The Wyden Proposals on Partnership Debt: Step Forward or Back?

Abstract

Sen. Wyden has proposed dramatic changes to Subchapter K. Probably no change is farther reaching than that made to section 752, which provides the rules for allocating partnership debt to partners. At a minimum (the exact scope is unclear), the proposal would radically change the allocation of recourse debt. No longer would the allocation be based on partners’ “economic risk of loss” and instead would be based on partner profit shares. The article reviews and analyzes current law and the changes the Wyden proposal would make to that law. The article argues that the Wyden proposal in its current form goes too far but could be viable if an exception for small business is made. If implemented, the proposal might be the biggest single change to Subchapter K since 1954 with large tax consequences to partners and their partnerships. Fair transition rules that would mitigate these consequences would be vital.

Keywords: Section 752, partnership debt, economic risk of loss, recourse debt, nonrecourse debt, profit shares