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The Benefits Of Church Plan Status For Your Self-Funded Health Insurance Plan

Thursday, October 16th, 2014

By Jeffrey Owen

Is your non-profit organization affiliated (even somewhat loosely) with a recognized religious denomination?  Do you have a self-funded health insurance plan?  If you answered “Yes” to these two questions, your insurance plan is likely a candidate for being classified by the IRS as a “Church Plan.”  Even insured plans can benefit, but to a lesser extent.

Now you ask, “Why should I bother?”  Things are going well for our self-funded health plan right now.  There are about 20 major IRS code sections that hit non-church plans from which church plans are exempt.  Many of these are minor exemptions, but a few are important.  Here are the key benefits of having your health plan qualify as a “Church Plan”:

1.  COBRA Does Not Apply.  Without a doubt, this is the number one benefit.  Here’s how it works.  Let’s say you have an employee who becomes covered under your health plan whom you subsequently terminate for drinking on the job.  Your policy is to offer terminated employee COBRA for 18 months.  During the COBRA period, the terminated employee has a liver transplant (alcoholism) and a heart transplant (obesity) and dies.  Your self-funded plan pays out $1,000,000 for these expensive surgeries.  Who is stuck with the bill?  If your stop-loss limit is high, the plan pays – really the employees pay – in increased premiums.  If your stop-loss is triggered, your experience rating shoots up and your premium jumps in the next plan year.  Your participants are again stuck with a bill.  Being a Church Plan allows you to offer only the COBRA-like benefits that you want to offer.  Perhaps you would like to implement a sliding scale of post-termination health benefits tied to longevity.  Perhaps you would like to offer only 3 months of COBRA-like benefits to all terminated employees.  Any rationally applied standard would probably work.  But before you get too excited, you need to check the law of your state to see if there is a state-law equivalent to COBRA that applies to religious organizations (hint, NC = no problem).   

2.  No 5500 Filing Required.  Another exciting and expensive annual task is to have your accountant prepare and file a form 5500.  Become a Church Plan and get rid of it.  How much are you paying your CPA to do this annually?  No more filings!   

3.  HIPPAA Relief.  How would you like a little relief from HIPPAA?  Church Plans are exempt from the ERISA-based portions of HIPAA since they are not subject to ERISA.  Some other health information laws apply, so you don’t get a free pass.  Penalties for non-compliance are relaxed and correction periods extended for Church Plans.   

“How do I become a Church Plan” you ask?  There are two ways.  You can self-declare or you can obtain an IRS Private Letter Ruling.  The Letter Ruling will be a definitive ruling on the issue for your organization from the IRS and is of course preferred.  The IRS fee for the letter ruling is $10,000 or so and legal costs would be about $10,000 to $20,000 depending on your particular facts.  So for under $30,000 you can have all the benefits of being a Church Plan and save your participants lots of premium costs.  Often the cost will be paid for in the first year of operation.  So what are you waiting for?

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Jeffrey Owen practices in the nonprofit ERISA arena and has successfully obtained rulings for his clients on this issue.  If you would like to discuss the benefits of Church Plan status for your organization’s health plan (or other employee benefit plans) please contact him at jowen@mwbavl.com.

 

Posted in Employee Benefit Plans, Taxation | No Comments »

PLANNING FOR THE SALE OF YOUR BUSINESS: LEGAL CONSIDERATIONS

Thursday, January 30th, 2014

By: JOHN N. FLEMING

As an attorney who has assisted clients with the sale of their businesses or the purchase of new businesses, I have observed that the process of selling a business can go more smoothly and can result in more money for the seller if the seller plans for the sale or otherwise considers certain legal issues in advance. I have set forth several areas of pre-sale legal planning that a seller should investigate well in advance of any sale to help maximize the value received.

Advisors: Prior to selling your business, visit with your accountant and attorney to discuss the specifics of your business and a general timeline and deal structure that you can expect. You may also consider visiting with a business valuation advisor, a business broker and an estate planning attorney.

Type of Entity: The type of entity, whether it is a corporation, sole proprietorship, limited liability company, or partnership and the applicable tax-election, whether it be subchapter C, subchapter S or other pass-through classification, will have a great impact on the overall deal structure. You should meet with your advisors to understand the implications of these issues. Does your structure maximize value? Can anything be done to maximize value by planning ahead?

Deal Process: In the typical sale transaction, the following documents and steps are often utilized: (1) The potential buyer often enters into a Nondisclosure Agreement pursuant to which the buyer agrees to keep the information confidential, to return the information when finished and to only utilize the information for the evaluation of the business and the due diligence process; (2) The buyer and seller often enter into a non-binding Letter of Intent pursuant to which the basic deal terms are agreed to and which restricts the seller from talking to other potential buyers during the continuing sale process; (3) The parties negotiate an acquisition agreement such as an Asset Purchase Agreement, which is the critical document containing the terms of the actual transaction; and (4) Ancillary documents such as a Non-Compete Agreement, Promissory Note, Security Agreement, Escrow Agreement and Consulting Agreement may be utilized as well. Review the process with your advisors.

Deal Structure: Typically a business is sold either through the sale of the stock in the company or through the sale of its assets. Often, the buyer prefers an asset purchase transaction to attempt to isolate and leave the unwanted liabilities with the seller and to receive a step-up in the basis of the assets purchased. In an asset purchase, the specific assets that are purchased are identified along with the specific liabilities to be assumed. Alternatively, in a stock sale, unless otherwise stated, the purchaser generally receives everything the company owns including its assets and liabilities. Discuss the types of deal structures with your advisors. What structure would be best to maximize your value? What structure would attract more buyers and what structure is the most realistic to expect?

Review Documents: Meet with your professional advisors and review sample documents that would govern a potential transaction. For example, in an asset purchase agreement, the seller will be expected to make certain representations to the buyer relating to the business such as litigation, taxes, compliance with law, financial statements and ownership of assets. Do your answers maximize value or communicate complexity, disorganization, and problems and issues that lower value? Discuss what you would need to disclose. In addition, are you willing to be subject to restrictive covenants, including a non-compete, non-piracy or non-solicitation agreements? These agreements add or preserve value for a potential buyer and are often expected.

Taxes: Discuss with your attorney or accountant the tax consequences of the transaction so that you can maximize what you receive. Once again, the type of entity and the applicable tax election will both impact the deal structure, deal flexibility, taxes due upon sale and how much the seller receives and keeps. Additional tax issues, among others, include the amounts allocated to the assets being purchased and the estate taxes that apply with respect to the seller’s plans for his or her family.

Company Cleanup: To attract and keep potential buyers interested, review your corporate records and minute book to make sure that they are complete and accurate. Sloppy or incomplete records communicate the wrong message. Consider separating your personal items, if any, from the company. Are there personal assets that have become intertwined with the business? Perhaps the company owns a house or boat or artwork that needs to be segregated from what will be sold or otherwise impacts the operational performance of the company. Should land be separated from the business and held in a separate entity which leases the property back to the company? Conduct a lien search on yourself and the company to see what is on file. Perhaps a financing statement relating to an old paid-off loan hasn’t been terminated. Have your advisors review your records with you.

Contracts: Inventory all of your material relationships and contracts. As part of the due diligence process that the buyer will require, the buyer will expect lists and copies of these documents. Review your business to see if you can formalize personal relationships that can be valuable to the buyer. Do you have written contracts with your customers or are they based on course of dealing and history? Can these important contracts be assigned to a buyer or do you need the consent of a third party? Consider the use of employment contracts with non-compete clauses and restrictive covenants for key employees if they are appropriate and add value. Analyze your customer base and supply chain and whether the relationships are reflected in contracts that can be assumed by a buyer.

Estate Planning: Is your estate planning in order and what are the implications of the transaction on your estate planning? Can your estate planning goals be achieved with pre-sale estate planning efforts?

 Business Valuation: What are your expectations regarding how much you should receive in a sale? Discuss with your accountant and attorney the value of seeking a rough or more specific business valuation. A business may be valued a number of ways including the value of the assets, use of benchmarks and multiples related to sales or revenue and the use of earnings multiples. Your advisors may also have worked with business brokers that have successfully assisted their clients in sale or purchase transactions.

Shareholder/Owner Issues: How many owners are there? Are all of the owners or a majority in agreement that the sale should occur? Are their shareholder agreements that are in place? State law may provide that the sale of substantially all of the assets will trigger appraisal or dissenter’s rights for the shareholders of the company. Your attorney should be consulted regarding these issues.

Approval Process: What approvals are necessary to sell your business? In the case of a typical corporation, the applicable state statutes along with the Articles of Incorporation and Bylaws set forth the framework for approval. Generally, in the context of the sale of a business, a sale of assets would be characterized by state law as a sale of “all, or substantially all” of the assets “other than in the usual and regular course of business” and approval must be obtained from the Board of Directors and Shareholders of a selling company. Also, have you entered into agreements or loans or mortgages that are implicated by a sale, restrict a sale or require a third party to approve the sale? Speak with your attorney regarding the approval process necessary to complete the sale transaction.

Conclusion: As with most things, a little planning can help a seller maximize the value received and otherwise make easier what is often a difficult experience. If selling your business is a possibility or a goal, then planning ahead is a wise investment. When forming an entity and starting a business, it is not unwise to even ask at that time what your exit strategy will be. Often it is the sale of the business. While the aforementioned list is not exhaustive, consideration of these issues ahead of time will help you when it comes time to sell.

For help concerning the sale or purchase of a business, contact John at (828) 254-8800, or for more information, please visit http://www.mwbavl.com/attorney?id=13#details.

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John Fleming is a general practitioner in corporate law with an exceptional knowledge of Health Care Law.  John has been named to the 2014 Business North Carolina magazine’s Legal Elite list of the top lawyers in North Carolina and was named in the in Corporate Counsel category. The Legal Elite recognizes the top lawyers in the state in specific business-related practice areas as voted by their peers, and only about 3% of the state’s attorneys are awarded the distinction.

 

 

 

Posted in Business Purchase/Sale Transactions, Estate Planning, Limited Liability Companies, Small Business, Taxation | No Comments »

BUSINESS ISSUES AND SUCCESSION OF THE FAMILY BUSINESS

Thursday, November 7th, 2013

By Harris M. Livingstain

There is no greater confluence of legal issues than those that are involved with the transitioning of a family-owned business to the succeeding generation. Whether the business is passive in nature (for example, rental real estate), service oriented or a manufacturing concern, a myriad of issues face the senior generation whose wealth, financial security and sense of accomplishment are tied closely to the business.

The term “family business” is often associated with a business owned by a single family unit, but many such businesses are owned by two or more family units, related or unrelated, and the succession issues in those businesses present more difficult challenges to the owners.  Seventy percent of family businesses do not survive to the second generation, and less than fifteen percent survive to the third.  Those failure rates illustrate the difficulty of business succession planning.

Threshold questions may include when should the senior generation begin the process of transitioning? Are there family members able and willing to take the business into the next generation?  If not, what steps should be taken to ensure the business retains its value for the benefit of the descendants of the owners?  If there are family members able and willing to assume control, what steps have been taken to prepare for the transition to the next generation?  How does the senior generation’s estate plan dispose of control of the business and to whom (that is, those involved in the business vs. those not involved in the business)? Should management position and authority be transferred to the next generation during life so that the senior generation can provide sufficient guidance? If so, how does the senior generation retain sufficient financial security given that the majority of the wealth of such individuals is directly related to the value and cash flow of the business?

What about senior non-family management?  If there is no family member ready, capable or interested in maintaining the business, how does the senior generation insure that these individuals remain with the business to preserve value for possible sale to third party or to the employees, or provide guidance to future family members who may be interested in succeeding but are not yet ready to assume leadership?   Are these non-family employees secured by “golden handcuffs,” or financial incentives (that is, phantom equity plans, life insurance, non-qualified deferred compensation plans)?  Does the business have in place any protections to minimize the threat that such employees may leave and compete either alone or with another business competitor (employment agreement with noncompetition, non-solicitation and non-disclosure of trade secrets)? 

In many situations, the majority of the senior generation’s wealth and financial security is tied directly to the business and this can make it difficult for transition during life.  The benefit of such lifetime transition is the senior generation’s ability to provide much needed guidance, and can often provide gift and estate tax benefits.  In fact, with the current gift tax exemption amount at $5,250,000 per person (increasing to $5,340,000 in 2014), there is great incentive to encourage transition now as Congress may reduce that amount in the future. Employment agreements and post-retirement salary continuation plans or consulting agreements can reduce the concerns over the loss of financial security. If the business is operated on property owned by the senior generation, a long-term lease between the business and the owner can provide post-transition cash flow. If such property is owned by the operating entity, consideration should be given to distributing the property to the senior generation prior to transition, albeit income tax consequences of such a distribution  should be carefully reviewed and weighed against the long-term benefit.  The senior generation can retain a position on the Board of Directors and be paid a director’s fee.  Also, the senior generation can sell his/her business interests to the succeeding generation for a small down payment and the balance paid with a promissory note containing favorable interest rates based on the Applicable Federal Rate (link to current rates http://tinyurl.com/p96bzeh).  There are also techniques to minimize the income tax consequences attributable to such a sale.

The role of a well-thought-out stockholder’s agreement (for corporations), operating agreement (for limited liability companies) or partnership agreement (for partnerships) cannot be overstated. In a single family unit business where less than all of the succeeding generation is involved in the business, such agreements can solve concerns the senior generation may have that passing control of the business to only one member of the succeeding generation may be unfair to the non-involved member(s). These agreements can provide the non-involved (and minority owner) with a “put right” to require the business entity or other owner to purchase his or her interest based on certain trigger events tied to financial performance of the business.  To alleviate the potential financial strain on the business (which will often be the source of funds even if the other owner is the purchaser), the “put” can be based on favorable payment terms and/or only for certain percentages over a period of time.  If there is life insurance on the senior generation, the business can be named as beneficiary (and in certain instances, the business can acquire the policy) and the “put” trigger can be the death of the senior generation and the business or the other owner(s) will have the proceeds (generally, free of income tax to the beneficiary of the policy) to fund the purchase. These agreements can also provide the business entity or family member to whom control of the business has been passed an “option” to acquire the interests of the other family members, also on favorable purchase terms so as to ease the financial strain. If the business is owned by more than one family unit, these agreements can also facilitate the transition and also ensure that the members of the non-participating family unit receive fair value for their share.  

In my experience, emotional and psychological issues of “letting go” have been the major impediments to effective succession planning.   Dealing with one’s mortality is difficult enough without the added burden of the transition of a successful business, often associated with one’s legacy.  However, the “head in the sand” or “let my kids deal with it” approach is what generally defines those businesses that do not last for the succeeding generation and are a major contributor to family discord. Granted, the process can be expensive and time consuming, but it is time and money well-spent.

 

–  Harris Livingstain is a Partner at McGuire, Wood & Bissette, P.A., and has extensive experience in estate planning and probate matters, including estate tax reduction techniques, and succession planning involving owners of closely-held businesses http://tinyurl.com/ofl7lxc . 

Posted in Estate Administration, Estate Planning, Small Business, Taxation | No Comments »

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