26 CFR §1.7704-2

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(a)Transition rule
1. (1)Statutory dates. Section 7704 generally applies to taxable years beginning after December 31, 1987. In the case of an existing partnership, however, section 7704 and the regulations thereunder apply to taxable years beginning after December 31, 1997.
2. (2)Effective date of regulations. These regulations are effective for taxable years beginning after December 31, 1991.
(b)Existing partnership
1. (1)In general. For purposes of § 1.7704-2, the term “existing partnership” means any partnership if—
  1. (i)The partnership was a publicly traded partnership (within the meaning of section 7704(b)) on December 17, 1987;
  2. (ii)A registration statement indicating that the partnership was to be a publicly traded partnership was filed with the Securities and Exchange Commission (SEC) with respect to the partnership on or before December 17, 1987; or
  3. (iii)With respect to the partnership, an application was filed with a state regulatory commission on or before December 17, 1987, seeking permission to restructure a portion of a corporation as a publicly traded partnership.
2. (2)Changed status of an existing partnership. A partnership will not qualify as an existing partnership after a new line of business is substantial.
(c)Substantial
1. (1)In general. A new line of business is substantial as of the earlier of—
  1. (i)The taxable year in which the partnership derives more than 15 percent of its gross income from that line of business; or
  2. (ii)The taxable year in which the partnership directly uses in that line of business more than 15 percent (by value) of its total assets.
2. (2)Timing rule. If a substantial new line of business is added during the taxable year (e.g., by acquisition), the line of business is treated as substantial as of the date it is added; otherwise a substantial new line of business is treated as substantial as of the first day of the taxable year in which it becomes substantial.
(d)New line of business
1. (1)In general. A new line of business is any business activity of the partnership not closely related to a pre-existing business of the partnership to the extent that the activity generates income other than “qualifying income” within the meaning of section 7704 and the regulations thereunder.
2. (2)Pre-existing business. A business activity is a pre-existing business of the partnership if—
  1. (i)The partnership was actively engaged in the activity on or before December 17, 1987; or
  2. (ii)The partnership is actively engaged in the business activity that was specifically described as a proposed business activity of the partnership in a registration statement or amendment thereto filed on behalf of the partnership with the SEC on or before December 17, 1987. For this purpose, a specific description does not include a general grant of authority to conduct any business.
3. (3)Closely related. All of the facts and circumstances will determine whether a new business activity is closely related to a pre-existing business of the partnership. The following factors, among others, will help to establish that a new business activity is closely related to a pre-existing business of the partnership and therefore is not a new line of business:
  1. (i)The activity provides products or services very similar to the products or services provided by the pre-existing business.
  2. (ii)The activity markets products and services to the same class of customers as that of the pre-existing business.
  3. (iii)The activity is of a type that is normally conducted in the same business location as the pre-existing business.
  4. (iv)The activity requires the use of similar operating assets as those used in the pre-existing business.
  5. (v)The activity's economic success depends on the success of the pre-existing business.
  6. (vi)The activity is of a type that would normally be treated as a unit with the pre-existing business in the business' accounting records.
  7. (vii)If the activity and the pre-existing business are regulated or licensed, they are regulated or licensed by the same or similar governmental authority.
  8. (viii)The United States Bureau of the Census assigns the activity the same four-digit Industry Number Standard Identification Code (Industry SIC Code) as the pre-existing business. Such codes are set forth in the Executive Office of the President, Office of Management and Budget, Standard Industrial Classification Manual, prepared, and from time to time revised, by the Statistical Policy Division of the United States Office of Management and Budget. For example, if a partnership's pre-existing business is manufacturing steam turbines and then the partnership begins an activity manufacturing hydraulic turbines, both activities would be assigned the same Industry SIC Code, 3511—Steam, Gas, and Hydraulic Turbines, and Turbine Generator Set Units. In the case of a pre-existing business or activity that is listed under the Industry SIC Code, 9999—Nonclassifiable Establishments—or under a miscellaneous category (e.g., most Industry SIC Codes ending in a “9” are miscellaneous categories), the similarity of the SIC Codes is ignored as a factor in determining whether the activity is closely related to the pre-existing business. The dissimilarity of the SIC Codes is considered in determining whether the business activity is closely related to the pre-existing line of business.
(e)Activities conducted through controlled corporations
1. (1)In general. An activity conducted by a corporation controlled by an existing partnership may be treated as an activity of the existing partnership if the effect of the arrangement is to permit the partnership to engage in an activity the income from which is not subject to a corporate-level tax and which would be a new line of business if conducted directly by the partnership. This determination is based upon all facts and circumstances.
2. (2)Safe harbor
  1. (i)In general. This paragraph (e)(2) provides a safe harbor for activities of a corporation controlled by an existing partnership. An activity conducted by a corporation controlled by an existing partnership is not deemed to be an activity of the partnership for purposes of determining whether an existing partnership has added a new line of business if no more than 10% of the gross income that the partnership derives from the corporation during the taxable year is section 7704(d) qualifying income that is recharacterized as nonqualifying income under paragraphs (e)(2) (ii) and (iii) of this section. The Internal Revenue Service will not presume that an activity conducted through a corporation controlled by an existing partnership is an activity of the partnership solely because the partnership fails to satisfy the requirements of this paragraph (e)(2)(i).
  2. (ii)Recharacterization of qualifying income. Gross income received by a partnership from a controlled corporation that would be qualifying income under section 7704(d) is subject to recharacterization as nonqualifying income if the amount is deductible in computing the income of the controlled corporation.
  3. (iii)Extent of recharacterization. The amount of income described in paragraph (e)(2)(ii) of this section that is recharacterized as nonqualifying income is—
    1. (A)The amount described in paragraph (e)(2)(ii) of this section; multiplied by
    2. (B)The controlled corporation's taxable income (determined without regard to deductions for amounts paid to the partnership) that would not be qualifying income within the meaning of section 7704(d) if earned directly by the partnership; divided by
    3. (C)The controlled corporation's taxable income (determined without regard to deductions for amounts paid to the partnership).
3. (3)Control. For purposes of paragraphs (e) (1) and (2) of this section, control of a corporation is determined generally under the rules of section 304(c). However, the application of section 304(c) is modified to apply only to partners who own five percent or more by value (directly or indirectly) of the existing partnership unless a principal purpose of the arrangement is to avoid tax at the corporate level.
4. (4)Example. The following example illustrates the application of the this paragraph (e):
(f)Activities conducted through tiered partnerships. An activity conducted by a partnership in which an existing partnership holds an interest (directly or through another partnership) will be considered an activity of the existing partnership.
(g)Exceptions
1. (1)Coordination with gross income requirements of section 7704(c)(2). A partnership that is either an existing partnership as of December 31, 1997, or an existing partnership that ceases to qualify as an existing partnership is subject to section 7704 and the regulations thereunder. Section 7704(a) does not apply to these partnerships, however, if these partnerships meet the gross income requirements of paragraphs (c) (1) and (2) of section 7704. For purposes of applying section 7704(c) (1) and (2) to these partnerships, the only taxable years that must be tested are those beginning on and after the earlier of—
  1. (i)January 1, 1998; or
  2. (ii)The day on which the partnership ceases to qualify as an existing partnership because of the addition of a new line of business; or
  3. (iii)The first day of the first taxable year in which a new line of business becomes substantial (if the new line of business becomes substantial after the year in which it is added).
2. (2)Specific exceptions. In determining whether a partnership is an existing partnership for purposes of section 7704, the following events do not in themselves terminate the status of existing partnerships—
  1. (i)Termination of the partnership under section 708(b)(1)(B) due to the sale or exchange of 50 percent or more of the total interests in partnership capital and profits;
  2. (ii)Issuance of additional partnership units; and
  3. (iii)Dropping a line of business. This event, however, could affect an existing partnership's status indirectly. For example, dropping one line of business could change the composition of the partnership's gross income. The change in composition could make a new line of business “substantial,” under paragraph (c) of this section, and terminate the partnership's status. See paragraph (b)(2) of this section.
(h)Examples. The following examples illustrate the application of this section: