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IRS UPDATES GOLDEN PARACHUTE PAYMENT AUDIT TIPS

Jan 25, 2017 / by Sharon H. Lee

EXECUTIVE COMPENSATION: IRS UPDATES GOLDEN PARACHUTE PAYMENT AUDIT TIPS

Companies and individuals tapped to undergo Internal Revenue Service examinations of golden parachute payments should review the updated Golden Parachute Payments Audit Technique Guide (2017 ATG) issued by the IRS on Jan. 20.

Golden parachutes are arrangements that provide executives or key employees with significant financial compensation in the event of a change in ownership or control of the employer. The IRS examines golden parachute payments to determine whether:  (1) the payer can claim a deduction for the payment under I.R.C. § 280G, and (2) the recipient is subject to a 20 percent excise tax as an excess payment under § 4999.

Audit Technique Guides

The 2017 ATG conforms the previous version of the ATG with current tax code provisions and Securities and Exchange Commission filing requirements. The IRS initially issued ATGs on several executive compensation topics, including golden parachute payments, in 2005.  The 2005 Golden Parachute Payments ATG provided guidance on the following topics:

• the types of documents reviewed by IRS examiners in golden parachute examinations, and
• the nine steps performed by IRS examiners in golden parachute examinations.

The IRS website states that ATGs “help examiners during audits by providing insight into issues and accounting methods unique to specific industries.” Although the ATGs primarily are referenced by IRS examiners, the ATGs contain helpful information for companies and individuals to defend themselves during IRS examinations.

Key Takeaways

1. The 2017 ATG specifies two additional types of documents reviewed by IRS examiners in golden parachute payment examinations, including:

• Information Statement (Schedules 14A and 14C). The 2017 ATG states, “The rules of the Dodd-Frank Act require the disclosure of golden parachute payments in proxy statements and informational statements filed on Schedule 14A as well as Schedule 14C.”
• Registration Statements (Forms S-4 and F-4). The 2017 ATG states Forms S-4 and F-4 “provide information related to mergers, acquisitions, or when securities are exchanged between companies.”

2. The 2017 ATG specifies the interplay between I.R.C. § 162(m) and golden parachute payments.  The ATG states, "Section 162(m) provides that the $1 million limitation should be reduced by any amount of excess parachute payments. For example, if the chief executive officer of a publicly-held company received $2 million dollars from his company in the year it was being acquired, of which $200,000 was excess parachute payments under IRC § 280G, the IRC 162(m) limitation for the CEO would be reduced to $800,000 ($1,000,000 - $200,000). However, this provision for reducing the $1 million limitation for the excess parachute payment may not apply if the executive of the target is not considered a covered employee during the year of an acquisition since the target goes out of existence and his pay is not reported in the proxy statement."

Job descriptions have traditionally been written in a static manner. Beginning in the 1970s, the original goal was to comply with the Uniform Guidelines in Selection Act, Equal Employment Opportunity Act, and Americans With Disabilities Act or to meet other contract and business requirements to defend hiring decisions and minimum employment standards. So what has changed?

The advent of computer technology provided the opportunity to revise job descriptions more easily. In health care, employers began to score the performance of each job function using the job criterion method. Many employers began to link job description updates with the performance appraisal cycle or timing of reclassification studies. However, the purpose of the review has largely been limited to facilitating market comparisons and internal equity comparisons.

More recently, some employers have begun to write their job descriptions around competency clusters such as project management, writing skills, software applications, and equipment utilization in work cells. Other employers have taken their core values and written behavioral statements that show the employee understands and shows these values. Both the Company values and the competencies are being prominently displayed on the first and second pages of the job descriptions.

What appears to be lacking is the emphasis on key result areas and key performance indicators, particularly when the organization does not have a separate incentive plan. We know that we can write these standards into the performance appraisal forms but the criteria will not be centered upon the each employee’s position. The outcome is less than perfect.

Some organizations have accepted this challenge, such as Kwikset, and quantitatively defined and scored the competencies, continuing training requirements, and performance outcomes for each job. In this context, the job description, training plan, and performance evaluation plan are all part of one document. In other companies, simply listing the performance measures under the abilities section in the Qualifications Guidelines appears to be an important first step.

What else can be done to improve the active use of the job descriptions?