26 U.S.C. § 761

Terms defined

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(a) PartnershipFor purposes of this subtitle, the term “partnership” includes a syndicate, group, pool, joint venture, or other unincorporated organization through or by means of which any business, financial operation, or venture is carried on, and which is not, within the meaning of this title, a corporation or a trust or estate. Under regulations the Secretary may, at the election of all the members of an unincorporated organization, exclude such organization from the application of all or part of this subchapter, if it is availed of—(1) for investment purposes only and not for the active conduct of a business,(2) for the joint production, extraction, or use of property, but not for the purpose of selling services or property produced or extracted, or(3) by dealers in securities for a short period for the purpose of underwriting, selling, or distributing a particular issue of securities,if the income of the members of the organization may be adequately determined without the computation of partnership taxable income.(b) Partner

For purposes of this subtitle, the term “partner” means a member of a partnership. In the case of a capital interest in a partnership in which capital is a material income-producing factor, whether a person is a partner with respect to such interest shall be determined without regard to whether such interest was derived by gift from any other person.

For purposes of this subchapter, a partnership agreement includes any modifications of the partnership agreement made prior to, or at, the time prescribed by law for the filing of the partnership return for the taxable year (not including extensions) which are agreed to by all the partners, or which are adopted in such other manner as may be provided by the partnership agreement.

(d) Liquidation of a partner’s interest

For purposes of this subchapter, the term “liquidation of a partner’s interest” means the termination of a partner’s entire interest in a partnership by means of a distribution, or a series of distributions, to the partner by the partnership.

(e) Distributions of partnership interests treated as exchangesExcept as otherwise provided in regulations, for purposes of—(1) section 708 (relating to continuation of partnership),(2) section 743 (relating to optional adjustment to basis of partnership property), and(3) any other provision of this subchapter specified in regulations prescribed by the Secretary,any distribution of an interest in a partnership (not otherwise treated as an exchange) shall be treated as an exchange.(f) Qualified joint venture(1) In generalIn the case of a qualified joint venture conducted by a husband and wife who file a joint return for the taxable year, for purposes of this title—(A) such joint venture shall not be treated as a partnership,(B) all items of income, gain, loss, deduction, and credit shall be divided between the spouses in accordance with their respective interests in the venture, and(C) each spouse shall take into account such spouse’s respective share of such items as if they were attributable to a trade or business conducted by such spouse as a sole proprietor.(2) Qualified joint ventureFor purposes of paragraph (1), the term “qualified joint venture” means any joint venture involving the conduct of a trade or business if—(A) the only members of such joint venture are a husband and wife,(B) both spouses materially participate (within the meaning of section 469(h) without regard to paragraph (5) thereof) in such trade or business, and(C) both spouses elect the application of this subsection.(g) Cross reference

For rules in the case of the sale, exchange, liquidation, or reduction of a partner’s interest, see sections 704(b) and 706(c)(2).

(Aug. 16, 1954, ch. 736, 68A Stat. 252; Pub. L. 94–455, title II, § 213(c)(3)(B), title XIX, § 1906(b)(13)(A), Oct. 4, 1976, 90 Stat. 1548, 1834; Pub. L. 96–222, title I, § 102(a)(2)(C), Apr. 1, 1980, 94 Stat. 208; Pub. L. 98–369, div. A, title I, § 75(b), July 18, 1984, 98 Stat. 594; Pub. L. 99–514, title XVIII, § 1805(c)(2), Oct. 22, 1986, 100 Stat. 2810; Pub. L. 110–28, title VIII, § 8215(a), May 25, 2007, 121 Stat. 193; Pub. L. 114–74, title XI, § 1102(a), Nov. 2, 2015, 129 Stat. 638.)Editorial NotesAmendments

2015—Subsec. (b). Pub. L. 114–74 inserted at end “In the case of a capital interest in a partnership in which capital is a material income-producing factor, whether a person is a partner with respect to such interest shall be determined without regard to whether such interest was derived by gift from any other person.”

2007—Subsecs. (f), (g). Pub. L. 110–28 added subsec. (f) and redesignated former subsec. (f) as (g).

1986—Subsec. (e). Pub. L. 99–514 substituted “Distributions of partnership interests” for “Distributions” in heading, substituted “Except as otherwise provided in regulations, for purposes of” for “For purposes of” in introductory provision, and “any distribution of an interest in a partnership” for “any distribution” in closing provisions.

1984—Subsecs. (e), (f). Pub. L. 98–369 added subsec. (e) and redesignated former subsec. (e) as (f).

1980—Subsec. (a)(3). Pub. L. 96–222 added par. (3).

1976—Subsec. (a). Pub. L. 94–455, § 1906(b)(13)(A), struck out “or his delegate” after “Secretary”.

Subsec. (e). Pub. L. 94–455, § 213(c)(3)(B), added subsec. (e).

Statutory Notes and Related SubsidiariesEffective Date of 2015 Amendment

Amendment by Pub. L. 114–74 applicable to partnership taxable years beginning after Dec. 31, 2015, see section 1102(c) of Pub. L. 114–74, set out as a note under section 704 of this title.

Effective Date of 2007 Amendment

Pub. L. 110–28, title VIII, § 8215(c), May 25, 2007, 121 Stat. 194, provided that: “The amendments made by this section [amending this section, section 1402 of this title, and section 411 of Title 42, The Public Health and Welfare] shall apply to taxable years beginning after December 31, 2006.”

Effective Date of 1986 Amendment

Amendment by Pub. L. 99–514 effective, except as otherwise provided, as if included in the provisions of the Tax Reform Act of 1984, Pub. L. 98–369, div. A, to which such amendment relates, see section 1881 of Pub. L. 99–514, set out as a note under section 48 of this title.

Effective Date of 1984 Amendment

Amendment by Pub. L. 98–369 applicable to distributions, sales, and exchanges made after Mar. 31, 1984, in taxable years ending after such date, see section 75(e) of Pub. L. 98–369, set out as an Effective Date note under section 386 of this title.

Effective Date of 1980 Amendment

Amendment by Pub. L. 96–222 effective, except as otherwise provided, as if it had been included in the provisions of the Revenue Act of 1978, Pub. L. 95–600, to which such amendment relates, see section 201 of Pub. L. 96–222, set out as a note under section 32 of this title.

Effective Date of 1976 Amendment

Amendment by section 213(c)(3)(B) of Pub. L. 94–455 applicable in the case of partnership taxable years beginning after Dec. 31, 1975, see section 213(f)(1) of Pub. L. 94–455, set out as a note under section 709 of this title.

Plan Amendments Not Required Until January 1, 1989

For provisions directing that if any amendments made by subtitle A or subtitle C of title XI [§§ 1101–1147 and 1171–1177] or title XVIII [§§ 1800–1899A] of Pub. L. 99–514 require an amendment to any plan, such plan amendment shall not be required to be made before the first plan year beginning on or after Jan. 1, 1989, see section 1140 of Pub. L. 99–514, as amended, set out as a note under section 401 of this title.

Notes of Decisions

Cited in 39 cases, 1959–2018 · leading case: United States v. F. Thomas Little, United States of Am. v. Peter Chernik, United States of Am. v. Harold Grutchfield, 753 F.2d 1420 (9th Cir. 1985).

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United States v. F. Thomas Little, United States of Am. v. Peter Chernik, United States of Am. v. Harold Grutchfield, 753 F.2d 1420 (9th Cir. 1985). · cites it 3× “The court emphasized that the partner could not transfer retroactively those items to the transferee by modifying the partnership agreement under 26 U.S.C. § 761 (c). Id. at 1031 . In light of the express language in Moore , retroactive allocations in situations governed by 26 U.”

Norman & Arlene Rodman, Appellants-Cross-Appellees v. Comm'r of Internal Revenue, Appellee-Cross-Appellant, 542 F.2d 845 (2d Cir. 1976). · cites it 3× “8 Sections 761(a) and 7701(a)(2) of the Code, 26 U.S.C. §§ 761 (a) and 7701(a)(2). Further, there seems to be no dispute that the partnership terminated in 1958 within the meaning of § 708(b)(1)(A) of the Code, 26 U.”

DJB Holding Corp. v. Comm'r, 803 F.3d 1014 (9th Cir. 2015). · cites it 2× “For tax purposes, a “partnership” is “a syndicate, group, pool, joint venture, or other unincorporated organization” that carries on “any business, financial operation, or venture” and that is not “a corporation or a trust or estate.”

Southgate Master Fund, L.L.C. Ex Rel. Montgomery Capital Advisors, LLC v. United States, 659 F.3d 466 (5th Cir. 2011). “See 26 U.S.C. § 761 (a). 2 . Id. § 701. 3 . Although the co-owners of a limited liability company technically are known as "members,” this opinion tracks the language of the Code and refers to Southgate’s members as "partners.”

Jade Trading, LLC v. United States, 60 Fed. Cl. 558 (Fed. Cl. 2004). · cites it 2× “701-2, invalid, (2) recognize Jade Trading, LLC as a partnership under 26 U.S.C. § 761 and reject the unexplained contention in the IRS’ Final Partnership Administrative Adjustment that Jade Trading is a sham.”

Frank C. Pasternak Judith Pasternak (92-1681/1682) Anthony J. Cutaia Diane Cutaia David G. Koehlinger (92-1681) v. Comm'r of Internal Revenue, 990 F.2d 893 (6th Cir. 1993). “For tax purposes, the co-tenancies were partnerships as defined by the Internal Revenue Code, which states that a partnership is any “syndicate, group, pool, joint venture or other unincorporated organization through or by means of which any business, financial operation, or…”

Asa Investerings P'ship,appellants v. Comm'r of Internal Revenue, 201 F.3d 505 (D.C. Cir. 2000). “Although the Internal Revenue Code provides that “the term ‘partnership’ includes a syndicate, group, pool, joint venture, or other unincorporated organization through or by means of which any business, financial operation, or venture is carried on,” 26 U.”

Copeland v. Comm'r, 290 F.3d 326 (5th Cir. 2002). “26 U.S.C. § 761 (a). 8 . Copeland, 79 T.C.”

James T. Scatuorchio Racing Stable, LLC v. Walmac Stud Mgmt., LLC, 941 F. Supp. 2d 807 (E.D. Ky. 2013). “27-32] The plaintiffs contend that, pursuant to 26 U.S.C. § 761 , the parties to the SHCOA have illegally elected to be treated as tenants in common for tax purposes, and that they should be treated as a partnership.”

In Re the Tax Appeal of Hawaiian Tel. Co., 608 P.2d 383 (Haw. 1980). “8 Although, under Chapter 237, public service companies enjoy a limited exemption with respect to gross income from general excise tax, such exemption only applies to gross income which is included in the measure of tax imposed by Chapter 239. HRS § 237-23 (1976).”

Sullivan v. Lawlis, 105 N.E.3d 274 (Mass. App. Ct. 2018). “See generally 26 U.S.C. § 761 (a) (2012) (defining "partnership").”

Tifd Iii-E Inc. v. United States, 342 F. Supp. 2d 94 (D. Conn. 2004). “” 26 U.S.C. § 761 . The section further provides, “[f]or purposes of this subtitle, the term ‘partner’ means a member of a partnership.”

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