TO JUDGE FROM SOME OF THE COMMENTS about the tax-reform package earlier this fall, you would think that Congress had proposed nothing less than the reshaping of American business. Don't believe it. The most important thing to remember is that, by and large, what made good business sense last year will make good business sense in the future. In fact, the most far-reaching effect of "reform" will be to take business decisions away from accountants and tax lawyers and put those decisions back where they belong, with business executives. A stronger alternate minimum tax further reinforces the message that tax considertions should play a lesser role in business decisions.
We see three major changes in the new law, however, that should have dramatic impact on most privately owned companies and the way they plan their growth.
* For the first time in U.S. tax history, top individual tax rates will be lower than top corporate rates -- 28% versus 34%.
* Capital gains will lose its preferential treatment and will be taxed as ordinary income.
* The General Utilities doctrine, which has allowed corporate owners to avoid double taxation of capital gains upon the sale or liquidation of a company, has been repealed.
Taken together, these changes suggest new strategies for company owners and managers. Here are a few that you might consider.
LOOK FOR DIFFERENT FORMS OF BUSINESS ORGANIZATION
If you have a limited number of stockholders, no preferred stock, and no subsidiaries, consider changing the form of your business from a conventional corporation to a Subchapter S corporation. An S corporation's profits will be taxed to the corporation's shareholders at the lower individual rate of 28%. The S form also eliminates double taxation (corporate plus individual) of profits distributed as dividends and double taxation of capital gains should the business be sold.
For many of the same reasons, you might consider using a limited partnership if you are forming a new business. An unlimited number of investors can participate, without much personal legal liability, in the profits, cash flow, or tax losses of a limited partnership. And the general partner can be set up as an S corporation that protects key executives from personal liability while at the same time allowing them to take advantage of the lower individual tax rate. You may also want to consider the limited-partnership form as a way to "freeze" the value of your stake in the business, while allowing children, as limited partners, to realize all the gains. This is a technique often used for estate-planning purposes.
In fact, we anticipate that limited partnership will become so popular that there eventually will sprout a public market in limited-partnership shares. Once that happens, it may not be long before Congress or the Internal Revenue Service rules that limited partnerships that look and smell like corporations will be taxed like corporations, and the sudden popularity will likely disappear.
One other caution: it will take some time before Wall Street and its investment bankers get comfortable taking public such limited partnerships.
SALARY IS NO LONGER A DIRTY WORD
If you must remain a regular corporation, pay out as much as possible in salaries and bonuses to company owners so that "profits" are taxed at individual rates rather than the higher corporate rate. If the company needs money to grow, lend back some of your salary and bonus: the interest payments will be deductible to the firm and will still give you a reasonable return on the earnings.
Remember, one historical reason for retaining earnings in the company has been that these earnings were eventually reflected in higher stock prices, which, upon sale of the stock, generated tax-advantaged capital-gains income. Under the new law, however, it is of no particular advantage to have profits "capitalized," because of the elimination of the preferential capital-gains treatment.
In general, we would expect that tax-deferral mechanisms will take on less importance in executive compensation packages, thanks to lower individual rates and fewer tax brackets. It will continue to be true that deferring income will postpone the day you have to pay taxes on it, but there will no longer be any purpose in deferring income to take advantage of lower marginal rates during the twilight years -- unless you plan to retire on less than $30,000 a year.
Among the various nonsalary compensation techniques, we expect employee stock ownership plans to be more popular now that the tax code imposes no penalty for converting stock quickly into cash. The new law taxes long- and short-term capital gains at the same rate as ordinary income.
ACQUISITIONS WILL BE SIMPLER TO STRUCTURE
In the past, buyers and sellers have haggled over how to allocate the purchase price in a merger or acquisition. Buyers have wanted as much of the purchase price as possible to be reflected in salary, bonuses contingent on company performance, or noncompete agreements -- anything that was tax deductible to the buyer. Sellers, on the other hand, have preferred to have as much of the payment as possible reflected in the price of the stock or assets being sold, so that their proceeds could be taxed at the lower capital-gains rate. With capital gains and ordinary income now being taxed the same, this hassle will largely be avoided.
AGREEMENT ON PRICE WILL BE HARDER TO REACH
The repeal of the General Utilities doctrine and the capital-gains preference will have a double-whammy effect on many acquisitions, raising the price that sellers feel they need to justify a sale.
In selling stock or assets of a company, much of the proceeds are (and will be) treated as capital gains. The repeal of the General Utilities doctrine will mean that the selling corporation will now pay a 34% capital-gains tax on the difference between the tax basis of its assets and the sale price. At the same time, because of the repeal of the capital-gains preference, the sellers of that corporation, after liquidation will be paying a 28% tax on their gains from the sale of their stock (or the company's assets) rather than the 20% capital-gains rate under the old law. Thus, the effective tax rate on such a sale will be increased from 20% under the old law to about 52% under the new law. We expect that change will come to be reflected in substantially higher asking prices for many business acquisitions.
There is no easy way for a seller to avoid the higher individual capital-gains tax.But he can avoid the double tax -- the corporate capital-gains tax -- if the buyer agrees not to "step up" the asset value of the target company on its books. In other words, the buyer must agree to continue to value the target company's assets at the same depreciated value as its previous owner.Buyers have traditionally been reluctant to make this election, because they would have lost the tax advantage of writing off part of their purchase costs through annual depreciation. Under the new law, however, buyers may be more willing to forgo the depreciation advantages because lower corporate rates, in a sense, lower the value of any deduction, including depreciation. In such cases, stock swaps may become the preferred way to structure the deal, allowing the seller to defer any taxes on the proceeds of the sale until he sells his new stock. Should he die without ever selling it, there will be no income tax at all.
From the point of view of the individual taxes of company owners, the elimination of the capital-gains preference probably tilts against the decision to take a company public. The old law encouraged owners to cash out at 20% capital-gains rates rather than pay themselves dividends and salaries over the years that would be taxed at much higher individual income rates. The new law restores the tax code's neutrality on that point.
In addition, should you go public, you may find that stockholders are more demanding in two ways: in the short run, they'll be more anxious for dividend payments, which will no longer suffer any tax disadvantage; and in the long run, they'll be looking for still-higher capital gains just to pay the extra 8% tax on capital gains.
Under the old law, high corporate tax rates and a generous foreign-investment tax credit provided an incentive for many companies to open overseas subsidiaries or divisions. The new law reduces corporate rates and tightens up rules on the foreign tax credit, making many overseas operations less tax advantaged. If you can make a good profit overseas, by all means do it. But don't look for the same tax breaks as before.
In the bad old days of tax shelters, investors were often content to wait several years to get some of their money back as long as they could enjoy tax losses. Now, new ventures will have to emphasize cash returns to investors. Financing schemes such as zero-coupon bonds will become popular.
DO IT IMMEDIATELY
Are you thinking of buying or selling a business, purchasing capital equipment, or building up inventory? Then think of doing it before the end of 1986, to take advantage of some of the tax preferences under the old law.
In purchases of capital equipment, consider the trade-off between purchases made in 1986, when depreciation reduces income that is taxed as high as 46%, and purchases made next year, when lower rates start to kick in. The higher your corporate marginal rate, the more likely you'd want to buy this year.
If you're thinking of selling a business, do it now so that your corporate capital gains won't be taxed under the General Utilities doctrine and your individual capital gains will be taxed at 20%, not 28%. That's especially good advice if you're selling (or buying) a business with net operating loss carry-overs: starting next year, those losses can be applied only against income up to roughly 6% of the purchase price. Furthermore, if the purchased business is discontinued, the carryover will be eliminated completely.
Starting next year, accounting rules in the new law will require manufacturing companies to assign certain indirect administrative and support expenses to the cost of goods produced for inventory. The change will effectively postpone the time at which you can deduct these expenses until the day the inventory is sold. Thus, if it makes sense from a business standpoint, build up your inventory before the end of the year: next year, the cost of producing and carrying inventory will be higher.
This general rule should guide most businesses in the next two months: take all the expenses and deductions you can this year, while their value is highest, and defer all the income you can until next year, when marginal rates will be reduced.
Having said all that, we would be remiss if we did not point out that the new tax law probably will have no significant effect on many of the most important business decisions. Short term, companies may find clever ways of utilizing this year's tax changes to some advantage, but in the long run, a free-market economy will tend to eliminate these advantages once tax considerations are universally integrated in business decisions. Consider these three examples:
BUY OR LEASE?
At first blush, it appeared that the new tax bill would tilt in favor of leasing buildings or equipment. The less generous depreciation rules for real estate, plus the loss of the investment tax credit for equipment, appear to increase the cost of construction and capital purchases. But the marketplace has a way of finding its own equilibrium, and it won't be too long before this apparent tax tilt toward leasing shows up in higher prices charged for leased space and leased equipment. The lessors also will lose tax advantages, which they will no doubt try to recapture in higher rents and leasing rates. And greater demand for leased space and equipment would tend to drive up prices, eliminating any advantage that might result from changes in the tax code. In most cases, the tax code will be neutral on the question of the relative advantage of leasing versus purchasing.
MAKE OR BUY?
You might make a similar calculation when deciding whether to make a new product or to buy up a company that already makes it. The old tax law, through the investment tax credit and accelerated depreciation, encouraged you to invest the capital necessary for making a new product yourself. Those are gone now, but the new law has its own wrinkle: the elimination of the General Utilities doctrine and the increased tax on capital gains mean that buying an existing company will probably be more expensive. Thus, the one change will tend to negate the other. The best advice remains that you should start your own line only if you think you can do it better or cheaper than somebody already in the business.
DEBT OR EQUITY?
There was also some early thought that the new tax code would tilt heavily in favor of debt over equity financing because of the elimination of favored treatment for corporate capital gains. But at the same time, debt financing will become a bit more expensive on an aftertax basis because lower corporate tax rates will reduce the advantage of interest deductions. In addition, increased demand for debt financing could drive up rates. In the long run, we predict that the new tax code will not have a significant effect on the relative aftertax costs of equity versus debt financing.