The transferor is a parent or both parents who create a limited partnership under Texas law. The general partner is typically a corporation and is given a small interest in the limited partnership. The transferor controls the corporation and therefore the management of the limited partnership. Hence, while the children (and grandchildren) receive income from the partnership, they do not control or manage the partnership affairs. Recently, these so-called "family partnerships" have gained support among legal practitioners in part on belief that a judgment creditor of a partner will find it very expensive to recover from the partnership on a judgment against a partner. This is due in part to the nature of limited partnerships which prevents the transfer of interests without agreement of all of the partners (But see "Ultimate Protection Cannot Be Guaranteed" below).
The transferor transfers assets to the limited partnership and makes a gift of the partnership interests to his children or grandchildren. These gifts can be made at the time of the organization or over time to qualify for the transferor's annual $12,000 gift exclusion from the estate tax. [For example, husband and wife may gift over to each of the children a community gift of $24,000 which qualifies for the annual gift exclusion from the estate tax.]. The parents may continue to use the gift exclusion by annually transferring interests in the limited partnership to each of your children.
One objective may be to transfer those assets that tend to appreciate in value (such as real estate), thereby eventually transferring assets from the transferor to the transferees with obvious estate tax planning intentions. Similarly, the income production from the use of those assets is transferred to the presumably lower income tax brackets of the transferees (but see our comments below regarding minors under "The Case for Minors" and "Allocation for Donor's Services").
An additional estate tax planning factor is that the value of a minority interest in a partnership is substantially less because of its lack of transferability. The counts have agreed in similar cases that the value of a minority interest (particularly if not marketable) will have a lesser value than the usual case. If so, then the limited partnership has the added advantage of reducing the value of the gross estate of a decedent and therefore the amount of estate taxes to be paid.
The Case with Minors
If a minor is to receive a partnership interest there are two things to keep in mind. First, the interest must be transferred to a fiduciary such as a guardian, trustee or custodian. Clearly, proper record keeping is essential and reliance on an attorney to assist you with future transfers is a must. Second, a parent who has made a transfer to a fiduciary for a minor child for whom he is legally responsible to support cannot use that property to support the child or such use will be considered for his benefit and defeat the objective of income-shifting.
Allocation for Donor's Services
Internal Revenue Service regulations require a reasonable allocation of partnership income to a donor who provides services to a partnership and therefore the actual distribution or allocation of partnership income to a donee who actively manages the business venture owned by a limited partnership may have to vary from this partnership distributive share. Therefore, if the husband or wife donors are active participants in the operation of the partnership, they will either be compensated for those services or a reasonable allowance made annually for as long as the children are minors.
Ultimate Protection Cannot be Guaranteed
No one can guarantee that someone who sues a limited partner will eventually not recover from that partner's interest in the partnership. Yet, it continues to be most practitioners' view that by virtue of this limited partnership most attorneys will find it extremely frustrating and expensive to recover on a judgment from a limited partner's interest. Ultimately, however, liability insurance continues to provide not only the greater assurance that a claim against a limited partner will be compensated without recourse to a partner.