Murphy Austin Adams Schoenfeld LLP
J. Scott Alexander, Managing Partner
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Sacramento, CA 95814
I’m often asked when should a business consider adopting a nonqualified deferred compensation plan. Businesses use deferred compensation plans for different reasons and different goals. The goals are usually a combination of: attracting and retaining key management employees; helping employees save taxes on their compensation; motivating performance; rewarding loyalty; supplementing retirement income by making up for the short-comings of a qualified retirement plan; and better aligning the employees’ interests with the employer as a whole. The type of deferred compensation implemented will depend on which goals the employer primarily wishes to accomplish. This article will briefly summarize common plan designs used for these goals.
Deferring Taxes. The simplest form of deferred compensation is deferred salary or bonus whereby the employee decides to defer the receipt of compensation before it is earned. Because it is deferred before it is earned, the employee doesn’t pay income tax on the compensation until it is received in the later year. If the employee is in a lower income tax bracket when the compensation is received he or she will save income taxes. Provided the deferred compensation is counted for Social Security and Medicare taxes when earned, neither the deferred compensation nor any of its earnings will be subject to these taxes again when it is paid. The disadvantage to the employer is that it is not allowed a deduction for the deferred compensation until the employee recognizes the income.
Motivating Performance. A plan can provide an employee with a deferred bonus to be paid in a later year if a performance measure is attained. This will provide motivation for performance. For example, a plan could provide the employee will receive an annual bonus of 10% of the amount that revenues exceed a certain threshold to be paid 3 years after the year earned.
Rewarding Loyalty. Subjecting deferred compensation to forfeiture unless the employee remains employed for a period of time rewards loyalty. This is done with a vesting schedule which could be “cliff “vesting whereby the employee is not at all vested until the vesting date when 100% of the deferred compensation is no longer subject to forfeiture (e.g., vested after 5 years) or graded vesting whereby each year a portion of the deferred compensation vests (e.g., 20% annually for 5 years). Tying a performance bonus to a deferred compensation plan with a vesting schedule will both incentivize performance and reward loyalty. Thus, the plan above could provide the employee will receive the bonus 3 years after the year earned, if still employed with the employer on that date.
Making up for qualified plan short-comings. Often higher paid executives are short-changed by a company’s defined contribution plan. For example, the limit on the amount of compensation that can be considered under a qualified plan ($275,000 in 2018) can prevent an executive from saving enough through the qualified plan. That is, if an executive is paid $400,000 annually, and the qualified plan provided for a 10% employer profit sharing contribution, the executive’s contribution would only be $27,500 not $40,000 because only $275,000 of his compensation can be considered under the qualified plan. This is only 6.875% of compensation.
Likewise, if the plan is a 401(k) plan (the most popular type of plan), the annual limitation on the amount of salary that an employee can defer ($18,500 in 2018) can also short-change a higher paid employee. For example, $18,500 is only 4.625% of a $400,000 salary. Even if the employee can defer $24,500 because he is over age 50 and the plan allows for make-up contributions, that amounts to only 6% of pay. Additionally, if the plan is subject to the ADP/ACP tests, this could impact how much a highly compensated employee can defer.
A general rule of thumb is one should save 15% of compensation for retirement to replace 70% of compensation at age 65. That is $60,000 for an executive making $400,000. The annual limit for contributions to a defined contribution plan is currently only $55,000. One can easily see that it is difficult to attain the goal of 15% at higher income levels.
A nonqualified deferred compensation plan can be designed to make up for these limitations of a qualified plan because they are not subject to the limitations of qualified plans.
Aligning Interests. Deferred compensation can also be used to help align the interests of key employees with that of the employer. Rewarding performance through incentive deferred compensation as mentioned above is one way. Another technique that aligns the employee’s interests with that of ownership would be a phantom equity plan. These are also sometimes referred to as synthetic equity. The names come from the fact that the plans provide a cash benefit based on equity in the employer but the employee does not receive any actual equity.
For example, an employee can be granted 100 shares of phantom stock that the employee can cash in upon the occurrence of a triggering event such as a future date, retirement, or termination of employment. Each phantom share is valued at the price of a share of actual stock at any point in time. A twist on phantom stock is the stock appreciation right which only pays the employee the difference between the value of the stock on the date of grant of the right and its value on the trigger date. Thus, the employee only receives the delta of the appreciation in the value of the stock.
Under phantom equity plans, employees are rewarded when the value of the employer company increases. Thus, both the employer and the employee benefit when the company value increases. Phantom or synthetic plans can help key employees learn to think and perform like an owner without having the legal rights (e.g., voting, inspection of books) or liabilities that come with actual ownership.
Conclusion. This article has summarized some of the most common deferred compensation techniques and their uses. However, there are a number of factors that must be considered in designing a deferred compensation plan to meet the goals of the employer. Additionally, there are a myriad of legal requirements these plans must meet to be effective. Failing to meet these rules can have unintended and drastic tax consequences. Therefore, it is important to consult an experienced professional to help design and draft a plan to accomplish the intended results.
We previously reported how the initial Tax Reform bill introduced in the House of Representatives contained dramatic changes to the taxation of deferred compensation that would drastically affect executive compensation. However, the provisions were dropped by amendment in committee but re-surfaced in the Senate’s version of tax reform legislation.
Since then, the House approved its version of the bill on November 16. Additionally, the Senate dropped the deferred compensation changes by amendment in their current version of the bill. However, other differences between the House and Senate versions regarding deferred compensation and employee benefits still remain. . However, amendments can still be made when the full Senate debates the bill. If the Senate passes its version with differences from the House bill, the differences will have to be reconciled by a joint committee and then the bill sent back to both houses to be passed before going to the President.
Individual Health Mandate Repealed. Probably the most controversial difference between the two bills is that the Senate bill now repeals the Affordable Care Act’s individual health coverage mandate that requires most individuals to have health insurance coverage or pay a penalty. Repealing the mandate may save people who don’t purchase health insurance the penalty but could cause a dramatic increase for indviduals who do purchase insurance from the public exchanges. The reason being that healthy individuals could opt out of coverage leaving the exchanges covering only unhealthy people causing premiums to rise.
Family Medical Leave Act Credit. The Senate Bill also creates a partial tax credit for employer who pay wages to employees on family medical leave during 2018 and 2019 if the rate of pay is at least 50% of the wages normally paid to the employee. The credit is 12.5% of the first 50% of normal wages paid and increases .25% for each percentage point the pay rate exceeds 50% up to a maximum of 50% credit.
Given the current state of Washington, D.C., whether tax reform will pass is anyone’s guess. The Senate will be addressing their bill after the Thanksgiving break. We will continue to monitor developments as they occur and will address the affects of tax reform on employee beneftis at our upcoming HR Update seminar on December 6. Download the seminar flyer for more information. Click here to register now.
401(k) Plans Untouched in House Tax Reform Bill but
Executive Compensation May Drastically Change
On November 2, 2017, the House Ways and Means Committee introduced its much anticipated proposed tax reform bill, the Tax Cuts & Jobs Act. As President Trump has stated in the media, the bill did not touch the amount of pre-tax contributions that could be made to 401(k) plans. Wall Street and the public reacted unfavorably to earlier reports that the pre-tax limit would be reduced to $2,400. Therefore, this aspect of the bill should make Wall Street happy. However, the proposed changes to executive and deferred compensation in the bill are likely to give Wall Street and highly compensated executives plenty of heartburn, which begs the question: will the proposals survive?
The crux of the changes is that most deferred compensation will be taxed upon vesting regardless of when received. This can cause workers to be taxed on "phantom income" because they would be subject to tax but not receive the compensation to help pay the tax. The details are summarized below but it is important to note that this is simply proposed legislation at this time and these provisions may be changed or deleted.
Nonqualified Plans of For-Profit Entities Taxed Like Those of Tax Exempt Organizations
Beginning in 2018, nonqualified deferred compensation of for profit employers would become taxable upon vesting. That is, when the right to the compensation is no longer subject to a substantial risk of forfeiture regardless of when the compensation is to be received. This is essentially the current tax rules under Code section 457(f) for deferred compensation plans of tax exempt organizations that do not meet the eligibility requirements of Code section 457(b). Current deferred compensation plans that relate to services performed before 2018 would be grandfathered and subject to current rules until 2025 at which time it will be subject to tax upon vesting. This change in taxation affects deferred compensation, SERPs, stock options and stock appreciation rights, and severance plans.
This provision was actually dropped from the bill when the House Ways & Means Committee reported it out of committee. However, the Senate's version of the bill, introduced on November 9, reinstated it.
Compensation Limited to $1 Million Annually
Under current law, public companies cannot deduct compensation paid to certain executives exceeding $1 million. There is an exception to this rule for "performance-based" compensation allowing it to be deducted. Under this bill, the exception is repealed. In addition, any tax exempt organization that pay an employee or former employee over $1 million in compensation will be subject to a 20% excise tax.
Minor Changes to Qualified Plans
While the 401(k) limits were not changed, some other changes would be made to qualified plans. These include: lowering the age for in-service distributions for defined benefit pension plans and governmental plans to age 59½, the same as defined contribution plans; elimination of the 6 month suspension from participation in a 401(k) plan after receiving a hardship distribution; and expansion of the time period to repay loans before being taxed as a distribution.
Other Fringe Benefit Changes
Beginning in 2018, many fringe benefits will no longer be able to be paid with pre-tax dollars or be excluded from tax. These include: the pre-tax treatment of expenses under a dependent care assistance flexible spending account is repealed; qualified tuition reimbursement plans providing pre-tax tuition assistance to employees are repealed; Likewise, the following benefits are no longer excluded from income: transportation fringe benefit plans, adoption assistance plans, qualified moving-expense reimbursement arrangements, employee achievement awards, and Archer medical savings accounts.
Again, the proposals are simply a bill and changes are likely as the Senate will have to pass its version and any differences will have to be reconciled before the bill is passed and sent to the President for signature. We will continue to monitor the progress of the bill and will cover it in our HR Update on December 6, details below.
Dec. 6, 2017, 8AM, HR Update Seminar: What Employers Need to Know in 2018
JOIN US FOR BREAKFAST. GET AHEAD OF THE CURVE. Murphy Austin's annual complimentary update breakfast seminar provides the latest information about changes in the law that will affect your company the most in 2018. Download the seminar flyer for more information. Click here to register now.
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