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A Major Win for LPs: Fifth Circuit Rejects the IRS “Passive Investor” Rule

a business person looking out through the window

For the past few years, the IRS has been on a crusade to narrow the self-employment tax exception for limited partners. Relying on the Tax Court’s recent logic in Soroban Capital Partners, the IRS argued that you aren't a "limited partner" for tax purposes unless you are a purely passive investor.

However, the Fifth Circuit just changed the game.

The Case: Sirius Solutions, L.L.L.P. v. Comm’r
The Fifth Circuit recently reversed the Tax Court’s decision in Sirius Solutions, flatly rejecting the "functional analysis" test. The court held that if you are a partner in a state-law limited partnership and you have limited liability, you qualify as a "limited partner" under Code Sec. 1402(a)(13)—regardless of how active you are in the business.

Why the Court Sided with Taxpayers:

  1. Original Meaning: The court looked back to 1977 (when the law was enacted). At that time, dictionaries and the Social Security Administration defined a limited partner by one main characteristic: limited liability.

  2. The "Guaranteed Payments" Clause: The law already says that "guaranteed payments" for services are subject to SE tax. The court reasoned that if Congress expected limited partners to be 100% passive, they wouldn’t have needed to write a rule about how to tax them for performing services.

  3. Predictability: The court criticized the IRS’s "functional" test, noting that taxpayers shouldn't need "an army of lawyers and accountants" to figure out their tax liability based on a vague list of participation factors.

The Bottom Line
This is a landmark reversal. While the IRS may continue to fight this in other circuits, for now, the "limited liability" shield is once again the primary benchmark for the SE tax exception in the Fifth Circuit.

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