More often than not, private letter rulings and Chief Counsel Advice memoranda deal with fairly esoteric questions of tax law, but present facts that are clear and unambiguous. It is a somewhat refreshing change to read a Chief Counsel Advice memorandum that deals with the sort of factual pattern that real life lawyers deal with all the time. That is, nobody could say with any certainty what the facts were. In CCA 200501001, a simple transaction became so overwhelmingly screwed up that the Service couldn't determine whether an LLC had only one member, making it a disregarded entity, or two members, calling for classification as a partnership for income tax purposes.
Sonny Boy and another individual organized the LLC in Year 1. The LLC filed for a tax identification number. As part of that process, it indicated that it was a partnership for tax purposes. It had no articles of organization or operating agreement.
Subsequently, the LLC ran into employment withholding tax difficulties. It did not cooperate with the Service with respect to the Service's investigation of the employment tax issue, but Sonny Boy "represented that [Daddy] became a member of LLC atapproximately the time the TIN was requested and that x percent of LLC was owned by [Sonny Boy]and y percent by [Daddy]." Ultimately, a notice of tax lien was filed against the LLC.
The LLC's authorized representative contacted the Service and stated that LLC should be treated as a single member LLC and not as a multi-member LLC. The representative explained that Daddy was a mere investor, was not a member of the LLC. The representative further explained that Sonny Boy reported all of the income from LLC on his Schedule C for each year of LLC's existence. Daddy concurred in this analysis, contending that he was merely an "investor" in the LLC, without any knowledge of being a member.
The Service essentially declined to offer any certainty to the taxpayers. It said that "There is insufficient evidence to determine the number of owners of [the] LLC. There are apparently no ownership documents or articles of organization. Moreover, inconsistent information has been provided." In other words, you might be a partnership, but then again, you might not be.
There seems to be little question in my mind that Daddy was perfectly happy to be a "member" of the LLC until he faced the possibility of being tagged with liability for unpaid employment taxes or penalties for failure to file partnership returns. (In fact, absent additional facts, Daddy would seem to have no liability exposure for unpaid employment taxes. However, it would not surprise me if his advisors had informed his that this was a possibility, since the CCA indicates that their professional performance was less than stellar.) The Service made the right call in throwing this fish back into the taxpayer's (or, should I say, taxpayers') lap(s).