Discussion:Both spouses carrying on the trade or business -- interpretation

What I gather from this is: 1) To qualify, no employees 2) Both spouses must materially participate 3) Both must elect to have it apply

My questions: 1) What business entities qualify? sole proprietor, LLC, S corp, C corp? 2) If properly elected and employees are hired later, would the business have to change to a partnership at that time? 3) How would the spouses elect such a thing?

I love the IRS and their clarity.

Both spouses carrying on the trade or business

On May 25, 2007 the Small Business and Work Opportunity Tax Act of 2007 was signed into law and affect changes to the treatment of qualified joint ventures of married couples not treated as partnerships.

The provision generally permits a qualified joint venture whose only members are a husband and wife filing a joint return not to be treated as a partnership for Federal tax purposes. A qualified joint venture is a joint venture involving the conduct of a trade or business, if (1) the only members of the joint venture are a husband and wife, (2) both spouses materially participate in the trade or business, and (3) both spouses elect to have the provision apply.

Under the provision, a qualified joint venture conducted by a husband and wife who file a joint return is not treated as a partnership for Federal tax purposes. All items of income, gain, loss, deduction and credit are divided between the spouses in accordance with their respective interests in the venture. Each spouse takes into account his or her respective share of these items as a sole proprietor. Thus, it is anticipated that each spouse would account for his or her respective share on the appropriate form, such as Schedule C. For purposes of determining net earnings from self-employment, each spouse’s share of income or loss from a qualified joint venture is taken into account just as it is for Federal income tax purposes under the provision (i.e., in accordance with their respective interests in the venture).

This generally does not increase the total tax on the return, but it does give each spouse credit for social security earnings on which retirement benefits are based. However, this may not be true if either spouse exceeds the social security tax limitation. Refer to Publication 553, Highlights of 2006 Tax Changes, for further information about self-employment taxes. Effective Date the provision is effective for taxable years beginning after December 31, 2006.