Active restaurant owner is not a limited partner for self-employment tax

Plain-English summary

A majority owner of a restaurant LLC served as its operating manager, president, and chief executive officer and had ultimate authority over its employees and business decisions. The partnership paid him guaranteed payments but treated the rest of his distributive share as investment income excluded from self-employment tax under the limited-partner rule. Chief Counsel advised that he was not a limited partner because he actively participated and performed extensive management services rather than acting as a passive investor. The capital-intensive nature of the restaurant business, the work performed by employees, and the guaranteed payments did not convert any portion of his distributive share into an excluded return on capital.

Ruling snapshot

• Question: Was an active majority owner of a restaurant LLC a limited partner under section 1402(a)(13)?
• Outcome: Advice that his full distributive share was subject to self-employment tax.
• Key authorities: IRC §§ 702(a)(8), 707(c), 1401, 1402(a)(13); Renkemeyer, Campbell & Weaver LLP v. Commissioner.

Full text (IRS public release)

           Office of Chief Counsel
           Internal Revenue Service
           Memorandum
           Number: 201640014
           Release Date: 9/30/2016
           CC:TEGE:EOEG:ET1:EMRogers
           POSTN-118368-16

 UILC:     1402.01-03

  date:    June 15, 2016

     to:   Associate Area Counsel, ------------
           (Large Business and International)

  from:    Senior Technician Reviewer
           Employment Tax Branch 1
           Office of the Associate Chief Counsel
           (Tax Exempt and Government Entities)


subject:   Section 1402(a)(13) and Food Services Partnership

           This Chief Counsel Advice responds to your request for assistance, and was drafted in
           coordination with the Office of Associate Chief Counsel (Passthroughs & Special
           Industries). This advice may not be used or cited as precedent.

           LEGEND

           Franchisee = ---------------

           Partnership = ---------------------------------

           State = -------

           City = ---------------

           Company = -----------------------------

           A = ----

           B = --

           C = ---
POSTN-118368-16                             2

D = ---

E = ---

F = ---

G = -----

H = --

I = -----

J = -----

K = ----------

L = ----------

M = ----------

N = --------------

Year 1 = ------

Year 2 = ------

Year 3 = ------

Year 4 = ------


ISSUE

Whether Franchisee, the Operating Manager, President, and Chief Executive Officer of
Partnership, a partnership which operates restaurants, is a “limited partner” exempt
from self-employment tax under Internal Revenue Code § 1402(a)(13) on his distributive
share of Partnership’s income?

CONCLUSION

Franchisee is not a “limited partner” in Partnership within the meaning of § 1402(a)(13)
and is subject to self-employment tax on his distributive share from Partnership.
POSTN-118368-16                               3

FACTS

In Year 1, Franchisee purchased A Company franchise restaurants in the area of City
and contributed the restaurants to Partnership, a State limited liability company (LLC)
formed in Year 1 and treated as a partnership for federal tax purposes. B of the
restaurants have closed. Franchisee, individually, continues to be the franchisee for
each of the remaining C restaurants, and operates them through Partnership.

Partnership is under examination by the Internal Revenue Service (IRS) for Year 2,
Year 3, and Year 4. In the years at issue, Partnership’s gross receipts and net ordinary
business income were almost entirely attributable to food sales.

Franchisee owns the majority of Partnership (D percent). During the years at issue, the
remaining interests in Partnership were owned by Franchisee’s wife (E percent) and her
irrevocable trust (F percent). Partnership’s operating agreement provides for only one
class of unit of ownership. Neither Franchisee’s wife nor her trust are involved with
Partnership’s business operations and their status as limited partners for purposes of
§ 1402(a)(13) is not in dispute.

Franchisee’s franchise agreements with Company require Franchisee to personally
devote full time and best efforts work on the operation of the restaurants. Partnership’s
operating agreement provides that Franchisee is Partnership’s Operating Manager,
President, and Chief Executive Officer and shall conduct its day-to-day business affairs.
In particular, Franchisee has authority to manage Partnership, make all decisions, and
do anything reasonably necessary in light of its business and objectives. Franchisee’s
authority includes authority to: institute, prosecute, and defend any proceeding in
Partnership’s name; purchase, lease, and sell property; enter into contracts; lend money
and invest Partnership funds; hire and fire Partnership’s employees; establish pension
plans; and hire accountants, investment advisors, and legal counsel on behalf of
Partnership.

In his capacity as a partner, Franchisee directs the operations of Partnership, holds
regular meetings and discussions with his management team and staff, makes strategic
and succession planning decisions, makes investment management and planning
decisions (e.g., acquisitions, sale transactions, and real estate activities), is involved in
Company’s regional board and conferences, and is involved in Company’s national
conferences and strategic planning. Franchisee’s day-to-day activities for Partnership
generally consist of handling emails and phone calls, store visits (when in town),
management meetings, and staff meetings. Franchisee estimates that he worked for
Partnership approximately G hours during each year at issue.

Franchisee states that he traveled out of state for approximately H months each year at
issue, and estimates that he also spent approximately I hours during each year at issue
in activities relating to other business organizations, charities, and community
organizations.
POSTN-118368-16                              4


Partnership employs over J individuals, many of whom have some level of management
or supervisory responsibility. Pursuant to his authority under Partnership’s Operating
Agreement, Franchisee has appointed an executive management team consisting of
financial and operations executive employees who do not have an ownership interest in
Partnership, but have been given the responsibility of managing certain of Partnership’s
day-to-day business affairs, including making certain key management decisions.

Franchisee has ultimate responsibility for hiring, firing, and overseeing all Partnership’s
employees, including members of the executive management team.

In Year 2, Year 3, and Year 4, Partnership made guaranteed payments to Franchisee of
$K, $L, and $M, respectively.

Partnership treated Franchisee as a limited partner for purposes of § 1402(a)(13), and
included only the guaranteed payments in Franchisee’s net earnings from self-
employment, not his full distributive share. Partnership’s position is that Franchisee’s
income from Partnership should be bifurcated for self-employment tax purposes
between Franchisee’s (1) income attributable to capital invested or the efforts of others,
which is not subject to self-employment tax, and (2) compensation for services
rendered, which is subject to self-employment tax. Partnership asserts that, as a retail
operation, Partnership requires capital investment for buildings, equipment, working
capital and employees, and states that, in the years at issue, it spent approximately $N
in fixed asset additions. Partnership notes that Franchisee and Partnership have made
significant capital outlays to acquire and maintain the restaurants, and argues that
Partnership derives its income from the preparation and sale of food products by its J
employees, not the personal services of Franchisee. Partnership asserts that the
Franchisee has a reasonable expectation for a return on his investment beyond his
compensation from Partnership. Partnership argues that Franchisee’s guaranteed
payments represent “reasonable compensation” for his services, and that Franchisee’s
earnings beyond his guaranteed payments were earnings which were basically of an
investment nature. Partnership cites to Brinks Gilson & Lione a Professional
Corporation v. Commissioner, T.C. Memo 2016-20, a case involving a corporation’s
deduction for compensation paid to employees who were also shareholders, for the
propositions that Partnership’s guaranteed payments to Franchisee are reasonable
compensation for Franchisee’s services, and that Franchisee’s distributive share
represents a reasonable return on the capital investments. Therefore, Partnership
concludes that Franchisee is a limited partner for purposes of § 1402(a)(13) with
respect to his distributive share.

LAW AND ANALYSIS

Sections 1401(a) and (b) impose, respectively, for each taxable year, Old-Age,
Survivors, and Disability Insurance tax and Hospital Insurance tax on the self-
employment income of every individual.
POSTN-118368-16                              5


Section 1402(b) generally provides that the term “self-employment income” means the
net earnings from self-employment derived by an individual during any taxable year.

Section 1402(a) generally defines the term “net earnings from self-employment” as the
gross income derived by an individual from any trade or business carried on by such
individual, less certain deductions which are attributable to such trade or business, plus
his distributive share (whether or not distributed) of income or loss described in
§ 702(a)(8) from any trade or business carried on by a partnership of which he is a
member, with certain enumerated exclusions.

Section 702(a)(8) provides that in determining his income tax, each partner shall take
into account separately his distributive share of the partnership’s taxable income or loss,
exclusive of items requiring separate computation under other paragraphs of § 702(a).

Section 1402(a) provides several exclusions from the general self-employment tax rule.
In particular, § 1402(a)(3) provides that there shall be excluded any gain or loss (A)
which is considered as gain or loss from the sale or exchange of a capital asset, (B)
from the cutting of timber, or the disposal of timber, coal, or iron ore, if § 631 applies to
such gain or loss, or (C) from the sale, exchange, involuntary conversion, or other
disposition of property if such property is neither (i) stock in trade or other property of a
kind which would properly be includible in inventory if on hand at the close of the
taxable year, nor (ii) property held primarily for sale to customers in the ordinary course
of the trade or business. Thus, while § 1402(a)(3) provides an exclusion from self-
employment tax for certain gains or losses on sales of capital assets and other property,
this exclusion does not apply to gains and losses from the sale of stock in trade,
inventory, or property held primarily for sale to customers in the ordinary course of a
trade or business. Rather, sales income from a capital-intensive business such as a
restaurant or retail operation would not qualify for the exclusion in § 1402(a)(3) and,
therefore, this income would be subject to self-employment tax unless another exclusion
applies.

Section 1402(a)(13) provides another exclusion:

       there shall be excluded the distributive share of any item of income or loss
       of a limited partner, as such, other than guaranteed payments described in
       § 707(c) to that partner for services actually rendered to or on behalf of the
       partnership to the extent that those payments are established to be in the
       nature of remuneration for those services.
POSTN-118368-16                                       6

Section 1402(a)(13) was originally enacted as § 1402(a)(12) at a time (1977) before
entities such as LLCs were widely used. The applicable statute did not, and still does
not, define a “limited partner.”1 At the time of the statute's enactment, the Revised
Uniform Limited Partnership Act of 1976 provided that a “limited partner” would lose his
limited liability protection if, in addition to the exercise of his rights and powers as a
limited partner, he takes part in the control of the business. Revised Unif. Ltd. Pship. Act
(1976), sec. 303(a), 6B U.L.A. 180 (2008).

In creating the exclusion for limited partners, Congress stated,

        Under present law each partner's share of partnership income is
        includable in his net earnings from self-employment for social security
        purposes, irrespective of the nature of his membership in the partnership.
        The bill would exclude from social security coverage, the distributive share
        of income or loss received by a limited partner from the trade or business
        of a limited partnership. This is to exclude for coverage purposes certain
        earnings which are basically of an investment nature. However, the
        exclusion from coverage would not extend to guaranteed payments (as
        described in 707(c) of the Internal Revenue Code), such as salary and
        professional fees, received for services actually performed by the limited
        partner for the partnership.

H. Rept. 95–702 (Part 1), at 11 (1977).

Individual partners who are not limited partners are subject to self-employment tax
regardless of their participation in the partnership’s business or the capital-intensive
nature of the partnership’s business. The Tax Court decisions in Cokes v.
Commissioner, 91 T.C. 222 (1988), Methvin v. Commissioner, T.C. Memo. 2015-81,
and Perry v. Commissioner, T.C. Memo. 1994-215, all involved individuals who owned
working interests in oil and gas joint ventures, but did not participate in the business
operations. In each case, the Tax Court found that the joint ventures constituted
partnerships for federal tax purposes and the petitioners were subject to self-
employment tax on their earnings from the joint venture, notwithstanding the petitioners’
lack of participation.


1
  In 1997, the Treasury Department and the IRS promulgated proposed regulations defining “limited
partner” for § 1402(a)(13) purposes. They generally provide that an individual is treated as a limited
partner unless the individual: (1) has personal liability for the debts of or claims against the partnership by
reason of being a partner; (2) has authority to contract on behalf of the partnership; or (3) participates in
the partnership's trade or business for more than 500 hours. The 1997 proposed regulations also provide
exceptions for certain holders of classes of interest that are identical to those held by limited partners.
Additionally, the 1997 proposed regulations provide that service providers in service partnerships (e.g.,
law firms, accounting firms, and medical practices) may not be limited partners. The 1997 proposed
regulations applied to all partnerships (including LLCs). Congress imposed a temporary moratorium on
finalizing the 1997 proposed regulations, which expired in 1998; however, the 1997 proposed regulations
have not been finalized.
POSTN-118368-16                              7

In Renkemeyer, Campbell, and Weaver LLP v. Commissioner, 136 T.C. 137 (2011), the
Tax Court ruled that practicing lawyers in a law firm organized as a Kansas limited
liability partnership (LLP) were not limited partners within the meaning of § 1402(a)(13)
and thus were subject to self-employment taxes. The court discussed Kansas state law
under which an LLP is considered a general partnership. The court discussed the
ordinary meaning of the term “limited partnership.” The court stated:

       A limited partnership has two fundamental classes of partners, general
       and limited. General partners typically have management power and
       unlimited personal liability. On the other hand, limited partners lack
       management powers but enjoy immunity from liability for debts of the
       partnership. 1 Bromberg & Ribstein, Partnership, sec. 1.01(b)(3) (2002–2
       Supp.). Indeed, it is generally understood that a limited partner could lose
       his limited liability protection were he to engage in the business operations
       of the partnership. Consequently, the interest of a limited partner in a
       limited partnership is generally akin to that of a passive investor. See 3
       Bromberg & Ribstein, supra sec. 12.01(a) (1988).

Renkemeyer, 136 TC at 147, 148. The court also discussed the legislative history of
§ 1402(a)(13) quoted above, and concluded that

       The insight provided reveals that the intent of § 1402(a)(13) was to ensure
       that individuals who merely invested in a partnership and who were not
       actively participating in the partnership's business operations (which was
       the archetype of limited partners at the time) would not receive credits
       toward Social Security coverage. The legislative history of § 1402(a)(13)
       does not support a holding that Congress contemplated excluding
       partners who performed services for a partnership in their capacity as
       partners (i.e., acting in the manner of self-employed persons), from liability
       for self-employment taxes.

Id. at 150.

The Renkemeyer court then turned to the facts of the case, noted the partners’ small
capital contributions, and found the partners’ distributive shares of the law firm’s income
did not arise as a return on the partners’ investment and were not earnings which are
basically of an investment nature.

Based on its analysis of Kansas entity law, the ordinary meaning of the term “limited
partner,” and the legislative history and purpose of § 1402(a)(13), the Renkemeyer
Court concluded that the partners were not limited partners within the meaning of
§ 1402(a)(13) and that their distributive share of the partnership’s fee income was
subject to self-employment tax.
POSTN-118368-16                             8

In Riether v. United States, 919 F.Supp.2d 1140 (D. N.M. 2012), the District Court
granted the government’s motion for summary judgment on the issue of whether a
husband and wife (the Plaintiffs) were subject to self-employment tax on their
distributive shares from an LLC partnership. The Plaintiffs asserted two arguments:
first, they argued that because the LLC issued them each a Form W-2 in addition to the
Schedule K-1, they were not self-employed, but rather were employees of the
partnership; second, they argued that the income from the LLC was “unearned income
not subject to the self-employment tax.”

The Court addressed the Plaintiffs’ first argument as follows:

      Plaintiffs’ only response to the Government’s argument is a simplistic
      syllogism. They say: “Dr. & Mrs. Riether each received a Form W–2 from
      their employer, New Mexico Diagnostic Imaging, LLC, for the year 2006.
      Thus, they were not self-employed.” This argument is interesting, but
      unpersuasive. Plaintiffs tried to treat themselves as employees for some of
      the LLC’s earnings, by issuing themselves $51,500 in wages ($25,750 to
      each), while simultaneously treating themselves as partners for the rest of
      the LLC’s earnings, by issuing themselves Schedules K–1 for $76,986
      ($38,493 to each). (See 2006 Form 1040 at lines 7, 17 (Dkt. No. 50–1 at
      1); 2006 Form 1065 (Dkt. No. 53–2 at 2–3).) The income at issue is not
      the income they treated as “wages,” but the income they treated as their
      distributive share of partnership income. Plaintiffs’ characterization of
      some of the income as wages does not change the character of the
      remaining income.

      In fact, Plaintiffs should have treated all the LLC’s income as self-
      employment income, rather than characterizing some of it as wages.
      Revenue Ruling 69–184 says “members of a partnership are not
      employees of the partnership” for purposes of self-employment taxes.
      Rev. Rul. 69–184, 1969–1 C.B. 256. Instead, a partner who participates in
      the partnership business is “a self-employed individual.” Id. Because
      Plaintiffs did not elect the benefits of corporate-style taxation under
      Treasury Regulation § 301.7701–3(a), they should not have treated
      themselves as employees in distributing the remaining $51,500 of the
      LLC’s income. The IRS made no bones about this, however, presumably
      because Plaintiffs had paid self-employment tax on that income through
      withholding. But the LLC’s improper treatment of the “wage” income
      further undermines Plaintiffs’ simplistic argument that they owed no self-
      employment taxes simply because they received W–2s.

Riether, 919 F.Supp.2d 1140, at 1159.

The court was also dismissive of the second argument:
POSTN-118368-16                             9

      The magic words “unearned income” won’t do the trick. The Revenue
      Code says the self-employment tax applies to a taxpayer’s distributive
      share of partnership income. I.R.C. § 1402(a). Only one relevant
      exception exists, and it applies to limited partners.... For a taxpayer
      treated as a general partner, however, the distributive share of partnership
      income is subject to self-employment tax “irrespective of the nature of his
      membership.” Treas. Reg. § 1.1402(a)–2(g). See also Ding v. Comm’r, 74
      T.C.M. (CCH) 708 at *2 (1997) (noting that partnership earnings other
      than those received by a limited partner generally constitute self-
      employment income). Plaintiffs are not members of a limited partnership,
      nor do they resemble limited partners, which are those who “lack
      management powers but enjoy immunity from liability for debts of the
      partnership.” Renkemeyer, Campbell & Weaver, LLP v. Comm'r, 136 T.C.
      137, 147 (2011). Thus, whether Plaintiffs were active or passive in the
      production of the LLC’s earnings, those earnings were self-employment
      income. Summary judgment is appropriate on this issue.

Id. at 1159, 1160.

The Brinks case cited by Partnership involved a corporation that conceded in a closing
agreement that it made excessive compensation to its shareholder employees and that
it should not have claimed deductions to the extent the compensation was excessive.
The issue in the case was whether the corporation was liable for accuracy-related
penalties on underpayments of tax as a result of claiming the deductions for the
excessive compensation. The Tax Court applied the rules for determining a
shareholder employee’s reasonable compensation, under which shareholder
employee’s earnings must be appropriately balanced between reasonable
compensation via wages and a return on invested capital via dividends. The Court
determined that the petitioner corporation was subject to the accuracy related penalty
because it did not have substantial authority for leaving its shareholder employees with
no return on their invested capital.

As discussed above, a partner must include his distributive share of partnership income
in calculating his net earnings from self-employment. Income from a food services
business is part of a partner’s distributive share under § 702(a)(8). Consequently, such
income is included in calculating net earnings from self-employment, unless an
exclusion applies. While § 1402(a)(3) excludes from self-employment tax certain gain
and loss on dispositions of property, the exclusion does not apply to a restaurant or
retail operation’s sales of food or inventory. Thus, § 1402(a)(3) contemplates that a
capital-intensive business such as a retail operation with stock in trade or inventory may
generate income subject to self-employment tax. Because Partnership earns its income
from food sales in the ordinary course of its trade or business, the exclusion in
§ 1402(a)(3) does not apply to Partnership’s income. Therefore, unless Franchisee is a
limited partner, Franchisee is subject to self-employment tax on all of the food sales
POSTN-118368-16                              10

income, notwithstanding the capital investments made, the capital-intensive nature of
the business, or the fact that Partnership has many employees.

Partnership is an LLC treated as a partnership for federal tax purposes, and has only
three partners, two of which (Franchisee’s wife and her trust) are not involved with
Partnership’s business. As described above, Partnership has taken the position that
Franchisee is a limited partner for purposes of the exclusion in § 1402(a)(13).
Franchisee is not a limited partner for purposes of § 1402(a)(13). As discussed above,
the Renkemeyer Court reviewed the legislative history of § 1402(a)(13) and concluded
that § 1402(a)(13) was intended to apply to those who “merely invested” rather than
those who “actively participated” and “performed services for a partnership in their
capacity as partners (i.e., acting in the manner of self-employed persons).”
Renkemeyer, 136 TC at 150. The Renkemeyer Court explained that “the interest of a
limited partner in a limited partnership is generally akin to that of a passive investor.” Id.
at 147, 148. And as the Riether Court stated, limited partners are those who “lack
management powers but enjoy immunity from liability for debts of the partnership.”
Riether, 919 F.Supp.2d 1140, at 1159, 1160. Here, Franchisee has sole authority over
Partnership, and is the majority owner, Operating Manager, President, and Chief
Executive Officer with ultimate authority over every employee and each aspect of the
business. Even though Partnership has many employees, including several executive-
level employees, Franchisee is the only partner of Partnership involved with the
business and is not a mere investor, but rather actively participates in the partnership’s
operations and performs extensive executive and operational management services for
Partnership in his capacity as a partner (i.e., acting in the manner of a self-employed
person). Therefore, the income Franchisee earns through Partnership is not income of
a mere passive investor that Congress sought to exclude from self-employment tax
when it enacted the predecessor to § 1402(a)(13).

Partnership concedes that under the legislative history quoted above and the
Renkemeyer opinion, “service partners in a service partnership acting in the manner of
self-employer persons” are not limited partners. However, Partnership argues that a
different analysis should apply to limited liability members which: (1) derive their
income from the sale of products, (2) have made substantial capital investments, and
(3) have delegated significant management responsibilities to executive-level
employees. Partnership asserts that in these cases the IRS should apply “substance
over form” principles to exclude from self-employment tax a reasonable return on capital
invested.

Partnership interprets the legislative history quoted above to mean that § 1402(a)(13)
applies to exclude a partner’s reasonable return on capital investment in a capital-
intensive LLC partnership, regardless of the extent of the partner’s involvement with the
partnership’s business. In effect, Partnership interprets the sentence from the
legislative history “This is to exclude for coverage purposes certain earnings which are
basically of an investment nature” as instead meaning “This is to exclude for coverage
purposes all earnings which constitute a reasonable return on capital invested in a
POSTN-118368-16                             11

capital-intensive business.” Essentially, Partnership argues that the self-employment
tax rules for capital intensive businesses carried on by LLC partnerships are identical to
the employment tax rules for corporate shareholder employees: only reasonable
compensation is subject to employment tax. Under this analysis, Partnership argues
that (1) Partnership’s guaranteed payments to Franchisee are reasonable
compensation for Franchisee’s services, and (2) Franchisee’s distributive share
represents a reasonable return on capital investments in Partnership’s business, and
therefore Franchisee is not subject to self-employment tax on his distributive share.
Partnership argues that it would be inconsistent with the IRS’s position in the Brinks
case for the IRS to assert that Franchisee is subject to self-employment tax on his
distributive share from Partnership.

Partnership’s arguments inappropriately conflate the separate statutory self-
employment tax rules for partners and the statutory employment tax rules for corporate
shareholder employees. Section 1402(a)(13) provides an exclusion for limited partners,
not for a reasonable return on capital, and does not indicate that a partner’s status as a
limited partner depends on the presence of a guaranteed payment or the capital-
intensive nature of the partnership’s business.

Following the Court’s analysis in Riether, Partnership cannot change the character of
Franchisee’s distributive shares by paying Franchisee guaranteed payments.
Partnership is not a corporation and the “wage” and “reasonable compensation” rules
which are applicable to corporations and were at issue in the Brinks case do not apply.

As discussed above, the Renkemeyer Court reviewed the legislative history and
concluded that § 1402(a)(13) was intended to apply to those who “merely invested”
rather than those who “actively participated” and “performed services for a partnership
in their capacity as partners (i.e., acting in the manner of self-employed persons).”
Renkemeyer, 136 TC at 150 Although the Renkemeyer Court noted the partners’ small
capital contributions and service-generated income as factors influencing its decision
that the partners in that case were not limited partners, Renkemeyer does not stand for
the proposition that a capital-intensive partnership should be treated like a corporation
for employment tax purposes. Instead, as the Tax Court has repeatedly held, partners
who are not limited partners are subject to self-employment tax, even in cases involving
capital-intensive oil and gas joint ventures where all of the work was performed by other
parties. See Cokes, Methvin, and Perry. Under the Renkemeyer Court’s interpretation
of the legislative history, and consistent with the Court’s holding in Riether, Franchisee
is not a limited partner in Partnership within the meaning of § 1402(a)(13) and is subject
to self-employment tax on his full distributive shares of Partnership’s income described
in § 702(a)(8).

CASE DEVELOPMENT, HAZARDS AND OTHER CONSIDERATIONS
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POSTN-118368-16                                 13




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Please call Elliot Rogers at -------------------- or Benjamin Weaver at ---------------------if you
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                                                Sincerely,

                                                ___________________________
                                                Michael A. Swim
                                                Senior Technician Reviewer
                                                Employment Tax Branch 1
                                                Office of the Associate Chief Counsel
                                                (Tax Exempt and Government Entities)