Wealth Planning. Wealth Planning for the Sale of a Business

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1 Wealth Planning Wealth Planning for the Sale of a Business JULY 2014 Selling your business may be the most important financial event in your life. In some cases, the business has been family-owned for more than one generation, thereby becoming an extension of the family s relationship with one another. It is no surprise that emotions run high in evaluating potential sale decisions, and it s easy to lose focus on the important financial planning that should go hand-and-hand with your deal. You probably have considered questions such as: What is my business really worth? How do I get the highest sale price possible? What is the right deal structure? Naturally, these are key questions for your deal team. But have you also considered the effect of taxes on the sale of your business? What estate, trust and charitable strategies have you considered? Engaging in this type of wealth planning prior to the sale of your business can provide valuable tax savings opportunities and may mean that more of the sales proceeds are available to you and your family. For this reason, many business owners find that engaging in wealth planning prior to the sale of the business can have the same benefit to the business owner as a dramatic increase in sale price. Karin Prangley Senior Vice President Wealth Planning PRIVATE BANKING

2 Your Financial Goals If you own a successful business and you are thinking about selling, think carefully about your financial goals well before transaction documents have been signed. If you wait until the deal is done, you may lose valuable tax savings opportunities or leave money on the table. Often, these goals fall into three broad categories: Meeting your living expenses for the rest of your life, or the lives of you and your spouse, including routine annual expenses and special one-time expenses (such as the purchase of a new house, or the start-up of a new business). Transferring assets to your loved ones for the lowest tax cost possible, whether currently, at the passing of you and your spouse, or when your loved ones mature. Meeting your charitable goals, perhaps in the form of routine annual giving to charities, a gift at your and your spouse s passing, and/or the creation of an ongoing philanthropic legacy, such as a charitable trust, a family private foundation or a donor advised fund. Tax Impediments Unfortunately, taxes can be a significant impediment to realizing the full value of your business upon its sale. A careful analysis of the multitude of taxes that may apply in selling your business is crucial to maximize the proceeds that you ll receive in the deal. Not only will you want to minimize income taxes on the immediate sale of the business, but you should also consider the taxes that may apply when the money you ve earned in selling the business passes to the next generation of your family (or your desired beneficiaries). If the sale of your business will be successful enough to leave you with more money than you wish to spend during your life, then there are really only three places this extra money can go: to your family or other loved ones, to charity, or to the government in the form of taxes. Sharing your wealth with your loved ones often means benefitting the government by paying gift and estate taxes (collectively called transfer taxes ), which are assessed on transfers made during life or at death that exceed a certain total amount (currently, $5.34 million). These transfer taxes can be 40% or higher, depending on the state you live in, how much money you give away, and your relationship with the recipient of the gift. Maximizing the amount that goes to your loved ones, and minimizing the amount of transfer taxes due, involves careful advance planning. This planning can be made much easier by including your BBH relationship manager and wealth planner in your team of advisors. While an analysis of your wealth planning needs is highly personal, there are several common estate planning strategies that work well for many business owners. Below is a discussion of some of the most popular strategies that business owners can use to transfer wealth to their families and to charities in connection with the sale of their business. These techniques can help business owners save transfer taxes even if the sale of the business does not happen for many years. In fact, many of these strategies work best when they are implemented long before the business is sold. While these illustrations assume that 2

3 the business owner desires to pass wealth to his children, these strategies can work equally as well if the business owner instead desires to pass wealth to another family member or friends. GIFT OF BUSINESS INTEREST A simple yet effective strategy to pass part of the value of the business to your children is to gift an interest in the business to your children (or a trust for their benefit). A non-controlling interest in a privately-held business is an ideal asset to give to children because the value of the business interest for gift tax purposes can be discounted by two important features lack of marketability and lack of control. There are few available markets to sell an interest in a privately-held company; compared to publicly traded securities, an interest in a private business is highly illiquid. This lack of marketability reduces the value of the business interest for gift tax purposes since the children do not have a marketplace by which to quickly sell the interest for full value. The children also usually receive non-voting shares, or simply do not receive enough of an interest in the business to control voting decisions. Lack of voting control also reduces the value of the business interest for gift tax purposes since the children cannot vote to change any of the operations of the business. These valuation discounts alone can make a gift of an interest in a privately-held business a good estate planning strategy for a business owner. The key to making a gift of an interest in the business a great estate planning strategy is to make the gift before the business is on the market for sale, ideally at a time when the value of the business is still growing. If structured correctly, all of the growth on the value of the shares following the date you make the gift will pass to your children free of gift tax. Example 1 Kevin would like to transfer approximately 15% of his business, Widgets Inc., to his daughter Sarah without paying any gift tax. The year is 2014, and Kevin has not previously made any large gifts and has not used up any of his $5,340,000 federal gift tax exemption. Kevin thinks that a sale of Widgets is possible in the coming years. Kevin obtains a qualified appraisal of 15% of Widgets stock. The appraiser determines that Widgets is currently worth about $50,000,000. The appraiser further determines that a 15% interest in the shares should be given a 30% discount in value due to lack of marketability and control. He therefore values 15% of the Widgets shares at $5,250,000. Kevin gives 15% of the shares of Widgets to Sarah and uses $5,250,000 of his lifetime exemption to make the gift. There is no federal gift tax to pay because this amount is less than his current gift tax exemption ($5,340,000). Three years later, Widgets is sold for a total of $60,000,000. As a 15% owner, Sarah will receive $9,000,000 of the sales proceeds. The gift of shares was extremely successful for the family because Kevin only used $5,250,000 of his gift tax exemption to give his daughter an asset that was ultimately worth $9,000,000. 3

4 SALE TO AN INTENTIONALLY DEFECTIVE GRANTOR TRUST ( IDGT ) A gift of an interest in a privately-held business is a simple yet effective way to transfer assets to your children at a reduced tax cost. This simple technique can be made even more effective by selling the shares to a trust for the benefit of your children, rather than giving the shares to them outright. The trust would buy the shares from you not for cash, but in exchange for a promise to pay you the value of those shares after a certain number of years. The promissory note would pay interest only (at an IRS-determined interest rate) and a balloon payment at the end of a fixed term. The IRS-determined interest rates are currently at historical lows, which will require less money to flow back to your estate in the form of interest payments and will allow more value to stay in the trust for the benefit of your children. To increase the likelihood that the trust will be viewed as having the ability to repay the promissory note, it is recommended that the trust have cash or other liquid assets of at least 10% - 20% of the face amount of the promissory note. This may require you to make an initial seed gift to the trust. The trust would be designed to be an intentionally defective grantor trust (IDGT), or simply grantor trust. This means that you will be treated as the owner of the trust assets for federal income tax purposes during your lifetime, even though the trust assets will not be included in your estate at your death. Although having to pay the trust s income taxes may seem unattractive, consider that the amount of federal income tax you pay on the trust s behalf is equivalent to an additional tax-free gift to the trust of the amount of income tax paid. This feature of the trust allows the value of the trust to keep growing for the benefit of your children, without being depleted by federal income taxes. If the business is sold, the trust also does not need to be depleted by paying any of the federal capital gains tax liability on the sale of the business. Another beneficial feature of a grantor trust is that the initial sale of the shares to the trust does not trigger capital gains tax because, for federal income tax purposes, the sale is treated as if you had sold the shares to yourself. Potential Drawbacks If you die before the note has been paid, the IRS might assert that the property sold is included in your estate, or that capital gain on the sale is taxable to your estate when the balloon payment on the note is paid. Legal, appraisal and administrative costs of implementing this technique may be significant. Example 2 Instead of transferring 15% of the stock of Widgets Inc., to his daughter Sarah, Kevin creates a trust for Sarah s benefit and gives the trust a seed gift of $1,000,000 cash. Kevin does not pay any gift tax on the cash gift because this amount is less than his current available lifetime exemption ($5,340,000). Kevin then sells 15% of the Widgets shares to the trust for its appraised value of $5,250,000. Instead of paying Kevin cash, the trust gives Kevin a nine-year promissory note, paying interest only for nine years 4

5 at the then-applicable interest rate (1.82% in July 2014), with a balloon payment of $5,250,000 due at the end of the nine-year term. Because the trust is a grantor trust, Kevin s initial sale of shares to the trust does not trigger federal capital gains tax. As Widgets earns income, Kevin pays the associated federal income tax, and when the business is sold, Kevin pays the federal capital gains tax on the sale. The trust annually pays interest to Kevin ($95,550), and at the end of nine years, pays Kevin the principal balance on the note ($5,250,000). If Widgets is sold in the beginning of the ninth year for $78,000,000, then at the end of the nine-year term, the trust will own cash worth approximately $6,900,000, after payment to Kevin of interest and principal on his note. Kevin will have succeeded in transferring this $6,900,000 to his daughter without paying any federal gift or estate taxes and while using only $1,000,000 of his gift tax exemption. THE GRANTOR RETAINED ANNUITY TRUST ( GRAT ) A GRAT (a Grantor-Retained Annuity Trust ) is another highly effective strategy for passing wealth to children or other loved ones in conjunction with the sale of a business. A GRAT is a trust to which you would transfer shares in the business. The trust will then pay you an annual amount (i.e., an annuity) for a specified term of years. At the end of that term of years, your annuity payments will end, and you will no longer have any interest in the trust property. Any property remaining in the trust will be distributed to your children or other beneficiaries. For gift and estate tax purposes, you are treated as having made a gift at the time the trust is created. The value of the gift is not the full value of the business interest contributed to the trust. The value of the gift is the present value of the interest passing to your children at the end of the trust term. After all, you have kept the right to receive an annuity for a set term of years, and you are permitted to subtract out the value of the annuity interest when determining the value of the gift. The value of the annuity interest is calculated using the IRS-published interest rate applicable at the time the GRAT is created. Under current law, it is possible to set the annuity payments high enough such that their calculated value is equal to the value of the business interest contributed to the trust. This is referred to as a zeroed-out GRAT because the value of the gift is deemed to be zero in such a case. So long as the business interest transferred to the GRAT appreciates at a higher rate than the IRS-published rate, there will be property remaining in the GRAT for the benefit of your children when your annuity interest ends. The IRSpublished interest rate for GRATs is currently near historical lows (2.2% in July 2014), and many business owners find that it is not difficult to grow their businesses at a rate higher than the IRS-published rate. Like all the techniques discussed in this article, it is important to transfer the shares to the GRAT before the sale of the business is imminent. If the sale of the business is nearly complete, it will be difficult to argue that a value lower than the price received in the sale of the business is appropriate for gift tax purposes. Unlike the techniques discussed above, a GRAT is generally more effective when a sale of the business 5

6 is within a few years away, rather than many years prior. Unless the shares in the GRAT are generating substantial cash (perhaps through dividend distributions), the annuity payments to you will have to be made in-kind by transferring shares of the business back to you. Taking the stock out of the GRAT and distributing it back to you reduces the effectiveness of the technique, since the stock is the asset that will appreciate rapidly and will provide the most benefit to your children. Moreover, an in-kind distribution must be supported by an updated appraisal, which adds to the cost and complexity of the GRAT. Potential Drawbacks If you do not survive the term of the GRAT, a portion (or all) of the GRAT will be included in your gross estate for federal estate tax purposes. A GRAT is not an appropriate device to make gifts to grandchildren, great-grandchildren or more remote descendants. For purposes of the generation-skipping transfer tax (a tax levied on certain transfers to grandchildren and more remote descendants), the gift to the GRAT occurs when your annuity interest in the GRAT terminates. At that time, exemption from the generation-skipping transfer tax can be allocated to the trust, but the amount of exemption used would be based on the then fair market value of the trust. If the property in the trust has appreciated as expected, then a large portion of your exemption from the generation-skipping transfer tax would be consumed. From time to time Congress has considered legislation that would greatly hinder the effectiveness of GRATs. In the last several years, Congress has considered prohibiting zero-ed out GRATs and requiring GRATs to have a minimum term of ten years, which would greatly hamper their effectiveness. No such legislation has become law, but some believe that the benefits of GRATs may not be around forever. Legal, appraisal and administrative costs of implementing this technique may be significant. Example 3 Rather than making a direct gift or establishing an IDGT, Kevin decides to create a GRAT to share some of the financial success of Widgets with his daughter Sarah. Kevin transfers a 15% interest in Widgets to a GRAT. Under the terms of the GRAT, the trust will pay Kevin an annuity of $1,385,479 each year for four years. Based on the IRS-published interest rate at the time of the transfer (2.2% in July 2014), the present value of the four-year annuity that Kevin will receive from the trust is $5,250,000 exactly the appraised value of 15% of Widgets stock. Because the value of the property transferred to the trust is equivalent to the value of Kevin s annuity interest, Kevin will not be considered to be making any gift to the GRAT, and no gift taxes will be due. Widgets is then sold ten months after Kevin creates the GRAT for $52,500,000 and the GRAT is paid 15% of the sales proceeds ($7,875,000). The GRAT invests the sales proceeds in a portfolio of marketable securities that appreciates at approximately 5% per year. Each year, Kevin receives an annuity payment of $1,385,479. At the end of four years, the GRAT terminates and pays Sarah $3,144,706. Kevin has 6

7 succeeded in transferring over $3,000,000 to Sarah without being charged with making a gift or paying any gift taxes. FOR THE CHARITABLY INCLINED: GIFTS OF STOCK TO CHARITY Creating a charitable legacy is an important goal for many successful business owners. There are many good opportunities that allow a business owner to give funds to a favorite charity and enjoy an immediate income tax deduction. The most simple of these strategies is to gift stock in the business to a charity or donor advised fund. A donor advised fund is a separate account that is held for the exclusive benefit of charitable causes. The donor of the account has advisory privileges and may recommend charities to receive funds from the account. The property contributed to the donor advised fund does not need to be distributed to charity immediately, but can be distributed at any time in the future (subject to any restrictions applied by the fund manager). A donor advised fund can also be used in conjunction with a plan to reduce the estate taxes payable upon your death, since the assets in the donor advised fund are not part of your taxable estate. Gifts of stock to charity or a donor advised fund not only provide valuable funding for worthy charitable causes, but also can allow you to receive an income tax charitable deduction equal to the full fair market value of the stock, regardless of your income tax basis (subject to certain limitations relating to your adjusted gross income). The higher the value of the business, the higher the income tax deduction you will receive. Unlike many of the strategies discussed previously, a gift of stock to charity is best accomplished when the business is on the market for sale, when the discounts for lack of marketability would be the lowest and the value of the business is the highest. The terms of the sale should still be under negotiation; if the deal is nearly complete, it may be too late to realize the full income tax benefits of the gift. Potential Drawbacks If the sale of the business is not completed, the charity or the manager of the donor advised fund controls the contributed shares going forward. It is possible for the charity or donor advised fund to redeem the shares of the company, but this may not always be practical. Although giving to charity can reduce your income tax liability, it will ultimately reduce the assets available to you and your family. Not all charities are appropriate recipients of a gift of privately-held stock. Giving stock in a privately-held business to a private foundation limits your charitable income tax deduction to your cost basis in the stock. Example 4 Kevin has made a $5,000,000 pledge to his alma mater, Main Street University ( MSU ). Kevin would like to retire and has engaged an investment banker to assist with the sale of Widgets. Currently Kevin and his banker are negotiating with three potential buyers, and no deal documents have been signed. 7

8 Kevin could wait until the sale of Widgets is complete to make his charitable gift. Kevin s basis in his Widgets stock is $10,000,000. Assuming the sale of Widgets will be subject to a long-term capital gains tax of 20% and a 5% state income tax, if the business is sold for $50,000,000, Kevin would owe approximately $10,000,000 in taxes. After making his $5,000,000 gift to MSU and deducting the $5,000,000 gift on his income tax return, Kevin would really owe (net of the income tax deduction for making the gift to MSU) $8,750,000 in income taxes and would have approximately $36,250,000 of the sales proceeds to enjoy in his retirement. Kevin could instead donate stock in Widgets to MSU to satisfy his pledge. Since the deal is forthcoming, Kevin s appraiser finds that only a small discount for lack of marketability and control is appropriate and values 10.5% of the company at $5,000,000. Kevin donates 10.5% of the Widgets shares to MSU, and Kevin receives an immediate income tax deduction of $5,000,000. Widgets is sold two months later for $50,000,000. Kevin receives $44,750,000 and MSU receives $5,250,000 from the sale. Assuming that Kevin sells Widgets in the same tax year as he makes his gift to MSU, Kevin would owe approximately $7,700,000 in income taxes on the sale of Widgets (net of his $5,000,000 charitable deduction), leaving him with $37,050,000 following the sale. By giving stock in Widgets rather than cash to MSU, Kevin has kept an additional $800,000 of the sales proceeds and has provided MSU with an additional $250,000 gift. Conclusion Preparing and planning for the sale of a business can be an overwhelming and perhaps emotional time for a business owner. For this reason, it may be tempting to postpone thinking about how your deal will affect your family and charitable goals. If you do delay, a golden opportunity to pass part of the value of your business to your family or charity in the most tax-effective manner possible may be gone. Timely action is critical, and engaging your trusted team of advisors to assist you with valuable wealth and estate planning well prior to the sale of your business can help maximize the funds you and your family will receive in the deal. 8

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