Who's the Employer?

Answer: Your uncertainty is understandable. The real question is, "What constitutes a controlling interest, or effective control, of a partnership?" As you point out, that is a very different question from "How are assets held by a partnership attributed to its partners?"

The regulations give a clear answer. A controlling interest in a partnership consists of "ownership of at least 80 percent of the profits interest or capital interest of such partnership." In other words, add all the profits interests of the partners under consideration. If that totals 80% or more, they have a controlling interest. If not, add all the capital interests of those partners. If that totals 80% or more, they have a controlling interest. If the partners in question have less than 80% of partnership profits and less than 80% of partnership capital, then they do not have a controlling interest. A similar rule applies for effective control (set at more than 50%.)

Let's take an example. George and Gracie each own 50% of George's Cigars. In addition they are partners in Gracie's Hats. George owns 40% of the capital and 30% of the profits in Gracie's Hats. Gracie owns 35% of the capital and 42% of the profits in Gracie's Hats. Their friend, Allen, owns the remaining interest in the partnership. Together George and Gracie own 75% of the capital and 72% of the profits. Because they do not own 80% of either, they do not have a controlling interest. Barring attribution or exclusion, Gracie's Hats and George's Cigars are not under common control.

Under the alternative you suggested, we would add George's 40% of capital to Gracie's 42% of profits to come to 82%. But that is not what the regulations provide. The regulations don't add numbers; they add profits interests and they separately add capital interests. They do not mix the two.

However, as you point out, attribution is based on the greater of capital or profits interest. So, suppose Gracie's Hats owned 100 shares of Acme Deviled Eggs. George would be deemed to own 40 shares of Acme, and Gracie would be deemed to own 42 shares of Acme.

Groups under common control are discussed in Chapter 12 of my book, Who's the Employer. (The 10% off presale of the upcoming third edition expires September 30.)

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