Disclaimer The following disclaimer statement is included with each Programs in a Box topic. Do not delete this disclaimer as a part of the program. It

Disclaimer The following disclaimer statement is included with each Programs in a Box topic. Do not delete this disclaimer as a part of the program. It is also to be included along with the handouts you are providing each program participant.

Programs In A Box are intended to be educational and to provide program attendees (and others who use these materials) with general information on particular topics. The information contained in Programs In A Box materials, and in accompanying presentations, does not constitute insurance, financial, investment, estate planning, tax, legal, compliance, accounting, or other professional services or advice by the National Association of Insurance and Financial Advisors (NAIFA), by NAIFA’s state and local member associations, or by the authors or presenters of the programs.

continued . . .

Business Insurance for Pass-Through EntitiesPart II: Partnerships and Limited Liability Companies

Disclaimer continued . . . While NAIFA tries to provide accurate information in its Programs In A Box materials, and in accompanying presentations, NAIFA does not warrant or guarantee the accuracy of these materials or presentations. The necessarily generic nature of these materials and accompanying presentations may not always reflect frequently changing state and federal regulations and may not be compatible with the specific rules established by insurance and other financial services companies for their respective agents and employees. It is the individual responsibility of all advisors to comply with applicable state and federal insurance, banking, and NASD/SEC requirements and with the rules established by insurance companies and other financial services entities they represent. NAIFA disclaims all liability and responsibility for claims or damages that may result from any errors or inaccuracies in these materials or accompanying presentations and from any transactions that may employ any information contained in these materials or accompanying presentations.


Part II:Partnerships and Limited

Liability Companies

Business Insurance for Pass-Through Entities

Highlights: Meeting At A Glance • Discussion of partnership tax rules and their impact on the

payment of corporate owned life insurance premium and death proceeds.

• Impact of partnership rules on life insurance funded buy-sell arrangements

• Impact of pass-though taxation on common business insurance arrangements.


Impact of Entity Classification

Separate Tax Regimes

• Subchapter C: C Corporations

• Subchapter S: S Corporations

• Subchapter K:

– Partnerships and

– Most Limited Liability Companies (LLCs)


Subchapter K: Hybrid Concept of Taxation

• Partnership: Under the aggregate theory, partner’s taxed directly on partnership profits (losses); however entity principles are used for its computation (Form 1065)

• LLC Under the aggregate theory, member’s taxed directly on LLC profits (losses); however entity principles are used for its computation (Form 1065)

• LLCs: new entity of choice, offers the limited liability protection of a C Corporation with the single level taxation and inherent flexibility of partnerships.

• Check the Box Regulations: provide default classifications for how an entity will be treated for federal tax purposes:

– At least a two member entity: treated as a partnership

– Single owner entity: treated as a sole proprietorship,


Partnership & LLC Taxation:Reporting Income & Loss

• Generally the operating agreement determines an owner’s share of income, loss, deduction or credit. These allocations will be respected as long as they have substantial economic effect.

• Generally the character of each item of income, gain, loss, deduction or credit is determined as if the owner realized the item directly from the same source as the business.

• Owners must report their share of profit and loss whether or not it is actually distributed.

– Losses: allowed only to the extent of the adjusted basis of the owner’s interest in the business.


Partnership & LLC: Basis & Adjustments

• Generally, the basis of a partnership/LLC interest (outside basis) is the money plus the adjusted basis of any property contributed. Any assumption of partnership liabilities is considered contribution of money.

• Owner’s basis in partnership/LLC interest is adjusted by following:

Increases

• Additional contributions or assumptions of partnership liabilities Share of taxable and nontaxable income

Decreases

• Share of losses

• Share of nondeductible expenses that are not capital expense

• Distributions of property and money


Partnership & LLC: Nonliquidating Cash/Property Distributions

• Because partners are taxed directly on partnership income, Subchapter K has rules which generally permit partners to receive distributions of income without being taxed again.

• If only money is distributed no gain/loss recognized unless the amount exceeds the partner’s adjusted basis

• Generally where just property is distributed, the recipient partner takes the partnership’s basis in the property (carryover basis) and no gain is recognized even on appreciated property

• A distribution of both cash and property will not result in taxable income to the recipient partner unless the amount of cash/FMV of the property exceeds the outside basis in the partnership


Partnership and LLC: Liquidation … A Redemption

• Termination of a Partner’s entire interest by means of a distribution or series of distributions to the partner by the partnership

• IRC § 736: determines the tax consequences when a partner’s entire interest is redeemed. Classifies payments into one of two categories:

– 736(b) payments: treated and taxed as distributions

– 736(a) payments: not treated as a distribution


W H A T A R E T H E T A X R E S U L T S T O T H E P A R T N E R ?

IRC § 736(b) Payments: Taxed as Distributions

• Cash and property distributed in termination of the ownership interest

• Tax Consequences to the recipient partner

– Tax-free up to the partner’s basis

– Excess is treated as capital gain

– Carryover basis taken in property distributed

• Tax Consequences to the Partnership: generally no gain or loss is recognized on the distribution of the property; no impact on basis of retained assets

– Section 754 election: Step-up basis of inside assets


B U Y - S E L L C O N C E R N :

Basis is a critical factor in partnership and LLC Taxation

IRC § 736(b) Payments: Special Tax Treatment

• Two items of property cannot receive Section 736 capital gains treatment but are treated as ordinary income

– Unrealized receivables

– Substantially appreciated inventory


B U Y - S E L L C O N C E R N :

Liquidations in Partnerships/LLCs do not always result in capital gain treatment

IRC § 736(a) Payments: The Tax Consequences

• All liquidating payments not within Section 736(b)

• Tax consequences to the recipient partner

– Fully includible in income generally as ordinary income

• Tax consequences to the partnership

– Reduction in the income of the remaining partners via either reduced distributive shares or a deduction taken by the partnership (a guaranteed payment)


B U Y - S E L L P O I N T E R :

Section 736(a) vs 736(b) rules allow seller-buyer negotiation as to the ultimate tax treatment to each party

IRC § 736(a) Payments: The Tax Consequences

Payments for goodwill

• 736(b) treatment if specifically stated in the buy-sell agreement

– Treated as a capital asset – no immediate deduction

• 736(a) treatment if not addressed in the buy-sell agreement Deductible as a guaranteed payment



Treatment of Goodwill is a critical item of negotiation upon formation of the partnership

IRC § 741: Sales Between Partners (Cross Purchase)

• Tax Consequences to the selling partner

– Transaction is treated as a “sale or exchange” subject to capital gains tax

– General Rule: Gain or loss recognized on the difference between the partner’s adjusted basis and FMV of the property and cash received

– IRC § 751 overrides the general rule, ordinary income is recognized for the “hot assets”

• Unrealized receivables• Substantially appreciated inventory items


IRC § 741: Sales Between Partners (Cross Purchase)

• Tax Consequences to the buying partner

– Takes the seller’s basis

– Unless a Section 754 election is made to adjust basis

• Effect of Sale on partnership

– No effect unless 50% or more interest is transferred then partnership terminates for tax purposes



There is no tax advantage to doing a cross purchase. Also, less flexibility as one cannot manipulate allocations

In Summary:

• More flexibility of design through

– Special Allocations of profits and losses

– Goodwill planning

– Differentiation of owner’s rights

– LLC: strong creditor protection

• Fewer “Negatives”

– Freedom from S Corporation eligibility rules

– Freedom from the application of family attribution rules


Partnership & LLC: Life Insurance Impact

• Depends on the type of policy

– Term vs. Permanent

• Whether the owner, beneficiary and premium payer is the

– Business entity vs. Individual

• The life insurance needs to be addressed i.e. the use of the life insurance


• General Rule: Business does not receive an income tax deduction for premiums paid where it is directly or indirectly the beneficiary.

– C Corporation Result: Earnings used to pay premiums are subject to corporate level income tax. Life insurance policy cash value increases may be subject to AMT.

– Partnership/ LLC Result: Business earnings used to pay premiums are nondeductible for tax purposes and increase the owners’ taxable income. Owner’s basis is reduced.

Life Insurance: Premium payment where the business is owner, beneficiary and premium payer:


• C Corporation Result Life insurance premium payments or death proceeds do not impact owner’s equity interest in the business.

• Partnership/ LLC ResultWhere business is owner and beneficiary life insurance impacts owner’s basis in the business.

Life Insurance: Impact on Owner’s Basis in Business


Impact on Basis Not Clear Three Theories

Proceeds Increase Basis By:

• Full Proceeds

• Full proceeds less cash value increase plus lost basis.

• Full proceeds less cash value

Payment Reduces Basis By:

• Full Premium

• Extent premium exceed cash value increases. No basis impact when cash value increase exceeds the premium

• Extent premium exceed cash value increase. Increase basis by the amount the cash value increase exceeds the premium


• General Rule: Received income tax-free under IRC 101(a)

However ……..

C Corporation Result: Subject to AMT unless it qualifies under the small corporation exception.

• Partnership/ LLC Result: No AMT. Owner’s basis is increased.

Life Insurance: Death proceeds where the business is owner, beneficiary and premium payer:


• C Corporation Result

– Premium payments are not tax deductible. Corporate earnings used to pay premiums are subject to corporate level income tax. Premium payments have no impact on stock basis.

– Policy cash value increases may be subject to AMT.

– Death proceeds may be subject to AMT if the corporation does not qualify under the small corporation exception. No impact on basis.

Specific Application: Redemptions/Liquidations


• Partnership/ LLC Result

– Premium payments are not tax deductible.

– Business earnings used to pay premiums are included in the owners’ taxable income.

– Premium payments decrease owner’s basis. Pro-rata?

– Death proceeds generally received income tax-free. Pro-rata?

– No AMT.

– Increases owner’s basis.

– Majority Shareholder Issues: How much estate inclusion?

Specific Application: Redemptions/Liquidations



– Premium payments are paid with personal funds. Premium payments may be disproportionate due to age of insureds, underwriting ratings etc.

– Death Benefit Proceeds paid to individual owners

– No AMT

– Multiple policies present management and “transfer for value” issues

Specific Application: Cross-Purchase



– Premium payments are paid with personal funds.

– Premium payments may be disproportionate due to age of insureds, underwriting ratings etc.

– More flexibility in distributing money to owners for premium payments

– Death proceeds generally received income tax-free by taxpayer.

– No AMT.

– No transfer for value issues

Specific Application: Cross-Purchase


• A Closer look at …

– Key Person Coverage

– Nonqualified Deferred Compensation

– Executive Bonus Plans

– Split Dollar Arrangements

Impact of Pass-Through Taxation on Common Business Insurance Arrangements


• Helps to offset the losses sustained by the business as a result of the death of a key employee. At the death of a key employee the life insurance proceeds are available to help:

– Meet debt obligations

– Enhance cash flow and offset lost sales

– Cover the costs of finding and training a replacement

• The business is the owner, beneficiary and premium payer of the life insurance policy on the key person’s life.

Specific Application: Key Person Coverage



– Premium payments are not tax deductible. Corporate earnings used to pay premiums are subject to corporate level income tax. Policy cash value increases may be subject to AMT. No impact on stock basis.

– Death proceeds subject to AMT if the corporation does not qualify under the small corporation exception. No impact on basis




– Premium payments: not tax deductible. Business earnings used to pay premiums are included in the owners’ taxable income. Premium payments decrease owner’s basis.

– Death proceeds generally received income tax-free [IRC 101(a).]• No AMT. • Increases owner’s basis.• Need to look at how proceeds are used and the effect on the

business


For Example…



– If proceeds are used to pay deductible expenses: Owners obtain direct benefit as deductible expense shelter taxable income

– If proceeds are used to reduce loan principle: No tax deduction. However, the business is using tax-free proceeds where taxable earnings might otherwise be used. Also no basis reduction for loan repayment as it is a balance sheet item only.



Specific Application: True Deferral Nonqualified Deferred Compensation (NQDC)

• An arrangement under which receipt of an employee’s compensation is deferred until a later date. At that time, payments are deductible to the employer; taxable to the employee.

• Arrangement can be “informally funded” with a life insurance. The business is the owner, beneficiary and premium payer. Premium expenses to informally fund the arrangement are not tax deductible. Policy cash values can be accessed though withdrawals and policy loans to help provide benefit.* Policy values or death benefit can help provide cost recovery to the business.

* Policy withdrawals and loans reduce policy cash value and death benefit, and may have tax consequences.


Nonqualified Deferred Compensation (NQDC)

For education of producers/ brokers only. Not for use with the public.

* Neither are in the practice of law or accounting

1. NQDCAgreement

4. Tax Payment

4. Tax Deduction

3. Retirement Benefits

2. Premium 3. Survivor Benefits

Life Insurance

Policy

Executive

Heirs

IRS

Business



• C Corporation Result Corporate earnings used to pay premiums are subject to corporate level income tax. Life insurance cash value growth may be subject to AMT. Corporation receives deduction when taxable NQDC benefits paid. Policy death proceeds received by corporation may be subject to AMT.

– Majority shareholder: Can compensation be deferred? Still have corporate tax on earnings used to pay premiums. NQDC benefits taxable when received.

– Key employee/ non-shareholder: Employee achieves tax deferral. NQDC benefits taxable when received.



• Partnership/ LLC Result Business earnings used to pay premiums are included in the owner’s taxable income and decrease owner’s basis. Life insurance values and death proceeds are not subject to AMT. Policy proceeds increase owner’s basis.

– Majority owner: No deferral, taxed whether or not received.

– Key employee/ non-shareholder: Employee achieves tax deferral. Owner has upfront tax burden on the income used to make premium payment; however, business receives tax deduction when benefits are paid. Achieve “golden handcuffs.”


Specific Application: Executive Bonus Arrangement

• A method of compensating selective executives through employer paid premiums used to purchase life insurance.

• Employee is generally the owner of the policy and designates the beneficiary. Premiums are deductible to the employer and taxable to the employee as compensation as long as the executive’s total compensation is reasonable.


Executive Bonus Arrangement

5. Tax Deduction

4. Income Tax Due

6. Policy Rights

3. Taxable Income

2. Premium

1. Corporate Resolution



BonusAgreement

Life Insurance

PolicyExecutiveIRS

Business


• C Corporation Result: Where the business pays the premium it is deductible as compensation, so unlike NQDC there is no corporate tax burden. There is no corporate AMT since the life insurance is owned outside the business.

– Majority owner: Premium payments taxable as compensation. In appropriate mix of corporate and personal tax brackets (corp. in higher bracket) the arrangement can offer the owner tax leverage. Death proceeds received by owner are generally income tax-free under § IRC 101(a).

– Key employee/ non-shareholder: Employee reports the premium payments as taxable compensation. Death proceeds received by employee are generally income tax –free under § IRC 101(a).

Specific Application:Executive Bonus Arrangement


• Partnership/ LLC Result: Compensation used to pay premiums is deductible to the business. The business owner’s basis is not affected by the life insurance since the policy is owned outside the business.

– Majority owner: The additional compensation is taxable; however, it may not increase owner’s overall taxable income.

– Key employee/ non-shareholder: The results for the employee are the same as C corporation. Since payments are deductible the business owner’s do not have tax burden as they do in NQDC; however, give up “golden handcuffs”. As an alternative consider Restrictive Executive Bonus.

Specific Application:Executive Bonus Arrangement


Specific Application:*Split Dollar Arrangement (Economic Benefit)

• A method of paying premiums where the employer and employee share in the cost, cash value and death benefit of a permanent life insurance policy.

• Arrangement can be established as either an endorsement (business is owner) or collateral assignment (employee or third party is owner).

• Employer’s interest interest in the policy is equal to at least the premiums paid and the employee’s beneficiaries receive the balance.

• Neither the employer or employee may deduct their portion of the premium. Annually the employee must either pay, or report as taxable income, an amount at least equal to the economic benefit. The employer pays the balance of the premium.



* The service is currently reviewing its position on split dollar arrangements and the outcome may negatively impact how split dollar arrangements are treated for tax purposes.


Split Dollar Arrangement:

Split Dollar Agreement

4. Death Proceeds of “Cash Value” Portion

4. Death Proceeds of “At Risk” Portion

2. Premium Payment

3. Taxable Income

Life InsuranceCompany

IRSExecutive

Business

Executive’s Beneficiaries

• Premium Split between two parties• Death Benefit split between two parties• Interest in cash value may be split


• C Corporation Result: Corporate earnings used to pay premiums are subject to corporate level income tax. Policy cash value increases and corporate portion of the death benefit may be subject to AMT.

– Majority owner: In appropriate mix of corporate and personal tax brackets (corp. in lower bracket) the arrangement can offer the owner tax leverage. Death proceeds received by owner are generally income tax-free under § IRC 101(a).

– Key employee/ non-shareholder: Employee reports as taxable compensation the value of the life insurance protection (economic benefit). Death proceeds received by employee are generally income tax –free under § IRC 101(a).

Specific Application:Split Dollar Arrangement (Economic Benefit)


• Partnership/ LLC Result: Premiums paid are not deductible to the business. Consequently, business earnings used to pay premiums are included in the owners’ taxable income and decrease owner’s basis.

– Majority owner: The owner must report or pay economic benefit amount.• If structure as employer pay all, the owner will be taxed twice on

portion of premium.• If owners pay economic benefit portion, the owner only pays tax on

the premium – the same as a bonus plan.

Consequently … Unless other factors support use of split dollar (i.e. gift leverage) another approach many be better.



– Key employee/ non-shareholder: The results for the employee are the same as C corporation.

The owners have upfront tax burden on the income used to make premium payment; however, owners receive cost recovery at termination and the benefit of “golden handcuffs”.



Summary:


The tax rules of pass-through business entities affect the use of life insurance arrangements differently when compared to the same arrangement in a C corporation

In some cases, this can cause an owner of a pass-through business to

use a different life insurance arrangement.

Have you considered the effects of the plan and the policy as related to the specific entity?

NAIFA is Your Key to Success!NAIFA is Your Key to Success!

• Since 1890 NAIFA (formerly NALU) has been the association for Life Insurance Agents and Financial Advisors.

• NAIFA is composed of state associations in all 50 states plus Puerto Rico. Local associations operate within the 50 states.

• NAIFA provides you with highly effective representation in Washington, DC and in state houses across the country.

• NAIFA members adhere to a Code of Ethics that communicates a message of integrity to their clients.

• NAIFA also provides local meetings and an array of benefits.

When You Belong to NAIFA You Get...When You Belong to NAIFA You Get...

• Access to NAIFA’s member benefit programs including Standard & Poor’s investment information website, Errors and Omissions Insurance, Disability Income Insurance and your own website from Financial Visions.

• A free monthly subscription to Advisor Today magazine, the premier publication for insurance and financial professionals.

• Access to NAIFA’s Member Service Center. NAIFA’s MSC staff if ready to answer your questions regarding your membership and NAIFA.

• Networking, continuing education, and leadership opportunities through state and local meetings.

• The opportunity to earn professional designationsincluding CLU, ChFC, and LUTCF.

and much more!

NAIFA Membership Includes ValuableNAIFA Membership Includes ValuableOn-line Resources IncludingOn-line Resources Including

• NAIFA’s new and improved website, www,naifa.org. Membership in NAIFA gives you access to restricted members only sections of the website. These sections include Sales Ideas and Resources, Education and Training, Government Relations, and Practice Specialties.

• ADVISORTODAY.COM - AT.com provides web exclusive articles and product surveys. Visit AT.com for the latest ideas in marketing, prospecting, and practice management.

• Political Frontline - the email newsletter of NAIFA’s Government Affairs Department keeps members up to date on current issues and the steps that NAIFA is taking to achieve positive legislative results.

• Etips - to help you grow your business, NAIFA sends members frequent emails with sales and practice management tips from industry leaders and top producers.

NAIFA’s Government Affairs Team has...NAIFA’s Government Affairs Team has...

• Successfully defeated an attempt by some in Congress to tax the inside build-up on life insurance policies.

• Blocked a proposal to ban the sale of life insurance agents from military bases.

• Acted to prevent the taxation of existing split dollar life insurance arrangements.

• NAIFA has also won victories on behalf of its members in areas such as:

– Electronic Signatures

– Estate Tax Repeal

– Pension Reform

Your NAIFA membership allows you to Your NAIFA membership allows you to participate in specialty conferences of NAIFA participate in specialty conferences of NAIFA including:including:

• Association for Advanced Life Underwriting (AALU)estate and business planning;

• Association of Health Insurance Advisors (AHIA)health insurance or employee benefits; and

• GAMA Internationalgeneral agents and managers

NAIFA works closely with the following NAIFA works closely with the following two sister organizationstwo sister organizations

• Life and Health Insurance Foundation for Education (LIFE) - A variety of high profile, nationally circulated television, radio, and print advertisements are produced by the LIFE Foundation. LIFE educates the public on the need for life insurance and is funded in part by NAIFA.

• The Million Dollar Round Table (MDRT) - Membership in an industry association, such as NAIFA, is the first step to qualify for membership in MDRT - the premier association for top producers in the financial services business.

Young Advisors Task Force (YAT)Young Advisors Task Force (YAT)

To attract and involve more young advisors NAIFA has created a Young Advisors Task Force (YAT). Some of the NAIFA benefits that are of special interest to young advisors include ...

Continuing Education ClassesLUTC ClassesLocal MeetingsProfessional DesignationsNetworking OpportunitiesAdvisor Today Magazine and On-line PublicationsSales Training and Sales IdeasMillion Dollar Round Table Association Membership RequirementPublic Relations ActivitiesLegislative ActionCommunity Service Prestige

Documents

Disclaimer The following disclaimer statement is included with each Programs in a Box topic. Do not delete this disclaimer as a part of the program. It