners, their agents, and any persons related to the co-owners with respect to the Property will be taken into account, whether or not those activities are performed by the co-owners in their capacities as co-owners. For example, if the sponsor or a lessee is a co-owner, then all of the activities of the sponsor or lessee (or any person related to the sponsor or lessee) with respect to the Property will be taken into account in determining whether the co-owners' activities are customary activities. However, activities of a co-owner or a related person with respect to the Property (other than in the co-owner's capacity as a co-owner) will not be taken into account if the co-owner owns an undivided interest in the property for less than 6 months. Under these facts, the co-owners' activities with respect to Property, conducted directly and through C and D, are limited to customary activities.
Section 6.04 of Revenue Procedure 2002-22 provides that the co-owners may agree that a co-owner must offer the co-ownership interest for sale to the other co-owner(s), the sponsor or lessee at fair market value (determined as of the time the partition right is exercised. Section 6.06 provides that, while each co-owner must have the right to transfer, partition, and encumber the co-owner's interest in the Property without the agreement or approval of any person, restrictions on the right to transfer, partition, or encumber interests in the Property that are required by a lender and that are consistent with customary commercial lending practices are not prohibited. In this situation, in which there are only two 50% interests in Property, the restrictions on the co-owners' right to engage in activities that could diminish significantly the value of the other 50% interest in Property (such as pledging the interest in the Property as collateral or otherwise encumbering the interest) without the approval of the other co-owner is consistent with the requirement that each co-owner have the right to approve an arrangement that will create a lien on the Property. Moreover, the buy-sell procedure in this situation, in which the co-owners are unrelated and are dealing at arms' length, is consistent with establishing a right to acquire 50% of Property at fair market value.
Based on the facts submitted and representations made, we conclude that an undivided fractional interest in the Property will not constitute an interest in a business entity under Section 301.7701-2(a) for purposes of qualification of the undivided fractional interest as eligible replacement property under Section 1031(a).
Except as specifically set forth above, we express or imply no opinion concerning the federal tax consequences of the facts described above under any other provision of the Code. Specifically, we express or imply no opinion concerning whether an undivided fractional interest in the Property otherwise qualifies as eligible replacement property under Section 1031(a) for federal tax purposes.
Pursuant to a power of attorney on file with this office, a copy of this letter is being sent to Company's authorized representative.
Jeanne M. Sullivan
Senior Technician Reviewer, Branch 3
(Passthroughs & Special Industries)
This document may not be used or cited as precedent.
END OF DOCUMENT
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