§761 — Terms defined
33 cases·5 followed·1 questioned·2 criticized·25 cited—15% support
Statute Text — 26 U.S.C. §761
For 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—
for investment purposes only and not for the active conduct of a business,
for the joint production, extraction, or use of property, but not for the purpose of selling services or property produced or extracted, or
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.
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.
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.
Except as otherwise provided in regulations, for purposes of—
section 708 (relating to continuation of partnership),
section 743 (relating to optional adjustment to basis of partnership property), and
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.
In 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—
such joint venture shall not be treated as a partnership,
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
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.
For purposes of paragraph (1), the term “qualified joint venture” means any joint venture involving the conduct of a trade or business if—
the only members of such joint venture are a husband and wife,
both spouses materially participate (within the meaning of section 469(h) without regard to paragraph (5) thereof) in such trade or business, and
both spouses elect the application of this subsection.
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).
Treasury Regulations
- Treas. Reg. §Treas. Reg. §1.761-1 Terms defined
- Treas. Reg. §Treas. Reg. §1.761-1(a) Partnership.
- Treas. Reg. §Treas. Reg. §1.761-1(b) Partner.
- Treas. Reg. §Treas. Reg. §1.761-1(c) Partnership agreement.
- Treas. Reg. §Treas. Reg. §1.761-1(d) Liquidation of partner's interest.
- Treas. Reg. §Treas. Reg. §1.761-1(e) Distribution of partnership interest.
- Treas. Reg. §Treas. Reg. §1.761-2 Exclusion of certain unincorporated organizations from the application of all or part of subchapter K of chapter 1 of the Internal Revenue Code
- Treas. Reg. §Treas. Reg. §1.761-2(a) Exclusion of eligible unincorporated organizations—(1) In general.
- Treas. Reg. §Treas. Reg. §1.761-2(b) Complete exclusion from subchapter K—(1) Time for making election for exclusion.
- Treas. Reg. §Treas. Reg. §1.761-2(c) Partial exclusion from subchapter K.
- Treas. Reg. §Treas. Reg. §1.761-2(d) Rules for gas producers that produce natural gas under joint operating agreements—(1) Joint operating agreements and gas balancing.
- Treas. Reg. §Treas. Reg. §1.761-2(e) Cross reference.
- Treas. Reg. §Treas. Reg. §1.761-2(f) Applicability date.
- Treas. Reg. §Treas. Reg. §1.761-2(i) Example 1—(A) Facts.
- Treas. Reg. §Treas. Reg. §1.761-3 Certain option holders treated as partners
- Treas. Reg. §Treas. Reg. §1.761-3(a) Noncompensatory option treated as a partnership interest—(1) General rule.
- Treas. Reg. §Treas. Reg. §1.761-3(b) Definitions.
- Treas. Reg. §Treas. Reg. §1.761-3(c) Measurement event—(1) General rule.
- Treas. Reg. §Treas. Reg. §1.761-3(d) Rights substantially similar to partner rights—(1) In general.
- Treas. Reg. §Treas. Reg. §1.761-3(e) Substantial tax reduction requirement—(1) General rule.
- Treas. Reg. §Treas. Reg. §1.761-3(f) Example.
- Treas. Reg. §Treas. Reg. §1.761-3(g) Effective/applicability date.
- Treas. Reg. §Treas. Reg. §1.761-3(i) §1.761-3(i)
33 Citing Cases
And so--because there is no genuine issue of fact that 7050 continued to hold that account in its name until 2003--we hold that Schechter's partnership interest was not liquidated through 7050's termination in 2001 .
ional Commodity & Barter Association v. United States, 843 F. Supp. 655, 659, 661 (D. Colo. 1993), affd. without published opinion 42 F.3d 1406 (10th Cir. 1994), an entity that was organized largely to resist taxes was treated as a partnership under section 761. Petitioners cite certain court opinions out of context. In Commissioner v. Culbertson, 337 U.S. 733, 740 (1949), the Supreme Court stated that a partnership constitutes an organization for - 12 - production of income to which each partne
733 (1949); see also - 27 - Connors v.
761.4(c) (2000); 16 Encyclopedia Americana, supra at 147. Also located on Johnston Island is Johnston Atoll Chemical Agent Disposal System (JACADS), a facility for incinerating U.S. chemical weapons stockpiles. Greenpeace USA v. Stone, 748 F. Supp. 749, 752-753 (D. Haw. 1990); Environmental Assessment, supra at 9278. Johnston Atoll is not a pa
761.4(c) (2000); 16 Encyclopedia Americana, supra at 147. Also located on Johnston Island is Johnston Atoll Chemical Agent Disposal System (JACADS), a facility for incinerating U.S. chemical weapons stockpiles. Greenpeace USA v. Stone, 748 F. Supp. 749, 752-753 (D. Haw. 1990); Environmental Assessment, supra at 9278. Johnston Atoll is not a pa
ional Commodity & Barter Association v. United States, 843 F. Supp. 655, 659, 661 (D. Colo. 1993), affd. without published opinion 42 F.3d 1406 (10th Cir. 1994), an entity that was organized largely to resist taxes was treated as a partnership under section 761. Petitioners cite certain court opinions out of context. In Commissioner v. Culbertson, 337 U.S. 733, 740 (1949), the Supreme Court stated that a partnership constitutes an organization for - 12 - production of income to which each partne
The term "partnership" is broadly defined in section 761 as 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," but is not a corporation, trust, or estate.
Section 761 of the Code defines the term "partnership" as follows: (a) PARTNERSHIP.--For purposes of this sub- title, 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 mean
Section 761 of the Code defines the term "partnership" as follows: (a) PARTNERSHIP.--For purposes of this sub- title, 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 mean
ership return.16 Petitioners argue that the definitions of partnership agreement and amendment of the partnership agreement are much more expansive, for the purpose of determining distributive shares of gain under section 704(b), than they are under section 761. Compare sec. 1.761-1(c), Income Tax Regs., with sec. 1.704- 1 (b)(2)(ii)(h), Income Tax Regs. The regulation under section 704(b) states: Partnership agreement defined. For purposes of this paragraph, the partnership agreement includes a