On July 13, 2017, the U.S. Tax Court in Grecian Magnesite Mining Industrial and Shipping Co., SA v. Commissioner (July 13, 2017) 149 T.C. No.3, rejected a long-held IRS position on the taxation of foreign investments in a U.S. partnership.
The court essentially held that a non-U.S. person is only taxable on gains attributable to the sale of a partnership interest to the extent the partnership interest relates to an interest in real property.
For example, an investment in a tech partnership that does not hold any interests in real property could be sold without triggering any U.S. tax.
Revenue Ruling 91-32
The IRS position is described in Revenue Ruling 91-32 which provides that the sale of a partnership interest is effectively connected with the U.S. trade or business to trigger U.S. taxation. The ruling concluded that the gain to be realized by the foreign partner or investor should be analyzed asset by asset.
To the extent that the sale of the assets by the partnership would trigger income if sold by the entity, then so too should the income received by the departing partner’s pro rate share of the gain on sale should be subject to U.S. tax.
The court rejected the IRS position and limited the gain taxable to the U.S. to the extent that the gain was restricted to U.S. real property.
In other words, a foreign investor in a tech business, holding little if any real property could sell his or her interest in that partnership or LLC tax-free so long as the entity did not hold U.S. real property.
Possibilities for Non-US Investors
Taxpayers that have filed returns and paid tax under the rule set forth in Revenue Ruling 91-32 should file claims for refund. The rest of us should stay tuned and watch for any IRS appeal.
If not appealed by the IRS or if the decision stands on appeal, this will represent a significant planning opportunity for non-U.S. investors.
DISCLAIMER: This article expresses my own ideas and opinions. Any information I have shared are from sources that I believe to be reliable and accurate. I did not receive any financial compensation in writing this post, nor do I own any shares in any company I’ve mentioned. I encourage any reader to do their own diligent research first before making any investment decisions.