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Aaron Juckett 
President 
CPA, CPC, QPA, QKA 
ESOP Partners LLC 
Phone: 920-659-6000 
Toll Free: 800-837-3112 
Direct: 920-659-6002 
Fax: 866-337-1095 
AJuckett@ESOPPartners.com
ESOPPartners.com 
OneStopESOPBlog.com 

2013 IRS Pension Plan Limits

401(k) Deferral Limit - $17,500

Annual Additions Limit - $51,000

Maximum Compensation Limit - $255,000

Catch-Up Contribution Limit - $5,500

Highly Compensated Employee - $115,000

ESOP 5-Year Distribution Threshold - $1,035,000

ESOP Additional Year Threshold - $205,000

2012 Pension Plan Limits

1989 - 2012 Plan Limits

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2011 Pension Plan Limits

The IRS has announced the 2011 pension plan limits, including the following:

Board of Directors: Composition and Roles

It's hard to believe this year's ESOP Association Las Vegas Conference is almost upon us. The two-day conference is next Thursday, November 4 and Friday, November 5, and the agenda is full of informative ESOP sessions. I will be presenting Board of Directors: Composition and Roles on Friday, November 5, at 9 am:

ESOP Success Stories

5 ESOP Success Story Videos for Employee Ownership Month shares the success stories of 5 of the Top Small Company Workplaces that are also ESOP companies:

Retroactive Changes to Estate Tax Law?

We have spent some time recently talking about some of the uncertainty with the tax rates and some Tax Planning Strategies for 2010 . In addition to the 2011 Tax Increases, there is a lot of uncertainty surrounding the 2010 Estate Tax and Disappearance of the Step-Up in Basis as well as the future of the estate tax rules. Will Congress Take a Pass on the Estate Tax and Send Us Back to 2001? explores the legality of implementing retroactive tax law and references United States v. Carlton (92-1941), 512 U.S. 26 (1994), a case involving a sale of a company to an ESOP:

Does this mean Congress will not pass any retroactive legislation? At the moment the answer is as clear as a foggy night. But one thing is evident: if retroactive legislation is enacted, Congress and the IRS can anticipate years of protracted litigation, with high net-worth estates asserting such action is unconstitutional.

Update on the National Commission on Fiscal Responsibility and Reform

Earlier this year we discussed the President's Economic Recovery Advisory Board (PERAB) and their report that Suggested Eliminating the "Special ESOP Rules". The PERAB report was submitted to the National Commission on Fiscal Responsibility and Reform to be considered as part of their recommendations to address the national deficit that are due on December 1, 2010. Key Tax Breaks at Risk as Panel Looks at Cut provides an update on the commission and discusses some of the initial tax breaks being explored by the panel:

Sacrosanct tax breaks, including deductions on mortgage interest, remain on the table just weeks before the deficit commission issues recommendations on policies to pare back with the aim of balancing the budget by 2015...At stake, in addition to the mortgage-interest deductions, are child tax credits and the ability of employees to pay their portion of their health-insurance tab with pretax dollars. Commission officials are expected to look at preserving these breaks but at a lower level, according to people familiar with the matter.

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6 Tax Planning Strategies for 2010

Last week we talked about the upcoming 2011 Tax Increases. 2010 Year-end Tax Planning Requires New Strategies discusses how the typical tax planning strategy for 2010 will be to accelerate income and deer deductions other than itemized deductions and shares 6 tax planning strategies:

ESOPs Held 15% of Retirement Assets

The October 15, 2010 Employee Ownership Update is online and discusses the following:

President Reagan’s Position on Employee Ownership

Earlier this week we discussed The ESOP Association's Take on President Obama's ESOP Comments. The Employee Ownership Blog highlights President Reagan's role in passing ESOP tax incentives in 1984 and 1986 and shares a link to a 1987 video (go to 4:07 for the start of the relevant remarks) to provide additional evidence in President Reagan and Employee Ownership:

The video is about 10 minutes in length and the section about employee ownership is at the four to five minute mark. This particular speech was given in regard to the 1986 Report released by the Presidential Task Force on Project Economic Justice. These remarks were made at the ceremony where President Reagan received the Report on how employee ownership could counter Communism in Central America. The first four minutes are remarks about individual rights and freedom. President Reagan in the last six minutes speaks directly about employee ownership as key to economic justice.

Quan v. Computer Sciences Corporation, No. 09-56190, D.C. No. 2:08-cv-02398-SJO-JWJ, September 30, 2010

Earlier this year we discussed how a NCEO analysis found that Courts Almost Always Give the Moench Presumption of Prudence For Company Stock in ESOPs. The Ninth Circuit has joined the Third, Fifth, and Sixth Circuits that have affirmatively adopted the Moench presumption. [The First Circuit is the only circuit that has rejected the Moench presumption.] Ninth Circuit Adopts Moench Presumption in Favor of Fiduciaries discusses how the United States Court of Appeals for the Ninth Circuit has adopted the Moench doctrine in Quan v. Computer Sciences Corporation, No. 09-56190, D.C. No. 2:08-cv-02398-SJO-JWJ, September 30, 2010 and some key takeaways from the case:

The ESOP Association's Take on President Obama’s ESOP Comments

Reaction to President Obama's Comments on ESOPs shares ESOP Association President J. Michael Keeling's take on President Obama's Response to an ESOP Question. He refers back to a 2005 letter from Senator Barack Obama Regarding ESOPs and ultimately compares his ESOP position to that of former President Bill Clinton:

Repurchase Obligation Factors: Assumptions and Participant Data

As we continue our discussion about the Interrelationship Between Stock Valuation and the Repurchase Obligation, let's start by talking about Garbage_In,_Garbage_Out or GIGO. The concept of GIGO certainly applies to preparing a repurchase obligation study. If you don't use accurate assumptions in your forecast, then you won't have an accurate repurchase obligation forecast. While I would initially say that any first attempt at preparing assumptions for a study is better than not making an attempt at all, it is essential to continuously revisit the assumptions to ensure that they are accurate. You will also find a lot of overlap between your repurchase obligation assumptions and the information involved in the financial planning process. Some companies incorporate the repurchase obligation forecasting process into their strategic planning.

Incorporating Life Insurance into an ESOP Transaction

In Downturn's Wake, More Owners are Turning to ESOPs discusses some ways to incorporate life insurance into an ESOP transaction, including using life insurance to 1) fund the Repurchase Obligation, 2) fund non-qualified plans for key executives, 3) provide for the continuity of the business in the event of a key employee's death, and 4) provide a guarantee that the bank or seller financing will be paid in the event of death of the seller or other key employees:

2011 Tax Increases

If you are considering an initial sale to an ESOP or a second-stage ESOP transaction, it is important to understand some of the potential tax consequences of NOT closing the sale by December 31, 2010. Here is a brief summary of some of the upcoming 2011 tax increases (assuming no Congressional action is taken between now and the end of the year):

  1. Capital Gains Rates – The current long-term capital gains rates are currently at a historically low rate of 15%. Unless the 111th United States Congress takes action before the end of the year, the 2001 and 2003 tax rates will sunset at the end of the year and capital gains rates will increase from 15% to 20% on January 1, 2011. The rates are scheduled to rise another 3.8 percent in 2013.

  2. Personal Tax Rates – Personal income tax rates will also sunset at the end of the year and will also be increasing, increasing the taxes on an ordinary income.

    10% bracket --> 15%
    25% bracket --> 28%
    28% bracket --> 31%
    33% bracket --> 36%
    35% bracket --> 39.6%

  3. Estate Taxes – The estate tax will also be returning in 2011.

  4. State Taxes – Depending on where you live, your state income taxes may also be increasing.

Repurchase Obligation Factors: Plan Document and Distribution Policy

We recently started a discussion on the Interrelationship Between Stock Valuation and the Repurchase Obligation. One of the important assumptions used in preparing a repurchase obligation forecast is your Distribution Policy. Here is a quick summary of the various ESOP distributions rules:
  • Participants that terminate due to Death, Disability, or Retirement are eligible to being taking distributions within one year after the plan year of termination.

  • Participants that terminate due to Other Separations of Service will begin within six years after the plan year of termination. However, there is a ESOP Loan Exception that allows distributions to this group to be delayed until the ESOP loan is repaid in full.

  • Participants age 55 with 10 years of participation are eligible to Diversify 25% of their account for five years. The diversification percentage goes up to 50% in the sixth and final year.

  • Distributions generally cannot be forced by the company. However, a company can make Mandatory Distributions to terminated participants with an account balance of $5,000 or less. If the balance is greater than $1,000, then any forced distribution must be rolled into a safe harbor automatic rollover IRA. Distributions can also be forced to take a distribution if the participant attains their Latest Commencement Date (the later of age 65, termination from the plan, and attaining 10 years of participation) or is required to begin receiving Required Minimum Distributions (most participants must begin receiving taxable distributions after they reach age 70½ and terminate).

  • Depending on the plan rules, a plan may pay the alternate payee of a Qualified Domestic Relations Order (QDRO) before the plan participant is eligible for a distribution.

  • In addition to commencing distributions, a plan may effectively speed up the repurchase obligation if they employ an ESOP cash conversion strategy (aka ESOP Reshuffling) for terminated participants.

You will also have to determine whether distributions are paid in the form of cash or shares and whether the method of distribution will be lump sum payments or installments.

Trust and Building an Ownership Culture

Earlier this summer we discussed the first in a three part article on Building a Trust System. Part 2 - Building a System of Trust: Ten Hidden Secrets of Success in Employee-Owned Companies continues to look at the ten hidden secrets and how trust is the indispensable element of building an ownership culture:

Updated ESOP Loan Default Rates, Shortened Built-In Gains Tax Holding Period

The September 30, 2010 Employee Ownership Update is online and discusses the following:

DOL Disclosure Regulations, ESOP and Executive Compensation Survey Results, and Risky Tax Strategies

The September 14, 2010 Employee Ownership Update is online and discusses the following:

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