Chapter 4, Material Participation
In a Nutshell
A taxpayer materially participates in an activity if he or she works on a regular, continuous and substantial basis in operations (IRC § 469(h)(1)). If a taxpayer does not materially participate, losses are passive, which means they generally are not deductible in the absence of passive income. Material participation is time sensitive. A taxpayer materially participates in an activity only if he or she meets any one of the seven material participation tests in Reg. § 1.469-5T(a).
A taxpayer is required to identify the amount of his or her participation in a trade or business activity for each year. The type and quantity of time documented determines whether an activity should be treated by the taxpayer as passive or non-passive. A taxpayer can have a significant financial interest in a business, and yet not materially participate.
Material participation is a year by year determination. Consequently, it is conceivable that a taxpayer could be passive in one year and non-passive (in other words, materially participating) in the subsequent year.
It is essential for an examiner to determine if reported losses are classified properly on a given return. Losses from businesses, whether conducted as a Schedule C, Schedule Form, partnership or S Corporation, are passive if the taxpayer does not materially participate. See checksheet, decision tree and log at end of chapter.
The rules discussed in this lesson are applied at the Form 1040 level for individuals involved in partnerships and S Corporations.
Material participation does not apply to the following activities:
Rentals are generally passive, whether or not the taxpayer materially participates. However, rental real estate interests of real estate professionals are subject to the material participation tests. See Reg. § 1.469-9(e)(1).
Working interests in oil and gas activities are excepted from the passive loss limitations. If liability is not limited, the taxpayer has a “working interest”.
Income from a partnership or S Corporation that trades in stocks, bonds or securities for the accounts of the partners or shareholders is non-passive. Income or losses, even from a limited partnership interest, may be deducted as non-passive. See Reg. § 1.469-1T(e)(6).
Activity Defined
Regulation § 1.469-4 provides the definition of an activity.
A trade or business activity is an activity that:
Involves the conduct of a trade or business (within the meaning of IRC § 162);
Is conducted in anticipation of starting a trade or business; or,
Involves research & development expenditures that would be deductible under IRC § 174.
There are only two business activities that are excepted from the passive loss rules:
working interests oil and gas activities;[1] and,
traders in stocks & bonds[2].
Grouping of Activities
Related businesses that form an appropriate economic unit are treated as a single “activity”. Related businesses conducted via a Schedule C, partnership, C or S Corporation, or limited liability company may be grouped into one activity. An “activity” is not constrained by entity lines. See Reg. § 1.469-4(c) and 1.469-4(d)(4).
It is also possible that several different activities may exist within a single entity: two unrelated businesses, or a business and a rental activity.
By grouping related businesses as a single activity, the taxpayer can more easily meet the 500-hour test for material participation discussed below. Before considering the material participation tests, the examiner should identify related businesses and determine if the taxpayer has grouped any to form a specific “activity”. Ask- or Issue an IDR - asking if the taxpayer has grouped any activities under Reg. § 1.469-4; to explain why the grouping is appropriate; and when the grouping decision was made. See Chapter 8.
A trade or businesses is a passive activity if the taxpayer does not materially participate. The taxpayer materially participates if and only if he or she meets one of the following seven tests provided in Reg. § 1.469-5T(a). See checksheet and log at end of chapter.
The taxpayer works 500 hours or more during the year in the activity.
The taxpayer does substantially all the work in the activity.
The taxpayer works more than 100 hours in the activity during the year and no one else works more than the taxpayer.
The activity is a significant participation activity (SPA), and the sum of SPAs in which the taxpayer works 100-500 hours exceeds 500 hours for the year.
The taxpayer materially participated in the activity in any 5 of the prior 10 years.
The activity is a personal service activity and the taxpayer materially participated in that activity in any 3 prior years.
Based on all of the facts and circumstances, the taxpayer participates in the activity on a regular, continuous, and substantial basis during such year. However, this test only applies if the taxpayer works at least 100 hours in the activity, no one else works more hours than the taxpayer in the activity, and no one else receives compensation for managing the activity.[3]
Note: The first four tests look to a set number of hours of participation in the tax year. The next two tests look to material participation in prior tax years. The final test looks to the facts and circumstances, but is highly restrictive.
Material participation applies to income as well as to losses. One of the purposes of the last four material participation tests is to prevent the taxpayer from “failing” material participation when the activity generates income instead of losses.
For tiered entities, the look-through rule in Reg. § 1.469-2T(e)(3)(ii)(D)(3) treats the taxpayer as holding an interest in a subsidiary entity. In other words, the examiner will look to the lowest tier for participation by the individual taxpayer. Thus, for example, if the individual taxpayer fails to materially participate in a partnership which flows losses to an S Corporation in which he is a shareholder, losses are generally passive to him.
500 Hours
If the taxpayer participates more than 500 hours during the year in a business, income or loss from the activity will be non-passive. Participation of both spouses is counted, but not participation of the children or employees.
Participation in operations must be regular, continuous, and substantial. The examiner should determine whether the quantity of time documented is reasonable in light of other obligations.
Examination Techniques:
Review W-2s and other non-passive activities. Does it seem likely that the taxpayer could spend 500 hours on the activity in light of other employment obligations?
Ask questions on taxpayer activity time early in the examination. Establish time the taxpayer spends on all activities during the initial interview if possible. See exhibit with log at the end of the chapter.
Determine the location of each activity. If located far from the taxpayer’s residence, how likely is the taxpayer to have spent substantial time on the activity?
Substantially All
Stated simply, if the taxpayer does most of the work, income or loss will be non-passive. The involvement in the activity of an employee or non-owner could cause the taxpayer to fail this test.
Note: There is no specific number of hours associated with this test. In addition, the term “substantially” is not defined in the regulations.
100 Hours
If a taxpayer participates in an activity for more than 100 hours and no other individual participates more than the taxpayer (including any employee or non-owner), income or losses from the activity are non-passive.
Examination Techniques:
Be alert to employees who are managing the activity, indicating the taxpayer deducting the losses may not be materially participating (particularly on Form 1040 Schedules C & F).
When reviewing taxpayer hours, watch for “investor” activities (Reg. § 1.469-5T(f)(2)(ii)). The taxpayer must be involved in the activity’s day-to-day management or operations. Hours spent toward reviewing financial statements, preparing analysis for personal use, and monitoring the activity in a non-managerial capacity do not count.
Significant Participation Activities (SPA)
The term significant participation activity is unique to Reg. § 1.469-5T. If the sum of the taxpayer’s time in all SPAs is more than 500 hours for the year, then income or losses from the businesses are non-passive. For each SPA, the regulations require:
The taxpayer to participate more than 100 hours during the year.
The activity must be a business, i.e. it cannot be a rental or investment activity.
The business must be a passive activity. Thus, if the taxpayer works more than 500 hours in the business, it is not a SPA as 500 hours is one of the qualifying tests for material participation. Similarly, if the taxpayer does most of the work in the business, it cannot be a SPA as Reg. § 1.469-5T(a)(2) holds that performing substantially all the work qualifies for material participation.
Any 5 of the Last 10 Years
An activity is non-passive if the taxpayer would have been treated as materially participating in any 5 of the previous 10 years (whether or not consecutive). This test usually applies when a taxpayer “retires from material participation” but maintains an ownership interest in the activity.
Even if the taxpayer performs no services for a business currently, the examiner should inquire about involvement in prior years and review the returns to see if income or losses were treated as non-passive.
Any 3 Years in a Personal Service Activity
If a taxpayer materially participated for any three prior taxable years in a personal service activity the current year income or loss will be treated as non-passive. It does not matter whether those three prior taxable years were consecutive.
Personal service activity means services performed in:
The fields of health, law, engineering, architecture, accounting, actuarial science, per
บทที่ 4 วัสดุมีส่วนร่วมหมู่ตัวผู้เสียภาษีกล้าเข้าร่วมกิจกรรมหากเขาหรือเธอทำงานตามปกติ ต่อเนื่อง และพบในการดำเนินงาน (IRC แท้ 469(h)(1)) ถ้าตัวผู้เสียภาษีไม่กล้าเข้าร่วม ขาดทุนได้แฝง ซึ่งหมายความว่า โดยทั่วไปจะไม่หักลดได้ในกรณีรายได้ passive เข้าร่วมวัสดุเป็นเวลาสำคัญ ตัวผู้เสียภาษีมีส่วนเกี่ยวข้องในกิจกรรมกล้าเมื่อเขาหรือเธอตรงกับอย่างใดอย่างหนึ่งของการทดสอบวัสดุร่วมเจ็ดในวันแท้ 1.469-5T(a)ตัวผู้เสียภาษีจะต้องระบุจำนวนของ เขามีส่วนร่วมในกิจกรรมทางการค้าหรือธุรกิจสำหรับแต่ละปี ชนิดและปริมาณของเวลาที่จัดทำเอกสารกำหนดว่า ควรจัดกิจกรรม โดยตัวผู้เสียภาษีเป็น passive หรือไม่แฝง ตัวผู้เสียภาษีสามารถมีความสนใจทางการเงินสำคัญในธุรกิจ และยัง ไม่กล้าเข้าร่วมวัสดุมีส่วนร่วมมีการกำหนดปี ดังนั้น จึงหลากหลายว่า ตัวผู้เสียภาษีที่อาจจะแฝงในหนึ่งปีและไม่แฝง (ในคำอื่น ๆ โครงการร่วม) ในปีต่อ ๆ ไปมันเป็นสิ่งสำคัญสำหรับผู้ตรวจสอบการตรวจรายงานขาดทุนประเภทอย่างถูกต้องในการส่งคืนให้ ขาดทุนจากธุรกิจ ว่าเป็น C กำหนดการ ตารางเวลาแบบฟอร์ม ห้างหุ้นส่วน หรือ บริษัท S ดำเนินจะแฝงตัวผู้เสียภาษีไม่เข้าร่วมโครงการ ดู checksheet ต้นไม้การตัดสินใจ และบันทึกท้ายบทThe rules discussed in this lesson are applied at the Form 1040 level for individuals involved in partnerships and S Corporations.Material participation does not apply to the following activities:Rentals are generally passive, whether or not the taxpayer materially participates. However, rental real estate interests of real estate professionals are subject to the material participation tests. See Reg. § 1.469-9(e)(1).Working interests in oil and gas activities are excepted from the passive loss limitations. If liability is not limited, the taxpayer has a “working interest”.Income from a partnership or S Corporation that trades in stocks, bonds or securities for the accounts of the partners or shareholders is non-passive. Income or losses, even from a limited partnership interest, may be deducted as non-passive. See Reg. § 1.469-1T(e)(6).Activity DefinedRegulation § 1.469-4 provides the definition of an activity.A trade or business activity is an activity that:Involves the conduct of a trade or business (within the meaning of IRC § 162);Is conducted in anticipation of starting a trade or business; or,Involves research & development expenditures that would be deductible under IRC § 174.There are only two business activities that are excepted from the passive loss rules:working interests oil and gas activities;[1] and,traders in stocks & bonds[2].Grouping of ActivitiesRelated businesses that form an appropriate economic unit are treated as a single “activity”. Related businesses conducted via a Schedule C, partnership, C or S Corporation, or limited liability company may be grouped into one activity. An “activity” is not constrained by entity lines. See Reg. § 1.469-4(c) and 1.469-4(d)(4).
It is also possible that several different activities may exist within a single entity: two unrelated businesses, or a business and a rental activity.
By grouping related businesses as a single activity, the taxpayer can more easily meet the 500-hour test for material participation discussed below. Before considering the material participation tests, the examiner should identify related businesses and determine if the taxpayer has grouped any to form a specific “activity”. Ask- or Issue an IDR - asking if the taxpayer has grouped any activities under Reg. § 1.469-4; to explain why the grouping is appropriate; and when the grouping decision was made. See Chapter 8.
A trade or businesses is a passive activity if the taxpayer does not materially participate. The taxpayer materially participates if and only if he or she meets one of the following seven tests provided in Reg. § 1.469-5T(a). See checksheet and log at end of chapter.
The taxpayer works 500 hours or more during the year in the activity.
The taxpayer does substantially all the work in the activity.
The taxpayer works more than 100 hours in the activity during the year and no one else works more than the taxpayer.
The activity is a significant participation activity (SPA), and the sum of SPAs in which the taxpayer works 100-500 hours exceeds 500 hours for the year.
The taxpayer materially participated in the activity in any 5 of the prior 10 years.
The activity is a personal service activity and the taxpayer materially participated in that activity in any 3 prior years.
Based on all of the facts and circumstances, the taxpayer participates in the activity on a regular, continuous, and substantial basis during such year. However, this test only applies if the taxpayer works at least 100 hours in the activity, no one else works more hours than the taxpayer in the activity, and no one else receives compensation for managing the activity.[3]
Note: The first four tests look to a set number of hours of participation in the tax year. The next two tests look to material participation in prior tax years. The final test looks to the facts and circumstances, but is highly restrictive.
Material participation applies to income as well as to losses. One of the purposes of the last four material participation tests is to prevent the taxpayer from “failing” material participation when the activity generates income instead of losses.
For tiered entities, the look-through rule in Reg. § 1.469-2T(e)(3)(ii)(D)(3) treats the taxpayer as holding an interest in a subsidiary entity. In other words, the examiner will look to the lowest tier for participation by the individual taxpayer. Thus, for example, if the individual taxpayer fails to materially participate in a partnership which flows losses to an S Corporation in which he is a shareholder, losses are generally passive to him.
500 Hours
If the taxpayer participates more than 500 hours during the year in a business, income or loss from the activity will be non-passive. Participation of both spouses is counted, but not participation of the children or employees.
Participation in operations must be regular, continuous, and substantial. The examiner should determine whether the quantity of time documented is reasonable in light of other obligations.
Examination Techniques:
Review W-2s and other non-passive activities. Does it seem likely that the taxpayer could spend 500 hours on the activity in light of other employment obligations?
Ask questions on taxpayer activity time early in the examination. Establish time the taxpayer spends on all activities during the initial interview if possible. See exhibit with log at the end of the chapter.
Determine the location of each activity. If located far from the taxpayer’s residence, how likely is the taxpayer to have spent substantial time on the activity?
Substantially All
Stated simply, if the taxpayer does most of the work, income or loss will be non-passive. The involvement in the activity of an employee or non-owner could cause the taxpayer to fail this test.
Note: There is no specific number of hours associated with this test. In addition, the term “substantially” is not defined in the regulations.
100 Hours
If a taxpayer participates in an activity for more than 100 hours and no other individual participates more than the taxpayer (including any employee or non-owner), income or losses from the activity are non-passive.
Examination Techniques:
Be alert to employees who are managing the activity, indicating the taxpayer deducting the losses may not be materially participating (particularly on Form 1040 Schedules C & F).
When reviewing taxpayer hours, watch for “investor” activities (Reg. § 1.469-5T(f)(2)(ii)). The taxpayer must be involved in the activity’s day-to-day management or operations. Hours spent toward reviewing financial statements, preparing analysis for personal use, and monitoring the activity in a non-managerial capacity do not count.
Significant Participation Activities (SPA)
The term significant participation activity is unique to Reg. § 1.469-5T. If the sum of the taxpayer’s time in all SPAs is more than 500 hours for the year, then income or losses from the businesses are non-passive. For each SPA, the regulations require:
The taxpayer to participate more than 100 hours during the year.
The activity must be a business, i.e. it cannot be a rental or investment activity.
The business must be a passive activity. Thus, if the taxpayer works more than 500 hours in the business, it is not a SPA as 500 hours is one of the qualifying tests for material participation. Similarly, if the taxpayer does most of the work in the business, it cannot be a SPA as Reg. § 1.469-5T(a)(2) holds that performing substantially all the work qualifies for material participation.
Any 5 of the Last 10 Years
An activity is non-passive if the taxpayer would have been treated as materially participating in any 5 of the previous 10 years (whether or not consecutive). This test usually applies when a taxpayer “retires from material participation” but maintains an ownership interest in the activity.
Even if the taxpayer performs no services for a business currently, the examiner should inquire about involvement in prior years and review the returns to see if income or losses were treated as non-passive.
Any 3 Years in a Personal Service Activity
If a taxpayer materially participated for any three prior taxable years in a personal service activity the current year income or loss will be treated as non-passive. It does not matter whether those three prior taxable years were consecutive.
Personal service activity means services performed in:
The fields of health, law, engineering, architecture, accounting, actuarial science, per
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