Did You Materially Participate in the Business?

If you are a sole proprietor and must file Schedule C to report your business income, you'll notice that the top section of the Schedule C form asks you to answer "yes" or "no" to the question, "Did you materially participate in the operation of this business during 2013?"

Most business owners can safely check the box marked "yes," since owners typically expend much more time and effort on their operations than an employee might. Their participation in the business is not only material, it's absolutely crucial!

The IRS asks this question chiefly to screen out businesses that are really passive, investment activities for their owners instead of actively managed businesses. Passive activities are the classic vehicles for tax shelters, and they are now subject to strict rules regarding deduction of losses.

If your business is a partnership, limited liability company, or S corporation you'll also need to be concerned about this issue, since any passive activity income, losses, or credits passed through to you by the business must be treated as such on your own income tax return. For partnerships and limited liability companies, any passive activity tax items must be determined by the business and reported as such on the business's Form 1065, U.S. Partnership Return of Income, and on the Schedule K-1s given to partners or LLC members.

What's the big deal about passive activities? Essentially, the IRS does not want you to try to disguise passive activity losses as regular business losses that are deductible against your ordinary income. The rule is that passive activity losses can only be deducted against passive activity income.

Furthermore, if you are involved in any passive activities, the IRS does not want you to call a profitable business a "passive activity" just so that you can deduct some passive losses against it.

Real estate rentals will almost always be considered a passive activity that should be reported on Schedule E, not Schedule C or another business return, regardless of whether the owner materially participates. (An exception exists for certain real estate professionals who materially participate in the real estate rental activities.)

Beyond that important distinction, the IRS has devised a seven-step test for material participation in a business. If you meet any of seven requirements, you have materially participated for the year. This means you should check the "yes" box in answer to the question on Schedule C, or treat the income or loss items as nonpassive if your business is a partnership, LLC, or S corporation.

• You participated in the activity for more than 500 hours during the tax year.
• You were substantially the only participant in the activity during the tax year.
• You participated in the activity for more than 100 hours in the tax year, which was at least as much as any other participant, including employees and independent contractors.
• The activity involves the conduct of a trade or business, you participated in the activity for more than 100 hours, none of the other six tests apply, and you participated in all such significant participation activities for more than 500 hours during the year.
• You materially participated in the activity for any five of the preceding 10 tax years.
• The activity is a personal service activity in which you materially participated for any three prior tax years. A personal service activity is one that involves performing personal services in the fields of health, law, engineering, architecture, accounting, actuarial science, performing arts, consulting, or any other trade or business in which capital is not a material-income producing factor.
• Based on all the facts and circumstances, you participated in the activity on a regular, continuous basis during the year, and you participated for more than 100 hours. Your participation in management will not count toward this test if anyone else was a paid manager or spent more hours than you in managing the business.

If you are married, your spouse's work in the business can be counted toward your own participation hours whether or not you file a joint tax return, and whether or not your spouse is a co-owner of the business.

However, work done primarily as an investor in the business (such as reviewing or analyzing financial statements, or monitoring the finances or operations in a nonmanagerial capacity) does not count toward these tests.

If you do not meet any of these tests, you must treat the activity as a passive activity, and if you have a loss, you may have to complete Form 8582, Passive Activity Loss Limitations.

There is an exception for those who own working interests in oil or gas wells - they may check the "yes" box and complete Schedule C whether or not they meet any of the seven tests.

The seven-part test does not apply to C corporations, including personal service corporations. These corporations face a different set of rules, and we suggest that you consult your tax advisor for more details.