Transferring Business Interests to Family Can Preserve Wealth
To ensure that taxes do not consume the wealth you have worked so hard to create, it is necessary to plan ahead. Part of that plan may include transferring business interests to family members while you are still alive. This article highlights some of the strategies that can be used to transfer business interests without giving up control of your business before you wish to do so.
Even with the allowable exemptions and exceptions available to you when planning for federal estate taxes, there is the real possibility that the remaining assets will be taxed at very high rates. To legally avoid this outcome, a number of strategies have been developed over the years that will allow you to pass on wealth to your family.
- the family limited liability company
- discounted business interests
- tax-free gifts
- trusts and S corporations
Before you decide to use any of these strategies, carefully consider the implications of your transfer, because you will be diluting your ownership in what you worked so hard to build, as well as affecting the tax status of all the parties involved.
It is always wise to consult an estate planning professional for advice before undertaking any planning strategies.
Understanding Implications Business Interest Transfers Is Crucial
When executing estate planning strategies, the result of transfers to children will often be income-splitting that lowers the family's overall income taxes.
Traditionally, income in a limited liability company (LLC) is divided according to the relative balance in the owners' capital accounts. Because the children will own much, or nearly all, of the business, according to the capital accounts, most of the income would be attributable to the children, if this traditional allocation scheme is used.
The children's share of income would be "passive" income in this instance. The first $1,900 of this passive income will be taxed at the child's tax rate, while the remainder is taxed at the parent's tax rate. However, if the children actually provide services to the business and were paid for those services, any payments to them would not be passive income. Accordingly, all of this non-passive income would be taxed to the children at their lower rates.
For 2012, the first $9,750 (the amount of the child's current standard deduction plus the child's personal exemption amount) would be tax-free. Moreover, it should be noted that parents could provide the cash necessary to pay the taxes incurred by the children.
Further, when children actually work in the business, this will mean retirement plan contributions can be made on their behalf. It also will allow the retirement plan to qualify under the Employee Retirement Income Security Act (ERISA), where, otherwise, with only the two parents participating in the plan, it would not qualify. This will mean the retirement plan benefits will be protected as exempt assets in a bankruptcy or state court proceeding (see our discussion of asset exemption planning).
Use of this allocation scheme also will mean that the wealth represented by the business's earnings will not be subject to the estate tax. Nearly all of the income drawn out from the business would be attributable to the children and, thus, not taxable in the parents' estate.
Transfers to the children also offer flexibility with respect to income taxes. Because the parent retains control, and provides all of the labor and planning for the business, all (or most) of the business's earnings can be drawn out by the parent as salary, if that is desired. This obviously is an advantage to the parents in terms of control of the cash flow.
Moreover, transferring ownership interests to the children serves a useful asset exemption purpose. The value of the business is divided among the parent and the children, leaving the parent with complete control of the business, but with a lower-valued ownership interest. This makes it easier to exempt the parent's ownership interest.
Finally, when transfers are made into a trust with a spendthrift clause, the interests transferred are protected from the children's creditors. Ultimately, asset protection strategies should be designed to work together, as part of a comprehensive asset protection plan.
Factors to Consider in Transferring Assets
If you are going to use the estate planning strategy of transferring ownership interests to family members, several caveats are in order.
Estate planning is an especially complex and ever-evolving area of law. It is wise to consult an estate planning practitioner before undertaking any planning measures.
While the parents retain control of the management of the business, and control over withdrawals during the life of the business, the children in fact will own a significant portion of the business. They will receive this share on liquidation of the business. Some parents would not want this result or would want the ability to revoke the transfers, which is not possible.
Parents still must plan for the transfer of control of the business (i.e., the manager interest) to the next generation. This decision involves many other factors, such as the children's desire, or competence, to operate the business, etc.
Capital Must Be Material Income-Producing Factor
The IRS has approved the transfer of interests both to children directly and to trusts that hold the interests for the children. Accordingly, the children or the trust will be recognized as partners for federal tax purposes. However, in both cases, the IRS will recognize the children, or the trusts holding their interests, as partners, only if capital is a material income-producing factor.
This rule exists to prevent parents from shifting what really is income from their personal services to the children. If the profits are generated principally by services provided by the parents, the children (or their trust) will not be recognized for federal tax purposes and the income will be taxed to the parents.
Note that the IRS cannot control who is a partner under state law, or for any other purpose, except for purposes of federal taxation and, in this case, for purposes of deciding who will be taxed on the business's income.
This IRS rule on which partners are taxed may not present a problem for the small business owner, even in a personal service business, because the children will be gifted interests in the holding entity. The holding entity will produce income primarily from the provision of capital to the operating entity (providing leased equipment, purchasing receivables, etc.). This is yet another reason to use a holding entity and an operating entity.
Finally, where capital is not a material factor in producing income, there is another option. The IRS will recognize the children, or their trust, as partners if the children provide significant services to the business, and income is allocated according to the relative services provided, rather than on the basis of relative capital interests.
Trusts Must Be Managed for Benefit of Beneficiaries
In addition, where trusts hold the interests of the children, the trustee, especially if this is the parent, must manage the interests solely for the benefit of the beneficiaries of the trusts--the children. This prevents parents from using the principal or income in the trust for their own personal benefit.
This strategy has recently come under IRS scrutiny, precisely because of its effectiveness in significantly reducing estate taxes. Basically, the IRS has scored successes when individuals have created an entity and transferred interests to their children on their death-bed, as a tax-avoidance tool, and when entities have been formed and funded solely with marketable securities and, thus, had no business purpose. Neither of these situations will be likely to apply to the small business owner.
Family LLCs Can Transfer Wealth, Protect Assets
Many different estate planning strategies can be used to eliminate or, at the very least, significantly reduce estate taxes, ensuring the family's wealth is passed on to the next generation.
One such strategy involves transferring business interests to the family through the use of a limited partnership (LP) or a limited liability company (LLC). Parents transfer to their children "discounted" shares in their LP or LLC, without giving up control of the business.
Parental control of the business is ensured in the LP because limited partnership interests are transferred to the children, while the parents retain the general partnership interest (limited partners may not participate in the management of the business.) Historically, the LP has been used in estate planning strategy because of this attribute.
Today, the LLC can be used to accomplish this same purpose, but with all of the owners having limited liability for the business's debts. An LLC can be structured as a "member-managed" entity, wherein all of the owners participate in management, similar to the partners in a general partnership. However, the LLC can also be formed as a "manager-managed" entity, wherein the owners who are also the managers control the business, while the owners who are not managers act in a capacity similar to limited partners. In short, the "manager-managed" LLC is well suited to accomplish this estate planning objective.
Parents can transfer ownership interests, in the form of non-voting non-manager interests, to the children without giving up control of the business. In the immediate future, many practitioners will continue to use the LP in employing this estate planning strategy, because a body of favorable case law has built up over the years supporting the use of the LP for this purpose. However, many practitioners are already embracing the LLC as a better alternative to the LP, because all of the owners of the LLC enjoy limited liability.
Sometimes an LP is created solely to transfer wealth tax-free. In this case, it is usually funded with the family's securities or real estate holdings. However, its best use exists when the family is using the entity to operate a legitimate business.
As the limited liability limited partnership (LLLP) begins to become more common, the limited partnership form may, once again, be the choice of practitioners employing this estate planning strategy, at least in those states that allow the owner's personal creditors to foreclose on the owner's business interest, and force a liquidation of the business to satisfy the debt.
In contrast, the corporation has never been used for this purpose. The corporation does not offer the same protection to owners from the claims of the owners' personal creditors. In many states, the personal creditors of the owner of a corporation, but not an LLC, may foreclose on the interest of the owner and force a liquidation of the business, or simply vote in favor of liquidation.
Moreover, the subchapter S corporation limits estate planning opportunities because the law places restrictions on the types of trusts that may be shareholders. Although an estate planner can avoid nearly all of these limitations, the need for specialized advice can make estate planning with an S corporation somewhat more burdensome than with an LLC. Therefore, the LLC generally is a better choice than the corporation.
Most small business owners operating a corporation will make the subchapter S election, which requires that there be only one class of stock in the corporation. However, voting and non-voting stock are considered to be the same class of stock for purposes of the S corporation election.
For this estate planning transfer strategy to work, there would have to be two types of stock--voting for the parents and nonvoting for the children. While it is possible to employ this strategy using an S corporation, it is not widely used.
Structure LLC with Intra-family Asset Transfers in Mind
The small business owner should consider creating a manager-managed LLC at the outset, even when the owner does not anticipate immediately making transfers. This can be done even in the one-owner LLC, in anticipation of the possibility of transferring interests some time in the future. This eliminates the need, in the future, to make amendments to the articles of organization and operating agreement, which would be necessary had a member-managed LLC been created.
If a holding entity and an operating entity are created, it is important to use this strategy when structuring the holding entity that will own the bulk of the assets and the operating entity--which is the entire wealth of the business. Thus, the operating entity may then be a member-managed or a manager-managed LLC, with the holding entity as the only owner.
When the owner directly creates and owns both entities, each entity should be manager-managed. Clearly, having the holding entity own the operating entity simplifies this strategy.
Finally, licensed professionals, such as lawyers or doctors, can form an LLC, LLP or a corporation only if all of the owners are licensed within the same profession. (Some states, such as California, closely regulate the type of entity that can be used by different professions--so make sure that you know the formation state's laws)
Only the operating entity has to meet this requirement. The holding entity, which will contain nearly all of the wealth of the business, will not be engaged in the practice of any profession. Thus, children, or other family members, for example, can still be co-owners of the holding company, even when it is formed by professionals. However, the operating entity would have to be directly owned by the professionals, rather than by the holding company.
Protecting Assets Transferred to Children
Parents may wonder whether interests can be transferred to children who are minors. Or, they may be concerned as to whether their children will responsibly manage their interests. These issues can be resolved. First, it must be remembered that the children's interests are non-voting non-manager interests, meaning the children will not have the power to control the business in any event.
Transfer interests into trust. To protect the assets, the children's interests can be transferred to an irrevocable children's trust, with the parents as trustees. There, the interests can be completely protected from the children's creditors (see our detailed discussion on trusts and, in particular, the types of provisions that can be used in a trust to protect assets from the claims of creditors).
Transfers using UTMA. Drafting such a trust would require the services of an estate planning attorney. A simpler strategy would be to transfer the interests to the children under the Uniform Transfers to Minors Act (UTMA). This requires nothing more than properly titling the ownership interests.
The disadvantage here is that, under the UTMA, the children gain control over the interests at a relatively young age (age 21 in most states). In contrast, in an irrevocable children's trust, the parents, as trustees, can retain control until the children reach a specific age the parents select.
Agreement restricting transfers. Finally, an agreement restricting transfer of ownership interests is essential in any small business with multiple owners. Such an agreement effectively gives the parents control over the disposition of the shares owned by the children, even when the children own the shares outright.
It is clear that the most effective strategy involves transferring business interests to the next generation, before the interest become especially valuable. The more valuable the interest, the more difficult it becomes to make the transfers, while still preserving the unified estate and gift tax exemption.
Strategies to Effectively Transfer Business Interests to Family
Now that we've discussed the entity form (the family limited liability company) best suited for transferring business interests to the family, it's time to explain how to make those transfers most effectively.
Discounting Business Interests To Transfer Wealth
A transfer in excess of the annual exclusion per person will reduce the lifetime gift tax exemption allowed under federal estate tax laws. This is where "discounting" becomes an important part of the transfer strategy when planning for estate taxes.
The ability to control the business has value. The interests transferred lack the ability to control the business. Consequently, the value of the transferred interests will be "discounted," or lower in amount. Thus, the transferred interest will use up a smaller portion of the exemption.
Discounts due to a lack of control and marketability should be documented by an appraisal. Law and accounting firms, as well as banks, provide this type of service. While there is a cost involved in obtaining an appraisal, the cost is usually more than offset by the estate tax savings.
The interests also can be discounted because of a lack of marketability. The interests in a closely held business are not worth as much as similar interests in a publicly traded company, because there is no established market in which the interests can be sold. Discounts typically range from 10 percent to 50 percent.
Transfers from Corporations Can Be Complex
If you are seeking to transfer business interests to the family, you may encounter complexities if your business is a corporation, especially if it is an S corporation.
There are restrictions on the types of trusts that may be shareholders in a subchapter S corporation. These trusts can qualify as shareholders under current law:
- Electing Small Business Trust (ESBT). The problem here is that all of the trust's undistributed income is taxed at the highest possible marginal tax rate for individuals.
- Qualified Subchapter S Trust (QSST). The rules here are similar to typical provisions found in trusts established for children. Basically, the rules require that a separate trust be established for each beneficiary, and that the income and principal within the trust be managed exclusively for that beneficiary. While this may seem to be a burden where there are several children, one trust instrument can create multiple trusts (i.e., only one document, executed once, is actually necessary).
Nevertheless, the limitation here is that the parent will not be able to create a single trust that will "spray" income among all of the children/beneficiaries unless an ESBT (which results in all income taxed at steep tax rate) or grantor trust (all income is taxed to the parent) is used.
None of these rules apply to the limited liability company (LLC). Thus, the LLC is a simpler and more flexible alternative than the corporation when transferring interests to trusts.
In addition, if interests in the business are transferred to the next generation during the life of the parents, the remaining value in the estate of the parents at death will be relatively small.
Effective use of grantor trust rules. When transferring the interest to an irrevocable children's trust, income tax rules governing trusts allow an experienced trust drafter to choose whether to have the income taxed to the children or taxed to the parent through the so-called "grantor trust rules."
While income tax splitting can result in tax savings to the family, the grantor trust rules provide simplification because all of the income can be reported on the parent's income tax return.
This is especially desirable where income is accumulated in the trust, rather than distributed to the beneficiaries. This is a very likely scenario, in this case, because trust income tax rates are higher than those that apply to individuals.
In fact, many trust drafters intentionally make children's trusts subject to the grantor trust rules for this reason, by creating so-called "defective grantor trusts." (The term "defective" is used because, ordinarily, the children would be taxed on the trust's income, absent a defect in drafting the trust).
With a defective grantor trust, the income from the trust is taxed to the parent, but the value of the trust assets is excused from the parent's taxable estate.
Using Tax-Free Gifts To Transfer Business Interests
As an alternative to outright transfers of the business interests to the family, the annual gift exclusion (which is $13,000 in 2012) provides a simple opportunity to pass on wealth. Annual gifts that qualify under this exclusion do not reduce the estate or gift tax exemptions.
Plus, a married couple can join together and increase the exclusion to $26,000 by "gift splitting." This requires a gift-splitting election and the filing of Form 706 with the IRS. In addition, the $13,000 figure ($26,000 for joint gifts) is the exclusion per donee.
Thus, parents with four children could transfer to the children interests in the business that total $104,000 each year, without reducing the unified tax exemption they each enjoy ($26,000 x four donees). With effective discounting the interests, this $104,000 represents a much larger value to the children. For example, at a 30 percent discount rate, the $104,000 will really represent $148,571 ($96,000/70 percent).
Using Annuities To Transfer Business Interests
Advanced estate planning strategies exist that allow transfers of business interests to the family to be made, without reducing the unified tax exemption.
For example, a private annuity may be used. Here, a child promises to pay a life annuity to the parent, in return for the interest in the business. The annuity is structured so that its value is equal to the discounted value of the business interest transferred to the child.
There is no gift, as the child gives the parent an equal value in return, and thus there is no reduction in the $5 million exemption. If the parent dies before the annuity is paid off, nothing is counted in the parent's estate, because the annuity terminates at that point.
Advanced strategies require the advice of an estate planning professional.
Case Study: Transferring LLC Interests to the Family
John owns a limited liability company (LLC) with a value of $600,000 (value of assets less liabilities). He wants to avoid the estate tax, as he knows the value of his business, and his other assets, will steadily increase above his exemption amount. John owns 100 percent of the business, represented by ownership of one share as a member/manager, and nine shares as a member/non-manager.
John transfers the nine member/non-manager shares to his children as a gift. Because this represents nine of the ten outstanding shares, or 90 percent ownership in the business, the transfer should be valued at $540,000 ($600,000 x 90 percent), and would reduce John's unified exemption by this amount.
However, because of discounting, due to a lack of control and marketability, the interest would only be valued at $378,000, if a 30 percent discount were applied ($540,000 x 70 percent). This discounted amount is what counts against his estate and gift lifetime exemptions. Thus, John will have preserved a portion of his exemption, which could be used to make future tax-free transfers of business interests to the family. He accomplished this even though, in reality, he transferred 90 percent of his business to his children.
In addition, 90 percent (the children's ownership share) of the future appreciation in the value of the business, which John projects will be quite substantial, will be attributed to the children. In other words, nearly all of the future appreciation in value will be passed on to the children free of estate taxes. John will not have to be concerned about paying hundreds of thousands of dollars in estate taxes when passing this value onto the children.
Note that, in practice, as much as 99 percent of the business can be transferred in this way to the next generation, without a loss of control.
Note, too, that it would be important to form the LLC in a state that protects the business owner's interest against the claims of his personal creditors, and that allows for the complete elimination of voting rights for certain membership interests, such as those held by members who are not managers. For example, Delaware is one state where both of these objectives can be accomplished.
Now let's assume John owns an LLC with a value of $600,000, but does not want to reduce his $5 million exemption when he transfers the interests to his children. The discounted value of the interests he plans to transfer is $378,000 (90 percent of the business is $540,000, then $540,000 x 70 percent = the discounted interests).
If John and his spouse join in making the gifts, and they have four children, it will take four years to complete the transfers, using only the $13,000 annual gift tax exclusion and, thus, preserving the entire $5 million exemption ($26,000 x four donees = $104,000 per year that may be transferred under the exclusion; at that rate, in five years, they could transfer $416,000 ($104,000 x four years).
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