Succession Planning Case Studies

Transcription

1 Succession Planning Case Studies Prepared by NCFC Business Consulting INTRODUCTION The following are brief descriptions of how some intergenerational business succession plans have been implemented. These case studies were developed from our experiences and are not intended to be recommendations for others or to be an all-inclusive review of the numerous ways these complex plans might be implemented. The examples have been altered to preserve the anonymity of families and businesses involved and to simplify the planning concepts. Intergenerational business succession and estate planning are extremely individualized topics, for which generalization is often inappropriate. While these case studies may be useful to stimulate some ideas and facilitate discussion, it would not be prudent to develop plans for any specific business without a full review of the circumstances of that business by qualified tax legal, financial services and business advisors. Sales Case Study Background; One of the most direct models for intergenerational business succession is for the senior members of the business to sell a portion, or the entire, business to one or more of the junior members of the business. Such sales may be done in planned phases, may be financed by lenders or by the sellers. Installment sales contracts are common in these transactions. Since sales are typically taxable events, it is important for all parties to seek professional tax advice and to be sure all the implications of a contemplated sale are understood prior to implementing these strategies. Sales may create income from interest and cash-flow from principal payments, which can be used to fund senior members retirement, diversify investments, distribute to family members who may not be involved in the operation of the business, or for many other uses. Like most business succession models, issues of equity (fair versus equal) must be addressed and communicated effectively if those involved are to be committed to these strategies. An example of a business succession implemented through sales is that of retirement-aged parents with two adult children (juniors), both of whom have established successful professional careers. The property had a substantial mortgage, but more than fifty percent equity. The parents wished to convert the character of their income from active business income (sale of crops, etc.) to passive or investment income (interest). Because the combined incomes of the juniors were greater than the parents income their accountant had advised that the juniors had more capacity to shelter income taxes through paying interest and realizing depreciation expenses associated with the property. The sale transferred all future appreciation to the juniors, allowed the parents to realize a predictable and passive income from interest income and allowed the juniors to deduct the interest and depreciation (from a re-started depreciation schedule) from the purchase of the business assets (orchards and equipment) on their individual income tax filings.

2 The juniors formed a LLC and elected individual tax treatment so they could combine the income or losses from their share of the business with their employment income on their individual tax filings. The terms of the installment sale included no down payment and interest only payment for the first five years, then principle and interest amortized over 25 years. The sale was done subject to the existing mortgage and the lender agreed not to exercise the due on sale provisions of their note. In this scenario, the parents used a portion of the payments they received from the juniors to pay the existing mortgage, for which the parents were still liable. It is likely that a major amount of principle will still be due when the installment note is inherited by the juniors. At that point, the children would most likely cancel the note and own the property free and clear if the parents first mortgage is fully paid at that time. Five years have passed since the installment sale, and the juniors will begin annually paying principal payments, as well as interest, on their installment note. Recently, the parents and juniors have been discussing the potential for the juniors to get a new first mortgage to pay off their installment note, which would require paying off the parents existing first mortgage. The orchard is now in full production and can support a new first mortgage for the full principal balance of the installment note. The parents would realize substantial after-tax sales proceeds and have about $500,000 to invest after paying off their mortgage. Activity As a group, discuss the case, choose a spokesperson for the group and record the following to be presented to the larger group of participants: ü How did implementing this succession plan meet the senior family members ü How did implementing this succession plan meet the junior family members ü What conflicts where avoided or mitigated?

3 Succession Planning Case Studies Prepared by NCFC Business Consulting INTRODUCTION The following are brief descriptions of how some intergenerational business succession plans have been implemented. These case studies were developed from our experiences and are not intended to be recommendations for others or to be an all-inclusive review of the numerous ways these complex plans might be implemented. The examples have been altered to preserve the anonymity of families and businesses involved and to simplify the planning concepts. Intergenerational business succession and estate planning are extremely individualized topics, for which generalization is often inappropriate. While these case studies may be useful to stimulate some ideas and facilitate discussion, it would not be prudent to develop plans for any specific business without a full review of the circumstances of that business by qualified tax legal, financial services and business advisors. Spin-off Split-up Case Study Background; Many family farms and ranches have been organized as C Corporations. While many business and tax advisors recommend that C Corporations not hold title to real estate or other appreciating assets, many corporations (especially those formed when individual marginal tax rates were much higher than corporate rates) currently hold substantial amounts of land and improvements. While corporate stock facilitates partial ownership, as well as facilitating transfer (including gifting), of those interests, it can complicate the ability to meet the objectives of individual stockholders. IRS code provides, within guidelines, for corporate assets to be reorganized into successor corporations through what is known as spin-offs or split-ups (also know as Type D or Section 355 reorganizations) without creating a taxable event. Since the legal and tax implications of reorganization can vary widely, no reorganization should be attempted without appropriate professional counsel. With that counsel to guide the process, the concept of most business reorganizations is similar. Most involve allocating the capital or net assets held by an individual, or entity, in one entity to a successor entity in such a way that the individual maintains the same equity as they held in the original entity. The individual gains the ability to use their separate assets to more appropriately meet their individual objectives. This case involves land owned by a family C Corporation, of which the stock is owned by parents who are approaching 60 years of age, and their three adult children (juniors) who range in age from 30 to 40. The parents have gifted ten percent of the stock to each junior (total of 30%). The parents would like to hand over control and management responsibilities to the juniors. Sales of the land held by the corporation would trigger significant corporate income tax liabilities (no capital gains rate for corporations) and double-taxation when sales proceeds would be distributed to the shareholders. The family s accountant recommended converting the corporation to an S Corporation to gain favorable tax treatment (income or losses passed to the stockholders to be reported individually), in order to avoid the double tax issue for potential future sales of assets (there is a ten-year

4 conversion period). The juniors were not convinced of the wisdom of the selling even after full conversion of to S Corporation tax treatment, which expanded the widening gap between the objectives of the stockholders. The solution in this case was to accomplish a corporate reorganization. In this process, the juniors equity in the form of corporate assets was divided into three new corporations, each owned fully by one of the juniors. Once the new corporations were established and funded with an appropriate share of assets (land, equipment and cash equaling 10% of the original corporate capital) from their earlier corporation, each junior could direct their own assets to meet their individual objectives. In this case, two juniors joined their successor corporations as a new LLC and continued to operate the land, including land owned by the other junior s corporation as well as land owned by the parents corporation. After completing the ten-year transition, the third junior plans to sell the land held in his S Corporation and, by way of tax-deferred (1031) exchanges, to convert those assets to commercial real estate, which may yield more net rent and appreciation than what may be realized from the farmland. Activity As a group, discuss the case, choose a spokesperson for the group and record the following to be presented to the larger group of participants: ü How did implementing this succession plan meet the senior family members ü How did implementing this succession plan meet the junior family members ü What conflicts where avoided or mitigated?

5 Succession Planning Case Studies Prepared by NCFC Business Consulting INTRODUCTION The following are brief descriptions of how some intergenerational business succession plans have been implemented. These case studies were developed from our experiences and are not intended to be recommendations for others or to be an all-inclusive review of the numerous ways these complex plans might be implemented. The examples have been altered to preserve the anonymity of families and businesses involved and to simplify the planning concepts. Intergenerational business succession and estate planning are extremely individualized topics, for which generalization is often inappropriate. While these case studies may be useful to stimulate some ideas and facilitate discussion, it would not be prudent to develop plans for any specific business without a full review of the circumstances of that business by qualified tax legal, financial services and business advisors. Shifting Business Opportunities Case Study Background; This strategy is especially useful for businesses that provide services such as custom farming, processing, etc. in which the primary assets are made up of inventories or accounts receivable. The concept is that the value of the business is associated with the opportunity to continue creating new inventories or receivables. To the degree those inventories or receivables can be shifted to a new entity with a different owner or owners, this strategy may be useful in transferring the value and future earnings. The business rationale for retiring parents to refer customers or accounts to junior members of their family, typically involves the parents desire to be less involved in day to day management, and or operating risks. This case study involved a father and son. The father owned orchards, held as a corporation. As the son become involved in the business, they decided to expand the business to include a processing plant that would package and sell the orchard products to the wholesale market. They formed a new division of the corporation (still owned by the father) for the processing business, which was operated by the son. The father s corporation provided funds for the processing business start-up and the processing facilities were constructed on the land held by the father s corporation. After a few years, the processing business had grown to the point where it was very profitable (much more profitable than the production division of the corporation). By that time, they were buying and processing products from many other orchards and selling those products to wholesalers. The processing division had developed a net worth of nearly $1,000,000 in the form of inventories and account-receivable. By this time, the father was approaching retirement and with the help of his attorney, accountant and business consultant, began to develop a business succession plan, including estate planning (planning to reduce estate tax liabilities). The accountant advised that it would be helpful for the value of the processing business and future growth of that business to be in the hands of the son, since he was

6 already running the processing business and the father did not need the income. Such a transfer would also reduce the value of the father s estate to a point at which other estate planning strategies might reduce or eliminate estate tax liabilities. The succession plan included forming a new entity (in that case an LLC) owned solely by the son. The LLC was named to provide continuity of the ongoing processing business. The LLC borrowed money from the father s corporation for start-up expenses and rented the existing facilities. The father encouraged his son to do processing for the existing customers, while letting the existing customers know that he wanted to retire, and that his son would continue to run the procession business through the new entity. Since the son had been running the processing business, the producers from whom products were purchased and the buyers they sold to, saw very little change. Over a period of a year or so, the corporation was no longer in the processing business and all the previous processing and sales, plus new volume, was being handled by the son s LLC. The result was that the father s estate value declined by nearly $1,000,000 as inventories and receivables in his corporation were depleted. The net worth of the son s business increased by a like amount as that business built inventories and receivables. In this case, because of careful planning and strict adherence to professional tax advice, there was no taxable transfer of assets, while the objectives of the family business succession and estate planning were accomplished. Shifting of business opportunities may not yield the same tax and legal consequences for different business circumstances, but may be a viable strategy for some businesses. Activity As a group, discuss the case, choose a spokesperson for the group and record the following to be presented to the larger group of participants: ü How did implementing this succession plan meet the senior family members ü How did implementing this succession plan meet the junior family members ü What conflicts where avoided or mitigated?

7 Succession Planning Case Studies Prepared by NCFC Business Consulting INTRODUCTION The following are brief descriptions of how some intergenerational business succession plans have been implemented. These case studies were developed from our experiences and are not intended to be recommendations for others or to be an all-inclusive review of the numerous ways these complex plans might be implemented. The examples have been altered to preserve the anonymity of families and businesses involved and to simplify the planning concepts. Intergenerational business succession and estate planning are extremely individualized topics, for which generalization is often inappropriate. While these case studies may be useful to stimulate some ideas and facilitate discussion, it would not be prudent to develop plans for any specific business without a full review of the circumstances of that business by qualified tax legal, financial services and business advisors. Partitioning of Jointly-held Real Estate Case Study Background; Common or undivided ownership of real estate including farms and ranches, can be a challenge for business succession planning. Common ownership in this case refers to undivided, joint ownership by individuals (as opposed to entities). This situation often results when land is inherited without adequate planning or through intestate succession (without a will). The result would be that several individuals names would appear on the deed. In these cases, the owners do not own a specific parcel of land, but rather own an undivided interest in the entire property. There are legal procedures for accomplishing real estate partitions. Since the legal procedures are often costly, adversarial and result in divisions that are seldom satisfactory to the recipients, the focus will be on voluntary (nonjudicial) partitions. Voluntary partitions result from mutual agreement of the owners about how to divide the real estate among themselves. This process allows business owners to direct their separate real assets to meet their individual objectives. This case provides and example of how a voluntary real estate partition might accomplish business succession objectives. It involves a father, through his will, transferred a substantial amount of farmland to a newly formed partnership owned by his three adult children. Two of the partners were farmers and the third was not involved in the business. The two farmers formed an operating partnership, which rented the land from the landowning partnership. This arrangement continued for more than twenty years. As the farming partners approached retirement and wanted their business to succeed to their adult children (juniors), it became necessary to divide the land held in the partnership. Through several meetings with their business advisors, they decided they could avoid the cost and complication of appraising the land and arrive at an equitable division of the land by using the county tax assessor s values. They were not so concerned about absolute values as they were that the values would be equitable in a relative way. They each drew maps of how they thought the land should be divided based on those values and logistical factors (proximity, shared wells, drainage, access, etc.) and shared those maps with each other.

8 With a minimum of disagreement, they reached an amicable division of the property without dividing any existing legal parcels. They implemented the partition by contracting to have some new boundary lines surveyed and obtaining title insurance for their transfers from the landowning partnership to each individual. Once the partition was complete, the farming partnership continued to rent all of the land from the individual owners, just as it had from the landowning partnership. The farming partnership then developed a business plan for several of the junior to succeed the original partners. In this way, the farm remained in the family and each of the senior partners was able to establish their own individual business succession plans with separate assets. Activity As a group, discuss the case, choose a spokesperson for the group and record the following to be presented to the larger group of participants: ü How did implementing this succession plan meet the senior family members ü How did implementing this succession plan meet the junior family members ü What conflicts where avoided or mitigated?

9 Succession Planning Case Studies Prepared by NCFC Business Consulting INTRODUCTION The following are brief descriptions of how some intergenerational business succession plans have been implemented. These case studies were developed from our experiences and are not intended to be recommendations for others or to be an all-inclusive review of the numerous ways these complex plans might be implemented. The examples have been altered to preserve the anonymity of families and businesses involved and to simplify the planning concepts. Intergenerational business succession and estate planning are extremely individualized topics, for which generalization is often inappropriate. While these case studies may be useful to stimulate some ideas and facilitate discussion, it would not be prudent to develop plans for any specific business without a full review of the circumstances of that business by qualified tax legal, financial services and business advisors. Generation Skipping Trusts Case Study Background; The generation skipping trusts allowed the original owners (grantors) to manage the trust assets during their lifetimes and for the income to go first to them and their surviving spouses, then to their children. The property (or proceeds) would typically be distributed to the grantors grandchildren when the last of the grantors children pass away. After the grantors and their spouses die, the income from the property (rent from the operating entity) is typically divided equally among the grantors children. This income sharing arrangement equalizes the value of the inheritance for all the grantor s children and separates capital gain from the land assets from operating income. After the death of the grantors children the trust assets (land) would be distributed to the grantors grandchildren according to the terms of the trust agreement. In this scenario, the land might be preserved as an operating unit for fifty or more years without being subject to inheritance and the associated probate fees or estate taxes. During that time, the farming entities of the grantors children (those who continue to operate the business) would have the use of the land at reasonable rental rates, providing an assured base of operation with which to expand their own businesses. While the grantors children would never inherit the land, they would have a lifetime income from the land held in trust, and their children would receive a portion of the land, which was held in trust for their benefit. This scenario provides a good way to provide an equal inheritance to all the grantors children regardless of their involvement in the farming operation (equal shares of net operating income, from land rent) and equal shares of land proceeds to all the grandchildren. It keeps the land together for another generation and makes it available to the grantors children who want to farm, but doe not require them to be farmers, as the land could be operated (rented or custom farmed) by others. The concept in this case is that the heirs may not need to hold title to the land in order to derive income from it and to use it as a base to expand their individual businesses. A future succession plan for distributing the land from the trust to the grandchildren may be needed and may vary widely based on

10 circumstances (including tax and other regulations) at that time. We have assisted with such succession plans that involve forming a new entity to receive the distributed land and establishing buy-sell agreements between the owners of that entity so they can equitably determine values and terms for transferring entity interests among themselves. This process allows those who want to sell their interest to reinvest in other assets and for those who want to continue to farm to keep the land together for an indefinite period of time beyond the distribution of trust assets. This provides an alternative to selling the land and dividing the proceeds among the grandchildren. Activity As a group, discuss the case, choose a spokesperson for the group and record the following to be presented to the larger group of participants: ü How did implementing this succession plan meet the senior family members ü How did implementing this succession plan meet the junior family members ü What conflicts where avoided or mitigated?