Conversely, the contribution of services in return for a partnership interest is eligible for income non-recognition treatment, only if the service contributor receives the right to participate in future profits, which would be a profits interest. Receipt of a profits interest does not result in current income taxation to the service contributing partner, because no income has actually been realized at the time of receipt.

Receipt of a capital interest in a partnership in return for contribution of services requires the contributor to recognize ordinary income equal to the fair market value of the partnership interest received. Ownership of a capital interest allows the partner to receive not only income from the partnership but also a share of the proceeds, if the partnership is liquidated.Part

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Those who receive a partnership capital interest for the performance of services generally include the fair market value of the partnership interest in income. If, however, conditions are attached to receipt of the partnership interest, the partnership interest is not immediately includable in income by the recipient. For example, the partner may be required to forfeit the partnership interest if he or she leaves the partnership within 5 years. The partner is not required to include the value of the partnership interest in his or her income until his or her ownership of the partnership interest is no longer subject to a risk of forfeit. 

Section 83(b) provides that a service-contributing partner whose receipt of property is subject to a risk of forfeiture may elect to include the value of that property in his or her income immediately and value the propcrty without regard to the risk of forfeiturc, if he or she chooses to do so.

Loss Deductions

A partner’s deductible share of net losses from a partnership cannot exceed his or her basis in the partnership. Any losses exceeding the partner’s basis may be carried forward indefinitely to be used when the partner’s basis is increased.

When basis is insufficient and more than one item reduces basis, such as when a partnership allocates both ordinary and capital losses, the flow-through of each item is determined in a pro rata manner. Any items increasing basis are assumed to flow through to the owner before any items that reduce basis, including distributions, regardless of the actual timeline of these adjustments. 

Adjustments for cash distributions made by a partnership during a tax year are taken into account before applying the loss limitation for the year. As a result, cash distributions during a year reduce the adjusted basis for purposes of determining the allowable loss for the year. Consequently, the loss for a year does not reduce the adjusted basis for purposes of determining the tax status of cash distributions made during the year.

Passive Activity Loss Limitations

The passive activity loss rules of Section 469 limit the amount of loss a partner can deduct for a partnership loss to the amount of passive income the taxpayer has. Excess passive losses for the year are suspended and carried forward; they can be used in a later year if the taxpayer generates passive income for the year, or if the taxpayer makes a full and complete disposition of the activity generating the passive loss.

Limited partners are generally unable to materially participate in trade or business activities conducted through partnerships.

Generally, passive activities include any trade or business activity in which the partner does not materially participate, as well as all rental activities, regardless of the partner’s participation, with the following exception for real estate professionals.

Real Estate Professionals

Taxpayers who own real estate should consider whether they qualify as real estate professionals. By qualifying as real estate professionals, they may be able to fully utilize their rental losses for the year.

Rental real estate activity in which a partner materially participates is not considered a passive activity if both of the following conditions apply:

1. More than half of the personal services the partner performs in any trade or business involve material participation in real property trade orbusiness activities; and
2. The partner materíally participates in more than 750 hours of services in real property trade or business activitics.

Qualifying taxpayers may elect to aggregate all their rental real estate activities and treat them as a single activity in order to pass the material participation test. Generally, this means the taxpayer must spend more than 500 hours on the activity. If a taxpayer makes this election, material participation is determined for the combined activity. Taxpayers then must determine if they satisfy one of the seven tests for material participation for rental real estate activity,

Contributed Property

Generally, property contributed to a partnership or an LLC by a partner or member takes the contributor’s basis in the hands of the partnership or LLC. The business allocates depreciation deductions, including the Section 179 deduction, to partners or members.

A partnership must allocate income, gain, loss and deduction with respect to property contributed by a partner to the partnership to take into account any variation between the adjusted tax basis of the property and its fair market value at the time of contribution (this difference is referred to as either the “built-in gain” or “built-in loss”). If the partnership sells such property and recognizes gain or loss, built-in gain or loss is allocated to the contributing partner.

If contributed property is subject to depreciation, the allocation of depreciation must take into account built-in gain or loss on the property. However, the total depreciation, depletion, gain or loss allocated to partners cannot be more than the depreciation or depletion allowable to the partnership or the gain or loss realized by the partnership.

A built-in loss may be taken into account only by the contributing partner and not by other partners. In determining the amount of items allocated to partners other than the contributing partner, the basis of the contributed property is treated as the fair market value at the time of contribution. Thus, if the contributing partner’s partnership interest is transferred or liquidated, the partnership’s adjusted basis in the property is based upon its fair market value at the time of contribution, and the built-in loss is eliminated.

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In the case appealed, the parents lived in separate residences in the same school district, sharing custody of a middle-school-age child on an alternating weekly schedule. As a cost-cutting measure, the school district stopped providing students with bus transportation to multiple locations and designated the child’s bus stop as the one at his mother’s home. The school district’s decision forced the father to hire a caregiver to drive the child to school because the father’s work schedule prevented him from driving the child himself.

The court noted that there was a regular bus route through the father’s neighborhood, with a bus stop the child had previously used. The court also noted that the Pennsylvania School Code requires that when school districts elect to provide free bus transportation, they must do so for all ‘resident’ students. The School Code further requires that no student shall travel more than a mile and a half to the bus stop. Observing that resident students cannot demand ‘door to door’ transportation, the court found that the mother’s home was more than a mile and a half from the father’s home and that the district could not rely on the mother’s bus stop during the father’s periods of physical custody of the child. Emphasizing that the child qualified as a “resident’ student at each of his parents’ homes, the court ordered the district to resume busing to and from both homes.

Throughout the opinion, the court referred to the custody arrangement as “equal” and “equally shared.” The court also recognized that school districts have very broad discretion in how they manage their transportation systems. It is not clear what rights parents may have to bus transportation from both homes when custody is not equally shared. But the court’s firm recognition that a child is a resident of a school district, whether or not his or her home is a “primary’ residence, leaves room for parents with split, but not equal, custody to seek busing to both homes.

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The truck driver appealed his conviction and focused on the fact that no competent evidence existed of whether he suddenly blacked out or, instead, more slowly nodded off behind the wheel. The truck driver claimed that drivers who fall asleep are clearly reckless because they ignore the progressive signs that they are being overpowered by sleepiness. But according to the truck driver’s argument on appeal, because blacking out happens suddenly and is beyond the driver’s control, it is not grossly negligent or reckless behavior.

The appeals court firmly stated that all “drivers have an unflagging duty either to remain vigilant and awake or to immediately desist from driving.” The court also decided that the prosecution cannot be expected to prove whether a driver blacked out suddenly or fell asleep more normally. Noting that “it is common knowledge that sleep is preceded by some internal warning,” the court found it reasonable to conclude that a person who falls asleep driving, whether slowly or suddenly, is in ‘such a state of exhaustion’ that he or she knows or should know that falling asleep is likely. The court also observed that if the truck driver had in fact blacked out, it was highly unlikely that this was the first and only occasion, and that any history of sudden blackouts should persuade drivers that they are incapable of safe driving.

The combination of driving in a reckless or grossly negligent manner and violating the Motor Vehicle Code results in liability for the very serious crime of homicide by vehicle. Homicide by vehicle is not an intentional crime; instead, it occurs when a driver is reckless or grossly negligent but has no intention to injure or kill. In holding the truck driver responsible for homicide by vehicle, the court concluded that interstate tractor-trailer drivers have the capacity to “inflict devastating harm’ on other drivers, All drivers, whether behind the wheel of a car or a tractor-trailer, can be found guilty of homicide by vehicle if they lose consciousness while driving and cause a death.

Resolution of legal issues depends upon many factors, including variations of facts and interpretations of Pennsylvania law. This newsletter is not intended to provide legal advice on specific subjects, but rather to provide insight into legal developments and issues. The reader should always consult with legal counsel before taking action on matters covered by this newsletter.

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Recently, more than 1,000 nurses and allied health services workers at a Pennsylvania university’ hospitalsystem struggled over the rights of workers and their families to tuition benefits.

Recently, more than 1,000 nurses and allied health services workers at a Pennsylvania university hospital system struggled over the rights of workers and their families to tuition benefits. Over a period of several years, the university changed its tuition policies. Eventually, the nurses’ and Workers’ union brought an unfair labor practice charge against the university, claiming that its changes to the tuition policies violated their contracts and amounted to an unfair labor practice. The Pennsylvania Labor Relations Board sided with the union, found that the university had engaged in unfair labor practices, and ordered the university to restore benefits and make reimbursements to affected employees.

The university disagreed with the board and appealed. The union responded by initiating a work stoppage, or strike, with picket lines. After nearly a month, a settlement was negotiated, the university dropped its appeal, and the workers returned to work, with a new contract and agreed-upon tuition benefits.

Despite the fact that the union had initiated the work stoppage, the employees won their subsequent claims for unemployment benefits during the strike because the court found that the work stoppage was actually a lockout by the university. To decide whether a work stoppage is a lockout, the courts focus on who disrupted the “status quo.” The university’s significant changes to the tuition policy amounted to a change in the status quo, and thus the union’s decision to strike qualified as an employer lockout. The court emphasized that the union’s willingness to continue to work despite a series of changes to the tuition policies and the university’s decision to appeal the finding of unfair labor practices factored heavily in the determination that a lockout had occurred.

The university might have avoided a lockout finding if it had restored the tuition benefits temporarily during its appeal. The workers benefited from their union’s willingness to continue to work, despite the tuition policy changes, for a lengthy period of time before striking. Workers who are hopeful of receiving unemployment benefits during work stoppage periods should carefully consider whether the union or the employer is closer to the previous status quo, as employment benefits are solidly based on that analysis.

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A Pennsylvania shed-owning homeowner protested the increase of his taxes, and by appealing his case to the Pennsylvania Commonwealth Court, he secured a judicial decision that benefits other Pennsylvania shed owners. The homeowner purchased a 10-by-20-foot shed, with a garage-style rolling door and wooden floor. Delivered to his property by a rollback truck, the shed was placed on support beams sitting on a bed of stone. The shed did not have any plumbing, electricity, or heat. The shed was not fixed or attached to the beams on which it simply rested. The county assessment authorities followed up after receiving notice of the zoning permit and raised the homeowner’s property assessment by more than S2,000. The increase in the assessment triggered an increase in the homeowner’s school taxes, county taxes, and township taxes.

While he lost his local challenge, the homeowner prevailed in his state court appeal. The Pennsylvania Commonwealth Court reversed the county tax assessment increase and noted that the only buildings that may be assessed for real estate taxes are those “permanently attached to the land or connected with water, gas, electric or sewage facilities.” The county court had focused on the homeowner’s intention to use the shed permanently; the Pennsylvania Commonwealth Court emphasized that a physical, permanent attachment to the land is a crucial element if a building is to be included in the owner’s assessment.

The court noted that a building or shed is not “attached’ to the land if it is “held in place by its weight alone.” Some “substantial connection’ affixing the building to the land is required before a building or shed can be assessed for real estate tax purposes. Homeowners who buy storage sheds must first consider safety, manufacturer’s installation specifications, and sound construction principles in deciding how to situate a storage shed. But if simply placing the shed on the ground is equally acceptable to affixing it to a foundation or to another structure, homeowners can avoid increased real estate taxes by refraining from affixing the shed. Likewise, because a connection to electric services will result in increased taxes, the decision whether to run an electric line to a shed must be made with taxes in mind. It is not yet clear whether a poured foundation, as opposed to support beams, could affect the potential for an increased assessment. But given the commonwealth court’s clear focus on “attachment,” it would appear that the existence of a poured pad will include a focus on whether the shed is “attached.’ Homeowners whose sheds have already been assessed as taxable now have the right to request a reassessment in light of this decision.

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Recently, the Pennsylvania Superior Court distributed a father’s estate to his five children, despite the fact that the father had included some language in his will cutting three of his children out.

Pennsylvania intestate lavy has a clear and lengthy path for “intestate succession, ” which identifies who inherits when someone dies without any will.

The father wrote his own will without the help or advice of an attorney. He had five adult children. The father left his red pickup truck to one of his sons. The father’s will directed that his debts and funeral expenses were to be paid. It then identified three of the five children by name, and indicated that the “failure” to provide for “any distribution’ to them was “intentional.’ The father died with more than S200,000 in cash assets that he did not mention in the will.

Wills often include “specific bequests,” like the red pickup truck. A specific bequest is the identification of a particular asset, with the direction that it is left to a particular person. All well-drafted wills also include a “residuary’ or “residue” clause. That clause simply states what the person wants done with any leftover “residue” of the estate. Anything not specifically bequeathed to a particular person in a specific bequest will fall into the catchall ‘residue.’ The residuary clause of a will often controls most of the assets, since many people don’t make specific bequests of everything they own.

The court recognized that the father’s will made it clear that he did not intend to make any specific bequests to the three children whom he excluded from “any distribution.’ But because the father did not include any residue clause anywhere in the will, Pennsylvania intestate law controlled the residue. Pennsylvania intestate law has a clear and lengthy path for “intestate succession,” which identifies who inherits when someone dies without any will.

Intestate rules provide that spouses inherit first and that where there is no surviving spouse, all surviving children inherit equal shares. Whenever a will does not clearly identify who inherits the residue, the residue passes by the intestate rules. Because the father had no residue clause, intestate law provided that all his surviving children were entitled to an equal share of the more than S200,000 in cash assets.

Often people prepare their wills without any firm knowledge of how much cash and other property will be in their control at the time they pass. Sometimes, after making a will, a person may gift large portions of cash and investments before dying. In weighing the father’s intentions, the court reasoned that the father may or may not have been aware of the value of his cash assets, and the court concluded that it was impossible to know the father’s intentions regarding his residue. Refusing to “graft’ a residuary clause onto the will, the court held that the S200,000 had to pass by intestate succession to all five children because there was no residuary clause in the homemade will.

Pennsylvania residents have an absolute right to control their estates and can do so by properly executing valid wills. The best way to be sure your will is valid and enforceable is to have an experienced attorney guide you through the process. 

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