Is the Report of Lazarus's Death Premature? A Reply yo Cameron and Postlewaite

Abstract

Over a year ago, Ms. Faith Cuenin and I wrote an article in this Review (which I hereafter refer to as the “2004 Article”) about the tax treatment of guaranteed payments under section 707(c) that are made in kind. We concluded that a partnership does not recognize gain or loss on the making of a guaranteed payment with appreciated or depreciated property. We also concluded that the partner’s basis in the property received will equal its fair market value at the time of payment, and that the payment does not affect the partner’s outside basis in his partnership interest except to the extent of the partner’s share of any deduction that the partnership obtained by making the payment. Professors Cameron and Postlewaite strongly disagree with one of the conclusions we reached in our Article (i.e., our conclusion that the partnership does not recognize gain or loss) and with all of our reasoning. They are publishing in this issue of the Florida Tax Review (in what I will refer to as their “Lazarus Effect” Article) their analysis for rejecting our treatment of the topic. While I find their arguments well reasoned and documented, for reasons that I will explain in this response, I continue to hold to the conclusions that Ms. Cuenin and I reached in the 2004 Article. I will not reiterate in this response all of the analysis that is set forth in the 2004 Article, and I hope that an interested reader will turn to that piece. I will, however, respond to many of the points that are made in Cameron and Postlewaite’s Lazarus Effect Article.
The Lazarus Effect Article can be divided into two principal parts. One is the contention that section 707(c) was impliedly or effectively repealed by the adoption of section 707(a)(2) as part of the Tax Reform Act of 1984.3 The second is a contention that, even if section 707(c) is still viable, the conclusion concerning the partnership’s nonrecognition of income that Ms. Cuenin and I reached in the 2004 Article, and our reasons for reaching that conclusion, are wrong. I will address both contentions.