§ 7704. Certain publicly traded partnerships treated as corporations
(a)
General rule
For purposes of this title, except as provided in subsection (c), a publicly traded partnership shall be treated as a corporation.
(b)
Publicly traded partnership
For purposes of this section, the term “publicly traded partnership” means any partnership if—
(c)
Exception for partnerships with passive-type income
(1)
In general
Subsection (a) shall not apply to any publicly traded partnership for any taxable year if such partnership met the gross income requirements of paragraph (2) for such taxable year and each preceding taxable year beginning after December 31, 1987, during which the partnership (or any predecessor) was in existence. For purposes of the preceding sentence, a partnership shall not be treated as being in existence during any period before the 1st taxable year in which such partnership (or a predecessor) was a publicly traded partnership.
(2)
Gross income requirements
A partnership meets the gross income requirements of this paragraph for any taxable year if 90 percent or more of the gross income of such partnership for such taxable year consists of qualifying income.
(3)
Exception not to apply to certain partnerships which could qualify as regulated investment companies
This subsection shall not apply to any partnership which would be described in section
851
(a) if such partnership were a domestic corporation. To the extent provided in regulations, the preceding sentence shall not apply to any partnership a principal activity of which is the buying and selling of commodities (not described in section
1221
(a)(1)), or options, futures, or forwards with respect to commodities.
(d)
Qualifying income
For purposes of this section—
(1)
In general
Except as otherwise provided in this subsection, the term “qualifying income” means—
(D)
gain from the sale or other disposition of real property (including property described in section
1221
(a)(1)),
(E)
income and gains derived from the exploration, development, mining or production, processing, refining, transportation (including pipelines transporting gas, oil, or products thereof), or the marketing of any mineral or natural resource (including fertilizer, geothermal energy, and timber), industrial source carbon dioxide, or the transportation or storage of any fuel described in subsection (b), (c), (d), or (e) of section
6426, or any alcohol fuel defined in section
6426
(b)(4)(A) or any biodiesel fuel as defined in section
40A
(d)(1),
(F)
any gain from the sale or disposition of a capital asset (or property described in section
1231
(b)) held for the production of income described in any of the foregoing subparagraphs of this paragraph, and
(3)
Real property rent
The term “real property rent” means amounts which would qualify as rent from real property under section
856
(d) if—
(e)
Inadvertent terminations
If—
(3)
no later than a reasonable time after the discovery of such failure, steps are taken so that such partnership once more meets such gross income requirements, and
(4)
such partnership agrees to make such adjustments (including adjustments with respect to the partners) or to pay such amounts as may be required by the Secretary with respect to such period,
then, notwithstanding such failure, such entity shall be treated as continuing to meet such gross income requirements for such period.
(f)
Effect of becoming corporation
As of the 1st day that a partnership is treated as a corporation under this section, for purposes of this title, such partnership shall be treated as—
(g)
Exception for electing 1987 partnerships
(2)
Electing 1987 partnership
For purposes of this subsection, the term “electing 1987 partnership” means any publicly traded partnership if—
(A)
such partnership is an existing partnership (as defined in section 10211(c)(2) of the Revenue Reconciliation Act of 1987),
(B)
subsection (a) has not applied (and without regard to subsection (c)(1) would not have applied) to such partnership for all prior taxable years beginning after December 31, 1987, and before January 1, 1998, and
(C)
such partnership elects the application of this subsection, and consents to the application of the tax imposed by paragraph (3), for its first taxable year beginning after December 31, 1997.
A partnership which, but for this sentence, would be treated as an electing 1987 partnership shall cease to be so treated (and the election under subparagraph (C) shall cease to be in effect) as of the 1st day after December 31, 1997, on which there has been an addition of a substantial new line of business with respect to such partnership.
(3)
Additional tax on electing partnerships
(A)
Imposition of tax
There is hereby imposed for each taxable year on the income of each electing 1987 partnership a tax equal to 3.5 percent of such partnership’s gross income for the taxable year from the active conduct of trades and businesses by the partnership.
(B)
Adjustments in the case of tiered partnerships
For purposes of this paragraph, in the case of a partnership which is a partner in another partnership, the gross income referred to in subparagraph (A) shall include the partnership’s distributive share of the gross income of such other partnership from the active conduct of trades and businesses of such other partnership. A similar rule shall apply in the case of lower-tiered partnerships.
(C)
Treatment of tax
For purposes of this title, the tax imposed by this paragraph shall be treated as imposed by chapter 1 other than for purposes of determining the amount of any credit allowable under chapter 1 and shall be paid by the partnership. Section
6655 shall be applied to such partnership with respect to such tax in the same manner as if the partnership were a corporation, such tax were imposed by section
11, and references in such section to taxable income were references to the gross income referred to in subparagraph (A).