Blog Layout

ESOPs (Employee Stock Ownership Plans) Might Solve the Succession Puzzle

Greg Dowell • Aug 16, 2023

ESOPs have been around for years; they could be a solution for ownership transition.

August 16, 2023

Gregory S. Dowell


Possibly you have heard of an ESOP before (no connection to Aesop, the legendary Greek who spun fables filled with wisdom), but they sounded too complicated for your business.  At their best, ESOPs can create a market for a small business, foster a greater degree of employee participation and commitment, and maintain the culture of a business, rather than seeing that culture disappear via a merger.  As business owners struggle with succession planning in a very difficult labor market, it may be time to take a closer look to see if an ESOP might work for you. 


An ESOP is a qualified defined contribution plan that is either a stock bonus plan, or a combination stock bonus and money purchase plan, that invests primarily in a business' stock for the benefit of the plan participants.  After an employer establishes an ESOP, the employer makes annual contributions to the ESOP in the form of stock or cash.  The employer's contributions are tax deductible.  An ESOP may use employer cash contributions to buy common stock from the controlling stockholders, as long as the price reflects the value of the stock.  The stock acquired by the ESOP is allocated to the participants' accounts but, because it is a qualified retirement plan, the amount added to the participants' accounts each year is not included in their gross income; it accumulates tax-deferred until the participant retires, dies, or becomes disabled. 


The ESOP may also borrow to buy the stock (whether from the shareholder, the corporation, or a third party), with the debt being paid out of the employer contributions to the ESOP (these are known as "leveraged ESOPs", versus nonleveraged ESOPs).  The loan can be a direct loan from a financial institution with a guarantee by the corporation, or the loan can be made to the corporation with the corporation re-loaning the funds to the ESOP.  In the case of a stock that is not traded on a public exchange, a valuation will have to be performed on an annual basis. 


An entity has to be a corporation to use an ESOP; a limited liability corporation being taxed as a partnership will not work.  An ESOP is also permitted to be a shareholder in an S corporation. 


A shareholder who sells stock to an ESOP may be eligible to elect to defer having the gain taxed in the year of sale.  To qualify for the tax deferral under Code Section 1042, the following are required:

  1. ESOP must own at least 30% of the business' stock immediately after the sale.
  2. Selling shareholder must have held the stock for at least three years prior to the sale.
  3. Selling shareholder must purchase qualified replacement property within the period beginning three months before and ending 12 months after the date of the sale. 
  4. Stock sold to the ESOP must be a qualified security.


If the Section 1042 tax deferral election is made, the selling shareholder is not subject to tax on the gain attributable to the sale of stock, and the tax basis for the qualified replacement property is the same as the selling shareholder’s tax basis for the stock that was sold to the ESOP. Taxable gain is recognized if and when the qualified replacement property is sold or otherwise disposed of. If the qualified replacement property is retained by the selling shareholder until his or her death, the gain on the stock sale to the ESOP will completely escape income taxation because of the Section 1014 basis step-up, although the qualified replacement property will be included in the decedent’s taxable estate according to the usual estate tax rules. Thus, Code Section 1042 and the provision for qualified replacement property allow closely held corporate shareholders to create a diversified investment portfolio without incurring income tax in the short term.


While and S corporation can adopt an ESOP, the shareholders of an S corporation can not elect to defer the tax on the gain under Code Section 1042.


The 30% ownership test is satisfied if, immediately after the sale to the ESOP, the ESOP owns either 30% or more of each class of the corporation’s outstanding stock or 30% or more of the total value of all of the corporation’s outstanding stock.  The 30% test does not mean that each selling shareholder must sell at least 30% of his interest. Instead, the view is from the ESOP level. That is, after any given shareholder sale, the ESOP must own at least 30% of the employer stock. Once the ESOP achieves 30% ownership, the subsequent sale of any amount of stock would satisfy the 30% test.


Another feature of these plans is the shareholder's right, each year, to direct the plan as to the investment of at least 25% of the account balance once the shareholder has reached age 55 with at least 10 years of plan participation. This “diversification of investments” election permits older employees to select investments suitable for their anticipated retirement. If the ESOP is part of a larger plan, like a profit sharing plan, that permits employee contributions, the shareholder may be able to divest the employer stock and allocate it to other plan investments once the shareholder has completed three years of service as a participant.


If employment terminates, there is an ESOP distribution rule which is meant to accelerate the date when benefits can begin.  ESOP benefit payments must begin no later that one year after the end of the plan year when separated from service on account of retirement or disability, or one year after the end of the plan year that is the fifth plan year following separation from service from some other cause. Since these rules are meant to speed up the date benefits begin, if benefits would begin sooner under the distribution rules applicable to all qualified plans, then that would override the ESOP rules.


For 2023, the limit on contributions to defined contribution plans, including contributions to the ESOP, are limited to the lesser of $66,000 or 100% of compensation. However, certain forfeitures and payments of interest on loans to the ESOP will not be taken into account in calculating these limits which may have the effect of increasing amounts that go into a shareholder's account.


Establishing ESOP plans is not inexpensive.  There are significant upfront costs with attorneys and consultants, as well as ongoing costs of compliance and valuations.  ESOPs are qualified plans, which means that regulatory compliance must be prioritized annually. 


All that said, ESOPs in the right setting can provide tremendous benefits to small businesses, their shareholders, and their employees.  Whether an ESOP is right for your business will depend on all of the facts and circumstances, but well may be worth the analysis.


14 Dec, 2023
With year-end approaching, it is time to start thinking about moves that may help lower your tax bill for this year and next. This year’s planning is more challenging than usual due to changes made by the Inflation Reduction Act of 2022 and the SECURE 2.0 Act.
14 Dec, 2023
With year-end approaching, it is time to start thinking about moves that may help lower your business's taxes for this year and next.
By Greg Dowell 14 Nov, 2023
How to make doing good a little less frightening financially.
By Greg Dowell 13 Nov, 2023
Catching many businesses by surprise, this Act kicks in with filing requirements as early as January 1, 2024.
By Greg Dowell 05 Sep, 2023
Having a business fail for lack of employees was unheard of 10 years ago. The problem existed for many businesses long before the pandemic, but it certainly went to a whole new level from 2020 to the present.
By Greg Dowell 24 Aug, 2023
Improve profitability, reduce the opportunity for fraud, focus on your core business, eliminate excuses for tardy financial data - what's not to love about outsourcing your accounting?
By Greg Dowell 16 May, 2023
by Gregory S. Dowell Updated May 16, 2023 Spring is the traditional kick-off to wedding season, and thoughts quickly turn to the wedding venue, gifts, the happy couple, and, of course, the guest list. Lurking somewhere in the shadows, behind even that strange uncle you barely know, is another guest that needs to be considered: The tax impact on the newlyweds. To start, newlyweds will have two options for filing their income taxes in the year of marriage: Filing status can either be married filing jointly, or married filing separately. In the vast majority of cases, a couple will benefit with a lower overall tax burden to the couple by choosing to file married filing jointly. One of the classic cases where a couple may consider filing separately is when one spouse has significant amounts of medical expenses for the year. Medical expenses are only deductible if they exceed 7.5% of adjusted gross income; using only one spouse's income may allow a deduction to be taken if filing separately, compared to losing the medical deduction entirely if both incomes are combined by filing jointly. We previously had written about the tax trap that often occurs when two people get married, resulting often in an unanticipated balance due when the first joint tax return for the couple was filed. While President Trump’s Tax Cuts and Jobs Act (TCJA), changed the dynamics somewhat, it is still worthwhile to put pen to paper before saying “I do”. Prospective spouses have the opportunity to save money by taking income tax considerations into account before tying the knot. That’s particularly true for those who plan to marry late this year or early next year. As this article explains, from the federal income tax standpoint, some individuals marrying next year may come out ahead by either deferring or accelerating income, depending on their circumstances. Others may find it to their advantage to defer a year-end marriage until next year. For some quick background, a “marriage penalty” exists whenever the tax on a couple’s joint return is more than the combined taxes each spouse would pay if they weren’t married and each filed a single or head of household income tax return. Before President Trump’s TCJA, only the 10% and 15% married filing jointly brackets were set at twice that of the singles bracket, and so the marriage penalty effect on joint filers applied in the brackets above the 15% bracket. Beginning with the 2018 tax year, however, the TCJA set the statutory tax brackets for marrieds filing jointly-through the 32% bracket-at twice the amount of the corresponding tax brackets for singles. As a result, the TCJA eliminated any tax-bracket-generated marriage penalty effect for joint filers where each spouse has roughly the same amount of taxable income-through the 32% bracket. For example, if two individuals who each have $215,950 of taxable income file as single taxpayers for 2022, each would have a tax bill of $49,335.50, for a combined total of $98,671. If they were married, their tax bill as marrieds filing jointly would be $98,671, exactly the same amount as the combined total tax they’d pay as single taxpayers. Because the 35% bracket for marrieds filing jointly isn’t twice the amount of the singles 35% bracket, the marriage penalty effect will still apply to joint filers whose income falls in the 35% bracket. Using 2022 tax tables, two single taxpayers may each have $500,000 in taxable income, for a combined total of $1,000,000, without having any of it taxed higher than 35%. However, for marrieds filing jointly, the 35% tax bracket ends at $647,850 in taxable income, and each additional dollar of taxable income taxed at 37%. Thus, where two high-earning unmarried taxpayers with substantially equal amounts of taxable income are planning for their marriage to take place either late this year or early next, it may pay from the tax viewpoint to defer the marriage until next year. As an example, if two individuals each have $539,900 of taxable income file as single taxpayers for 2023, each would have a tax bill of $162,718, for a combined total of $325,436. If they were married before the end of the year, their tax bill as marrieds filing jointly would be $334,076, or $8,640 more than the combined total tax they’d pay as single taxpayers. If only one of the prospective spouses has substantial income, marriage and the filing of a joint return may save taxes, thus resulting in a marriage bonus. The bonus is the result of two factors: 1) the tax brackets for marrieds filing jointly cover wider spans of income than the tax brackets for taxpayers as singles; and 2) the taxable income of the lower-earning individual may not push the couple’s combined income into a higher tax bracket. In such a case, it will probably be better from the tax standpoint to accelerate the marriage into this year if feasible. There are a number of other factors that should also be taken into account when determining the effect of a marriage on income taxes of the couple. As mentioned early in this post, the first decision is to verify that filing a joint return is preferred to filing separate returns. In addition, many provisions of the tax code phase out completely (or decrease partially) as adjusted gross income increases. In a perfect world, there would only be good surprises for a newlywed couple following their wedding. To avoid any unpleasant income tax surprises, we always recommend that a newlywed couple take the time to make a projection of what their income will look like when combined as a couple, and determine what the tax bill will look like, at the Federal and State levels. After all, planning ahead, communicating with each other, discussing finances, and avoiding unpleasant surprises are some of the keys to a long marriage.
By Greg Dowell 11 Mar, 2023
Don't forget a birthday, anniversary, or any of these tax filing dates . . .
By Greg Dowell 07 Feb, 2023
The IRS asks taxpayers to wait to file 1040s if they received rebate payments from their state in 2022.
By Greg Dowell 04 Jan, 2023
Corporate Jet - What's the right choice for your business?
More Posts
Share by: