From Capital Contribution to Taxable Sale: Understanding Disguised Sales in Today’s Partnership Structures

Partnership transactions typically begin with the expectation that contributions and distributions will be respected for federal income tax purposes. That expectation can erode quickly, however, when cash and property change hands in close succession. The disguised sale rules under Internal Revenue Code (IRC) Section 707(a)(2) continue to represent one of the most challenging and heavily scrutinized areas of partnership taxation, particularly in real estate and private equity transactions involving refinancings, capital raises and early liquidity events. Congress’s late-2025 amendment to IRC Section 707(a)(2), coupled with increased IRS focus on liability-shift economics, underscores the need for heightened attention by sponsors, investors and advisors alike.

Statutory and Regulatory Framework for Disguised Sales

In September 1992, the Treasury Department issued final regulations governing the so-called disguised sale rules under IRC Section 707(a)(2). Congress reinforced the disguised sale framework in late 2025 by amending that section under the One Big Beautiful Bill Act to make clear that the statute is self-executing even in the absence of applicable regulations. These regulations provide guidance for identifying transactions that, although structured as contributions to and distributions from partnerships under IRC Sections 721 and 731, respectively, are more appropriately characterized as sales or exchanges between a partnership and a partner acting in a capacity other than that of a partner. The final regulations largely adopted the proposed regulations issued in April 1991, with only limited revisions. This discussion does not provide an in-depth analysis of the Treasury Regulations; instead, it highlights certain key provisions, including selected disclosure requirements. The focus is on disguised sales by a partner to a partnership, although it should be noted that the regulations contain substantially similar rules applicable to disguised sales by a partnership to a partner.

When a Contribution Becomes a Sale Under the Disguised Sale Rules

Under the Treasury Regulations, a transfer of property by a partner to a partnership and a transfer of money or other consideration by the partnership to that partner will be treated as a sale only if, based on all the facts and circumstances, the transfer of money or other consideration would not have been made but for the transfer of property to the partnership and, where the transfers occur at different times, the subsequent transfer is not subject to the entrepreneurial risks of the partnership’s operations. Any transfer of consideration to a partner that is less than the fair market value of the property transferred to the partnership is treated as part sale and part contribution. Once a transaction is characterized as a sale for these purposes, it is treated as a sale for all federal tax purposes and is deemed to occur on the date the partnership is considered the owner of the property.

Facts and Circumstances Indicating a Disguised Sale

All facts and circumstances existing on the date of the earliest transfer must be considered in determining whether a disguised sale has occurred. Treasury Regulation Section 1.707 3(b)(2) identifies eight nonexclusive facts and circumstances that tend to indicate the existence of a disguised sale, including the following:

The partnership’s obligation to transfer money or other consideration to the partner is legally enforceable.

Timing Presumptions and the Two-Year Rule

The regulations also establish timing presumptions under which transfers made within two years of one another are presumed to constitute a disguised sale, while transfers made more than two years apart are presumed not to constitute a disguised sale. Each of these presumptions, however, may be rebutted by facts and circumstances that clearly establish a contrary result. In addition, the regulations provide several special rules and exceptions for certain transfers made to a partner within the two-year presumption period that might otherwise be treated as part of a disguised sale, including transfers made in the form of guaranteed payments for capital, preferred returns, operating cash flow distributions and reimbursements of preformation expenditures.

Transfers Presumed Not to Be Disguised Sales

Guaranteed Payments for Capital and Preferred Returns

Pursuant to Treasury Regulation Section 1.707 4(a), guaranteed payments for capital and preferred returns are not presumed to be part of a sale, provided that such payments are reasonable in amount and the facts and circumstances do not clearly establish that the payments are part of a sales transaction. Under the regulations, guaranteed payments or preferred returns are considered reasonable if they do not exceed an arm’s length rate of return. A payment generally satisfies this standard if the aggregate amount payable for a taxable year does not exceed the partner’s unreturned capital balance at the beginning of the year multiplied by a safe harbor applicable federal interest rate. Alternatively, the regulations permit the use of a weighted average capital balance for the taxable year, multiplied by the same safe harbor rate, in determining whether a payment is reasonable in amount. For this purpose, the safe harbor applicable federal interest rate is equal to 150 percent of the highest applicable federal rate in effect at any time between the date the partner’s right to the payment is first established under a binding written agreement and the end of the partnership taxable year in which the payment is made.

Operating Cash Flow Distributions

Treasury Regulation Section 1.707 4(b), provides that operating cash flow distributions generally will not be presumed to be part of a sale transaction unless the facts and circumstances clearly establish otherwise. For this purpose, transfers of money by a partnership to its partners during a taxable year constitute operating cash flow distributions to the extent such distributions are not treated as guaranteed payments for capital or preferred returns, are not characterized by the parties as payments made to partners in capacities other than as partners and do not exceed the product of the partnership’s net cash flow for the year multiplied by the lesser of the partner’s percentage interest in overall partnership profits for the taxable year or the partner’s percentage interest in overall partnership profits over the life of the partnership. The regulations also permit the use of a safe harbor measure of a partner’s interest in overall partnership profits for purposes of determining operating cash flow distributions. Under this safe harbor, a partner’s profit percentage is equal to the partner’s smallest percentage interest, as provided in the partnership agreement, in any material item of partnership income or gain reasonably expected to be realized during the three year period beginning with the taxable year in question.

Retention and Distribution of Presumed Non Sale Amounts

According to Treasury Regulation Section 1.707 4(c), guaranteed payments for capital, preferred returns and operating cash flow distributions that are presumed not to be part of a sales transaction under the disguised sales rules, do not lose the benefit of this presumption if such amount(s) is retained and distributed in a later year.

Reimbursement of Preformation and Capital Expenditures

Lastly, pursuant to Treasury Regulation Section 1.707 4(d), certain disbursements made by a partnership to a partner will not be treated as part of a sale transaction if the payments constitute reimbursements for capital expenditures incurred by the partner with respect to organizational and syndication costs, or property contributed by the partner, and such expenditures were incurred within two years prior to the contribution of the property to the partnership. However, the exception for reimbursements of expenditures incurred with respect to contributed property is generally limited to an amount equal to 20 percent of the value of the property, unless the value of the property does not exceed 120 percent of the partner’s adjusted basis in the property at the time of contribution.

Treatment of Partnership Liabilities in Disguised Sales

Treasury Regulation Section 1.707-5 sets forth the special rules governing partnership liabilities under the disguised sale regulations. In general, a partnership’s assumption of a qualified liability is not treated as consideration in a sales transaction unless the transfer of property to the partnership is otherwise treated as part of a sale. By contrast, the partnership’s assumption of a liability that is not a qualified liability is treated as sales consideration to the extent that the amount of the liability assumed exceeds the partner’s share of that liability immediately after the partnership assumption.

Qualified and Nonqualified Liabilities

A liability will be treated as a qualified liability if it falls into one of the following categories:

Measuring Liability Shifts and Recent IRC §752 Updates

As noted above, if a partnership assumes a liability, or takes property subject to a liability, that is not a qualified liability, the contributing partner is treated as having received sale consideration equal to the amount of the liability shifted away from the partner. For this purpose, the regulations provide that a partner’s share of a recourse liability is determined under the rules of IRC Section 752 and the regulations thereunder. A partner’s share of a nonrecourse liability is determined by applying the profit-sharing percentages used in allocating excess nonrecourse liabilities pursuant to Treasury Regulation Section 1.752 3(a)(3). Although Treasury Regulation Section 1.707 5 has not been substantively amended, final Treasury Regulations issued under IRC Section 752 in December 2024 modify the determination of partners’ shares of partnership liabilities, which may affect the measurement of liability shifts treated as disguised sale consideration under the disguised sale rules.

Disclosure Requirements for Disguised Sales

The required disclosure for disguised sales is to be made on Federal Form 8275, or on a statement attached to the return of the transferor of the property for the taxable year of the transfer prescribed under Treasury Regulation Section 1.707-8(b). Such statements must include the following:

Planning Considerations Under the Disguised Sale Rules

Although the disguised sale regulations are now more than three decades old, their relevance has only grown as partnership structures have become more complex and capital markets more aggressive. Congress’s recent clarification that IRC Section 707(a)(2) is self executing, coupled with updated liability allocation principles under IRC Section 752, underscores that substance, not form, will continue to govern transactions between partners and partnerships. Sponsors and investors should approach contributions, distributions and financing arrangements with a disciplined focus on timing, entrepreneurial risk and liability economics, recognizing that careful upfront planning remains the most effective safeguard against unintended disguised sale treatment.