Posts Tagged ‘investment income’

Sick of paying tax? Call a tax doctor for a second opinion

Friday, April 3rd, 2009

Often, I feel like an old-fashioned country doctor makin’ house calls. But there is a difference: my patients are sick of paying taxes.

Recently, I visited a successful family business in North Carolina, owned by a semi-retired 64-year-old named Joe and run by his son, Sam, a 36-year-old.

Joe called me. He wanted a second tax opinion for a business transfer plan and an estate plan put in place by Sam (with the advice of his professional advisors, the “best” estate planning team in the county) almost two years ago.

Wow, this patient was really sick (running a high tax fever, bleeding lots of tax dollars).

This is the story of the symptoms, the diagnosis and the “magic tax potions” that cured the patient.

First, the facts:

Joe owns 98 percent of two corporations: a profitable S corporation (Success Co.), which operates a string of stores, and a C corporation (a tax-paying corporation, called R/E Co.), which owns real estate leased to Success Co.

The real estate has an income tax basis of $1 million, but a current fair market value of about $6 million. Sam owns the remaining two percent of the stock of both corporations. Each of the corporations is the owner and beneficiary of a separate $1 million insurance policy on Joe’s life.

Four more little details:

• Joe’s second wife, Mary, is 45 years old and they have a premarital agreement that gives Mary the income from one-half of the value of Joe’s assets at his death for as long as Mary lives. But get this: none of the stock of Success Co. can be used to provide Mary her income.

• An artificially low price in a buy/sell agreement would force Joe’s estate to sell his stock in Success Co. back to Success Co. and the same for R/E Co. (Result: Sam would then own 100 percent of both corporations.)

• Joe has two other grown children who are not in the business.

• Joe is not insurable.

The diagnosis:

• The $1 million in life insurance payable to R/E Co. would kick up an unnecessary alternative minimum tax.

• The full $2 million of insurance would be included in Joe’s estate because he controls both corporations, but the $2 million (less the alternative minimum tax of about $150,000) would belong to the corporations, not Joe’s estate.

• There are not enough liquid assets to satisfy the obligation to Mary. Worse yet, if the obligation to Mary is met, there would be zero dollars (outside of the corporations) to pay an estimated $3.5 million estate tax liability. Simply put, the estate would be broke.

Our objectives to cure Joe’s tax illness are clear:

• Reduce the value of Joe’s estate.

• Get cash to fund the obligation to Mary.

• Pay the estate tax.

Here are the five major tax medicines I recommended to cure Joe’s business transfer and estate plan:

• Merge R/E Co. into Success Co. This maneuver is tax-free. R/E Co. is worth about $6 million as a real estate investment company but, as part of the operating company, its value is reduced by at least $2 million for estate tax purposes. Estate tax saving — over $1 million.

• Transfer the nonvoting stock (created after the merger) to a grantor retained annuity trust (GRAT), which reduces the value of Success Co. by about 40 percent for estate tax purposes. This maneuver saves about $.5 million in estate taxes.

• Joe takes the $2 million in insurance policies out of the corporations and gives it to his children. Result: The value of Joe’s estate drops about $2 million and will save another $1 million plus in estate tax.

• Change Joe’s will to put the entire estate tax obligation on the children. The $2 million in income tax-free/estate tax-free insurance proceeds will handle the entire estate tax load when Joe dies.

• Make sure Joe’s will qualifies for the 100 percent marital deduction for Mary’s one-half share, thus deferring any estate tax on this portion of Joe’s estate until Mary dies. Yes, there are other details and nuances in the plan, including gifts to Joe’s children, but these five tax medicines cured the patient.

What’s the lesson to be learned from this true-life Joe/Sam/Mary story? Always, yes always, get a second opinion after your estate plan is done, preferably before any documents are signed.

Beyond the ‘C’: Use S corporation to buy or transfer a business.

Thursday, March 26th, 2009

A reader of this site — let’s call him Joe — asked his CPA to call me to get a second opinion.

Here’s the story the CPA told me:

Joe was about to buy the stock of a C corporation for $2.2 million payable over eight years plus interest at prime, all evidenced by a note. In addition, another $600,000 was to be paid by the C corporation to be divided between a covenant not to compete (for three years starting immediately) and a consulting contract (the CPA was not sure that the seller was really going to consult) to the seller for three years. The idea was to make the $600,000 deductible as paid.

Joe intended to get the money to pay the principal and interest on the $1.2 million note by taking a bonus twice a year when the note payments became due.

Fortunately, the CPA called before any papers were signed. Without getting into every nook and cranny of the proposed transaction, here is a list of the most obvious tax blunders that would have befallen Joe and his C corporation.

– The bonuses to Joe almost certainly would have been attacked by the IRS as unreasonable compensation (Joe intended to take $250,000 to $275,000 as regular compensation, plus the bonuses).

– The interest to be paid by Joe is considered investment interest, which is deductible only to offset investment income (Joe had none). In effect, all of that beautiful interest would have been nondeductible.

– An employee or consultant already has a duty not to compete. Paying the seller for consulting is OK (assuming the amount is reasonable). So if the seller actually worked and got reasonable compensation, it would be deductible. On the other hand, if the seller really did not consult, none of the consulting payments is deductible. In any event, the amount of the covenant is not deductible over the three-year payment or not-to-compete period; instead, it can be written off only over 15 years.

Again, without attempting to cover every detail, here is how the transaction will be done:

– Joe will elect S corporation status. Now Joe can take tax-free S corporation dividends to pay the note. The interest, because of the S corporation status, is now deductible on Joe’s personal tax return as a business expense. The unreasonable-compensation problem is eliminated.

– The interest rate will be raised to two points over prime and reduce the covenant amount dollar for dollar. The consulting contract will run for only the period of time that the seller actually consults, and that will be paid for same. After the consulting period is over, the covenant not to compete will kick in.

One warning: Whether you’re buying or selling a business, work only with experienced and knowledgeable professionals. Pretend you’re having a heart transplant, and seek out the best professional help you can find. If you are selling your S corporation to one of your kids, he or she can deduct the interest (see Letter Ruling 9215013).

An S corporation is almost always the best route when you are transferring — by sale or otherwise — your business to your kids.