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California OTA Rejects FTB Ruling 2022-02, Sources Nonresident Partnership-Sale Gain to Residence

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Why it matters

The California Office of Tax Appeals ruled for nonresident taxpayers in Appeals of Burch and Carden (2026-OTA-527P). Writing for a unanimous panel, Administrative Law Judge Kenneth Gast held that IRC §751(a) is an anti-abuse characterization rule that converts capital gain to ordinary income. It is not a sourcing provision. The ordinary-income portion of a partnership-interest sale therefore remains part of an intangible sale, and under R&TC §17952 the gain is sourced to the seller's state of domicile unless the partnership interest acquired a California business situs. The panel expressly declined to follow FTB Legal Ruling 2022-02, which had treated the hot-asset portion of the gain as a deemed sale of the partnership's underlying property, apportioned by the entity's California factors. The case arose from indirect gains realized by Tory Burch LLC co-founder J. Christopher Burch when an investment entity sold partnership interests in the fashion brand. The operating partnership did business in California.

The opinion is dated July 24, 2026, but OTA published it on October 5, 2026, and commentators began covering it in early October. Whether the decision will be designated precedential has not been determined. The panel relied on the D.C. Circuit's decision in Rawat v. Commissioner, which held that a similar §751 gain was not U.S.-source income. If the decision is designated precedential, it would directly undermine LR 2022-02 and limit the FTB's use of §751(a) as an independent basis for sourcing partnership-sale proceeds to California.

Attorneys handling nonresident partnership-interest sales should check whether an FTB audit position relies on LR 2022-02 and whether the taxpayer's interest acquired a California business situs. The ruling does not reach every nonresident sale. Business situs, the structure of the ownership, and whether the income arises from partnership operations rather than from the sale of an ownership interest all still matter. Watch for whether OTA designates the decision precedential and for any FTB response to the reversal of its position.

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