If You Can’t Prove Participation, You Can’t Claim the Loss

Owning part of a business doesn’t automatically give you tax advantages. If your involvement doesn’t meet IRS standards for material participation, your losses may be locked away as passive, unusable when you actually need them.

The basics
Under the PAL rules, you generally can use passive activity losses only to offset income from other passive activities. (Keep in mind that other limitations, such as basis and at-risk rules, may apply before the PAL rules.)

There are two types of passive activities: 1) trade or business activities in which you don’t materially participate during the year, and 2) rental activities, even if you do materially participate (unless you qualify as a real estate professional under the PAL rules). Disallowed losses may be carried forward to future years and deducted from passive income or recovered when the passive business interest is sold.

If you’re an LLP or LLC owner, you can avoid passive treatment by materially participating in the business’s activities. This allows you to use LLP or LLC losses to offset nonpassive income, such as wages, interest, dividends and capital gains.

7 factors
Material participation in this context means participation on a “regular, continuous and substantial” basis. Unless you’re treated as a limited partner, you’re deemed to materially participate in a business activity during the year by meeting one of the following seven criteria:

1. You participate in the activity more than 500 hours during the year.
2. Your participation constitutes substantially all the participation for the year by anyone, including nonowners.
3. You participate more than 100 hours and as much or more than any other person.
4. The activity is a “significant participation activity” — that is, you participate more than 100 hours — but you participate less than one or more other people yet your participation in all your significant participation activities for the year totals more than 500 hours.
5. You materially participated in the activity for any five of the preceding 10 tax years.
6. The activity is a personal service activity in which you materially participated in any three previous tax years.
7. Regardless of the number of hours, based on all the facts and circumstances, you participate in the activity on a regular, continuous and substantial basis.

Limited partners face more restrictive rules; they can establish material participation only by satisfying criterion 1, 5 or 6.

Supporting your deductions
Material participation rules can significantly affect your ability to use business losses and manage overall tax liability. Proper documentation and planning are key to applying these rules correctly. If you’re unsure how these standards apply to your situation, contact your Rudler, PSC advisor to discuss strategies for maximizing allowable deductions.

This week's Rudler Review is presented by Connor Josselyn, Staff Accountant and Brooke Kramer, CPA.

If you would like to discuss your particular situation, contact Connor or Brooke at 859-331-1717.

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