February 29, 2012
The IRS recently issued Revenue Procedure 2012-17, which describes the procedures that partnerships must follow if they electronically deliver Schedule K-1 of Form 1065 (“K-1’s”) to their partners.
Partnerships are required to issue K-1’s to their partners by the due date of the partnership tax return, including extensions. Partnerships that fail to make this timely delivery are subject to penalties. Through advances in technology, the distribution of K-1’s to partners, which historically occurred via mail or hand delivery, is often replaced by electronic delivery. Electronic delivery typically occurs via email (push technology) or via download from a website (pull technology). When pull technology is used, the partners are typically informed about the availability of their K-1’s via an email or a posting on the partnership’s website. The purpose of this Revenue Procedure is to set out guidelines for electronic delivery, as well as the process for obtaining the required partner’s consent for such electronic delivery. The Revenue Procedure covers all electronic delivery of K-1’s, meaning delivery other than mail or hand.
Beginning February 13, 2012, in order for the electronic K-1 delivery to be deemed effective delivery of a K-1 to a partner, the partnership must obtain each partner’s affirmative consent and must obtain this consent in a manner that demonstrates that the partner will be able to receive and view the K-1 that is being delivered in electronic format.
Example 1: The partnership sends each partner a letter informing them that they can consent to obtain their K-1 by downloading it from the partnership’s website. The partnership should have the partners consent by logging onto the website and affirmatively consenting through the website, such as by checking a box. This process will demonstrate that the partner can successfully log into the area where his or her K-1 will be posted.
Example 2: The partnership sends each partner a secure email informing them that they may consent to receive their K-1’s electronically. In order to consent, the partner opens an attachment to the email and follows instructions to indicate consent. The partnership should use a similar process to distribute the K-1’s.
Example 3: The partnership posts a notice on its website stating that partners may consent to obtain their K-1’s by downloading them from the partnership’s website. The partnership should have the partners consent by logging onto the website and affirmatively consenting through the website, such as by checking a box. This process will demonstrate that the partner can successfully log into the area where his or her K-1 will be posted.
If the partner does not consent, the partnership must deliver K-1’s to the partner in non-electronic format (mail or hand delivery). Consent may be made in any electronic format that demonstrates that the recipient is able to use the same format to receive their K-1.
As part of the consent process, the partnership must disclose to the partners the following information:
1) The partner will receive a paper K-1 if the partner does not consent to electronic delivery.
2) The scope and duration of the consent (i.e., whether the consent applies to only the next K-1 delivery or to all deliveries until consent is revoked).
3) The procedure for obtaining a paper copy of the K-1 and whether the request for a paper K-1 is also deemed to be a withdrawal of consent to receive electronic K-1’s.
4) The procedure for withdrawing consent to receive electronic K-1’s, including who the request should be made to, and the timing of the withdrawal.
5) Conditions upon which the partnership will cease furnishing electronic K-1’s (such as the partner’s withdrawal from the partnership).
6) Procedures for updating the partner’s contact information.
7) Any change in the partnership’s contact information.
In addition, the partnership must disclose the hardware and software requirements necessary in order to access, print and retain the electronic K-1, as well as the date that the K-1 will no longer be available on the partnership’s website. Note that if the partnership makes the K-1 available through its website, the partnership must retain the K-1 on the website for a minimum of 12 months following the end of the partnership’s tax year to which the K-1 relates, or 6 months after the date of issuance of the K-1 (or amended K-1), whichever is later.
Note that if this disclosure is communicated to the partners via website, a communication to the partners via mail, email or hand delivery must also be made, labeled “IMPORTANT TAX RETURN DOCUMENT AVAILABLE,” providing instructions on how to access and print the statement. (This phrase must be in the subject line of emails sent out for this purpose.) If the partnership attempts this communication via email, and the email is returned as undeliverable, the partnership must deliver the notice to the partner via mail or hand delivery within 30 days of the email being returned as undeliverable.
If the partnership amends a partner's K-1 that was originally furnished electronically, the partnership must send the amended K-1 electronically to the partner within 30 days of the amendment. If the original K-1 was delivered via posting to a website, the partnership must notify the partner within 30 days of posting via email, mail or hand delivery with “IMPORTANT TAX RETURN DOCUMENT AVAILABLE” appropriately indicated on the notice.
Failure to follow the above procedures, as enumerated in Revenue Procedure 2012-17, will be deemed by the IRS to be ineffective delivery of K-1’s and will be subject to penalties for late issuance of K-1’s. In addition, it is important to note that many states, such as Massachusetts, prohibit emailing information, such as social security numbers, in non-encrypted files. This fact, along with the potential legal, privacy, and client relations issues that could result from the accidental delivery of a K-1 to someone other than the intended recipient, suggest that email delivery of K-1’s should only be made via encrypted file and that it may be preferable to deliver K-1’s via pull technology from a website, rather than through email.
Due to the market that now exists for web-based delivery options for confidential documents, many third party vendors now offer products that allow for a website to be set up for access to documents, which can be valuable to the partnership if the partnership does not have in-house resources to handle this task. The access websites can be set up so the process is transparent to recipients, who access their information through a link on the partnership’s website, or through a vendor’s website that contains the name of the partnership. In addition, many funds choose to have their administrators assist with this process.
Please contact us if you have any questions on this important procedural change.