Fine tuning your business

Most Private Business owners know that creating a business succession plan is important, even if — in the all-consuming crush of managing and growing their businesses — they sometimes tend to put it off longer than they probably should. They are often less aware, however, of the many other early steps they can take to help protect and grow their business and personal wealth. Implementing a few often-overlooked business and personal wealth planning strategies early in the life of your business, long before you sit down with transaction attorneys and investment bankers, can make a meaningful difference in the amount of wealth you create and ultimately retain for yourself and your family.

Protecting your business

Retaining talent: equity compensation

For private companies, retaining key employees is critical. Replacing talent and getting new people up to speed in private companies is tough because typically private businesses don’t have staff moving up the ranks. This is especially true when business owners become older, and they’ve been counting on their number one or number two at the company to step up. The problem is that private companies can find it difficult to compete with their larger public counterparts when it comes to compensation, particularly regarding equity-based compensation. Most private companies tend to offer annual salaries and cash bonuses and avoid equity and long-term compensation entirely. You don't have public stock, but you might consider providing key management personnel some form of long-term equity compensation. Not only does it align everyone’s interests, which is good for the business, but i can also help to preserve capital because cash payouts can be lower. Perhaps most important, it can allow you to compete more effectively with public companies when it comes to both recruiting and retaining top talent.

The sticking point for most business owners is giving up control and having to account to others when it comes to managing their business, or evaluating a change-of-control transaction. However, there are ways of giving equity to key personnel without giving away control. Here are some examples:

• Real equity: Direct stock awards, options, restricted stock (employees keep the stock only if certain conditions are met, such as meeting performance goals), stock purchase plans and equity bonuses can all be effective ways of retaining top talent and aligning the interests of management and owners. But these entail granting a real, though small, ownership stake in the company. You can avoid even that much loss of control by simply issuing nonvoting shares. You may not want these shares being transferred to third parties, so you might also consider making the stock callable, establishing resale restrictions or requiring employees to sell their shares back to the company in certain situations — if they leave the company, for instance.

• Stock appreciation rights (SARs): Another effective way to go that cedes no control, but still provides an incentive for employees to stay with your firm, is to offer stock appreciation rights that are settled in cash. SARs don’t carry a voice in company affairs, but they do provide upside stake that is based on the appreciation of the company’s stock (based on an appraisal of the company’s value). Think of them as similar to equity options, with the same potential for financial gain, but with no cash required to exercise them.

• Phantom equity: Phantom stock, sometimes referred to as shadow stock, allows employees to receive a stock-like equity stake that inures to their benefit while they are with the company. They are like a long-term cash bonus linked to company performance and valuation. Again, these shares can be nonvoting. One other consideration is that these shares are dilutive to other shareholders in certain circumstances, which must be evaluated carefully.

While these compensation options can be critically important tools in retaining top talent, business owners must work closely with advisors to ensure that these structures are carefully implemented and maintained.

The buy/sell agreement

Not all companies have a sole owner. What happens if your business partner suddenly dies? Is your partner’s spouse, or your partner’s child, the new co-owner — even if he or she has no knowledge of the business? Are you obligated to buy them out? Can you afford to buy them out? In turn, are they obliged to sell to you, or can they entertain other suitors? In any case, how much should it cost? How should it be paid? And what if you happen to die? If your surviving business partner refuses (or cannot afford to) purchase the inherited shares, will your spouse be left without any liquidity? Or what happens if your partner simply decides to retire? Or divorces, and your partner’s shares end up in the ex-spouse’s hands as part of the settlement?

Any one of these events, and many others, can put the continuity of your business — your greatest financial asset — at risk. Buy/sell agreement can help to address these and other potential issues long before they actually occur, so a clear plan can be enacted immediately when they do, thereby helping to prevent damage to the company’s operations or its value.

Buy/sell agreements can make good sense for any type of business — corporations, partnerships or LLCs with multiple owners. They put in place a clear procedure if certain things happen. While it’s definitely preferable to create a buy/ sell agreement as early as possible, it can actually be accomplished at any point in a company’s lifecycle.

It starts with the parties involved, the owners of the business, and their respective equity interest in the company. Often there are two owners, but there can be more, and the ownership percentages can vary considerably such as 50/50 partners, 60/40, 70/30. Even a 1/99 buy/sell agreement where a 1% owner plans to buy out a 99% owner is possible.

And then there are the triggering events — the specific occurrences that will trigger the buy/sell agreement. Commonly known as the 5 Ds:

1. Death of a co-owner (with provisions for dealing with inheriting shareholders, such as the deceased owner’s spouse).
2. Disability (How long should salary and sharing in the company’s profits continue?)
3. Departure (retirement or resignation)
4. Divorce (What happens when an ex-spouse receives a chunk of stock in the business? Should the spouse be forced to sell the stock back to the company?)
5. Default/Insolvency (When a financial calamity overcomes your co-owner and obligor under the buy/sell)

The agreements also address other eventualities as well.

The next component is pricing. This can be a prearranged price or even a prearranged formula — book value, say, or some multiple of earnings. This is where things can go horribly wrong if they aren’t handled properly. Let’s say two owners agree they’ll buy each other out at book value if one of them dies. And what so often happens in business owners’ busy lives is that 15 years go by, during which they never give a single thought to the terms they’ve established. They’ve taken the company down a number of paths in that time, and book value — or whatever pricing mechanism they’ve agreed upon — makes absolutely no sense anymore. Now, if a triggering event occurs, somebody is going to wind up greatly enriched and somebody is going to end up greatly diminished. Along with regular review of the buy/sell agreement, we recommend that provisions be included that rule out this sort of unjust enrichment. “I’ve personally been involved in a number of estates that dealt with fixed and formulaic buy/sell agreements with extreme unintended consequences. To ensure an equitable solution, business owners can have an appraisal that is done at the time of the triggering event and with all information on the table.

Once pricing is established, funding mechanisms need to be addressed. One method is simply for the purchasing owner to pay cash at the appraised price for the number of shares the departing owner has in the company. However, this is not always practical or possible. Another approach is to pay a fraction of the appraised price at the time of the triggering event, and put the rest in a promissory note that is paid off over time and a certain rate of interest.    

Often, in the case of the death of an owner, cash to fund the buyout is obtained via life insurance. That is, co-owners take out life insurance policies on each other and agree to use the payouts to finance the buyout. A key here is to maintain the synchronizations of the value of the business and the death benefit of the life insurance policies. This eliminates surprises from cropping up at the worst possible time. This structure is referred to as a cross-purchase agreement. Another common structure is company-owned life insurance whereby the company is the obliged purchaser and repurchases the shares in the event of an owner’s death.

Other funding mechanisms include borrowing or using personal assets, which may or may not be feasible. Using cash from the business itself, even if the business can support it, can be problematic, since the cash being used for the purchase is already partially owned by the owner being paid.

Buy/sell agreements don’t have to be forever.” If the co-owners come to a point where they all agree that they are tired of running the business, they can simply decide to sell the company, at which point the buy/sell agreement terminates. In fact, owners can agree to terminate a buy/sell agreement at any time. (The buy/sell agreement — including the life insurance policies — is not, however, designed to be unilaterally canceled.) One thing that needs to be resolved — via simply swapping policies or some other method — is what will happen to any life insurance policies in force. With no business arrangement, owners no longer have a mutual obligation to each other, and therefore, no longer have an insurable interest in each other’s lives.

One of the biggest issues with these agreements — beyond not having one — is not reviewing and revising them on a regular basis. A good working practice, for instance is to pull the owners together to review the agreement at the company’s annual meeting. These annual reviews should probably also include regular appraisals of the company’s value, if they’re not done already.

Typically, a company’s legal advisor is the point person for drafting a buy/sell agreement for the owners. Co-owners should work closely with legal, accounting, valuation and insurance advisors when evaluating or modifying these structures.

Protecting your personal assets

Pre-transaction tax strategies

Two potentially effective asset transfer strategies for business owners include the grantor retained annuity trust (GRAT) and the intentionally defective grantor trust (IDGT).

With a GRAT, the grantor is essentially transferring assets into a trust and gradually taking back an annuity (akin to principal plus an assumed amount of interest at a rate specified by the government¹) over the life of the GRAT. If the investments in the GRAT outperform the annuity paid back to the grantor, the assets remaining in the trust may be transferred to heirs free of estate and gift taxes. This, of course, assumes the GRAT is "zeroed out", which means that the annuity consists of repayment of the initial amount plus interest paid back to the grantor at the assumed rate of interest. In the case of a three-year $1 million GRAT, the grantor would receive $333,333 back each year plus interest (for three years). The grantor is paid back the initial amount contributed to the GRAT ($1 million) plus interest, but the excess appreciation remaining in the GRAT (following the sale of your company) is able to be transferred out of the grantor’s estate without any gift or estate tax ramifications.

A sale to an IDGT functions much like a GRAT. The IDGT essentially deals with two sets of IRS rules — individual income tax rules and IRS transfer tax rules (e.g., estate, gift, generation-skipping). The theory is that it’s impossible to sell an asset to yourself and have it be a taxable transaction for income tax purposes. However, it is possible for someone to sell an asset to a trust, and if that trust has some special provisions for transfer tax purposes, that sale is a real and recognized event. But, as noted, it’s still a nonevent for income tax purposes. For example, if you were to sell $1 million worth of your company’s stock to an IDGT trust, you would receive a note worth $1 million. As with the GRAT, you would eventually receive your $1 million back plus interest, but any appreciation (again, above the low hurdle interest rate) could be transferred out of your estate.

Should you choose a GRAT or an IDGT? Although they behave in similar ways, there are differences. The GRAT is an effective tool, but it has two main disadvantages: first, if you die during the GRAT’s term, all of the GRAT’s assets return to your estate; and second, multigenerational planning (for grandchildren and future generations) cannot generally be done as effectively with a GRAT.

With an IDGT, on the other hand, the death of the grantor during the trust’s term does not end the trust. Also, you can name grandchildren and future generations as beneficiaries of the trust. In fact, in practice, family business owners tend to prefer the IDGT to the GRAT. GRATs are usually more popular when it involves publicly traded company stock or pre-IPO planning.

GRATs may be zeroed out if structured appropriately, resulting in no gift or estate tax, according to Welch. IDGTs typically are funded with a 10% gift of the entire value of the trust, resulting in either gift taxes paid, or use of a portion of the lifetime credit (or use of annual exclusion gifting).

One key difference between a GRAT and an IDGT is that the GRAT is an annuity, which carries out principal on a periodic basis back to the grantor. There are some creative methods of structuring GRATs where the payments of principal is less in the early period of the GRAT term and larger in the later period (e.g., a back-end-loaded GRAT). However, the IDGT is usually preferable in this situation since it can be structured as a loan with a balloon payment at the end and only interest being paid to the grantor periodically (e.g., yearly). Therefore, more of the value of the initial transferred amount may remain in the IDGT for a longer period of time, allowing for the potential of a more favorable outcome if the underlying asset (in this case, usually the private company) appreciates above the interest rate.

The grantor may pay a lower interest rate on IDGTs compared to GRATs, Welch adds, since the rate is often set at the midterm applicable federal rate (AFR). The rate of GRATs, however, is 120% of the midterm AFR. Therefore, the hurdle rate for IDGTs may be lower than that of a GRAT. This is more beneficial for the grantor and the recipient of the remainder value since more of the assets will pass out of the estate with the lower hurdle rate on the IDGT.

Lastly, the one drawback to using an IDGT is that it has not been codified by the IRS. Since it is a non-statutory technique, the likelihood of it being challenged by the IRS is greater than that of a GRAT. Since GRATs are statutory, assuming the grantor follows the appropriate protocol, there is significantly less risk of the IRS challenging a GRAT than if the IDGT were utilized for the asset transfer.

Among the many other options, transferring company stock into a charitable remainder unit trust (CRUT) can also be an effective way to move future appreciation (and resultant federal tax consequences) out of your estate. According to Welch.

With a CRUT, the remainder beneficiary of the trust is a charity and the income beneficiary of a CRUT is typically an individual. The mechanics are complicated, but basically the CRUT strategy allows you to sell your business assets, while maximizing the post-tax money received on the sale and enabling you to reinvest your proceeds at 100 cents on the dollar, as opposed to using after-tax proceeds. The grantor may choose himself or another individual as the income beneficiary of a CRUT. The grantor will then choose a prespecified payout rate, which he will receive on an annual basis.

Statutorily, this rate must be at least 5% but no more than 50% of the fair-market value of the donated assets; however, in practice the rate is most often in the 5% to 8% range. The amount received by the income beneficiary on an annual basis is taxed to the beneficiary at their personal tax rate but based on the tax character of the assets within the trust. For instance, if the trust produced all long-term capital gains (LTCG), the income beneficiary would be taxed at their own capital gains tax rate. However, if the payout consisted of LTCG and qualified dividend income, short term capital gains (STCG), interest income and corpus, then the income beneficiary would be taxed first on income, then on STCG, then on dividends, then on LTCG, and finally, the beneficiary would receive corpus (with no tax on corpus).

Another reason CRUTs can be an attractive strategy is that the donor/grantor of the CRUT receives an up-front charitable income tax deduction for the present value of the remainder interest of the gift to charity. The gift to charity is assumed to occur upon the termination of the trust, at which time the remaining assets in the CRUT will flow directly to the prespecified charity. Lastly, it is important to note that for this strategy to work and be permitted by the IRS, the CRUT needs to be in place long before any purchase agreement for a company is finalized.

Strategies to handle creditors and state income taxes

Although business owners are concerned about spouses and other family members being hit with huge tax bills or being pursued by creditors, they often don’t have provisions in place to handle this effectively.

One popular strategy is to keep assets in trust for beneficiaries. In general, creditors of beneficiaries have no access to the trust’s assets.

In certain states, such as Delaware and Alaska, it may even be possible to create a trust for yourself, and thereby shield trust assets from your own creditors.

Perhaps even more important, states such as Delaware and Alaska impose no state income tax on trusts with non-state-resident beneficiaries. This could be especially meaningful to business owners. If they reside in high-tax states, the potential savings can be substantial. However, the rules can be complex, requiring navigating the rules of the business owner’s home state and the rules of the jurisdiction of the trust.

Trusts don’t have to mean loss of control

For business owners, hesitation to consider these strategies sometimes has to do with a perceived loss of control. It’s important to distinguish between legal ownership of an asset and control of that asset on a functional day-to-day basis.

There are many ways to make your influence felt in the trust process, through trustee selection (including at times selecting yourself as trustee of the trust you’re creating) and future trustee selection. Preferences can be reflected and concerns addressed with careful drafting of trust provisions. With a revocable trust, you don’t have to make all decisions immediately, and the decisions you do make are modifiable. They can even be canceled.

Early planning can make the difference

Not all of these wealth planning strategies will be appropriate for all business owners, but knowing about them and considering them in the context of your own situation allows for informed and intentional decision making. It’s also important to remember that these strategies are not mutually exclusive, and none of them requires the commitment of all of your assets. In many instances, it may be preferable to use a combination of different types of trusts to achieve what are likely to be multiple goals.

But one thing that all of these strategies have in common is that they work better the earlier they’re established. So often, owners wait to plan until there’s a deal pending, or they’ve had a health scare, or some other event occurs that forces them to want to plan. But entrepreneurs who engage in this process earlier rather than later will have many more options available to them and a greater likelihood of achieving their long-term goals.