IRA May Serve as TMP in Self Directed IRA LLC
The IRS has concluded that an individual retirement account may be designated as the tax matters partner under reg. section 301.6231(a)(7)-1(b)(2) and that the IRA would execute its tax matters partner role through its trustee.
An IRA is a trust (see I.R.C. 408) and its custodian is a trustee for purposes of federal law. Thus, it is a “person” as defined under I.R.C. 7701(a)(1) and a “United States Person” under I.R.C. 7701(a)(30)(E). Thus, an IRA may be designated as Tax Matters Partner under Treas. Reg. Section 301.6231(a)(7)-1(b)(2). It would execute its TMP function through its trustee. Even if the IRA was not a United States person, the restriction under the forgoing regulation applies only if there is a United States person who is eligible. Under your facts, there are no non-IRA partners, so the restriction in question (limiting designations to U.S. persons) does not apply in any event.
Email advice – see below:
CCA_2009010908430337
————-
6231.07-00
Number: 200910039
Release Date: 3/6/2009
From: ——————–
Sent: Friday, January 09, 2009 8:43:06 AM
To: ——————-
Cc: ————
Subject: RE: TEFRA questions
An IRA is a trust (see I.R.C. 408) and its custodian is a trustee for purposes of federal law. Thus, it is a
“person” as defined under I.R.C. 7701(a)(1) and a “United States Person” under I.R.C. 7701(a)(30)(E).
Thus, an IRA may be designated as Tax Matters Partner under Treas. Reg. Section
301.6231(a)(7)-1(b)(2). It would execute its TMP function through its trustee. Even if
the IRA was not a United States person, the restriction under the forgoing regulation
applies only if there is a United States person who is eligible. Under your facts, there
are no non-IRA partners, so the restriction in question (limiting designations to U.S.
persons) does not apply in any event.
I agree that the partnership has probably validly designated the TMP on the partnership
return if the person signing the return is a “member-manager” as defined under Treas.
Reg. 301.6231(a)(7)-2(b)(3) or is authorized by one of more member-managers to sign
the return pursuant to the LLC operating agreement