May 9, 2021

Volume XI, Number 129

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May 07, 2021

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To Accelerate or Not? Potential Tax Planning in Light of Proposed Reforms to Code Section 162(m)

Under both the House and Senate versions of the Tax Cuts and Jobs Act, Internal Revenue Code Section 162(m) would be modified to expand the scope of companies and executive officers subject to the limitation on deductibility of compensation over $1 million, as well as to eliminate the exception to non-deductibility under Section 162(m) for qualified performance-based compensation. The changes would be effective for tax years after 2017, but under the Senate bill, binding contracts in effect on November 2, 2017 would be grandfathered if not materially modified on or after that date).  Each version of the Tax Cuts and Jobs Act would also generally lower the corporate tax rate to 20%.  The House bill reduces the corporate tax rate beginning in 2018 and the Senate reduces it beginning in 2019.

Taken together, publicly traded corporations currently subject to Section 162(m), as well as corporations with publicly traded debt subject to Section 15(d) of the Exchange Act, will become subject to Section 162(m) if either bill becomes law. These corporations may want to consider whether to accelerate into 2017 the vesting and payment of compensatory payments that otherwise would have been made in 2018 or future years.  This acceleration of payment may (1) enable the corporation to take a higher deduction in 2017 than would be available in a tax year with a lower corporate tax rate, and (2) preserve the deductibility of amounts that would otherwise be non-deductible under Code Section 162(m).

While the first rationale would be relevant for payments made by all corporations, the second rationale would be particularly relevant for:

  1. payments to a corporation’s chief financial officer, who currently is not subject to the limitation on deductibility under Section 162(m), but would become a Section 162(m) “covered employee” under the tax reform proposals;

  2. payments to officers of corporations with publicly traded debt subject to Section 15(d) of the Exchange Act, which would become subject to Section 162(m) under the tax reform proposals even in the absence of publicly traded stock subject to Section 12 reporting; and

  3. payments to any executive officer who was a Section 162(m) “covered employee” during 2017 (in respect of compensation through December 31, 2016) and who would no longer be an executive officer as of the end of 2017, whether by reason of termination of employment or employment reclassification or demotion. A payment to such an executive officer in 2017 would make sense because each tax bill would expand the scope of “covered employees” to any employee who was a covered employee for any preceding taxable year beginning after December 31, 2016 and, therefore, even though the executive officer will no longer be an executive officer, under the bills, he or she would continue to be a covered employee.

By contrast, for an executive officer who is expected to continue his or her position after the end of 2017, it may not be possible to accelerate payments of compensation intended to qualify for the Section 162(m) performance-based compensation exception into 2017 while preserving non-deductibility under Section 162(m). For example, it is impossible as a practical matter for the compensation committee to satisfy the requirement to certify in writing the achievement of the underlying performance criteria if performance cannot be measured in 2017 (such as where performance is based on audited financials or measured on a relative basis against a published index or peer group) or if the compensation committee is unable to meet prior to year-end.

In addition to the enormous uncertainty surrounding the final form of any revisions to Section 162(m) under tax reform, a corporation considering accelerating payments to maximize deductibility of pay should confirm that the acceleration is permitted under the underlying benefit plans and agreements and is possible without additional penalty under Code Section 409A. The corporation should also consider disclosure implications and potential shareholder reactions as well as any impact on its retention and incentive needs. Lastly, the accounting impact of an acceleration of payments should be reviewed.

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© 2021 Proskauer Rose LLP. National Law Review, Volume VII, Number 346
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About this Author

Joshua Miller, Employment Attorney, Proskauer Rose Law FIrm
Partner

Joshua M. Miller advises senior management teams and individual officers in designing, negotiating and implementing executive compensation arrangements.

Whether in the context of a merger or acquisition, an acceptance, transition or termination of employment, or the ordinary course of employee pay matters, Josh provides legal counsel on a broad variety of securities, tax and employment matters critical to both companies and individuals. He focuses on employment and separation agreements, equity and cash incentive programs, and employee benefit matters in corporate transactions. Josh...

202-416-5828
Andrea S Rattner, Tax Attorney, Proskauer Law Firm
Partner

Andrea S. Rattner is a member of the firm’s Executive Committee and the immediate past Chair of the Tax Department. 

Andrea practices in the field of employee benefits and executive compensation law. She counsels clients with respect to the tax, securities, corporate governance, stock exchange, ERISA and other implications affecting executive compensation arrangements. Andrea regularly provides advice regarding equity arrangements (such as stock options, restricted stock, RSUs and phantom stock), employment agreements, change-in-control...

212-969-3812
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