Page 48 - MetalForming March 2015

Blackman on Taxes
By Irving Blackman
Solve Stressful Tax and Emotional Problems When Transferring the Business to Your Kids
Mike couldn’t sleep. He was troubled, anxious and per- plexed. To the outside world, Mike is a guy that has it all: great fam- ily; large profitable business, Brady Co., that he started from scratch; and a seat on the board of another large business, a bank and a national char- ity. He is a respected, well-liked mover and shaker.
So, what could be wrong? The suc- cession of Brady Co.
First, a bit of background: Mike has two sons (Greg and Peter) who have worked for Brady Co. for more than 14 years. They are competent—still have a bit to learn—and run the day-to-day operations of Brady Co., and completely manage the company when Mike and his wife Carol go to the Grand Canyon for the winter. Mike spends most of his work time on customer relations and bringing in new business.
About four years ago, at one of their regular weekly planning meetings, suc- cession was the topic of discussion. Mike promised his sons that he would transfer Brady Co. to them in five years, 50/50 each, but he would like to keep control for as long as he lived.
Brady Co. is worth $15 million. Rev- enue increases about 10 percent per year and profits rise accordingly, as well as the value of the company.
Well, the end of the five-year period was getting close. Mike always had three major concerns:
1) How to get Brady Co. out of his
Irv Blackman, CPA and lawyer, is a retired found- ing partner of Blackman Kallick Bartelstein, LLP and chairman emeritus of the New Century Bank (both in Chicago). Want to consult? Need a sec- ond opinion? Contact Irv: tel. 847/674-5295
ir v@ir vblackman.com www.taxsecretsofthewealthy.com
estate, yet keep control for as long as he lives.
2) Between Greg and Peter, Greg has turned out to be the clear leader. How can Mike, after he’s gone, pass voting control to Greg without breaking his 50/50 promise?
3) Carol joins Mike in this concern: Fortunately, they like their two daugh- ters-in-law. Yet, they fear that if one of the boys divorce, their then ex-daugh- ter-in-law would wind up with a piece of Brady Co.
Mike consulted with his CPA and long-time lawyer...plenty of ideas, but no solution to the three main concerns. The last two issues—clear leader and possible divorce consequences—are what kept Mike up at night.
The sad fact is that the same (or similar) three concerns keep most fam- ily owners up at night when business succession hits center stage.
Is there a solution? Yes. Each solu- tion must be separate—designed to fit the exact and unique circumstances and goals of the family, its business and the owner—but of necessity, be inter- twined. Let’s take them one at a time.
Solving the Control Conundrum
Mike knew a lot about intentionally defective trusts (IDTs). He educated himself by reading this column. He knew what he wanted, but did not know how to get an IDT done.
Here’s how we structured the IDT transaction for Mike: First, we recapi- talized Brady Co. (a fancy word for cre- ating non-voting stock, 10,000 shares, and voting stock, only 100 shares). Next, we created the IDT, which purchased all of the non-voting stock for $9 million, after $6 million of various discounts, as allowed under the tax law. The IDT paid Mike in full with a $9 million note, which will be paid (plus interest) using the future cash flow of Brady Co.
The IDT transaction is tax-free for Mike, Greg and Peter, and will save them about $1.8 million in income and capital gains taxes. Brady Co. is now out of Mike’s estate, but he still has control via the voting stock.
Solving the Clear-Leader Problem
When Mike dies, his voting stock will go to the boys. The transaction will be structured so that Greg (the clear leader) receives one extra share of vot- ing stock, thus enjoying control of Brady Co., but he will be shorted one share of non-voting stock. Also, satis- fying Mike’s goal, Peter and his broth- er will share profits 50/50.
Note: I explained to Mike the three requirements to be named the clear leader: 1) Greg (without bragging) thinks he is the clear leader; 2) his brother Peter recognizes Greg as the leader; and 3) the employees of Brady Co. look to Greg as their leader.
Solving the Divorce Dilemma
The key to overcoming the divorce issue is to draft the IDT properly. Mike’s trustee is instructed to keep the non- voting stock in trust even after the note is paid in full. Normally, the trustee would distribute the stock in the IDT to the beneficiaries (Greg and Peter) as soon as the note is paid. With the trustee continuing to retain custody of the stock, Greg and Peter will get the benefits of ownership (distribution of profits from Brady Co., an S corporation) without technically being owners. So, the stock is out of reach of the divorce devil.
A warning: This article—for lack of space—does not attempt to detail all of the benefits, tax traps and nuances of succession planning. Be sure to work with an experienced advisor.
If you have a succession problem, visit www.taxsecretsofthewealthy.com, or call me at 847/674-5295.
46 MetalForming/March 2015
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