Individual income tax treatment for Tokumei Kumiai agreement under
Japanese Commercial Law
(1) Taxable income of an individual TK investor related to TK agreement
Income from TK business based on a TK agreement does not directly belong to the TK
investors, which differs from a Kumiai, rather the income primarily belongs to the TK operator.
TK investors are subject to Japanese taxation on profit distributed by the TK operator.
Where profit is incurred from the calculation of profits/losses based on a TK agreement, TK
investors are required to recognize profit distribution from TK business as taxable income,
even if profit distributions are not actually made to the TK investors but maintained as
retained earnings within the TK operator. This is because TK investors have rights to claim
profit distribution where the amount of profit distribution has already been determined.
Where loss is incurred from calculation of profits/losses based on a TK agreement, the loss is
usually distributed to TK investors. However, this loss distribution is merely “distribution for
the calculation purposes” and may just reduce the investment amount of each TK investor by
the loss distribution amount. Such loss distribution may not mean the “actual loss borne by
each TK investor” by making an actual payment of each TK investor for compensation of the
loss.
As described above, where TK investors are not obliged to bear the TK loss in each
calculation period under TK agreement, but are obliged to bear the TK loss at the termination
of TK agreement, even if TK loss is distributed to TK investors and each TK investor’s
investment amount is reduced by the attributable TK loss amount for accounting purposes,
each TK investor may not recognize the attributable TK loss for tax purposes in each TK
calculation period when the loss is incurred, because the attributable TK loss amount has not
been determined yet in the TK calculation period (the loss is determined at the termination of
TK agreement).
If profit is incurred in a subsequent calculation period/periods, only the amount calculated
based on the rights claimed for the profit distribution, i.e., the amount of profit distribution
after offset against the loss incurred in the previous calculation period, should be included in
the TK investor’s taxable income.