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Impact of Tax Reform on Public Company Executive Compensation

As you probably know, both the House and Senate have passed tax reform bills. Whether the two bills will be able to be harmonized and passed into law remains to be seen. Both bills include changes that will have a significant impact on a public company’s ability to deduct compensation paid to top executives in years 2018 and beyond, as described below.

Under current law (Code Section 162(m)), a public company’s deduction for compensation that it pays to its CEO and three highest officers by pay (determined on the last day of a company’s fiscal year), other than the CFO, is limited to $1,000,000 per covered employee per tax year. This deduction limit does not apply to “performance-based compensation”, such as stock options or cash or equity awards that tie vesting or payout to achievement of financial performance criteria, and because of the performance-based compensation exception many public companies are never impacted by the deduction limit even though they may pay compensation well in excess of $1,000,000 per year to one or more executives. Both the House and Senate tax reform bills include elimination of the performance-based compensation exception to the $1,000,000 limit on the tax deduction for tax years beginning in 2018 and later. Both bills also pull compensation paid to the CFO and any employee who was the CEO, CFO or one of the three highest paid employees for any taxable year after 2016 (even if he or she is no longer in that group in a future year) into the $1,000,000 deduction limit. These changes mean that it will likely cost companies more in 2018 and beyond to pay the same executive compensation that they are paying now and that deductibility of payments made to former employees after termination, such as severance or deferred compensation payments, could also be restricted by the $1,000,000 limit.

There is one significant difference between the two bills that the conference committee will have to resolve — the Senate bill grandfathers future compensation paid under a written binding contract in effect on November 2, 2017 and the House bill includes no such grandfathering. At this point, there is no indication of which provision is likely to prevail in the reconciliation process.

© 2018 Foley & Lardner LLP

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About this Author

Amy C. Ciepluch, Foley Lardner, employment law, Milwaukee, Employee Benefits, Compensation,
Of Counsel

Amy Ciepluch is a member of counsel with Foley and Lardner. Her areas of specialization include compensation law, and employee benefits & executive law. Practicing out of the East Milwauke offices, she provides professional legal services for clients, while contributing as an author for the firm. 

414-319-7116
Leigh C. Riley, Foley Lardner, Executive Compensation Lawyer,
Partner

Leigh Riley is a partner and business lawyer with Foley & Lardner LLP. She focuses her practice on employee benefits and executive compensation. In the area of employee benefits, Ms. Riley concentrates on welfare plans, including COBRA and HIPAA privacy rules, and retirement plans, including nonqualified deferred compensation arrangements. In the area of executive compensation, she counsels both private and public companies on establishing and administering all types of executive compensation programs, including stock options, restricted stock, phantom stock arrangements, and stock appreciation rights.

414.297.5846
Associate

Kelsey A. O'Gorman is an Associate in the Milwaukee office of the Foley Lardner Law firm, working in the Employee Benefits & Executive Compensation practice group. 

414-319-7210