Update on ESOPs and Corporate Tax Reform
When we covered President Barack Obama’s 2010 tax reform panel, we discussed the likelihood that Congress would consider tax laws related to employee stock ownership plans (ESOPs) as "tax loopholes" and include them in their efforts to "fund" a reduction in the overall corporate tax rate.
Another proposal that would impact ESOP companies is if the size of pass thru entities (RE: S Corporations) would be limited. If a company exceeded the limit (likely expressed in terms of gross receipts) it would be taxed as a C Corporation and negate the S Corporation ESOP tax benefits. The Report of the President’s Advisory Panel on Federal Tax Reform (November 2005) cites a threshold for the uniform C Corporation taxation at $10 million of receipts:
Gone from the tax code would be most of the special preferences and rates that often apply to such large businesses. This would result in a system that taxes large business entities with more than $10 million of receipts more uniformly and at a lower 31.5 percent tax rate. Business entities with less than $10 million in receipts would be free to report income and to be taxed as a corporation if they so chose; if they did so, their owners would obtain the beneﬁts of the 100 percent exclusion for domestic dividends and the 75 percent exclusion of capital gains on the sale of their corporate stock.
The President’s Framework for Business Tax Reform (February 2012) contemplates these initiatives:
Reduce the corporate tax rate from 35 percent to 28 percent.
Eliminate dozens of business tax loopholes and tax expenditures. – The report states that the plan would “start from a presumption that we should eliminate all tax expenditures for specific industries, with the few exceptions that are critical to broader growth or fairness” and cites a few examples.
Reform the corporate tax base to invest savings in cutting the tax rate and reducing harmful distortions.
Improve transparency and reduce accounting gimmicks.
The report also references the previously mentioned S Corporation taxation issue:
The ability of large pass-through entities to take advantage of preferential tax treatment has placed businesses organizing as C-corporations at a disadvantage. By allowing large pass-through entities preferential treatment, the tax code distorts choices of organizational form, which can lead to losses in economic efficiency; business managers should make choices about organizational form based on criteria other than tax treatment.
Rep. Paul Ryan [R-WI1]’s Fiscal Year 2013 Budget Resolution a.k.a. House Budget also contemplates “closing loopholes”.
The ESOP Association submitted a statement to the House Ways and Means Committee hearing on the Treatment of Closely-Held Businesses in the Context of Tax Reform, citing the Findings of 2010 General Social Survey (GSS):
Citing the 2010 General Social Survey evidencing that companies with employee stock ownership were four times less likely to lay off employees during the Great Recession than conventionally owned companies, ESOP Association President, J. Michael Keeling, urged the Congress to consider job sustainability when reforming the Federal tax code.
Here are links to the 2011 ESOP Association Tax Reform Comments and video commentary from ESOP Association President J. Michael Keeling on ESOPs and tax reform: