Executive compensation for the health care industry is always an important topic for the board, made even more critical by the provisions of the Tax Cuts and Jobs Act and recent governance trends. We’re joined by two of the leading health care industry voices on executive compensation practices: Tim Cotter of Sullivan, Cotter and Associates, and McDermott partner Ralph DeJong.
US tax reform is changing the game with respect to many of the popular benefits employers have traditionally provided to their employees. These new rules have produced a great deal of questions. However, while the Internal Revenue Service (IRS) is formulating guidance, employers are left to navigate these changes on their own in order to determine the impact on both themselves and their employees. Employers are also reevaluating their benefit offerings in light of the new rules. These issues and more were addressed during the 2018 McDermott Tax Symposium on April 24, 2018.
The McDermott panel left the audience with these core takeaways:
- Due to the suspension of their employees’ ability to take many itemized deductions, employers should consider the feasibility of restructuring their compensation arrangements to save income taxes and FICA taxes.
- Certain employers that are public employers, private employers with public debt or non-U.S. employers with ADRs traded on a U.S. market should evaluate their executive pay arrangements to determine whether the grandfathering rules under section 162(m) apply to any compensation and further ensure compliance with the new rules under section 162(m).
- Employers should consider whether they will continue to provide popular benefits such as qualified transportation fringes and employer-provided meals. If employers choose to continue to provide these benefits, they will need to confirm that their systems are updated to reflect the changes in deductibility.
- Employers should begin using the updated Form W-4, if they are not already.
- Employers should encourage their employees to utilize the IRS’ updated withholding calculator to verify that the proper tax amounts are being withheld.
For additional information on these topics and other items addressed by McDermott tax professionals during the symposium, please see the compilation of slides. For additional tax reform resources, please visit McDermott’s Take on Tax Reform.
Last month, Alexander Lee and Maureen O’Brien joined with Rob Wellner from Velocity Global to discuss the tax and employee benefits complications that arise in cross-border transactions. Key points discussed:
- Complex tax structures must be considered and understood
- Transfers of employment may be governed by different statutes in each affected jurisdiction
- Purchasers may not be ready to provide employment, payroll and benefits on the closing date without significant pre-closing work
Allison Wilkerson presented on a panel at the National Center for Employee Ownership (NCEO) Conference. The panel provided an overview of issues impacting compensation matters, as well as decisions affecting privately held companies that are wholly or partially owned by an ESOP. The presentation included an analysis of certain legal requirements and a current view on best practices. Finally, the panelists provided real-life examples of effective compensation programs and decision-making strategies for executive and staff compensation.
Partner Diane Morgenthaler presented at this year’s first Tax in the City® meeting on March 15, 2018. Below is a recap of the key takeaways from the event.
Employee Benefits impacts of federal tax reform:
- Alter procedures to ensure no 2018 employer deduction is taken for qualified transportation fringe benefits, except for bicycle transportation subsidies.
- Alter procedures to ensure no 2018 employer deduction is taken for “entertainment” and its related travel and meal expenses, including sporting events, theatre, golf, and other activities.
- Analyze 2018 financial effect to your employer of any proposed gross ups for loss of moving expense deduction for employer and employee.
- If your employer is a US publicly traded company, a foreign issuer with US publicly traded American Depository Receipts (ADRs), or a private company with US publicly traded debt, then careful legal and financial planning is recommended to try to utilize the grandfather exception to the $1M compensation deduction limit under Code section 162(m).
Partners Mary Samsa and Joe Urwitz discuss the new challenges created for tax-exempts in compensating their executives given the new 21 percent excise tax on pay over $1 million. Now is the time for tax-exempts to be evaluating potential tax planning opportunities for structuring pay to avoid application of the 21 percent excise tax.
Join us Wednesday, March 21 at 1:00 pm (EDT) for an in-depth webinar on navigating cross-border mergers and acquisitions. Partners Alexander Lee and Maureen O’Brien along with Rob Wellner from Velocity Global will be presenting the unique tax, employment, benefits and executive compensation issues that arise during and after a global transaction. With these insights, participants will learn how to manage challenges associated with M&A activities and implement new solutions that streamline the process.
McDermott’s Benefits Emerging Leaders Working Group provides benefit professionals with tools to better serve employees in an ever-changing and evolving benefits landscape.
Presentations will tackle the latest benefits hot topics and best practice solutions, supplemented with important networking opportunities aimed to connect tomorrow’s benefit leaders with a broad network of professionals.
Planned agenda topics include:
- What’s Happening in Washington?
- Lessons from an RFP
- Lunch Discussion: Changing Behavior through Benefits Communication
- Global Benefit Plans
- Moderated Group Discussion (including Voluntary Benefits)
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.
Patrick McCurry and Todd Solomon wrote this bylined article on how family offices are using sophisticated techniques to compensate their employees in a tax-efficient manner. “We expect to see the continued use of equity to deliver tax-efficient compensation to family office employees while aligning the economic interests and incentives of the family and the family office’s key employees,” the authors wrote.
Originally published in Tax Executive, February 1, 2018.