UBTI reporting requirements for partnerships and S corporations.

• Author: Whitehair, Andrew L.
• Position: Unrelated business taxable income

Before one determines how to report unrelated business taxable income (UBTI) on a Schedule K-l, a quick review of the basics of UBTI is in order. It is worth noting that most tax-exempt organizations are subject to the UBTI rules. Sec. 511 details the organizations subject to tax on unrelated business income, which include:

* Trusts, corporations, and any other organization exempt from taxation under Sec. 501(c), excluding U.S. instrumentalities exempt under Sec. 501(c)(1);

* State colleges and universities;

* Qualified pension, profit sharing, and stock bonus plans under Sec. 401;

* Individual retirement accounts (IRAs), including Roth and SEP IRAs; and

* Charitable remainder trusts.

UBTI is "the gross income derived by any organization from any unrelated trade or business (as defined in section 513) regularly carried on by it, less the deductions allowed by this chapter which are directly connected with the carrying on of such trade or business" (Sec. 512(a)(1)). This definition can be broken down into three components: (1) income from a trade or business that is (2) regularly carried on and (3) unrelated to an exempt purpose.

In determining whether the UBTI rules apply, a tax-exempt organization must first determine whether the income is from a trade or business. Any activity that is carried on for production of income and possesses the characteristics required to constitute a trade or business within the meaning of Sec. 162 will generally be considered a trade or business under the UBTI rules (Regs. Sec. 1.513-1(b)).The phrase "production of income" is important, as the regulations note that activities entered into with the intention to produce income will still be classified as a trade or business even if they generate a loss (Regs. Sec. 1.513-1(b)). Numerous classes of income (generally including most items typically associated with portfolio investment income) are specifically excluded from UBTI, including dividends; interest; royalties; rental income from real property; and gains or losses from the sale, exchange, or other disposition of property (Sec. 512(b)).

Second, any activity generating business income must be regularly carried on for its income to be considered UBTI. The regulations consider an activity to be regularly carried on if it has frequency and continuity, and is pursued in a manner, similar to comparable activities of nonexempt organizations (Regs. Sec. 1.513-1(c)(1)).The IRS is not seeking to curb the occasional fundraiser but rather focuses on activities that are carried on frequently, such as operating a commercial parking lot one day a week (Regs. Sec. 1.513-1(c)(2)(i)).

Lastly, to avoid classification as UBTI, the conduct of the trade or business that produces the income must be substantially related (other than the production of funds) to the purposes for which the exemption is granted (Regs. Sec. 1.513-1(d)(l)). An activity is related to the organization's exempt purpose if it contributes importantly and bears a substantial causal relationship to the achievement of the exempt purpose (Regs. Sec. 1.513-1(d)(2)). Activity income that does not meet this definition will be considered unrelated for UBTI purposes. It is important to note the "other than production of funds" language, as it is the source of the funds and not the destination that drives the determination of whether an activity is related. An investment in a private-equity fund that is important to an exempt organization's long-term funding needs would generally not be considered related to the organization's exempt purpose, unless the underlying activities of the fund are substantially related and contribute importantly to the organization's exempt purpose.

All three components of the definition must be present for the UBTI rules to apply. While a detailed discussion of all of the rules and exceptions to UBTI is beyond the scope of this item, generally, most passthrough trade or business income is UBTI in the hands of its tax-exempt investors. To the extent an exempt organization has gross income (defined as gross receipts less...