One of the chief concerns facing family business owners is how to effect an orderly and affordable transfer of the business to the next generation and/or key employees. Failure to properly plan for a smooth transition can result in monetary losses and even loss of the business itself. This article will explain how to keep the family business in the family.
There are essentially three levels to a business succession plan. The first level of a business succession plan is management. It is important to recognize that management and ownership are not the same. The day-to-day management of the business may be left to one child, while ownership of the business is left to all of the children (whether or not they are active in the business). It is also possible that management may be left in the hands of key employees rather than family members.
The second level of a business succession plan is ownership. Most business owners would prefer to leave their businesses to those children that are active in the business, but would still like to treat all of their children fairly (if not equally). Yet, many business owners lack sufficient non-business assets to allow them to leave their inactive children an equal share of their estate. Thus, a business succession plan must provide a means of transferring wealth to the children who are not interested in, or not qualified for, continuing the business. Business owners must also assess the most effective means of transferring ownership and the most appropriate time for the transfer to occur.
The third level of a business succession plan is transfer taxes. Estate taxes alone can claim up to 45% of the value of the business, frequently resulting in a business having to liquidate or take on debt to keep the business afloat. To avoid a forced liquidation or the need to incur debt to pay estate taxes, there are a number of lifetime gifting strategies that can be implemented by the business owner to minimize (or possibly eliminate) estate taxes.
LEVEL ONE - MANAGEMENT
Whether management of the business will rest in the hands of the next generation, in the hands of key employees, or a combination of both, the business owner must learn to delegate and work on the business. It can take many years to train the successor management team so that the business owner can walk away from day-to-day operations. For many business owners, giving up such control can be difficult.
All too often, business owners focus more on the ownership and transfer tax issues involved in a business succession plan and ignore the people issues. In the typical family business, the future leader is likely to be one of the business owner's children. If so, steps must be taken to assure that the future leader has the support of the key employees and other family member owners. Generally, a gradual transfer of roles and responsibilities gives the successor time to grow into his/her new position and allows the business owner some time to get use to his/her diminishing role. Thus, lead-time is important for a smooth transition.
Many family businesses are dependent on one or two key employees who are critical to the success of the business. These key employees are often needed to manage the business (or assist in the management of the business) during the transition period. Therefore, the succession plan must address methods to guarantee that key employees remain with the business upon the death, disability or retirement of the business owner. Among the commonly used techniques used to assure that key employees remain with the business during the transition period are employment agreements, nonqualified deferred compensation agreements, stock option plans and change of control agreements.
LEVEL TWO - OWNERSHIP
Often, a major concern for family business owners with children who are active in the business is how to treat all of the children equally in the business succession process. Other concerns for the business owner include when to give up control of the business and how to guarantee sufficient retirement income. For example, selling (as opposed to gifting) the business to the active children results in all children being treated equally and provides the business owner with retirement income. For those business owners that are not reliant on the business for their retirement, they can gift the business to the active children, and leave the inactive children non-business assets. If, as a result, the inactive children will not receive an equal (or fair) portion of the business owner's estate, make up the difference by establishing an irrevocable life insurance trust for their benefit.
Simultaneous with the gifting and/or selling of business interests, the new owners should enter into a buy-sell agreement. A buy-sell agreement is a legal arrangement providing for the redistribution of shares of the business following the death, disability, retirement or termination of employment (triggering events) of one of the owners. The buy-sell agreement would also set forth the purchase price formula and payment terms upon the happening of a triggering event. If properly designed and drafted, a buy-sell agreement will create for the departing owner a market for what otherwise would be a non-marketable interest in a closely held business; will allow the original owners to maintain control over the business by preventing shares from passing to the departing owner's heirs; and will fix the value of a deceased owner's shares for estate-tax purposes.
LEVEL THREE - TRANSFER TAXES
The transfer tax component of business succession planning involves strategies to transfer ownership of the business while minimizing gift and estate taxes. The gift and estate-tax consequences deserve special attention. Unanticipated federal estate taxes can be so severe that the business may need to be liquidated to pay the tax.
While there is currently a lapse in the estate and generation-skipping transfer taxes, it's likely that Congress will reinstate both taxes (perhaps even retroactively) some time this year. If not, on January 1, 2011, the estate tax exemption (which was $3.5 million in 2009) becomes $1 million, and the top estate tax rate (which was 45% in 2009) becomes 55%.
For business owners with taxable estates, a gifting program can be used to reduce estate taxes. For lifetime gifts or sales of the business, nonvoting shares are usually used for two reasons. The first is to accomplish the business owner's desire to retain control of the business until a later date (i.e., the owner's death, disability or retirement). The second reason is to reduce the gift-tax value of the shares because of valuation discounts for lack of control and marketability.
Gifts of business interests up to $13,000 ($26,000 for married couples) can be made annually to as many donees as the business owner desires. This amount is adjusted for inflation in increments of $1,000. Such gifts not only remove the value of the gifts from the business owner's estate but also the income and future appreciation on the gifted property.
Beyond the $13,000 annual gift tax exclusion, the business owner can gift $1 million ($2 million for a married couple) during his/her lifetime. While the use of the gift tax exemption reduces (dollar for dollar) the estate tax exemption at death, such gifts remove the income and future appreciation on the gifted property from the business owner's estate. Unlike the estate tax exemption, the gift tax exemption remains fixed at the $1 million level.
While a business owner can gift shares in the business outright, consideration should be given to making the gifts in trust. One advantage of making gifts in trust for the benefit of the active children is to protect them from their inability, disability, creditors and predators, including divorced spouses. Another advantage to making gifts in trust is that the assets in the trust at the children's deaths can (within limits) pass estate-tax free to the business owner's grandchildren (and perhaps more remote descendants depending on state law). These are sometimes known as generation-skipping or dynasty trusts.
For business owners with very large estates, there are sophisticated gifting strategies that can be used with little or no gift tax, such as installment sales to a grantor trust, private annuities, grantor retained annuity trusts, and self-cancelling installment notes. There is also statutory relief, including Internal Revenue Code Section 303, which permit the tax-free use of a closely held corporation's cash to pay a deceased shareholder's estate tax; and IRC Section 6166, which allows the business owner to pay estate taxes on installments.
Life insurance often plays an important role in a business succession plan. For example, some business owners will wait until death to transfer all or most of their business interests to one or more of their children. If the business owner has a taxable estate, life insurance can provide the children receiving the business the cash necessary for them to pay estate taxes. As mentioned above, business owner can use life insurance to provide those children who are not involved in the business with equitable treatment. Finally, life insurance is a popular way to provide the cash necessary for the business or the surviving owners to purchase a deceased owner's interest pursuant to the terms of a buy-sell agreement. In many instances, the cash surrender value in a life insurance policy can also be used tax free (by surrendering to basis and borrowing the excess) to help pay for a lifetime purchase of a business owner's interest.
TO THE EXTENT THIS ARTICLE CONTAINS TAX MATTERS, IT IS NOT INTENDED OR WRITTEN TO BE USED AND CANNOT BE USED BY A TAXPAYER FOR THE PURPOSE OF AVOIDING PENALTIES THAT MAY BE IMPOSED ON THE TAXPAYER, ACCORDING TO CIRCULAR 230.
Julius Giarmarco, J.D., LL.M, is the Chair of the Estate Planning Group of Giarmarco, Mullins & Horton, P.C., Troy, Michigan.