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Tax Treatment of Compensation to Service Provider Partners: Navigating New IRS Prohibitions on Employee Treatment

Reporting Payments to and Benefit Plans for Service Provider Partners, Structuring Grants of Interests to Employees

Recording of a 110-minute CPE webinar with Q&A

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Conducted on Tuesday, May 9, 2017

Recorded event now available

or call 1-800-926-7926

This course will address the recent IRS regulations prohibiting a partnership from treating a partner who owns a single-member LLC as an employee. The panel will discuss the rules within the broader framework of structuring and reporting compensation for partner/employees. The program will review structuring downstream tiered partnerships to facilitate compensation agreements with partners, designing equity compensation plans for existing employees, making necessary alterations to partnership structures, and reporting plan modifications on Form 1065.


The IRS recently issued final and temporary regulations clarifying Self-Employment Tax Treatment of Partners in a Partnership that Owns a Disregarded Entity. Under the new regulations, the Service’s position is that partnerships that own single-member LLCs electing under Section 7701 to be treated as a corporation for employment tax purposes may not treat the service provider partners as employees eligible to participate in employee benefit plans.

The new regulations clarify IRS rules that require partners to be treated as self-employed for purposes of withholding tax. Many partnerships had used downstream DREs to include service provider partners in benefit plans set up for non-partner employees. The new rules require partnerships to amend any benefit plan documents that included partners covered under these arrangements.

The regulations requested comments on whether and under which circumstances tiered partnerships could treat lower-tier partners as employees. The rules likely will have broader implications on partnership operations, including compelling changes in how partnerships compensate service provider partners and forcing partnerships to alter how they grant partnership interests to existing employees. Partnership tax advisers should have a thorough grasp of the service provider partner compensation rules to avoid costly tax consequences.

Listen as our experienced panel provides a thorough and practical guide to the rules governing service provider partner compensation, including a detailed discussion on the impact of the new disregarded entity and employee benefit plan rules.



  1. IRS final and temporary regulations TD 9766, Self-Employment Tax Treatment of Partners in a Partnership that Owns a Disregarded Entity
  2. Previous positions taken by taxpayers under Treas. Reg. Sec. 301.7701-2(c)(2)(iv)(B)
  3. Factors in employee vs. non-employee treatment
  4. Restructuring partnership agreements and benefit plans
  5. Possible impact on tiered partnerships
  6. Reporting payments to service provider partners


The panel will discuss these and other important topics:

  • What should partnerships that have not yet corrected operating agreements or plan documents do to comply with the regulations?
  • Why would a service provider partner elect to be treated as an employee?
  • How to treat partnership payments for benefit plans operated for the benefit of service provider partners
  • Impact of new regulations on granting of partnership interests to existing employees
  • Including benefit plans costs in guaranteed payment calculations


Olga A. Loy
Olga A. Loy

Winston & Strawn

Ms. Loy focuses on all aspects of tax planning, private equity, regulatory and compliance work, merger and acquisitions...  |  Read More

Mottahedeh, Rafi
Rafi W. Mottahedeh

Jenner & Block

Mr. Mottahedeh focuses on a broad range of federal, state and international tax planning and tax controversy matters....  |  Read More

S. Tony Ling
S. Tony Ling

Jenner & Block

Mr. Ling focuses his practice on the executive compensation and employee benefit aspects of mergers and acquisitions....  |  Read More

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