CHAPTER 21 APPLICATIONS IN EXECUTIVE COMPENSATION PLANNING

LEARNING OBJECTIVES

After completing this chapter, you should be able to do the following:

  Identify the features of equity and executive compensation plans.

  Recognize the characteristics and uses of nonqualified deferred compensation plans.

  Apply professional responsibilities and standards to executive compensation planning.

Introduction

Executive compensation refers to any compensation provided to executives or high-level employees of a company, from salary to benefits—and there can be many benefits for executive high-level employees. In the last chapter, we discussed employee benefits, and they definitely play a role in executive compensation. However, there are a number of benefits and forms of compensation available to executives that are not available to other employees. From bonuses to special retirement plans to stock and ownership incentives, executive compensation can be varied and complex. Understanding the options and navigating those complexities can be challenging.

For many personal financial planners, executive compensation planning is not a service offering on their radar. This is unfortunate. Planners may feel that the executive benefit elements of an employment agreement are outside the scope of their services; however, the exact opposite is true. A personal financial planner is an essential adjunct to the successful negotiations of an employment agreement and the myriad options available for high-level compensation. In this chapter, we will explore some of the options available and understand how they might meaningfully impact a client’s personal financial plan.

Executive Compensation Agreements

Executive compensation is highly negotiable. Employees at that level are usually sought after by many companies, and as a result they often choose, or at least have a say, in the terms of their employment. The end result of employment negotiations is an agreement, and executives can be faced with a wide array of potential agreements. These agreements cover the start of employment, the end of employment, and everything in between—in some cases even beyond. We will thus start our discussion of executive compensation by exploring the various types of agreements and arrangements this type of compensation might entail.

EMPLOYMENT AGREEMENT

Executive compensation starts with an employment agreement (EA), which is a written contract between an employer and a prospective or current executive that outlines the terms of employment but also protects the employer’s financial and intellectual resources. Most employers require an EA as a condition of employment for executives who hold a C level position (CEO, CFO, COO), are involved in sensitive trade secrets or client information, and require a significant amount of capital expenditures to recruit.

SEVERANCE AGREEMENT

At the opposite end of the employment experience from the EA is the severance or separation agreement (SA), which is a contractual offer to a departing executive. A common practice for many employers is the use of an SA at the end of an employment relationship. Typically, enhanced severance benefits are offered in exchange for a release of liability for claims connected with the employment relationship.

NONCOMPETE AGREEMENT

Related to the SA is a noncompete agreement, which is an agreement between an employer and an executive in which the executive agrees not to use information acquired during employment in subsequent business efforts for a specific period of time after leaving the company. A noncompete agreement is necessary to protect the employer from the actions of a terminated employee who is recruited by a competitor or starts a competing business venture. Some states do not allow for noncompete agreements, and if allowed tend to be extremely difficult to enforce.

OTHER ARRANGEMENTS

The beginning- and end-of-work agreements we have just discussed are fairly common, if not somewhat standard for executives. The other arrangements available to executives can be very different and wider ranging. Many of these agreements are designed around the personal financial planning needs of an executive or highly compensated employee.

Executive Bonus Plans

An executive bonus plan (IRC Section 162 bonus plan) is a plan that a business may offer to provide discriminatory supplemental benefits to key employees or executives. The benefits usually include insurance products, both disability and life. The life insurance products can be used as a supplement to retirement income. With a Section 162 bonus plan, the business can use tax-deductible company funds to selectively provide benefits to key employees. The Section 162 bonus plan works as follows:

•The company provides the key executive with a bonus that is taxable as income to the recipient. The bonus is a deductible business expense for the company.

•The key employee uses the bonus to purchase an insurance product: annuity, disability, life insurance.

VARIATIONS OF EXECUTIVE BONUS PLANS

Golden Parachute

A golden parachute is a severance agreement that protects an executive from the effects of a corporate takeover or change in control. The golden parachute provides the executive who has resigned or was terminated as a result of the takeover or change in control with either continued compensation for a specified period following their departure or a lump-sum payment.

Golden Handcuffs

An employer will invest significant resources into hiring, training, and retaining an executive. Golden handcuffs are a collection of financial incentives that are intended to encourage an executive to remain with an employer. Golden handcuffs are common in industries where highly-compensated executives are heavily recruited and are more likely to move from company to company. Examples of golden handcuffs include bonuses and other compensation that is tied to tenure with the employer, employee stock options, and supplemental executive retirement plans.

Split Dollar Life Insurance Arrangements

Life insurance is a critical element of any personal financial plan. Permanent cash value life insurance is typically the best product to purchase, due to it being a source of liquidity for emergency reserves, cash deferred accumulations, and FIFO taxation. However, for many consumers, the higher premium amount, as compared to term insurance, is a barrier to purchase.

Many times an employer will purchase outright, or assist an employee, in the purchase of a cash value life insurance contract as an incentive. Thus, split-dollar life insurance arrangements are a key feature for many executive compensation packages.

The term split-dollar life insurance arrangement describes an arrangement between an employer and an employee in which they share, or split, the life insurance contract. The contract policy can split in several ways: cash value, death benefit, dividends, premiums, and ownership.

Table 21-1 shows the two methods of providing a split-dollar life insurance arrangement.

TABLE 21-1	METHODS OF PROVIDING SPLIT-DOLLAR LIFE INSURANCE ARRANGEMENTS

METHOD	DESCRIPTION
Endorsement Method	The employer is the policy owner and the premium payer. The employer’s premium payment is treated as a taxable economic benefit to the employee. The employer’s share of the contract benefits is secured through its ownership of the policy. A beneficiary is named to receive the employee’s share of the death proceeds. The employer’s death benefit is the sum of all premium dollars paid. This benefit cannot be provided to an employee who is a shareholder.
Collateral Assignment Method	The employee is the policy owner. The business loans the employee the business’s share of the annual premium, and the loan amounts are secured by the assignment of the policy from the employee to the business. The corporation receives its benefits, as the assignee of the policy, at the earlier of the employee’s death or the termination of the split-dollar plan. If the policy is terminated, the executive and the employer share in the cash value of the contract. As a minimum, the employer will receive back the amount loaned to the employee for premiums.

Employer-Provided Vehicle

An employer-provided vehicle is often made available for personal use by an executive. The personal use, based on facts and circumstances, may represent additional compensation to the executive. The employer must treat this personal use as a taxable fringe benefit and include additional compensation on the executive’s Form W-2.

There are two valuation methods used to determine compensation to be reported for the personal use of an employer provided vehicle, as shown in exhibit 21-1. The employer, within limits, is generally able to choose between the two methods.

EXHIBIT 21-1	VALUATION METHODS FOR EMPLOYER-PROVIDED VEHICLES

Nonqualified Deferred Compensation

To this point, the types of executive compensation we have explored generally fit within the categories of employee benefits we saw in the previous chapter. Now, however, we move on to a type of compensation not available to most regular employees: nonqualified deferred compensation.

Nonqualified deferred compensation, covered in Section 409A, refers to compensation that an employee earns in one year but is paid and reported as taxable income in a future year. It is an unsecured promise of a future benefit, and the promise is contingent on the employer having the resources available to pay that promised future benefit. Nonqualified deferred compensation plans are different from the qualified compensation plans we have seen in prior chapters. Nonqualified plans are not required to meet the tax and labor law requirements applicable to qualified pension and profit-sharing plans.

Table 21-2 shows the major differences between nonqualified and qualified plans.

TABLE 21-2	NONQUALIFIED AND QUALIFIED PLANS

NONQUALIFIED PLAN	QUALIFIED PLAN
May discriminate (not ERISA compliant)	May not discriminate (ERISA compliant)
Exempt from most ERISA requirements	Must satisfy ERISA requirements
No employer tax deduction for contributions until employee reports the income	Immediate employer tax deduction for contribution (even though employee may not be vested in the plan)
Fund’s earnings are taxable to employer and subject to the claims of the employer’s creditors	Fund’s earnings accrue tax deferred until distribution and are not subject to the claims of the employer’s creditors.
Distributions are taxable to employee at ordinary income tax rates	Distributions are taxable to employee at ordinary income tax rates

A nonqualified deferred compensation plan is used when an employer wants to provide additional benefits to an executive who is already receiving the maximum benefits (defined benefit) or contributions (defined contribution) under the employer’s qualified retirement plan.

FUNDED AND UNFUNDED PLANS

A nonqualified deferred compensation plan may be funded or unfunded. An unfunded plan is a promise to pay a future benefit. The term unfunded can be misunderstood because the plan may consist of a mere promise to pay, or it can be informally funded with life insurance, annuities, mutual funds, or general investments. Both methods are considered unfunded.

Informal funding is considered unfunded because the assets are owned by the company and are subject to the company’s creditors. As a result, there are no tax deductions for contributions until the employee is taxed or when he or she has some type of an economic benefit. These are the key determinates in the timing of the taxability to the employee.

An employer’s informal funding of a nonqualified deferred compensation plan exposes the employer to additional income taxes. If the plan is funded (the employer sets aside current revenue to fund the plan), the funding amount is taxed at the corporate level and added to the accumulated earnings of the company. The earnings on those funds, depending on how invested, may create additional corporate tax. Other important tax considerations are:

•Constructive receipt. As a general rule, income is taxable to a cash basis taxpayer in the year it is paid or made available to the taxpayer. Income is not treated as constructively received if the taxpayer’s control of its receipt is subject to substantial limitations or restrictions, such as with nonqualified deferred compensation or an unsecured promise of a future benefit.

•Substantial risk of forfeiture. Substantial risk of forfeiture exists if the employee’s rights to the enjoyment of the property are conditioned upon the performance of services for a period of time based on the plan document, as is the case with nonqualified deferred compensation.

•Economic benefit doctrine. If any economic or financial benefit is conferred on an individual as compensation in a taxable year, it is taxable to the individual in that year.

TYPES OF NONQUALIFIED DEFERRED COMPENSATION PLANS

Salary Reduction Plan

A salary reduction plan is also known as a pure deferred compensation arrangement. This plan uses a portion of the employee’s current compensation to fund the deferred compensation plan benefit. This strategy reduces the employee’s current taxable income; however, the dollars deferred are subject to the claims of the employer’s creditors until distributed to the employee at some future date.

Salary Continuation Plan

The salary continuation plan uses employer contributions only to fund the benefit. The employee is not taxed on the income until received.

Rabbi Trust

This trust is referred to as a rabbi trust because of an IRS letter ruling involving an arrangement between a rabbi and the employing congregation. The purpose for establishing a rabbi trust is to offer some security to the employee with respect to the employee’s benefits funded by the deferred compensation. Exhibit 21-2 shows the requirements for a rabbi trust.

EXHIBIT 21-2	REQUIREMENTS OF A RABBI TRUST

Because of the availability of trust assets to the creditors of the employer, the Department of Labor has determined that a rabbi trust is an unfunded plan and not subject to the Employment Retirement Income Security Act of 1974 (ERISA).

The main indicators for application of a rabbi trust are concern that ownership or management might change (as in a takeover or acquisition) before the deferred compensation benefits are distributed or paid, or a situation in which new management might be hostile to the key employee in the future and fail to honor the compensation agreement.

Secular Trust

A secular trust is an arrangement that addresses two critical challenges with nonqualified deferred compensation plans: the lack of security in relying on an informally “funded” plan, and the fear that the tax savings will disappear because tax rates at retirement may be higher. The secular trust is an irrevocable trust for the exclusive benefit of the employee, and the funds in the trust are beyond the reach of the employer’s creditors. The employee is taxed in the year in which the assets are placed in the trust. The employer may deduct contributions to the trust once the employee has become vested.

Because secular trusts are funded, they are subject to Title I of ERISA, which includes the following requirements:

•reporting and disclosure

•participation and vesting

•fiduciary standards

•administrative and enforcement provisions

Equity Compensation Plans

An executive may also be compensated with employer stock. The stock may be represented by direct ownership of the security by the executive or some type of arrangement that matches compensation to the performance of the employer’s stock. The stock may be that of a publicly traded company or a closely held business.

RESTRICTED STOCK PLAN

Restricted stock (also known as letter stock or Section 1244 stock) is an unregistered share of ownership in a corporation and is awarded to corporate affiliates such as executives and directors. The award may not be transferred, and may be forfeited if the executive leaves the company, fails to meet corporate or personal performance goals or comes into conflict with SEC trading restrictions.

“Insiders” are given restricted stock after a merger, acquisition, or underwriting activity in order to prevent the premature selling of the stock, which may adversely affect the company. As a result, restricted stock is nontransferable and must be traded in compliance with SEC Rule 144, which describes the registration and public trading of restricted stock and the limits on holding periods and volume. The stock typically becomes available for sale under a graded vesting schedule that lasts several years.

INSIDER ISSUES

When holders of restricted stock sell their shares, their capital gain or loss is reported as the difference between the stock’s price on the date it vests and on the date it is sold. Additionally, restricted stock is taxable as ordinary income in the year it vests. The amount that must be declared as income on the vesting date is the stock’s fair market value on the vesting date minus its original exercise price.

PHANTOM STOCK PLAN

A phantom stock plan is a contractual agreement between an employer and an executive that awards a right to a bonus paid to the executive based on the performance of “phantom” shares of the employer’s common stock over a specified period of time. No shares of stock are actually given to the executive—the company simply acts as if a certain number of shares had been given; hence, the idea of phantom shares. The right to the bonus may be contingent on time (vesting), in association with a designated event in the future, performance, or any combination of factors. The amount of the bonus will increase as the stock price rises, and decrease if the price of the stock falls.

A phantom stock plan aligns the interest of the employer and the executive without the employer diminishing control by giving shares of stock to the executive. There is no compensation reported when a grant of phantom stock is made; the bonus is taxed as ordinary income to the executive, and deductible by the employer as compensation. The bonus may be paid in cash, stock, a combination of cash and stock, or any other form of consideration.

QUALIFIED EMPLOYEE STOCK PURCHASE PLAN

Under a qualified employee stock purchase plan (QESPP), also called a Section 423 stock purchase plan, the employer is allowed to discount the price of the employer’s stock up to 15 percent of the market value. In order for an employee stock purchase plan to be qualified, it must meet the requirements shown in exhibit 21-3. Qualified ESPPs should not be confused with qualified retirement plans that are subject to ERISA regulations.

EXHIBIT 21-3	REQUIREMENTS FOR QUALIFIED EMPLOYEE STOCK PURCHASE PLANS

INCENTIVE STOCK OPTION AND NONQUALIFIED STOCK OPTION

An incentive stock option (ISO) must meet specific guidelines established by the IRS. When an executive is awarded an ISO, he or she recognizes no compensation when the options are granted or exercised. The executive is taxed only when the stock is sold.

A nonqualified stock option (NQSO) does not adhere to IRS guidelines. As a result, the executive recognizes compensation when the options are exercised. The compensation is the amount of gain on the difference between the exercise price and the stock’s current market price. Should the executive choose to retain the stock received as a result of the exercise of the options, the executive is taxed again when the stock is sold.

The primary difference between an incentive stock option and a nonqualified stock option is taxation at the date of exercise. An ISO is not subject to regular tax when exercised; NQSOs are subject to tax at exercise. An ISO may also be subject to the alternative minimum tax (AMT) based on facts and circumstances.

EXAMPLE

STOCK APPRECIATION RIGHT

A stock appreciation right (SAR) is a right for an executive to be paid an amount equal to the difference between the value of a specified number of shares of employer stock on the date the SAR is granted and the value of the stock on the date the SAR is exercised. The SAR provides the executive the right to the appreciation in the price of the employer’s stock, but not the stock itself. The employer’s control is not diminished.

A SAR in many ways resembles a nonqualified stock option, especially as to how it is taxed. A SAR is transferable but is often subject to forfeiture and claw-back provisions. A claw-back provision is a contractual provision that gives an employer the right to recover compensation paid or owed to an employee upon the occurrence of a specific event, such as the executive leaving and going to work for a competitor within a certain period of time period.

SECTION 83(B) ELECTION

An understanding of a Section 83(b) election is critical to the tax planning required in the area of equity compensation plans. When an executive is compensated with ownership in a company, the executive has to pay income tax on that compensation, the same as with any other income, even though it is only stock of the employer. The compensation amount that is recognized for income tax purposes is the fair market value of the stock at the time it is transferred to the executive. However, in many situations, especially with executive compensation, the compensation is contingent on a vesting schedule. As a result, income tax is not due until the stock vests. When the stock vests, it is subject to ordinary income tax and not long-term capital gains. This is a disadvantage to the executive.

To address this issue, the IRS implemented Section 83(b). A Section 83(b) election allows the executive to elect to have the compensation taxed as ordinary income based on the value of the stock when it was granted, rather than when it vests. In order to make the Section 83(b) election, the executive has to send a letter to the IRS within 30 days of the stock grant being made. The executive should retain a copy of the Section 83(b) election letter to file with his or her tax return. The risk of electing a Section 83(b) is that the restricted stock holder may leave the company before the shares vest. If this should occur, the shares are forfeited—and the income taxes paid, as a result of making a Section 83(b) election, are not refunded to the stock holder.

Top-Hat Plan

A top-hat plan is a general term for an arrangement which allows an employer to provide benefits to key executives in excess of the benefits that may be provided through more traditional qualified retirement plans. “Top-hat plan” is a phrase used to refer to nonqualified deferred compensation arrangements and to the treatment of these arrangements under ERISA. However, the term “top-hat plan” does not appear in the statute. In order for a top-hat plan to provide benefits to a key executive, on a tax-deferred basis, the top-hat plan must be designed in such a way as to avoid ERISA’s funding and vesting requirements. In order for a plan to avoid falling under ERISA’s provisions, the plan must be unfunded and maintained primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees.

Chapter Review

As we have seen, executive compensation refers to any number of ways an executive or high-level employee of a company may receive supplemental benefits and compensation. These benefits are not offered to more traditional employees and are used as a method to attract and retain executives and higher level employees. Because of their complexity, many personal financial planners do not offer planning for these types of benefits. Executive compensation strategies, if designed correctly, are able to supplement and enhance an executive or high level employee’s personal financial plan. A CPA’s knowledge of tax is highly sought after in this area of personal financial planning.

CASE STUDY REVISITED

Recall that Jeff McClain has reached out to you to seek your advice as to what he and his wife Alice should do regarding Jeff’s opportunity to take a CFO position with his former boss, Steve. You, as the personal financial planner, should review Alice and Jeff’s existing personal financial plan and determine whether this opportunity is in alignment with the McClain’s personal financial goals and objectives. If the opportunity is in alignment, then you should ask for the following documents:

1.Employment agreement

2.Employee benefits book

3.Noncompete agreement

The personal financial planner should be prepared to discuss the following:

1.Split-dollar life insurance arrangements

2.Golden parachute payment

3.Nonqualified deferred compensation

4.Incentive stock options and nonqualified stock options

The personal financial planner should focus not only on compensation (cash, stock and insurance) and income tax considerations, but also on what types of executive benefits are available and how they might supplement the executive’s personal financial plan. These personal financial planning needs should be addressed in, and form a basis for, negotiations in the employment agreement.

ASSIGNMENT MATERIAL

REVIEW QUESTIONS

1.Under an endorsement form of split-dollar life insurance, the insured’s spouse is which of the following?

A.The owner of the life insurance contract.

B.The beneficiary of the life insurance contract.

C.The premium payer of the life insurance contract.

D.The contingent beneficiary.

2.The __________ is an unfunded plan maintained primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees.

A.Employment agreement.

B.Executive bonus plan.

C.Secular trust.

D.Top-hat plan.

3.Income is taxable to a cash basis taxpayer in the year in which it is paid, or made available to the taxpayer. This is the doctrine of _________.

A.Constructive receipt.

B.Economic benefit.

C.Risk of forfeiture.

D.Variable bonus.

4.All of the following are required for a qualified employee stock purchase plan except:

A.All eligible employees must be allowed to participate in the plan.

B.An employee may not purchase more than $25,000 worth of stock (based on fair market value on the first day of the offering period) for each calendar year in which the offering period is in effect.

C.Only employees of the company (or its parent or subsidiary corporations) may participate in the plan.

D.Only employees owning more than 5 percent of the company stock may participate in the plan.

5.Which of the following is Section 1244 stock?

A.Ledger stock.

B.Qualified employee stock purchase plan.

C.Restricted stock unit.

D.Unrestricted stock unit.

6.The need for a rabbi trust would be indicated in which of the following situations?

I.An acquisition.

II.Bankruptcy.

III.Hostile takeover.

IV.Mergers.

A.I, IV.

B.I, II, III.

C.II, III.

D.I, III, IV.

7.With the opening of a local casino, the Bank of Red River is having record earnings. The bank’s increased profits and the new casino are the direct result of the bank’s president, Mortimer Rock. The bank wants to establish a secular trust for Mortimer. Which of the following statements is or are correct?

I.Mortimer will be able to defer income tax on a portion of his current income.

II.The plan assets are subject to the creditors of XYZ Bank of Red River.

III.The plan is unfunded.

IV.Employee income taxation will occur at the time the contribution is made to the trust.

A.All of the above.

B.I, II.

C.II, IV.

D.IV.

8.Which of the following are correct about a nonqualified deferred compensation plan?

I.A nonqualified deferred compensation plan is an unsecured promise of a future benefit.

II.Nonqualified deferred compensation plan assets are not subject to the claims of creditors of the employer.

III.The plan may provide for benefits in excess of qualified plan limits.

IV.The plan may not discriminate.

A.I, II.

B.I, III.

C.II, III.

D.II, IV.

9.Which of the following trusts is a top-hat plan?

A.ERISA trust.

B.Grantor trust.

C.Rabbi trust.

D.Secular trust.

10.Restricted stock is taxable as ______ in the year ______.

A.Long term capital gains/it is granted.

B.Long term capital gains/it is sold.

C.Ordinary income/it is granted.

D.Ordinary income/it is sold.

INTERNET RESEARCH ASSIGNMENTS

1.Research split-dollar insurance plans at the AICPA’s 360 Degrees of Financial Literacy website. How did the Sarbanes-Oxley Act of 2002 affect split-dollar life insurance?

2.What information is available from the Equal Employment Opportunity Commission (EEOC) on age discrimination? To whom does the Age Discrimination in Employment Act of 1967 apply?

3.Visit the SEC website. What are the conditions of Rule 144?

4.Download the “Federal Securities Law: Insider Trading” report (March 2016) from the Congressional Research Service website. What activity is discouraged in Section 16 of the Securities Exchange Act of 1934?