26 U.S.C. § 7704 — Certain publicly traded partnerships

Page 4039 TITLE 26—INTERNAL REVENUE CODE § 7704 Pub. L. 108–311, set out as a note under section 2 of this title. EFFECTIVE DATE OF 1988 AMENDMENT Amendment by Pub. L. 100–647 effective, except as otherwise provided, as if included in the provision of the Tax Reform Act of 1986, Pub. L. 99–514, to which such amendment relates, see section 1019(a) of Pub. L. 100–647, set out as a note under section 1 of this title. EFFECTIVE DATE Section applicable to bonds issued after Aug. 15, 1986, except as otherwise provided, see sections 1311 to 1318 of Pub. L. 99–514, set out as an Effective Date; Transi- tional Rules note under section 141 of this title. § 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 ‘‘pub- licly 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 sub- stantial equivalent thereof). (c) Exception for partnerships with passive-type income (1) In general Subsection (a) shall not apply to any pub- licly traded partnership for any taxable year if such partnership met the gross income re- quirements of paragraph (2) for such taxable year and each preceding taxable year begin- ning after December 31, 1987, during which the partnership (or any predecessor) was in exist- ence. For purposes of the preceding sentence, a partnership shall not be treated as being in existence during any period before the 1st tax- able year in which such partnership (or a pred- ecessor) was a publicly traded partnership. (2) Gross income requirements A partnership meets the gross income re- quirements of this paragraph for any taxable year if 90 percent or more of the gross income of such partnership for such taxable year con- sists of qualifying income. (3) Exception not to apply to certain partner- ships which could qualify as regulated in- vestment companies This subsection shall not apply to any part- nership which would be described in section 851(a) if such partnership were a domestic cor- poration. To the extent provided in regula- tions, the preceding sentence shall not apply to any partnership a principal activity of which is the buying and selling of commod- ities (not described in section 1221(a)(1)), or op- tions, futures, or forwards with respect to commodities. (d) Qualifying income For purposes of this section— (1) In general Except as otherwise provided in this sub- section, 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 de- scribed in section 1221(a)(1)), (E) income and gains derived from the ex- ploration, development, mining or produc- tion, processing, refining, transportation (including pipelines transporting gas, oil, or products thereof), or the marketing of any mineral or natural resource (including fer- tilizer, geothermal energy, and timber), in- dustrial source carbon dioxide, or the trans- portation or storage of any fuel described in subsection (b), (c), (d), or (e) of section 6426, or any alcohol fuel defined in section 6426(b)(4)(A) or any biodiesel fuel as defined in section 40A(d)(1), (F) any gain from the sale or disposition of a capital asset (or property described in sec- tion 1231(b)) held for the production of in- come described in any of the foregoing sub- paragraphs 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 de- scribed in section 1221(a)(1)) or futures, for- wards, and options with respect to commod- ities. 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 sec- tion 611; except that such term shall not in- clude 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 re- gard 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 part- nership 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)(A) or 856(c)(2). Page 4040 TITLE 26—INTERNAL REVENUE CODE § 7704 (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 inven- tory costs. (e) Inadvertent terminations If— (1) a partnership fails to meet the gross in- come requirements of subsection (c)(2), (2) the Secretary determines that such fail- ure 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 ad- justments (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 partner- ship. (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 pub- licly traded partnership if— (A) such partnership is an existing part- nership (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 Decem- ber 31, 1987, and before January 1, 1998, and (C) such partnership elects the application of this subsection, and consents to the appli- cation of the tax imposed by paragraph (3), for its first taxable year beginning after De- cember 31, 1997. A partnership which, but for this sentence, would be treated as an electing 1987 partner- ship shall cease to be so treated (and the elec- tion 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 partner- ships For purposes of this paragraph, in the case of a partnership which is a partner in an- other 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 partner- ships. (C) Treatment of tax For purposes of this title, the tax imposed by this paragraph shall be treated as im- posed by chapter 1 other than for purposes of determining the amount of any credit allow- able 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 sec- tion 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 sub- section shall apply to the taxable year for which made and all subsequent taxable years unless revoked by the partnership. Such rev- ocation may be made without the consent of the Secretary, but, once so revoked, may not be reinstated. (Added Pub. L. 100–203, title X, § 10211(a), Dec. 22, 1987, 101 Stat. 1330–403; amended Pub. L. 100–647, title II, § 2004(f)(1), (3)–(5), Nov. 10, 1988, 102 Stat. 3602, 3603; Pub. L. 105–34, title IX, § 964(a), Aug. 5, 1997, 111 Stat. 892; Pub. L. 105–206, title VI, § 6009(b)(1), July 22, 1998, 112 Stat. 812; Pub. L. 106–170, title V, § 532(c)(2)(V)–(Y), Dec. 17, 1999, 113 Stat. 1931; Pub. L. 108–357, title III, § 331(e), Oct. 22, 2004, 118 Stat. 1476; Pub. L. 110–343, div. B, title I, § 116(a), title II, § 208(a), Oct. 3, 2008, 122 Stat. 3831, 3840.) Editorial Notes 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 2008—Subsec. (d)(1)(E). Pub. L. 110–343, § 208(a), sub- stituted ‘‘, industrial source carbon dioxide, or the transportation or storage of any fuel described in sub- section (b), (c), (d), or (e) of section 6426, or any alcohol fuel defined in section 6426(b)(4)(A) or any biodiesel fuel as defined in section 40A(d)(1)’’ for ‘‘or industrial source carbon dioxide’’. Pub. L. 110–343, § 116(a), inserted ‘‘or industrial source carbon dioxide’’ before comma at end. 2004—Subsec. (d)(4). Pub. L. 108–357 substituted ‘‘sec- tion 851(b)(2)(A)’’ for ‘‘section 851(b)(2)’’. 1999—Subsecs. (c)(3), (d)(1)(D), (G), (5). Pub. L. 106–170 substituted ‘‘section 1221(a)(1)’’ for ‘‘section 1221(1)’’. Page 4041 TITLE 26—INTERNAL REVENUE CODE § 7705 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 ref- erences 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, § 2004(f)(3), in- serted 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 trad- ed partnership.’’ Subsec. (d)(1). Pub. L. 100–647, § 2004(f)(4), inserted at end ‘‘For purposes of subparagraph (E), the term ‘min- eral or natural resource’ means any product of a char- acter 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, § 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 re- gard to paragraph (2)(C) thereof (relating to inde- pendent contractor requirements).’’ Subsec. (e)(4). Pub. L. 100–647, § 2004(f)(1), inserted ‘‘or to pay such amounts’’ before ‘‘as may be required’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2008 AMENDMENT Pub. L. 110–343, div. B, title I, § 116(b), Oct. 3, 2008, 122 Stat. 3831, provided that: ‘‘The amendment made by this section [amending this section] shall take effect on the date of the enactment of this Act [Oct. 3, 2008], in taxable years ending after such date.’’ Pub. L. 110–343, div. B, title II, § 208(b), Oct. 3, 2008, 122 Stat. 3840, provided that: ‘‘The amendment made by this section [amending this section] shall take effect on the date of the enactment of this Act [Oct. 3, 2008], in taxable years ending after such date.’’ EFFECTIVE DATE OF 2004 AMENDMENT Amendment by Pub. L. 108–357 applicable to taxable years beginning after Oct. 22, 2004, see section 331(h) of Pub. L. 108–357, set out as a note under section 469 of this title. EFFECTIVE DATE OF 1999 AMENDMENT Amendment by Pub. L. 106–170 applicable to any in- strument held, acquired, or entered into, any trans- action 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, § 6009(b)(2), July 22, 1998, 112 Stat. 812, provided that: ‘‘The second sentence of sec- tion 7704(g)(3)(C) of the 1986 Code (as added by para- graph (1)) shall apply to taxable years beginning after the date of the enactment of this Act [July 22, 1998].’’ EFFECTIVE DATE OF 1997 AMENDMENT Pub. L. 105–34, title IX, § 964(b), Aug. 5, 1997, 111 Stat. 893, provided that: ‘‘The amendment made by this sec- tion [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 Pub. L. 100–203, title X, § 10211(c), Dec. 22, 1987, 101 Stat. 1330–405, as amended by Pub. L. 100–647, title II, § 2004(f)(2), Nov. 10, 1988, 102 Stat. 3602, provided that: ‘‘(1) IN GENERAL.—The amendments made by this sec- tion [enacting this section] shall apply— ‘‘(A) except as provided in subparagraph (B), to tax- able years beginning after December 31, 1987, or ‘‘(B) in the case of an existing partnership, to tax- able years beginning after December 31, 1997. ‘‘(2) EXISTING PARTNERSHIP.—For purposes of this sub- section— ‘‘(A) IN GENERAL.—The term ‘existing partnership’ means any partnership if— ‘‘(i) such partnership was a publicly traded part- nership on December 17, 1987, ‘‘(ii) a registration statement indicating that such partnership was to be a publicly traded part- nership 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 appli- cation was filed with a State regulatory commis- sion 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 partner- ship which, but for this subparagraph, would be treat- ed as an existing partnership shall cease to be treated as an existing partnership as of the 1st day after De- cember 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 RE- QUIREMENTS.—In the case of an existing partnership, paragraph (1) of section 7704(c) of the Internal Rev- enue 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).’’ § 7705. Certified professional employer organiza- tions (a) In general For purposes of this title, the term ‘‘certified professional employer organization’’ means a person who applies to be treated as a certified professional employer organization for purposes of section 3511 and has been certified by the Sec- retary as meeting the requirements of sub- section (b). (b) Certification requirements A person meets the requirements of this sub- section if such person— (1) demonstrates that such person (and any owner, officer, and other persons as may be specified in regulations) meets such require- ments as the Secretary shall establish, includ- ing requirements with respect to tax status, background, experience, business location, and annual financial audits, (2) agrees that it will satisfy the bond and independent financial review requirements of subsection (c) on an ongoing basis, (3) agrees that it will satisfy such reporting obligations as may be imposed by the Sec- retary, (4) computes its taxable income using an ac- crual method of accounting unless the Sec- retary approves another method,