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Bar News - February 19, 2014

Tax Law: ESOPs: The Last Great Tax Shelter for Business Owners Looking to Sell


In addition to the liquidity and employee-related benefits, an employee stock ownership plan can have significant tax benefits to the company, selling shareholders, and employee-participants.

Many business owners become frustrated with the process of marketing and selling their businesses, often feeling that the challenges of finding a buyer who shares their values are insurmountable. For such owners, an employee stock ownership plan (ESOP) might be an attractive alternative to selling to an outside buyer.

An ESOP creates liquidity for shareholders and rewards employees for their loyalty and contributions to building the business. Remarkably, the ownership transition to an ESOP also provides tax benefits to the company and possibly to selling shareholders. Although it sounds too good to be true, it isnít.

An ESOP is a retirement plan that invests primarily in the shares of the company sponsoring the plan. A trust holds the shares for the benefit of the employees. The ESOP operates through a written plan and is administered through a trust. The plan governs the terms of participation, vesting, benefits and other matters. The trust, through its trustees and agents, holds plan assets and administers the plan. The formation and administration of an ESOP can be complicated, but with proper guidance from professionals, the uses and benefits can far outweigh these complexities.

An ESOP can create a market for the shares of a closely held company where one might not already exist, or when the outside market may not be palatable to the current shareholders. There is some latitude on how an ESOP transaction can be structured, as opposed to more traditional transactions. In particular, the transaction can be structured to provide a gradual transition of the business from its current owners to the ESOP trust. In many traditional transactions, third parties have little interest in acquiring a minority position in a company. As a result, an ESOP can be excellent tool for succession planning, both for liquidity and transition reasons.

A proper ESOP implementation can also encourage a culture of participation and ownership within a company. An ESOP can reward employees with company ownership through shares whose value is tied to company performance. Employees see the benefits of their work through increases in the value of their ESOP accounts, allowing employees to share in the growth of their company. This sense of participation and partial ownership promotes productivity and loyalty at all levels.

Tax benefits

In addition to the liquidity and employee-related benefits, an ESOP can have significant tax benefits to the company, selling shareholders, and employee-participants.

An ESOP can use tax-deductible corporate earnings to buy shares from owners. When combined with a leveraged transaction, both interest and principal payments on the loan may be tax deductible. The ability to offset a portion of the transaction cost with tax dollars is not available in most other forms of succession planning and business acquisitions. In some instances, the selling shareholders may be able to defer taxes on the sale of their shares by completing a tax-free exchange of the sale proceeds into other assets.

Because an ESOP is a defined contribution plan, the employee-participants do not recognize any gain on the value of their allocated stock until their employment terminates and they cash out. Even then, they may be able to rollover their account balances into other tax-deferred retirement accounts. Moreover, an employee does not pay anything out of his or her pocket to get this benefit. The tax-deductible and tax-deferral features of an ESOP make it a compelling choice for all parties involved.

If ESOPs have all these great benefits and advantages, why donít all closely held companies implement them? The simple answer is that ESOPs are not ideal for all companies. Because the ESOP will have future obligations to repurchase shares when employees terminate employment for any reason, an ESOP works best for a company with enough free cash flow or a relatively steady or predictable revenue stream to help plan for these future obligations. Businesses with a high degree of employee turnover may not benefit from the pro-employee aspects of an ESOP. The costs to implement and administer an ESOP can also be a factor to consider.

Notwithstanding those concerns, many small and medium-sized businesses, and even some publicly traded companies, have found ESOPs to be a valuable tool. The same may hold true for your closely held business clients. Detailed information about ESOPs is available through numerous organizations, conferences and periodicals. There is a great deal more to explore with respect to ESOPs.

An ESOP should be a consideration for any closely held company considering succession planning or transition of its management and control to executive-level employees, ways to reward employees for their contributions to the company over time, or measures for increasing productivity and loyalty of its workforce.

Each of these benefits is achievable while taking advantage of the tax-favorable treatment of ESOPs. Studies have shown that ESOP companies provide greater retirement benefits than non-ESOP companies, have greater sales and sales per employee, and are more likely to stay in business. ESOPs are a path to personal and business security that deserve serious consideration by your closely held business clients.

Steve Burke, Beth Fowler and John Bentas are in the tax department of the McLane Law Firm, which has offices in Manchester, Portsmouth and Concord, as well as in Woburn, Mass.

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