Deferred Compensation—Understanding the Options

As American business enters the 21st century, old methods of doing business are quickly being replaced with the new – new technologies, new approaches, and new ideas about attracting, rewarding, and motivating high quality employees. Nowhere is this more evident than in the matter of key employee and business owner compensation, and specifically in the area of Deferred Compensation Planning.

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    A Deferred Compensation Plan (DC Plan) is exactly what its name implies – it’s a plan that allows an individual to defer a portion of his or her current income, and the taxes due on that income, until a future point in time – usually retirement.

    Because it is a non-qualified plan, employers may select whomever they want to participate from their executive or management team. There are no contribution limits and no significant filing or reporting requirements. On the negative side, contributions are not tax deductible until benefits are paid out to participants and, under the doctrine of constructive receipt, benefits may be taxable to participants when they have the right to receive them – not necessarily when they are actually paid. (Establishing a vesting schedule can help address this issue) 

    DC Plans come in many shapes and sizes. They can be Defined Contribution or Defined Benefit; Salary Reduction or Salary Continuation Plans; and they can be structured to provide disability and life insurance benefits. Choosing the right plan arrangement depends upon a company’s specific goals (e.g. retaining key employees) and upon the goals of the selected participants (e.g. supplemental retirement income, current tax reduction).

    To help you get a better understanding of the variety and flexibility of the DC Plans, let’s briefly consider each of the above structures:

    Salary Reduction or Salary Continuation?

    DC Plans generally fall into one of two categories – “Salary Reduction” or “Salary Continuation.” Under a Salary Reduction Plan, participants agree to defer a portion of their current salary (or bonus) to a future point in time – usually retirement – allowing them to postpone paying taxes on that income until they are likely to be in a lower tax bracket.

    Under a Salary Continuation Plan, the employer agrees to provide participants with additional compensation over and above their regular salary, but it defers payment of that additional compensation until a later date – in most cases retirement. Salary Continuation Plans are often called Supplemental Executive Retirement Plans (SERPs). 

    Defined Contribution or Defined Benefit?

    When an employer chooses a salary continuation plan, another consideration is whether the plan should be a Defined Contribution Plan, where the amount contributed each year on behalf of participants is established (“defined”) under the plan agreement, or a Defined Benefit Plan, which specifies the amount each participant will collect at retirement. Under a Defined Contribution Plan, retirement benefits could vary depending upon the performance of the plan’s underlying funding vehicle(s). Under a Defined Benefit Plan, the amount payable at retirement is guaranteed under the agreement, but annual contributions may vary – making it difficult for an employer to work plan contributions into its annual budget. Again, this potential variation is governed largely by how the plan is funded.

    Contributions to certain DC Plans can be made by both the employer and the covered participants. In such cases, contributions by participants are generally “matched” by the employer in much the same way as a traditional 401(k) Plan. These kinds of DC Plans are often referred to as 401(k) Overlay or 401(k) Mirror Plans, and they can be used in conjunction with, or in place of, a traditional 401(k) Plan. When used in conjunction with a 401(k), these types of plans can help “equalize” retirement benefits for highly compensated key employees who, because of government regulated funding limitations, would otherwise receive a lower percentage of wages at retirement than their lower paid counterparts.

    Once the determination has been made as to which type of DC Plan will best meet the needs and objectives of the employer and participants – defined contribution, defined benefit, salary reduction, or salary continuation – the big question becomes how to fund it.

    Funding alternatives

    As one might expect, there are numerous funding alternatives. Some employers choose simply to pay the agreed upon benefits out of company cash flow and hope that their cash flow will be adequate when benefits come due. (Of course, whether such an un-funded plan would be enough to motivate and retain a much-needed key employee is certainly open to debate!) Other employers use securities such as stocks, bonds, and other investment options to finance their plan. Unfortunately, unforeseeable market fluctuations can leave these types of plans seriously underfunded just when benefit payments are scheduled to begin. Another disadvantage to this method is that investment gains are taxable when realized, which can further burden an employer’s bottom line.

    To address these issues, many employers turn to Company Owned Life Insurance (COLI) to fund their DC Plans. Under a COLI arrangement, the employer purchases a cash value life insurance policy on each participant, and is the owner, premium payer, and beneficiary of each of the policies. Salary deferrals (contributions) and/or company contributions are used to pay the premiums on the policies. Policy cash values grow income tax-deferred and, at retirement, can be accessed via loans or withdrawals to pay plan benefits.    Withdrawals and outstanding loans will reduce the policy’s cash value and death benefit.  However, if a participant dies prior to retirement, the plan can provide for a death benefit to be paid to his or her beneficiary, essentially self-completing the plan. As well, policy riders can be added to provide disability benefits should the plan include disability as one of the benefit triggers.  It is this flexibility that makes COLI such a popular funding method. 

    But the benefits of funding a DC Plan with COLI don’t end there. Using life insurance as a funding vehicle can allow an employer to recover the cost of the plan – either in part or in full – through the receipt of death proceeds, and contractually guaranteed cash values can ensure that the funds required to pay plan benefits will be there when they are needed. Under a COLI arrangement, the employer can change who is insured under the COLI contracts; it can pay benefits from either policy death benefits or policy cash values; premium, interest, and expense guarantees allow the employer to develop a long-term financing plan; and buying as a “group” often allows for favorable underwriting considerations. This can be especially helpful if an owner or key employee has health or medical issues that might otherwise make purchasing life insurance costly or difficult. All guarantees are based upon the claims-paying ability of the issuer.

    How do Deferred Compensation Plans work?

    There are essentially four steps to establishing a DC Plan. The first step is choosing the employees (participants) who will be included in the plan, the benefits which will be paid out under the plan (retirement income, disability income, death benefits, etc.), and the “triggers” (termination of employment, retirement, disability, death, etc.) which will initiate the payment of benefits. Step two is deciding where the salary deferrals will come from – will they be taken from current salary (Salary Reduction) or paid in addition to current salary, but deferred until a later date (Salary Continuation)? Step three is the selection of a funding vehicle – and if life insurance, the purchase of a cash value life insurance policy on each participant. Step four is the payment of benefits following a “trigger” event – usually retirement, disability, or death. 

    DC Plan benefit payments become a tax deduction to the employer and are taxed as ordinary income to the participant (or his or her beneficiary). If properly structured, at the participant’s death, a portion of the life insurance proceeds can be used to reimburse the employer for premiums and/or benefits paid. It’s that simple.

    Could a DC Plan be right for you?

    If you’re looking for ways to reduce current income taxes and supplement future retirement income – or if you’re looking for a way to attract, motivate, and retain high quality employees – then a Deferred Compensation Plan may be just what you need to meet your personal, business, retirement, and tax reduction goals. Ask your financial advisor for more information.

    The content was prepared by The Penn Mutual Life Insurance Company and is intended to offer a general understanding of Deferred Compensation strategies.  Actual strategies may vary based on the products and benefits chosen, the issuer and state.  Any reference to the taxation of insurance products is based on Penn Mutual’s understanding of current tax laws. Clients should consult a qualified advisor regarding their personal situation.

    Joseph Pilla is V.P. Advanced Strategies & Business Advisory Services for XXI 21st Century Financial 216-545-1781. Custom designed strategies for both individual & businesses through uses of; Business Valuations, Premium Financing, Business Succession/ Asset Protection/ Insurance/ Wealth Transfer/ Investment/ & Retirement Planning.

    © 2018 The Penn Mutual Life Insurance Company, Philadelphia, PA 19172

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    With all of the day-to-day business operations entrepreneurs are faced with—product development, human resources issues, and business development to name just a few—it might be easy to lose track of a business’s balance sheet strategy.

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    “A lot of small business owners don’t understand their business’s costs,” says Brian Alquist, president of business consultancy 1Direction, Inc., in Brecksville. “Consequently, they’re really just focused in on the cash they have at the end of the month.”

    But operating a business requires a much more comprehensive plan than just focusing on what’s left over when the month comes to a close, experts say. It requires detailed thought around the best way to think about setting financial goals and KPIs, access to capital, accounting best practices and more.

    ‘Build backwards’

    One of the first things an owner needs to do is settle on what the organization’s goals are, says Michael Foss of Foss Business Solutions in Lyndhurst.

    “Build backwards,” he advises. “What are our current expenses? How do I want to grow? What do I need to do to achieve that?” Once those questions are answered, the business owner will begin to be able to form a clear picture of the sales (and gross profit margin) the business needs to obtain to achieve those goals.

    This is where understanding your cash flow comes in, says Rion Safier of Rion Safier Accounting LLC in Beachwood. For a small business, cash flow is king and the company’s budget and cash flow forecast

    “There are companies that don’t have an accounting infrastructure and the business owner is just flying by the seat of their pants and using their bank balance as one of their key drivers,” he says. “That’s not a good way of looking at it. What if your receivables are delayed? Your cash might be depleted. Only looking at the cash balance is not an indicator of the health of a company.”

    Measure effectively

    What businesses should be paying attention to is working capital, or the capital a business uses in its day-to-day operations and calculated as current assets minus current liabilities, Alquist says.

    “That tells me how well they’re really managing the financial aspect of their business on a day-to-day basis,” he says. “If the company has some level of capital invested in the business, I would also look at the ratio of depreciation to expenses. That tells me if they are investing or reinvesting in the business.”

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    Next up: Low-Rate Lending Options for Small Businesses
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    Microloans and the Community Advantage Program are two ways you can potentially save on interest payments.

    You got through the holidays and made it back to your business.  Congratulations!  Now it’s time to give your business a gift by lowering your interest rates. The coldest months are a good time to hunker down and analyze how to squeeze more profitability out of your income statement. Reducing interest expense is probably the least painful way to do so.

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    According to a study by the U.S. Small Business Administration Office of Advocacy, only 12% of businesses use a business loan for capital when they are starting out. Business and personal credit cards account for almost twice as much of entrepreneurs’ starting capital.  That’s a little surprising because most savvy business owners are aware that carrying balances on credit cards results in interest rates well over 16% these days, according to bankrate.com. Some “fintech” solutions may have effective interest rates that are even higher. The fintech industry includes names like OnDeck and Kabbage.

    Credit cards and fintech loans are easy and fast, and entrepreneurs love that combination. For many entrepreneurs, ease and speed are worth the extra expense, until they start adding up the cost. 

    Here are some options that might work for you.

    Microloans

    The SBA offers microloans to borrowers who, for whatever reason, cannot qualify for regular bank financing. When an entrepreneur gets started by running up credit card balances, it may adversely affect the personal credit score of the owner, a double hit because it locks out the entrepreneur from many typical routes of refinancing.  Enter the microloan.

    “Taking out too many credit cards will reduce personal credit scores and make it even more difficult for a traditional lender to offer a loan,” says Patty Ajdukiewicz, relationship manager for the Economic and Community Development Institute.

    The Economic and Community Development Institute (ECDI) provides SBA microloans to qualified individuals who can meet certain basic eligibility requirements and show repayment ability. Microloan rates range from 9% to 12%. That is more expensive than a traditional bank loan, but a fraction of the costs of credit cards and fintech.

    Ajdukiewicz notes entrepreneurs should anticipate having to pledge all available collateral when they refinance a credit card loan. While a credit card may leave fixed assets unencumbered, the lender is compensated for that lack of collateral with a high rate. An ECDI Microloan could cut the interest rate in half, but you should anticipate a lien against your business assets, and perhaps personal assets as well.

    Community advantage

    For slightly larger transactions, Growth Capital Corporation’s Community Advantage program is also available.

    “I’ve got one now that we’re approving today. They’re 13 years old and have revenues of $1.3 million.  They have over $100,000 in credit card debt. Thirteen years and they have never gotten good advice,” says Kate Kerr, program director.  She adds that most of the clients she works with have one or two credit cards, perhaps to take advantage of refund points or free travel. But some companies might end up with dozens of cards, and the debt load quickly becomes unmanageable. 

    A key difference between responsible term loans and credit card debt is the ease with which the transaction is completed. Credit cards are the easy path, but you pay for the convenience. Expect a much higher degree of due diligence from a lender like Kerr. The rate is much lower, but you must have your financial statements in order. 

    For example, businesses need to have their tax returns filed so that the loan can be underwritten, Kerr says. Your accountant may have the ability to get you an extension on your taxes, but if you’re in the process of applying for a loan, that is actually not at all helpful.  SBA-backed loans such as Community Advantage or microloan typically need financial statements current within 120 days of application.

    You can also refinance high-rate loans through most traditional banks. SBA’s loan guarantee programs are available to assist any participating lender, if there is not sufficient capital or time in business to justify a conventional loan. 

    If you must use fast credit, use the business name

    When the outstanding debt is in the name of the business, it is easier for a bank to refinance the higher rate debt. SBA only asks that the bank obtain the applicant’s certification that the debt incurred was exclusively for business purposes.  If the balance includes personal expenses as well, these amounts must be excluded.

    When the outstanding debt is in the name of the individual owner, it is much more difficult. Lenders must document the specific business purpose of the credit card debt and the applicant must certify that the loan proceeds are being used only to refinance business expenses. Documentation required will include a copy of the credit card statements and individual receipts of any expenses in excess of $250.

    If you must start your business on a credit card, at least try to get a card that is in the business name.  That will make a future refinance request much easier for the lender to process.

    Ray Graves works in lender relations in the SBA’s Cleveland office.

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    New rules have been introduced governing the auditing of auditing partnerships and LLCs that are taxed as partnerships. Here's what you need to know.

    The Bipartisan Budget Act of 2015 (the “BBA”), which implements new rules for auditing partnerships and LLCs taxed as partnerships (1) went into effect in January 2018. Under the new BBA procedures, if selected for an audit, any adjustment for a partnership tax year is determined at the partnership level. If the adjustment results in an underpayment of tax, the IRS will assess and collect the imputed underpayment, interest and penalties from the partnershipnot from the individual partners, and the payment will be determined using the highest individual or corporate rate of tax.

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    While any IRS adjustments will relate to the tax year reviewed, the imputed underpayment will be assessed in the adjustment year when the audit is completed. As a result, the remaining (or new) partners during the adjustment year may bear the underpayment liability, not the individuals who were partners during the reviewed tax year. The BBA allows partnerships to annually opt out of the BBA audit procedures. 

    This can be accomplished by making an annual opt-out election on a timely-filed partnership tax return. Because the partnership’s decision to elect out of the audit regime will be subject to IRS review, partners should consider including opt-out provisions within the tax matters provisions of their partnership or LLC operating agreements.

    In addition, every partnership subject to the BBA audit procedures will have a “partnership representative” for years beginning Jan. 1, 2018. A partnership representative has increased authority, as compared to the designation of the “tax matters partner” under the old regime. For instance, a partnership representative has the exclusive authority to represent a partnership during a tax audit and negotiate a settlement with the IRS.  

    The IRS has the right to designate the partnership representative if the partnership fails to do so in advance. Accordingly, it is advisable to update the tax matters provisions of the partners’ agreement to include the necessary designation.

    With the recent changes in tax laws effecting partnerships (including LLCs taxed as partnerships), business owners should consult with their tax advisors and legal counsel with respect to amending their partnership or LLC operating agreements.

    [1] Single-member LLCs and LLCs that have elected to be taxed as S-Corporations are not impacted by this change.

    This article is meant to be utilized as a general guideline for IRS rules for partnerships. Nothing in this blog is intended to create an attorney-client relationship or to provide legal advice on which you should rely without talking to your own retained attorney first.  If you have questions about your particular legal situation, you should contact a legal professional.

    Alex and the attorneys of The Gertsburg Law Firm now offer Cover My Six, a one-stop legal audit for your business, led by award-winning litigators and in-house counsel. CM6 minimizes your exposure to lawsuits, investigations, disgruntled employees and customers, and all the damage that comes with them. Visit www.covermysix.com to learn more about how to protect your business from lawsuits with this brand-new service.


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    In a recent report, The Federal Reserve Board and Federal Reserve Bank of Cleveland gauged the perception and understanding small business owners have of online lenders. Read on below for a summary of what the report found.

    The Federal Reserve Board and the Federal Reserve Bank of Cleveland recently published “Browsing to Borrow: “Mom & Pop” Small Business Perspectives on Online Lenders.” The study follows the release of a 2015 report, Alternative Lending through the Eyes of “Mom & Pop” Small-Business Owners: Findings from Online Focus Groups.

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    The report aims to gauge small business owners’ perceptions of online lenders, as well as their understanding and interpretation of the information that online lenders use to describe their credit products.

    There were three key takeaways from this study:

    Takeaway No. 1: Many participants were familiar with online lending. Most were familiar with at least one or two lenders on a list of the more prominent firms. Some had positive views of online lenders, the bulk of participants had negative thoughts about the industry. These negative impressions appear to be based, in part, on sales calls from lenders or brokers and frequent email and mail solicitations.

    Takeaway No. 2: Participants want to see websites with detailed product information: They want details about products and their costs, because the more info the better. When websites made you enter contact information before they provided information, users felt skeptical.

    Takeaway No. 3: Participants found sample online products confusing. Participants were given three sample online products, and they found the descriptions difficult to understand because of the lack of details. When features such as interest rate, payment amount, fees, etc., were displayed in an orderly manner, participants were pleased.

    Opportunity for online lenders?

    Nearly all participants agreed in their want for clear disclosure of product costs and terms, and the findings suggest that improved disclosures could benefit both lenders and borrowers. This presents an opportunity for online lenders to earn customers’ trust and grow their customer base. Borrowers could evaluate competing products based not only on the costs and features offered, but also the degree to which the lender is up front about important details.

    Click here to read the full report.

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