Income taxes are going up dramatically this year for high income earners. Is there a bright side?  No!  But let’s deal with it.

Top earners will now be in a 39.6% marginal bracket. Add state taxes (for most states)—let’s assume 5.05%. (Wouldn’t that be nice Californians and New Yorkers?) Then add the Medicare tax on income over $113,700—2.35%. That would add up to a true marginal rate of 47.0% on the top dollars earned by high achievers. Ugh!

Let’s consider some compensation strategies that will help creative employers offer relief to their top earners. There are a few but let’s look at two examples for now.

First, revisit deferred compensation plans (DCP). These plans allow high earners to voluntarily defer parts of salary or bonuses and postpone taxes to a future date. Deferring to the future offers several immediate benefits:

  • Reduce taxable income below the new top rate threshold ($400k for single filers; $450k for married/joint filers);
  • Reduce MAGI (modified adjusted gross income) below the Medicare tax threshold ($200k/$250k);
  • Reduce AGI below the threshold where personal exemptions and itemized deductions are phased out ($250k/$300k).

In addition, assuming the same tax rates in the future as today, deferred dollars almost always result in larger after-tax values in the future (given the same growth assumptions inside the DCP as in an outside investment account). For more information, you can view a  webinar that I presented in February.

Second, beef up long-term incentives. Employees may be pleased to exchange some of their incremental “53 cents on the dollar compensation” for long-term equity or phantom stock. Or, a smart employer may simply add such a plan to existing promises. Let’s consider phantom stock. Grants received today equal a financial stake in the future company with no current tax! That’s right. You can give me 1%, 5% or 10% of your company “value” through phantom stock and I will incur no taxes today. What happens when the shares are redeemed in the future? Yes, taxes. However, we might be able to move payments into lower tax years, or spread them over time. In other words, we can often find ways to move the reportable income into periods where the employee may fall below the tax maximizing thresholds discussed above.

But here’s my main point: Employers that explore and implement techniques to help high income earners reduce, avoid or delay taxes are offering a benefit that just went up in value thanks to Washington. Don’t let your key employees be lured away because your competitor adopts these ideas before you do.

Ken Gibson
December 12th, 2012 by Ken Gibson

What is a “Fair” Compensation Plan?

Who doesn’t want to be called fair, right?  A desire to be considered fair is in our bones and to be called unfair is one of life’s ultimate insults. (Unless of course it’s your teenager claiming something is unfair; in which case you know you’re on the right track. But I digress.)  Likewise, we instinctively sense unfairness when we experience it.

Fairness in compensation, however, is a topic almost no one seems to want to think about.  How can we objectively determine if a pay plan is fair and do we even want to “go there?”  Well, I think we can (determine it) and should (go there).  Here’s a list of questions I think a company should consider to determine if their compensation package is “fair.”

  • Compensation Philosophy Statement. Has your company put in writing it’s philosophy about compensation and what it is willing “pay for”?  Does your company communicate that philosophy to its employees?
  • Market Pay. Do your current salary levels comport with market pay standards?  Are they consistent with where your compensation philosophy statement says you want to be in this regard?  (E.g. 50th percentile of market pay.)
  • Value Sharing. Does your company define value creation for its employees and have a mechanism for sharing value that is created–both short-term and long-term (particularly for key producers)?  Is it consistent with your compensation philosophy statement about sharing value?
  • Benefits. Does your benefit’s package offer employees an “adequate” if not superior opportunity to insure against risks that could impact their financial future and allow them a mechanism for retirement planning?  Does it recognize the potential  ”reverse discrimination” impact of qualified retirement plan restrictions for high income earners and allow the latter opportunities to offset those limitations (i.e. 401(k) mirror plans or other supplemental executive retirement plans)?  Is there adequate choice and flexibility in your benefit plan?
  • Line of Sight.  Do your compensation philosophy and its associated plans create a clear link between the vision of the company, it’s business model and strategy, roles inherent in that strategy and expectations associated with those roles, and how individuals will be rewarded for fulfilling those expectations?

I suppose other questions and categories could be added to that list, but that’s a pretty good start.  I believe most companies have more control over the sense of fairness employees feel about compensation than they sometimes allow.  For example, many are confronted by employees who have looked at market pay data online and concluded they are under paid for their positions.  Never mind that there is a range of variables in evaluating such data, and that employees who are overpaid will never make that known to their employer.  The overriding issue is that most companies don’t have a philosophy driving their pay strategies.  They are not armed with a cohesive approach, so they are left sensing that such employees feel the company is “unfair” when it comes to pay–regardless of the logical explanations that are offered in response to their challenges. Such business leaders need an approach to rewards that will allow them to respond in such situations with something like the following:

“Our company’s philosophy about compensation is that we will pay salaries at the 45 percentile of what market pay data indicates for the positions in our organization.  (By the way, our last check of that data indicates you are at the 47% for your position, based on an average of four surveys we evaluated.) However, we also believe in providing significant upside potential through the two value-sharing plans you are eligible for.  Our annual bonus plan allows you to earn an additional 25% plus of salary if you and the company meet the performance standards we have set and communicated. Likewise, you participate in a phantom stock plan that allows you to earn an additional 30% of your salary in phantom shares of stock which, if we continue to meet our targets, will grow in value and be paid out to you in five years.  You also are part of our company’s deferred compensation plan which has a performance match of up to 25% of your contributions.  That is not counting the match we give all employees on their 401(k) program contributions. All told, your pay package has a value of $1.7 million over the next five years.”

I think most people would not only would consider such an approach “fair” but would likely find it a compelling reason to join and or stay with such an organization.  And by the way, the “self-financing” approach to the value sharing described here makes CEOs and shareholders happy to write incentive payout checks. Value is being paid out of superior value created–and nothing is paid if certain performance thresholds aren’t met.  So it is not only a fair approach for employees but for the business as well.

Companies that give this much thought to their approach to pay communicate the value they place in the relationship with their people and a respect for the unique contributions individual members of the workforce make. That sense of partnership makes fairness self evident.

In 2004, many companies assumed deferred compensation would just fade away as a strategic compensation tool.  With the introduction of 409A, and what some perceived to be rather Draconian penalties for non-compliance, many determined it wasn’t worth it to venture into deferral plan territory. As it turns out, these plans didn’t become extinct, and in recent years are even experiencing a resurgence – especially among privately held companies.  Why?  Because people are realizing that 409A did as much (or more) to help these plans as it did to diminish them.  To understand this assertion, a little background might be helpful.

IRC Section 409A was added by the American Jobs Creation Act in 2004. It was written in reaction to the abuses at Enron, where executives accelerated payments under their deferred compensation arrangements so they could access the money before the company went bankrupt. In essence, those executives made provisions that allowed them to retire comfortably while other shareholders and rank-and-file staff members were in the midst of losing all hope for their futures.

Section 409A, then, was instituted to prohibit the potential for such abuses in the future. It did so by disallowing an accelerated distribution of deferred compensation benefits (in addition to instituting other “protective” requirements).  Now, all companies, no matter their size, are required to follow the terms of this legislation.  If they don’t there are potential penalties for participating executives.

Because of potential consequences for violating 409A, some still fear instituting a plan.  However, it’s important to remember that penalties only come to those who don’t comply—and how to comply has been spelled out in the statute. Consequently, in my view 409A has actually become an ally to plan sponsors because of the clarity it provides.  Before the addition of this IRS Section, many “gray areas” of ERISA left companies wondering whether such a plan was worth the risk. With established guidelines about distributions and other aspects of the plan agreement now in place, anticipating how the IRS or Department of Labor will look at a plan has become much more predictable; and that’s a good thing.

With that understanding in mind, here are some things to remember and apply if you want 409A to be an ally instead of an enemy of your plan.  Potential penalties under the statute can be avoided by doing the following:

  • Document all plan terms
  • Make deferral elections as allowed and prescribed by 409A
  • Avoid making plan distributions outside the required distribution events as defined in the legislation

Because of 409A, the benefits of compliance have become more resolute and clear.  Compliance now means:

  • Clearer rules
  • Better protections for shareholders and rank-and-file staff
  • Definitive payment terms
  • Less opportunity for subjective discretion with regard to payment timing and amounts ultimately
  • More reliable benefit arrangements

While for many the jury is still out about whether the impact of 409A is a coup or a bust, I see much to celebrate in the clarification the statute provides. Since it appears this statute is going to be around for a while, I’m choosing to see the 409A glass as half full rather than half empty.

For more information on Section 409A and its impact, visit: http://wiki.phantomstockonline.com/index.php/IRC_Code_Section_409A.