Partnership Section 179 Expensing and the Active Trade or Business Requirement

A partnership may elect to expense property under IRC §179 only if the partnership uses the property predominantly (more than 50%) in the active conduct of a trade or business. The determination of whether the partnership is actively conducting a business is made by taking into account the activities of all partners.

Deduction Limited to Taxable Income

The IRC §179 deduction that a partnership may pass through is limited to the partnership’s taxable income from the active conduct of its trade or business. The portion of a section 179 deduction disallowed by reason of the taxable income limitation is carried forward by the partnership until it has sufficient taxable income from the active conduct of its business to absorb the suspended deduction.

The taxable income limitation is also applied separately at the partner level.

A partner may only take taxable income from a partnership into account in applying the active taxable income limit if the partner is actively engaged in the partnership’s trade or business. Taxable income from other trades or businesses actively conducted by the partner, including wages from employment, count toward the partner’s active taxable income.

Determining Partnership Taxable Income

A partnership’s active taxable income is computed by aggregating the net income from all of the trades or businesses actively conducted by the partnership. The net income is determined by aggregating partnership items (e.g., income, deductions) derived from each trade or business. Each partner who actively participates in any trade or business actively conducted by the partnership is allocated a share of the active taxable income from all of the partnership’s active trade or businesses.

Dollar and Investment Limitations

The section 179 dollar and investment limitations are applied at the partner and partnership level. In a tax year beginning in 2018, the total of all section 179 deduction distributions by a partnership may not exceed $1 million (the dollar limitation). The $1 million limitation is reduced by the cost of qualifying property in excess of $2,500,000 placed in service by the partnership (the investment limitation).

A partner may deduct no more than $1 million, including deductions passed through by the partnership. However, in applying the investment limitation, section 179 property purchased by the partnership does not count toward the partner’s separately applied $2,500,000 investment ceiling.

Amounts that are not deductible due to the dollar and investment limitations are not carried forward.

What is the Active Conduct of a Partnership Business?

Whether an asset is used in a trade or business by a partnership is determined by reference to the generally applicable principles of IRC §162 for deducting business expenses.  Property used in an investment activity (IRC §212) does not qualify for expensing but may be depreciated. Investment property is also eligible for bonus depreciation.

Using property in a trade or business, however, is not sufficient for purposes of section 179. A partnership must activelyconduct the trade or business. This standard is less stringent than the material participation standard of the passive loss rules of IRC §469.

The section 179 regulations provide minimal guidance (Reg. §1.179-2). Specifically:

  • All facts and circumstances are considered in determining whether the partnership conducts an active trade or business;
  • The facts and circumstances are applied in light of the purpose of the active conduct requirement as it applies to the taxable income limitation; and
  • A partnership actively conducts a trade or business if the partnership meaningfully participates in the management or operations of the trade or business

Similar standards apply in determining whether a partner actively participates in the partnership’s trade or business.

There is a near absence of cases and rulings dealing with the section 179 active trade or business requirement. However, it may be possible to glean some additional insight from IRS Notice 2006-77 which deals with the former Go-Zone bonus depreciation deduction (IRC §1400N(d)). The notice adopts the meaningful participation standard of section 179 but effectively provides that activities performed by others on behalf of the partnership in the management or operations of the business are attributable to the partnership. Several examples are provided, including an example that concludes that a partnership that rents real property pursuant to a triple-net-lease is not engaged in the conduct of an active trade or business.

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