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The Right Buy-Sell Agreement for Your Client

Posted by Russell E. Towers on 6 Oct 2016
Russell E. Towers

One of the most important planning issues confronting a business owner is what happens to his or her share of the business upon death.

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Insurance funded business transfer plans can guarantee that the shares will be legally transferred to the right successor owners at the right price. Most of the questions we hear revolve around what type of buy-sell agreement and what life insurance owner and beneficiary designations will accomplish this business transfer plan most efficiently.

The most popular types of buy-sell agreements include: Cross Purchase, Stock Redemption (“Entity”), Unilateral, (“One Way”) and Cross Endorsement. Summarized below is the basic structure of each type of agreement.

Buy-Sell Agreements

Cross Purchase Agreement

  • Each share owner agrees to buy the shares of the other owners upon their death for a specified price.
  • Each share owner is the owner and beneficiary of insurance on the lives of the other owners and is responsible for premiums on these cross-owned policies.
  • The business can pay bonus compensation to each share owner to pay premiums. These bonuses are deductible to the business (IRC Section 162) and taxable as current compensation to each policy owner.
  • Upon the death of an owner, the surviving owners receive a 100% increase in the cost basis of the shares purchased.
  • The surviving owners use the income tax free insurance proceeds to purchase the shares from the estate of the deceased. The estate of the deceased distributes this cash to heirs according to the terms of the deceased business owner’s will or trust.

Stock Redemption (Entity Plan) Agreement

  • The business entity (C Corp, S Corp, LLC) agrees to buy back (redeem) the shares of each owner upon their death for a specified price.
  • The business entity is the owner and beneficiary of insurance on the lives of each owner.
  • The premiums are a non-deductible expense for the business (IRC Section 264).
  • Upon the death of an owner, cost basis increase to the surviving owners depends upon the business type. Surviving owners of a C Corp receive a 0% cost basis increase; surviving owners of a cash basis S Corp can receive a 100% cost increase if the “short tax year” S Corp procedure of IRC Section 1377(a)(2) is followed; and surviving owners of an LLC will get a proportional cost basis increase equal to their respective share ownership in the LLC with some proportional “wasted basis” being allocated to the deceased LLC owner.
  • The business entity uses the income tax free insurance proceeds to purchase the shares from the estate of the deceased. The estate of the deceased distributes this cash to heirs according to the terms of the deceased business owner’s will or trust.

Note: Life insurance proceeds paid to a C Corp may be subject to the corporate alternative minimum tax (CAMT) in certain situations.

Learn More: Business Owners - Business Continuation

Unilateral (One Way) Agreement

  • Younger generation family member or key employee agrees to buy all the shares of the 100% owner upon death.
  • Younger generation family member or key employee is the owner and beneficiary of insurance on the life of the 100% owner and is responsible for premiums.
  • The business can pay partial or full bonus compensation to the younger generation family member or key employee to pay premiums. These bonuses are deductible to the business (IRC Section 162) and taxable as current compensation to each policy owner.
  • Upon the death of the 100% owner, the younger generation family member or key employee receives a 100% increase in the cost basis of the shares purchased.
  • Younger generation family member or key employee uses the income tax free insurance proceeds to purchase the shares from the estate of the 100% owner. The estate of the deceased 100% owner distributes this cash to heirs according to the terms of the deceased 100% owner’s will or trust.

Cross Endorsement Agreement

  • Each share owner enters into an endorsement split dollar - business cross purchase agreement with the other owners.
  • Each share owner is the owner of an insurance policy on his/her own life and endorses all or a portion of the death benefit to the other owners via beneficiary designation.
  • The business can pay bonus compensation to each share owner to pay premiums. These bonuses are deductible to the business (IRC Section 162) and taxable as current compensation to each policy owner. In addition, each policy owner reports income for the “economic benefit rental charge” based on the Table 2001 rate per thousand for the amount of insurance endorsed to the other share owners.
  • Upon the death of an owner, the surviving owners receive a 100% cost basis increase in the shares purchased.
  • As beneficiaries of the policy (endorsement), the surviving owners use the income tax free insurance proceeds to purchase the shares from the estate of the deceased. The estate of the deceased distributes this cash to heirs according to the terms of the deceased business owner’s will or trust.

In summary, the life insurance funded buy-sell agreements listed above perform a variety of important functions:

  • A buyer for the shares of each share owner is guaranteed.
  • The sale price is fixed in a legally enforceable agreement.
  • The funding for the buy-sell obligation is provided by the income tax free life insurance death benefit.
  • Cash liquidity equal to the purchase price of the shares is provided to the family of the deceased owner.
  • Life insurance premiums provide the lowest present value cost method to accomplish the transfer when compared to alternative financial methods.
  • Family members of the deceased owner receive cash and the surviving owner receives the shares in a timely manner ... exactly what both parties desire.
  • Disagreement on the future direction and operation of the business between the surviving share owners and the heirs of the deceased owner is avoided.

All buy-sell agreements should be drafted by legal counsel for the respective C Corp, S Corp, or Limited Liability Company (LLC) depending on the specific fact pattern of the case. Optional “wait and see” type of language can be drafted into any buy-sell agreement which allows a cross purchase option or stock redemption option to be decided upon only after a share owner has died. Also, “trusted buy-sell” plans can be drafted for multiple shareholder situations to reduce the number of insurance policies required and provide for a professional trustee to administer the buy-sell plan.

Read More: Buy-Sell Agreements: Risks of an Outdated Valuation

 

Topics: Retirement, Life Insurance, Buy Sell Agreement, Business Succession