Family Limited Partnerships & Protecting Your Assets
Family Limited Partnerships
The Family Limited Partnership (FLP) has been a popular business entity for wealth management, tax minimization and wealth transfer maximization. Under the right circumstances, FLPs traditionally helped taxpayers remain in control of their wealth even after transferring it to their loved ones. Additionally, many of these transfers were made at a significant discount, thereby further leveraging wealth transfer tax savings. Not surprisingly, while FLPs have been employed as a planning panacea by taxpayers, FLPs have received additional scrutiny from the IRS and some courts in recent years.
Simply put, a Family Limited Partnership is a Limited Partnership among family members. The FLP is often created by the wealth-owning generation, typically the parents. The FLP creators are initially both the General Partners (GPs) and the Limited Partners (LPs) at the time they contribute assets to the FLP. The lionís share of the contributed assets is thereafter assigned to the LPs shares. Even so, the GPs hold all of the management control over the Family Limited Partnership assets.
When the Family Limited Partnership assets generate income, the General Partners are entitled to compensation for their management services. Limited Partners enjoy an ownership interest only. They have few rights or powers and there are restrictions on the transferability of their Limited Partner interests. This lack of control (minority interest) and inability to transfer the Limited Partner interests freely (lack of marketability) reduces or discounts the value of the FLP assets. In turn, this discounting enables the parents to transfer more wealth (and the future appreciation of that wealth) via their Limited Partner interests to younger family members, yet retain lifetime control over that wealth.
Other benefits include income splitting and asset protection, since Family Limited Partnership income may be spread among multiple family members and creditors of the Limited Partners may be limited in their attempts to reach the underlying FLP assets.
IRS & Judicial Scrutiny
Given the powerful tax and wealth transfer benefits available through FLPs, it is easy to see why the IRS and some courts do not like them. First and foremost, an FLP must be created for a business purpose ... not just for estate planning. For example, a valid business purpose may be to maintain family ownership and control of assets while they are transferred between generations free from the claims of third-party creditors and probate. Any planning with an FLP must begin with a solid business purpose in substance, as well as in form.
Like most legal arrangements that offer both tax minimization and wealth transfer maximization, FLPs are subject to an unwritten rule of law: pigs live and hogs get slaughtered. Some examples of hoggish behavior with FLPs include taxpayers who establish deathbed FLPs and/or taxpayers who transfer substantially all of their personal assets and means of financial support to their FLPs (i.e., leaving themselves no other source for income and sustenance). Result: If an FLP is found to be hoggish, then the entire value of the underlying FLP assets may be included in the estate of the FLP creator by the IRS and some courts.
As you might imagine, in addition to the FLPís business purpose, the IRS has traditionally scrutinized the valuation discounts claimed by the taxpayer for the LP interests. Once these gifts are made, the taxpayer must ensure that any discounts attributed to the gifts are substantiated in writing by an appropriate valuation expert and that these discounts are reported on a timely gift tax return. Expert professional valuation assistance is critical to successful FLP planning, implementation and maintenance. It is money well spent.
FLPs are not for everyone. Between legal fees, valuation fees, required state filings and reports, and tax returns (for the FLP, the GPs and the LPs), FLPs may require a substantial commitment in time and resources.
For many taxpayers, however, the tangible rewards of FLPs far outweigh any potential risks.
Bottom line: Be sure to engage competent legal counsel.