How the one-way buy-sell agreement can save a succession plan

Most small business clients have two common — but often competing — goals when planning to exit the business: they want business-oriented successors to retain power over business assets while simultaneously providing for surviving spouses who have not been involved in the business. While controlling the line of succession can be relatively simple, it might unacceptably undermine the client’s ability to provide financial security for the surviving spouse. As an alternative to a traditional spousal lifetime access trust, the one-way buy-sell agreement can ensure that the client’s dual goals are met by providing spousal income security and an orderly business transition in a single package.

The insurance-funded one-way buy-sell strategy

In the family business context, the owner-operator frequently owns the majority — if not 100 percent — of the business’s interests. In the absence of proper planning, these business interests could potentially pass to family members with little or no business experience upon the owner’s death, which does little to safeguard the business’s future or provide long-term financial security to the owner’s family.

Enter the one-way buy-sell agreement, pursuant to which the owner is able to designate specific individuals who have agreed to purchase the business interests and continue the business upon death (or some other triggering event). The terms of the agreement should fix the value of these business interests so that the business can ensure that adequate funding will be available for the next generation to finance the purchase.

In conjunction with the agreement, the future successors then purchase a cash value life insurance policy on the business owner’s life that will fund the purchase price. The business can actually fund the policy itself by paying the successor-employees’ bonuses or other compensation in order to pay the premiums. The compensation must be reported as income to the successors but is tax-deductible to the business.

Upon the owner’s death, the successor generation can use the life insurance proceeds to purchase the business interests from the owner’s estate which, in turn, can then distribute those proceeds to provide for the owner’s family according to his wishes.

Insurance as the Preferred Funding Method

Though insurance is not the only method that can be used to fund the buy-sell agreement, it provides a level of certainty that usually cannot be achieved through other methods. Relying on the buyer to personally finance the buy-sell agreement can present complications—namely, there is no guarantee to the owner that those funds will be available when needed.

Securing a traditional loan at the time of purchase also presents uncertainties, and the interest costs can significantly increase the actual purchase price, thus causing a loss of operating revenue for the business. Further, this method places an ongoing burden on the business’s credit that can inhibit the possibility for future growth.

Paying for the interests out of operating revenue, in installments over time, not only places a future strain on the business’s income but also fails to provide the owner’s estate with the funds necessary to provide for family members who are not involved in the business.

While cash value life insurance creates an ongoing current expense for the business, the premiums—if structured as reasonable compensation payments to the buyer-employees—are tax deductible. Further, if the strategy is implemented far enough in advance, the cash value that accumulates in the policy provides a degree of flexibility so that the buy-sell agreement can be funded using tax-free policy loans if the business must be transitioned before the owner’s death.

Conclusion

Coupled with traditional estate planning tools, an insurance-funded one-way buy-sell agreement can provide small business clients with the confidence of knowing that the future of the business—and the client’s family—is secure.

For previous coverage of succession planning through buy-sell agreements in Advisor’s Journal, see Buy-Sell Agreements: Avoiding Transfer-for-Value Problems.

For in-depth analysis of the use of an insured buy-sell agreement, see Advisor’s Main Library: E—The Solution: An Insured Buy-Sell Agreement.

Your questions and comments are always welcome. Please contact the Panel of Experts.

About the Author
Robert Bloink

Robert Bloink

Robert Bloink worked to put in force in excess of $2B of death benefit for the insurance industry’s producers in the past five years. His insurance practice incorporates sophisticated wealth transfer techniques, as well as counseling institutions in the context of their insurance portfolios and other mortality based exposures. Robert Bloink is a professor of tax for the Graduate Program of International Tax and Financial Services, Thomas Jefferson School of Law.

Previously, Robert Bloink served as Senior Attorney in the IRS Office of Chief Counsel, Large and Mid-Sized Business Division, where he litigated many cases in the U.S. Tax Court, served as Liaison Counsel for the Offshore Compliance Technical Assistance Program, coordinated examination programs audit teams on the development of issues for large corporate taxpayers, and taught continuing education seminars to Senior Revenue Agents involved in Large Case Exams. In his governmental capacity, Mr. Bloink became recognized as an expert in the taxation of financial structured products and was responsible for the IRS’ first FSA addressing variable forward contracts. Mr. Bloink’s core competencies led to his involvement in prosecuting some of the biggest corporate tax shelters in the history or our country. He can be reached at rbloink@nationalunderwriteradvancedmarkets.com

About the Author
William H. Byrnes

William H. Byrnes

William Byrnes is the leader of Summit Business Media's Financial Advisory Publications, having been appointed July 1, 2010. He has been an author and editor of ten books and treatises and seventeen chapters for Lexis-Nexis, Wolters Kluwer, Thomson-Reuters, Oxford University Press, Edward Elgar, and Wilmington, as well as numerous commissioned, peer-reviewed, and law review articles. He was a Senior Manager, then Associate Director of international tax for Coopers and Lybrand, which subsequently amalgamated into PricewaterhouseCoopers, practicing in Africa, Europe, Asia, and the Caribbean.

He has been commissioned and consulted by a number of governments on their tax and fiscal policy from policy formation to regime impact. He has served as an operational board member for companies in several industries including fashion, durable medical equipment, office furniture, and technology. Since 1994, he has been a professional trainer for professional association conferences, government workshops, and financial service institutions in-house meetings.

Before Associate Dean Byrnes joined the administration of Thomas Jefferson School of Law, he was a tenured law faculty member at St. Thomas School of Law. He serves on the Academic Committee of the American Academy of Financial Management. He created the first online graduate program offered to wealth managers and life insurance producers without any legal background—see http://llmprogram.tjsl.edu (Graduate Program of International Tax and Financial Services, Thomas Jefferson School of Law).

Email: wbyrnes@nationalunderwriteradvancedmarkets.com

Originally published on National Underwriter Advanced Markets. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

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