Andrew Liazos and David Fuller identify the three main areas to focus on in light of 162(m) and discuss traps for the unwary.
Tax Reform Surprises and Strategies with the New 162(m) Rules
Section 162(m) of the Internal Revenue Code (Code) previously limited the tax deduction to $1M annually for covered employee compensation paid by a company that is publicly traded, subject to some important exceptions. The Tax Cuts and Jobs Act modified the reach of Code Section 162(m) in several significant ways.
- Expanding the number of companies to which Section 162(m) will apply, including non-public companies that register debt or equity securities with the Securities and Exchange Commission, like foreign companies publicly traded through American depositary receipts (ADRs);
- Expanding the number of covered employees to five and including the chief financial officer, with a provision that any covered employee after 2016 permanently remains a covered employee;
- Eliminating performance-based and commission-based exceptions to the $1M deduction limit; and
- Grandfathering certain compensation provided under a written and binding agreement in effect on November 2, 2017, if no material changes are made to such agreement.
These changes will have a significant effect not just on performance-based compensation, but also on stock options, stock appreciation rights and even nonqualified deferred compensation plans and supplemental executive retirement plans. To navigate these changes, Andrew Liazos stressed the importance of understanding the new grandfathering provisions under Section 162(m) and their corresponding planning opportunities at the Mid-Year Meeting of the American Bar Association’s Tax Section on February 10, 2018 in the attached slides.
Senate Finance Committee Modifies Executive Compensation Provisions in New Modified Mark of Tax Reform Bill
On Tuesday night, Senate Finance Committee Chairman Orrin Hatch (R-UT) released a new modified mark of the Senate version of the Tax Cuts and Jobs Act that modifies provisions related to Internal Revenue Code (Code) Sections 409A and 162(m).
The Chairman’s modification adds a transition rule for the elimination of employer deductions for payments over $1 million to certain executives under Code Section 162(m). The transition rule provides that elimination of the employer deduction does not apply to payments under a written and binding contract in effect on November 2, 2017, provided that the contract was not materially modified after that date.
In addition, the Chairman’s modification eliminates the provision that would have replaced Code Section 409A with a new Section 409B, which would have required payments under non-qualified deferred compensation plans to be taxed when they vested. Currently, Section 409A allows employees to defer taxation on such fully-vested payments, provided they meet other requirements under Section 409A. The proposed replacement of 409A with 409B would have had significant tax implications for those employees with non-qualified deferred compensation plans.
House Tax Bill Would Gut Deferred Compensation Plans and Curtail Executive Pay Deductions
The US House of Representatives Committee on Ways and Means proposed Tax Cuts and Jobs Act intends to reduce corporate and individual tax rates. To pay for the proposed changes, the House Tax Bill would, if enacted, negatively impact long-standing current executive compensation practices.
SEC Publishes Helpful Guidance on Pay Ratio Disclosure
The SEC recently confirmed that the new CEO pay ratio disclosure rules mandated in the Dodd-Frank Act will go into effect in the 2018 proxy season. To assist companies in preparation of the new disclosure, the SEC published interpretive guidance on September 21, 2017.
ERIC Challenges Oregon Reporting Requirements for Retirement Plans
On October 12, 2017, McDermott Will & Emery filed a lawsuit on behalf of The ERISA Industry Committee (ERIC) challenging new reporting requirements under Oregon law as applicable to retirement plans subject to ERISA. Below is a press release from ERIC and Q&As regarding this litigation.
OregonSaves is the state of Oregon’s state-run retirement program that automatically enrolls employees of employers into individual retirement arrangements (IRAs). Unless an employee opts out of OregonSaves, a portion of each paycheck is added to an IRA account in the employee’s name. Oregon is the first state to establish an auto-enrollment IRA program.
An employer that offers a qualified plan is not required to participate in OregonSaves, but only if it has a valid and current certificate of exemption. Obtaining this exemption depends upon reporting to the state of Oregon regarding an employer’s qualified plan. For employers with 100 or more employees in Oregon, this filing is due by November 15, 2017. The ERIC lawsuit alleges that ERISA’s express preemption provision preempts this reporting requirement.
This is the latest action by a state to impose reporting requirements on ERISA covered plans. Previously the state of Vermont (and other states) sought to require ERISA medical benefit plans to report their claims experience for purposes of compiling a so-called All Payor Claims Database (APCD). In the 2016 case of Gobeille v. Liberty Mutual Insurance Company, the US Supreme Court held that ERISA preempted Vermont’s APCD reporting requirement.
ERIC supports state auto-enrollment programs intended to increase access to retirement savings plans if such programs do not infringe on employers that already provide ERISA-governed retirement plans. Tracking and complying with additional reporting burdens imposed by state-run retirement plans on a state by state basis would be unduly burdensome for employers.
There has been some prominent coverage on this case, including Industry group sues over Oregon retirement plan, Employers sue to block OregonSaves requirements, ERIC files lawsuit against Oregon Retirement Savings Board, ERISA Industry Committee sues to stop OregonSaves reporting demands and Oregon’s retirement-savings plan faces legal challenge. The team will continue to monitor and provide regular updates.
McDermott Announces Determination Letter Replacement Program, Addressing the Gap in Retirement Plan Compliance
Since the announcement by the Internal Revenue Service (IRS) that sponsors of individually designed retirement plans may no longer receive a periodic determination letter, plan sponsors have faced uncertainty about how to demonstrate compliance for their retirement plans. Our McDermott Retirement Plan Compliance Program, a new opinion letter and operational review program for individually designed 401(a) and 403(b) retirement plans, will allow plan sponsors to document their plans’ compliance with tax code requirements in response to the curtailment of the IRS’ determination letter program.
Internal Revenue Service Updates Golden Parachute Payments Audit Technique Guide, Signaling Key Items IRS May Review on Audit
In early 2017, the IRS updated its Golden Parachute Payments Audit Technique Guide for the first time since its 2005 issuance. While intended as an internal reference for IRS agents conducting golden parachute examinations, the Audit Technique Guide offers valuable insight for both public and private companies, and recipients of golden parachute payments, into how IRS agents are likely to approach golden parachutes when conducting an audit.
District Court Dismisses Shareholder Claim That Equity Award Share Withholding Triggers Section 16(b) Liability
A United States District Court recently dismissed a claim that an insider’s election to satisfy an income tax obligation by having shares withheld from the delivery of an award constituted a non-exempt sale of shares back to the issuer for purposes of Section 16(b) of the Securities Exchange Act of 1934 ( Exchange Act), unless the share withholding was required, rather than merely permitted. While an encouraging development, this decision is now on appeal to the Fifth Circuit and there are similar unresolved complaints in other jurisdictions. Until this matter is resolved, public companies should continue to consider what steps are appropriate to avoid Section 16 exposure and to review this situation with their executive officers.
M&A Webinar Series Part II: The Due Diligence Process
There are many different types of mergers and acquisitions (M&A) transactions, making it very important to understand the overall deal structure and process. Andrew C. Liazos presented “Mergers and Acquisitions Webinar Series Part 2: The Due Diligence Process” for the CLE Program as part of the ABA Joint Committee on Employee Benefits and the American College of Employee Benefits Counsel. He discussed the overall architecture of a deal, including the parties involved, what drives the deal structure, where to get data, price negotiations and more. The presentation focused on specific M&A areas including pension, other retirement and executive benefits.