Taking cues from Colorado, Missouri, Pennsylvania, Iowa, New Jersey, and Virginia, all of which have recently enacted legislation supporting and encouraging the establishment of ESOPs, the states of Texas, Indiana, and Nebraska are now moving forward with their own pro-ESOP initiatives.

Nebraska Law Allows ESOPs to Own CPA Firms

Nebraska Legislative Bill 49 authorizes the ownership of CPA firms by ESOPs, with an ESOP allowed to own up to 49% of a firm. The bill unanimously passed final reading on February 28, and was signed into law on March 6. Most states already allow minority ESOP ownership of CPA firms. Creating more ESOPs in accounting firms is an important step toward making these critical financial advisors of business owners more aware of the important tax advantages and other byproducts (such as increased employee morale and increased employee productivity) that ESOPs create.

The US House of Representatives passed the Main Street Employee Ownership Act (H.R. 5236) on May 8. The bill would be instrumental in facilitating the establishment of employee stock ownership plans (ESOPs) by revamping the rules by which the Small Business Administration (SBA) must abide when assisting small employers interested in transitioning to an employee-owned model. Specifically, it (1) allows the SBA to make loans to companies that can then reloan to ESOPs (prior law only allowed loans made directly to ESOPs), (2) allows ESOP loans to be made under the SBA's preferred lender program (a program providing for expediting the processing of loans with cooperating private lenders), and (3) updates the definition of ESOPs in the current law governing SBA loans so that ESOPs do not need to have full voting rights to qualify.

The bill also makes an exception to an SBA rule that sellers of a company cannot have an ongoing role in the firm. It waives a current SBA requirement for a 10% equity investment in a business transition loan, and it allows financing to be used to cover transaction costs.

Following in the footsteps of states that already have passed pro-ESOP legislation—including Pennsylvania, Iowa, New Jersey, Virginia, and Nebraska—the states of Colorado, Texas, and Missouri are now moving forward with pro-ESOP initiatives.

Colorado House Passes Pro-ESOP Legislation

In April 2017, the Colorado state legislature passed a pro-employee ownership bill (HB17-1214). The bill creates a revolving-loan program to be operated by the Colorado Office of Economic Development and International Trade (OEDIT) and to be funded by gifts and donations. The bill, which now goes to Colorado Governor John Hickenlooper for signature, also requires that the OEDIT train its employees to be sufficiently knowledgeable about employee ownership to be able to recommend it when appropriate and to promote it in OEDIT materials. The bill was sponsored by Colorado State Representative James Coleman (D-Aurora) as well as Rep. Jack Tate (R-Centennial), who said of the bill, "Anything we can do to encourage ownership helping facilitate getting folks on the path of wealth creation, I think is a good thing."

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On September 26, the US Court of Appeals for the Fifth Circuit ruled that a stock-drop complaint against BP and fiduciaries of its 401(k) plan failed to state a plausible claim of imprudence based on insider information under the pleading standards established in Fifth Third Bancorp v. Dudenhoeffer. See Whitley, et. al. v. BP, P.L.C., et. al

Background

The complaint in Whitley stemmed from the decline in BP’s stock price that followed the Deepwater Horizon oil spill in April 2010. The plaintiffs, participants in BP’s retirement plans, including BP’s employee stock ownership plan (ESOP), filed suit in June 2010 in the US District Court for the Southern District of Texas against the company, its affiliates, the oversight committee for the plan, and several of the company’s executive officers. Plaintiffs alleged that the defendants

  • breached their duties of prudence and loyalty by allowing the plan to acquire and hold overvalued company stock,
  • breached their duty to provide adequate investment information to plan participants, and
  • breached their duty to monitor those responsible for managing the company stock fund.

A New York federal appeals court once again rejected a breach of fiduciary duty claim against the now bankrupt Lehman Brothers brought by its employee stock ownership plan (ESOP) participants. In In Re: Lehman Bros. Sec. and ERISA Litig., No. 15-2229 (2d Cir. 2016), the US Court of Appeals for the Second Circuit on March 18 ruled that participants “failed to allege sufficiently” that plan fiduciaries violated their duties under the Employee Retirement Income Security Act (ERISA). The appeals court upheld an earlier July 15, 2015 decision by a US district court in New York to dismiss the complaint.

Soon after Lehman Brothers declared bankruptcy in September 2008, the ESOP participants sued, claiming that ESOP fiduciaries breached their fiduciary duties under ERISA “by continuing to permit investment in Lehman stock in the face of circumstances arguably foreshadowing its eventual demise,” the Second Circuit said. The New York district court dismissed the complaint for the first time in 2011, and the Second Circuit court upheld the dismissal in 2013. Both courts cited a long-held legal principle applicable to ESOPs—the presumption of prudence—to support the defendants’ request for dismissal.

Aspatore Books just released its 2016 edition of Recent Changes in Employee Benefits and Executive Compensation: Leading Lawyers on Understanding ERISA Changes, Navigating Disclosure Guidelines, and Designing Compliance Strategies (Inside the Minds). Employee Benefits partner Brian D. Hector authored the chapter “ESOPs for Owners of Privately Held Corporations,” which discusses how an employee stock ownership plan (ESOP) is a useful succession planning tool for the owners of closely held businesses. This chapter examines the many benefits of ESOPs (including the tax benefits for a company, business owner, and participants) and explains some basic ESOP rules and some common misconceptions.

For more information about this book, please visit the Thomson Reuters website.

In the past, a limited liability company (LLC) that wished to establish an employee stock ownership plan (ESOP) would have first had to convert to a corporation in order to have “qualifying employer securities,” as defined in section 4975(e)(8) of the Internal Revenue Code (Code), one of the core requirements for an ESOP. However, the IRS has always allowed LLCs to be taxed as a corporation under the Code for other purposes, particularly federal tax purposes, so there had always been hope that the IRS would someday allow an LLC to be treated as a corporation for ESOP purposes.

Well, it seems that day has finally come. The IRS recently issued Private Letter Ruling 201538021, which allows an LLC to adopt an ESOP under the following circumstances:

  • The LLC has elected to be taxed as a corporation
  • The LLC issues ownership interests to its members in the form of “unit shares”
  • The unit shares have identical liquidation and voting rights
  • The unit shares have the greatest voting and dividend rights of any class of unit shares issued by the LLC
  • Distributions (i.e., dividends) on the unit shares are paid in proportion to the outstanding unit shares
  • The profits and losses are allocated in proportion to the number of unit shares held by each unit shareholder

Although this ruling is welcome, one might wonder, “Why not just convert an LLC to a corporation before adopting an ESOP?” Such a conversion can usually be done seamlessly and in a tax-free manner, and doing so would avoid any concern about whether a business is permitted to adopt an ESOP. However, sometimes such a conversion will result in adverse tax consequences (e.g., depending on how the conversion takes place, an LLC member-owner can end up with a different tax basis in the resulting corporate stock that he or she owns and may have a tax liability at the time of conversion). An LLC that wishes to adopt an ESOP should weigh the advantages and disadvantages of converting to a corporation or remaining an LLC. In addition, until the IRS issues more generally applicable guidance on this issue, if an LLC chooses to remain an LLC but wants to proceed with an ESOP, it should strongly consider applying for a private ruling of its own, because a private letter ruling may only be relied on by the taxpayer requesting it.

In IRS Revenue Procedure 2015-36 (Revenue Procedure), the IRS announced that it will allow prototype and volume submitter employee stock ownership plan (ESOP) documents. The IRS hopes that this will not only reduce its own costs in reviewing plan documents, but also reduce the costs to companies that are considering ESOPs by allowing them to avoid custom-created plan documents.

The Revenue Procedure provides that a preapproved ESOP cannot be a standardized plan and cannot have a money purchase plan feature. However, it can have a 401(k) feature (i.e., it can be a KSOP). Further, the IRS will not issue approval letters under this new program for ESOPs that hold preferred stock.

The Revenue Procedure states that a preapproved ESOP must meet all of the requirements of the Internal Revenue Code (IRC) Section 401(a), the requirements set forth in the Defined Contribution Plan Listing of Required Modifications, the requirements set forth in the Employee Stock Ownership Plan Listing of Required Modifications and Information Package (ESOP LRM), the requirements in the Revenue Procedure, and the requirements in the 2014 Cumulative List of Changes in Plan Qualification Requirements (IRS Notice 2014-77, as updated). The ESOP LRM contains samples of plan provisions that satisfy certain requirements of the IRC applicable to ESOPs, and the IRS encourages plan sponsors to use such language as applicable. The IRS will not consider preapproved ESOP applications until the next defined contribution application period, which begins on February 1, 2017.