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Thursday, April 23, 2020

Covering All The Bases

COVERING ALL THE BASES

Both your business and estate plan can benefit from a buy-sell agreement

A buy-sell agreement provides for the disposition of each owner’s business interest after a “triggering event,” such as death, disability, divorce, termination of employment or withdrawal from the business. However, to be effective, the agreement must include the appropriate provisions.

It also should be part of your estate plan if you own an interest in a family-owned or other closely held business.

What are the benefits?

A well-crafted buy-sell agreement provides many benefits, including:

  • Keeping ownership of the business within the family or another select group (for example, people actively involved in the enterprise),
  • Preventing an owner’s former spouse from acquiring a business interest in the event of a divorce,
  • Providing owners and their heirs with liquidity to pay estate taxes and other expenses in the event of death or disability,
  • Establishing the value of the business for gift and estate tax purposes (if certain requirements are met), and
  • Minimizing disputes over ownership succession issues.

Typically, buy-sell agreements achieve these objectives by requiring or permitting the company or the remaining owners to purchase the interest of an owner who dies, becomes disabled or leaves the business. They may also provide the company or the remaining owners with a right of first refusal in the event an owner wishes to sell his or her interest.

Are there tax implications?

Generally, buy-sell agreements are structured either as “redemption” agreements or “cross-purchase” agreements. The former permit or require the company to purchase a departing owner’s shares, while the latter confer that right or obligation on the remaining owners.

From a tax perspective, cross-purchase agreements are generally preferable. The remaining owners receive the equivalent of a “stepped-up basis” in the purchased shares, in that their basis for those shares will be determined by the price paid, which is the current fair market value. Having the higher basis will reduce their capital gains if they sell their interests down the road. Also, if the remaining owners fund the purchase with life insurance, the insurance proceeds are generally tax-free.

Redemption agreements, on the other hand, may trigger a variety of unwanted tax consequences, including corporate alternative minimum tax, accumulated earnings tax or treatment of the purchase price as a taxable dividend.

The disadvantage of a cross-purchase agreement is that the owners, rather than the company, are responsible for funding the purchase of a departing owner’s interest. And if they use life insurance as a funding source, each owner will need to maintain insurance policies on the life of each of the other shareholders, a potentially cumbersome and expensive arrangement.

What’s a fair selling price?

A buy-sell agreement’s valuation provision is critical to avoiding unpleasant surprises or conflicts. Generally, the fairest and most effective method of setting the purchase price is to conduct periodic independent business valuations and to base the price on fair market value.

Many agreements set the price using a formula tied to earnings, cash flow, book value or some other objective measure. Although formulas offer simplicity and lower costs, they can’t account for subjective characteristics or other factors that drive business value. As a result, they often underestimate or overestimate business value, which can lead to disputes when the buy-sell agreement is invoked.

Can a buy-sell agreement benefit you?

If you own interests in a family or closely held business, a buy-sell agreement may be right for you. However, it’s important to carefully define the terms and to consider the potential implications of the agreement’s language. Your estate planning advisor can give you more details.


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