Attorney Takeaways:
- An LLC member may incur tax liability without receiving income from the LLC.
- The operating agreement can protect members from phantom income with a tax-distribution clause.
- Similar provisions can also be used in partnership agreements as well as in corporate shareholder agreements and bylaws to protect the owners from phantom income tax liability.
Phantom incomeis income that is taxable to a taxpayer even though the taxpayer has not received cash to pay the tax. Phantom income is a common problem for LLCs and S corporations. This article explains phantom income and provides tips for addressing it.
How Phantom Income Arises
Phantom income results from a disparity betweenallocations and distributions. When income isallocatedto a business owner for tax purposes even though the owner has not received adistributionof cash from the business, the owner must pay tax on income that the member has not received.
For passthrough entities—including partnerships, S corporations, sole proprietorships, and LLCs that use the default tax classification—income is taxable to the business owner when the income is earned, regardless of whether it is distributed. If there are multiple owners, the IRS uses allocation rules to ensure that each owner picks up his or her share of the business income.
Allocations are made at the business’s year-end based on the income that the business earned in that year. Allocations depend on the income the business earned, not on the income distributed to the member. A member is responsible for that member’s share of the company’s profit and losses—even if the member received no distribution from the company.
Phantom income can put business owners in a precarious position. They are responsible to pay income tax on the phantom income even though they have not received any funds from which to pay the tax. Without proper planning, the owners must pay the tax on phantom income from the owner’s other resources.
Planning for Phantom Income
There are several ways to plan to avoid adverse tax consequences from phantom income. For investors considering a business opportunity, adequate due diligence is essential. An examination of the business books and financial statements should indicate whether the business will generate a significant amount of phantom income. If it appears that the business will produce significant cash flow, the investor may want to be sure that a mechanism is in place to protect against phantom income.
Tax Distribution Clause
In the LLC context, the most common way to protect against phantom income is to include a provision—often called atax distribution clause—in theoperating agreement. A tax distribution clause requires the business to make distributions to cover the member’s tax liability from allocated income. Tax distribution clauses can be drafted different ways, but the goal is the same: to ensure that the member receives at least enough cash from the LLC to cover the member’s tax liability.
Because members may live in different states and have different financial situations, their tax liability for phantom income can vary. The members should decide on a uniform way to ensure that the tax distribution clause applies fairly to all members.
The LLC operating agreement could be drafted to apply a flat rate (say 40 percent) or to consider the member’s actual tax liability. Another way to ensure that no member pays out of pocket for allocated income is to ensure that each member receives an amount sufficient to pay the tax rates paid by New York City residents. This works because New York City has some of the highest tax rates in the country.
Attorney Practice Note:The LLC operating agreement can include a provision that ties the tax distribution clause to certain tax rates, such as those paid by New York City residents. Here is sample language for this type of provision:
If LLC funds are available for distribution by the LLC (as determined by the Manager in its sole discretion), the Manager shall cause the LLC to distribute to the Members with respect to each fiscal quarter of the LLC an amount of cash (a Tax Distribution) that, in the good-faith judgment of the Manager, equals:
(i) the LLC’s net taxable income (adjusted to take account of any net taxable losses of the LLC allocable to the Members in prior periods) allocable to the Members in respect of that fiscal quarter; multiplied by
(ii) the sum of the highest marginal federal, state, and local income tax rates applicable to an individual living in New York, New York, for the relevant type of taxable income, with the Tax Distribution to be made to the Members in the same proportions that taxable income was allocated to the Members during the fiscal quarter.
Similar tax distribution clauses can also be used in partnership agreements (for partnerships) and shareholder agreements and bylaws (for corporations).
