A partnership is created when persons join together with the intent to conduct unincorporated venture and share profits. Intent is determined from facts and circumstances, including the division of profits and losses, the ownership of capital, the conduct of parties, and whether a written agreement exists. Despite such nuances in the process, however, distinguishing the existence of a partnership from other joint investments or ventures is often critical in determining tax liability and reporting obligations. The factors often considered in the determination of whether the participants in an enterprise intended to form a partnership include:
- the existence of an oral or written agreement between the parties;
- the contribution by the participants of capital, property or services;
- the sharing of profits and/or losses;
- any mutual control over the business;
- the joint conduct of the business; and
- the filing of partnership returns or representations to third parties that the participants are partners.
The presence or absence of these factors is weighed in distinguishing partners in a partnership from other business relationships. Thus, co-ownership of property may be a partnership depending on the owners’ intent, the manner in which the property is held and the other facts and circumstances of the arrangement including a profit motive. Other arrangements may or may not be treated as partnerships depending upon whether the requisite intent and circumstances are present. These include:
- lessor-lessee relationships (normally, this does not make the lessor and lessee partners for tax purposes, unless the lessor also exercises control over the lessee’s business beyond that necessary to protect his investment and assure the lessee’s continuing ability to pay rent);
- employment or independent contractor relationships (an employment or independent contractor relationship might be characterized for tax purposes as a partnership when a person both provides services to, and shares in the profits of, the enterprise);
- debtor-creditor relationships (although a debtor-creditor relationship generally does not establish the existence of a partnership, an advance of funds may be treated as a contribution to the capital of, or an acquisition of an equity interest in, a partnership rather than as a loan);
- purchaser-seller relationships (a purported sale may be treated as a partnership between the seller and buyer if the terms of sale grant the seller a right to receive a share of the future profits generated by the business or asset being sold, and the seller has a continuing proprietary interest in the business or asset).
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