Wait and See Buy-Sell Agreement

What Is It?

Legal Contract--A Form of Buy-Sell Agreement

A wait and see agreement is a form of buy-sell agreement, a legal contract established between you and two or more potential buyers, one of whom might be your closely held business, partnership, or limited liability company (LLC), and the others your co-owners, or any other party. The wait and see buy-sell agreement is also referred to as the hybrid or flexible buy-sell.

Establishes Potential Buyers for Your Business Interest

With a wait and see agreement, the actual buyer is not specifically identified in the agreement--it could be the business entity, the individuals, or a combination of purchases by multiple buyers. The purchaser and the amounts of purchase are not determined until after the occurrence of the triggering event. The parties to the agreement wait until the triggering event happens, and see who has the desire and the resources to make the purchase. When properly structured, the wait and see agreement will guarantee that your business interest is sold to at least one of the potential buyers.

Example(s): Say you are an owner of Hill Company. You have two co-owners, John and Jill. The following list shows some of the possible buyers you might have named in your wait and see agreement:

Defines Events Triggering Sale Of Business Interest

The buyers agree to buy your interest in the business, and you (or your estate) agree to sell it at the occurrence of some triggering event specified in your agreement. You, your advisors, and the other parties to the agreement will determine the triggers appropriate for your business situation. Possible triggering events include those shown in the following table:

Combines Features Of Entity Purchase Agreement And Cross Purchase Agreement

The wait and see agreement combines features of two other types of buy-sell agreements, the entity purchase (stock redemption) agreement, by which the business entity buys back its own stock, and the cross purchase (crisscross) agreement, by which individuals (usually co-owners) are the buyers. Here's how it works: You are a business owner bound under a wait and see buy-sell agreement between you, your business, and several potential individual buyers. You die (the triggering event). The business entity and the buyers are bound under a combination of options and obligations to buy your interest in the business from your estate. Your estate is legally obligated to sell your interest. Your estate is guaranteed that the interest will be bought.

The purchase could occur in as many as three steps and using the previous example, might look like this:

If all of your shares are purchased by Hill Company at Step 1, the agreement has functioned as a stock redemption. If the option is not exercised in a timely manner (usually from 30 to 90 days) or is only partially exercised, the individuals are given the option of purchasing some or all of the remaining interest. To whatever extent the individuals buy the interest in Step 2, the agreement has functioned as a cross purchase. The individual buyers might also have 30 to 90 days to exercise the option. In this example, any stock not purchased by the individuals at the end of Step 2 must be purchased by the company in a stock redemption at Step 3. Note that nobody is obligated to buy in Steps 1 or 2, but the purchase by the company at Step 3 is mandatory under the agreement.

Flexible Agreement Allows for Options While Guaranteeing Sale

The ability to name potential buyers who might be interested in buying your interest provides incredible flexibility. You could name your five-year-old child as a potential buyer with an option to buy your interest in the hope that your child will want to follow in your footsteps and carry the torch in the family name. Just make sure it is an option--after all, what if he or she wants to run off and be an astronaut instead? As long as your agreement is structured so that one party (usually the business itself) is obligated to buy your share of the business, the sale of your interest is guaranteed. Of course, if you are the sole owner of your business, the business cannot be the party obligated to make the purchase, because a business cannot purchase itself.

When Can It Be Used?

You Own a Business With One or More Individuals

You are one of the co-owners of a closely held business. The business can be organized as a partnership, C corporation, S corporation, limited liability company (LLC), or professional corporation and has a small group of owners. A wait and see buy-sell agreement can be used to name potential buyers, but none of the potential parties can be the business itself.

Strengths

Includes All The Strengths of a Buy-Sell Agreement

The wait and see agreement, like other buy-sell agreements, can do the following things:

• Can provide a guaranteed buyer for the business interest
• Can provide liquidity for payment of estate taxes and settlement expenses (but only if agreement is funded)
• Can avoid potential conflicts of interest
• Can establish taxable value of the business, if structured properly
• Can maintain stability of business operations
• Can improve creditworthiness of the business
• Can maintain tax status of your S corporation, partnership, or professional corporation (if relevant)
•  

Extremely Flexible

The wait and see agreement is flexible with its combination of options allowing for purchase of a business interest by the business, the individuals, or a combination of both. Because tax laws and personal and business circumstances often change, the wait and see agreement eliminates the need to choose now between an cross purchase (crisscross) agreement and a cross purchase agreement. The choice will be made at the time of the triggering event, when financial conditions and current tax laws can be reviewed.

Caution: If the co-owners are related (including spouse, parents of either spouse, and their children and their spouses, and any natural objects of the transferor's bounty), and the business is a corporation, the attribution rules must be considered if the corporation purchases any of the stock. These rules can affect the tax treatment of the stock sold back to the corporation.

Proceeds Subject To Favorable Tax Treatment Under Certain Conditions

When a corporation distributes money to a shareholder, it is generally considered a dividend to the shareholder. Of course like many other rules, there are exceptions to dividend treatment when certain conditions are met. Under a properly structured wait and see agreement, the proceeds your estate receives from the business purchase (stock redemption) may be treated as amounts received from the sale of stock, subject to capital gains tax rates.

Tip: In general, the American Taxpayer Relief Act of 2012 permanently extended the preferential income tax treatment of qualified dividends and capital gains. Capital gains and qualified dividends are generally taxed at 0% for taxpayers in the 10% and 15% tax brackets, and at 15% for taxpayers in the 25% to 35% tax brackets. However, dividends and capital gains are generally taxed at 20% for taxpayers in the 39.6% tax bracket. Also, as a result of the Affordable Care Act of 2010, an additional 3.8% Medicare tax applies to some or all of the investment income for married filers whose modified adjusted gross income exceeds $250,000 and single filers whose modified adjusted gross income is above $200,000.

Caution: If the owners are related and the business is a corporation, the family attribution rules must be considered if there is a purchase of stock by the business.

Tip: There remains an advantage in classifying a transaction as a sale or exchange rather than as a dividend distribution despite the fact that both types of transactions are subject to tax at long-term capital gains tax rates. That is, in the case of dividend treatment, part or all of the distribution is first treated as a dividend, any remaining distribution is then received tax-free to the extent of basis, and any distribution still remaining is taxed as capital gains. In the case of sale or exchange treatment, however, the shareholder pays tax only to the extent that the amount paid by the company exceeds his or her basis in the stock. If the sale or exchange of your shares occurs after your death, your shares will generally have a basis equal to the fair market value of the shares at the time of your death, and little or no tax may result. Thus, more may be subject to tax with dividend treatment than with sale or exchange treatment.

Estate May Receive Increase In Basis

When you die and your estate receives your business interest, the estate will generally receive the assets with a basis stepped up to fair market value, so no capital gain is realized if the business interest is immediately sold by the estate.

Example(s): Assume you paid $50,000 for your share of the business (your basis). You die. Your estate sells your business interest to your co-owners and receives $150,000, representing the sale price for your interest under the agreement. This value is accepted as the fair market value for taxation. The basis of your interest is increased from your original $50,000 to the new value of $150,000, and your estate does not need to recognize any capital gain.

Caution: If the estates of person who died in 2010 elected out of the federal estate tax, estate property may have received a carryover or modified carryover basis and not a step-up in basis.

Remaining Owners Receive Percentage Increase In Ownership to The Extent The Business Buys Interest

When a business buys shares from an owner's estate, those shares are generally retired (nobody else can buy them) or held as treasury stock (can be retired or resold, not considered outstanding stock). When this happens, the remaining owners own larger percentages of the outstanding shares. Under the wait and see agreement, to the extent that the business itself buys the interest, the remaining owners will receive an increase in ownership percentage proportional to the current ownership levels, without making an additional investment.

Example(s): You and your three co-owners, Bonnie, Cindy, and Al, own a business with 400 total shares. Each of you owns 100 shares (one-fourth) of the business. Al dies. The business buys Al's 100 shares from his estate at the first option of the plan and retires them. You, Bonnie, and Cindy still own 100 shares each, but now there are only 300 outstanding shares in the business, so your ownership percentage has increased from one-fourth to one-third.

Tradeoffs

Could Result In Attribution Rules Problem

If the co-owners are related to each other, and the business is a corporation, the attribution rules must be considered if the corporation purchases any of the stock. The attribution rules can affect the tax treatment of a shareholder's stock redemption. In a family corporation, the redemption of stock by the business often results in dividend treatment to the redeeming shareholder.

Tip: In general, the American Taxpayer Relief Act of 2012 permanently extended the preferential income tax treatment of qualified dividends and capital gains. Capital gains and qualified dividends are generally taxed at 0% for taxpayers in the 10% and 15% tax brackets, and at 15% for taxpayers in the 25% to 35% tax brackets. However, dividends and capital gains are generally taxed at 20% for taxpayers in the 39.6% tax bracket. Also, as a result of the Affordable Care Act of 2010, an additional 3.8% Medicare tax applies to some or all of the investment income for married filers whose modified adjusted gross income exceeds $250,000 and single filers whose modified adjusted gross income is above $200,000.

Tip: If the amount of stock bought by the company does not exceed the total of estate taxes and settlement costs only, and the redemption meets the rules for a Section 303 stock redemption, the purchase by the company can avoid dividend treatment.

Purchase By Business Could Lead to Dividend Taxation for The Individuals If They Fail to Fulfill Purchase Obligation

If the agreement is worded so that an individual buyer is required to buy stock, and the business buys it instead, the purchase by the business could be considered a dividend payment to the individual who failed to make the purchase. The purchase of the interest by the company would be viewed as relieving the individual of the legal obligation to buy the stock under the terms of the agreement.

Tip: Make sure your agreement is worded so that purchase by the potential individual buyers is optional, not mandatory.

Restrictions Can Affect Personal Estate Planning (You May Not Be Allowed to Give Away Your Share of The Business)

Gifting strategies are important estate planning tools for owners of closely held businesses. Lifetime gifts of your interest in the business to your children may be part of your estate planning strategy to pass your business interest to your heirs and reduce the total value of the estate. Restrictions in the wait and see agreement could prevent you (and your co-owners) from passing all or part of your interest in the business as a gift. The parties to the buy-sell, therefore, must consider whether to restrict transfers by gift. This potential tradeoff is commonly handled in the drafting of the buy-sell agreement.

Tip: If your buy-sell agreement allows gift transfers, the group of permissible donees should generally be defined. The donee group should probably be subject to the terms of the buy-sell agreement.

Restrictions Could Limit Your Access to Outside Credit

Restrictions within the agreement could prohibit you from pledging your own interest in the business as collateral for outside credit, or could require the consent of the other owners. Without the ability to pledge your business interest, the lender might turn you down for a loan. This issue can be drafted around when the buy-sell agreement is established.

Tip: If the wait and see agreement is set up to include a right of first refusal, the owners would be allowed to pledge their individual business interests as loan collateral. If a foreclosure occurs, the stock acquired by the creditor would have to be offered for sale to the buyers under the agreement before it could be sold to a third party. Under the right of first refusal, the parties to the agreement would have the right to buy (or refuse to buy) the shares held by the creditor. The lender must be notified that the shares are subject to a right of first refusal, and the loan amount probably could not exceed the shares' fixed purchase price. This restriction should be indicated on the stock certificate (many states have laws requiring this).

How to Do It

Decide What You Want to Happen to Your Share of The Business

You should consider all of your financial, tax, and estate planning goals. If you have co-owners who will be part of the agreement, you will need to talk to them about it.

Consider Terms of Agreement

You should consider possible components to the agreement, some of which are shown in the following table.

Your tax advisor and/or financial planner can be helpful in setting up your wait and see buy-sell agreement.

Pay Special Attention to These Agreement Clauses

You may want to pay special attention to the following parts of the agreement: Options and obligations: To guarantee your estate will have a buyer, the agreement must be binding. If the agreement only specifies options to buy and sell, with no mandatory purchase, it will not be binding. The generally favored format for ordering the options appears to be in three steps, with optional purchase by the business at Step 1, optional purchase by the individuals at Step 2, and mandatory purchase by the business of any remaining shares at Step 3. Note: there is a form of buy-sell agreement comprised of purchase options only.

Restrictions: State property laws favor the right of business owners to transfer an interest in a business to whomever he or she wants, whenever he or she wants, at whatever terms he or she wants. Restrictions in a buy-sell agreement that are extreme will generally be viewed as unreasonable and therefore unenforceable. Price: You don't necessarily have to name a dollar value. There are several ways to set the value of the business. For instance, there may be a valuation method commonly used in your industry that you could easily use in the agreement.

Caution: It is important that the valuation method used in the agreement represent the fair market value (FMV). The agreement is a legal contract, and the price (or method of determining price) specified will lock in the sale price. Unless the agreement is drafted carefully, the sale price could be different from the taxable value. The IRS is not obligated to accept the sale price as the FMV for taxation. If the IRS determines that the sale price is less than FMV, your estate will be taxed on the difference between the sale price and the FMV. This means it is possible that the estate could be required to pay tax on value it did not (and never will) receive.

Sale terms: The specific triggering events in your agreement may influence the terms of the sale. For instance, a lump-sum payment is appropriate in the event of a death, where an installment payment plan over some specified period of time may be suitable for retirement. Time period for transaction: Each step should have a specified time frame for exercising the purchase. Many agreements provide 30 to 90 days for each step.

Caution: Be careful about generous time frames--if there are three steps under the wait and see, and each step is allowed 90 days to complete the purchase, your estate could run into a timing problem for paying the estate taxes. Federal estate taxes are generally due within nine months of death (unless an extension is applied for), and in some states, death taxes are due even sooner than that. The following table shows how your estate might run into a time crunch if the time allowed for each option is generous, and each party uses the full time allotted:

Three-Step Wait and See

With 90 days allowed at each step, and assuming that all parties use the full time allotted, your estate might not have all the money collected from the sale of the business until the federal estate tax due date.

Meet With Your Attorney

Setting up a buy-sell agreement can be very complex because it involves legal and tax issues, so you should consult an attorney. Each party under the agreement should have his or her own attorney. Your attorney can help ensure that conditions in the agreement will be reasonable and enforceable under state law.

Fund The Agreement

Here is where the wait and see plan can get tricky, because the actual buyer at this point is unknown. Here's what we do knowfunding the buy-sell agreement is extremely important. Without it, the agreement doesn't mean much. Probably the best (and most flexible) way to be sure the money is available when needed is with life insurance. If life insurance is used, policies can be taken out on the lives of the owners who are parties to the agreement.

The individual owners could purchase policies on each other. Even if the individuals did not purchase part of the interest of the deceased, the policy proceeds could be loaned to the business (at a market rate of interest) for it to make the purchase. Another possibility might be for the shareholders to contribute the insurance proceeds as a capital contribution to the business, which would also provide for an increase in basis. If the business owned policies on the individuals, it could loan the proceeds to the individuals in order that they may make the purchase, or use the money to buy and retire the stock.

If you are giving your still young (or unborn) child an option to buy your interest in the business under the wait and see agreement, you might want to make some arrangements now for the possible future purchase. Whatever funding method has been chosen, whether it be a sinking fund, life insurance policies, or cash reserves, the critical factor is that the funding be established.

Indicate Buy-Sell Agreement Restrictions on Stock Certificates

It is important to indicate the restrictions under the buy-sell on the stock certificates representing shares subject to the buy-sell, or the restrictions may be unenforceable under state law. State law governs the level of detail needed. It may also be advisable to include the buy-sell agreement restrictions in the corporate charter. Ask your attorney.

Periodically Review The Agreement

You and your buy-sell participants should review the agreement on a regular basis, perhaps yearly. You want to be sure that the agreement still meets your objectives. The valuation provisions may specify an annual valuation of the business, which should be conducted. You should review the pricing method if there is a significant change in the business. It is hard to say exactly what type of change is considered significant and will require a price change, especially when the courts use language like "unusual intervening events or circumstances," but there is a chance your price might not set fair market value after the change.

Caution: Failure to update an agreement when called for within the agreement could lead to problems.

Change Percentages of Ownership When Individuals Make Purchases Under The Agreement, If Desired (And Agreed Upon)

With the wait and see agreement, the individual buyers can purchase the business interest in any agreed-upon proportions, and the percentages of ownership can be adjusted to whatever ratio the owners agree upon.

Example(s): You own a business with two co-owners, Fred and George. You own 40 percent, Fred owns 20 percent, and George owns 40 percent. All of you are bound under a wait and see agreement. The fair market value (FMV) of the business is $100,000. The FMV of your 40 percent interest equals $40,000. You die. Fred buys one-fourth of your interest from your estate at the FMV price of $10,000. George buys one-fourth of your interest at the FMV price of $10,000. Your daughter, Ethel, who was also a potential buyer under the wait and see agreement, buys the remaining half of your business interest for $20,000.

Example(s): This is the result after the purchases:

Example(s): After the sale, Fred owns 30 percent, George owns 50 percent, and Ethel owns 20 percent.

Tax Considerations

Income Tax

Normally No Capital Gain to Shareholder's Estate

When you die, your estate receives your business interest, with a new basis equal to the fair market value (FMV) typically determined at the date of death. When the sale price under the wait and see plan is accepted as the FMV, there shouldn't be any capital gain or loss realized by your estate when it sells its interest in the business.

Redemption of Shares Is Not a Tax-Deductible Event to Business

When the business redeems the shares of a shareholder, it is not an income tax-deductible expense of the business. When cash is distributed in exchange for the stock, the business recognizes no gain or loss on the transaction.

Remaining Owners Do Not Receive Increase In Basis on Shares Bought By Business Itself

When the corporation buys any or all of the interest of a deceased owner under a wait and see buy-sell, the surviving owners do not receive an increase in basis for the shares bought by the company for income tax purposes. This means that if you are a surviving owner, and you sell your interest in the business during your lifetime, you will realize a larger capital gain.

Example(s): You and your two co-owners, Chip and Dan, originally invested $100,000 each in the business (original value $300,000). The FMV of the business is now $600,000.

Example(s): Chip dies. The company buys back Chip's interest under the wait and see buy-sell agreement and pays Chip's estate $200,000, representing the FMV of his interest in the business. Now, you and Dan each own half of the business valued at $600,000 ($300,000 each). Because there is no step-up in basis to the remaining shareholder's under company stock redemption, your basis is still the original $100,000 you paid for your interest.

Example(s): If you were to sell your interest at this time, you would recognize a taxable capital gain of $200,000. (This result assumes that the company was able to acquire the shares without incurring any liability that would diminish FMV.)

Remaining Owners Receive Increase In Basis on Shares They Purchase

When surviving co-owners buy any part of the business interest under the wait and see buy-sell agreement, their basis in the stock is increased by the amount of the purchase price. This leads to a reduced capital gain if the stock is later sold.

Example(s): You and Pablo originally invested $100,000 each in your house-painting business (original value $200,000). The FMV of the business is now $1.5 million.

Example(s): Pablo dies. You buy Pablo's interest in the business from his estate for $750,000, representing the FMV of his half.

You are now the sole owner of the business valued at $1.5 million. Your basis is now $850,000.

Example(s): If you were to sell your interest at this time, you would recognize a capital gain of $650,000.

Example(s): As you can see, without the step-up in basis, your taxable gain on the sale during your lifetime would be $1.4 million.

Gift And Estate Tax

Amount Estate Receives From Stock Redemption Sets Estate Tax Value

When your estate sells your business interest under the wait and see buy-sell agreement, the amount received from the sale usually sets the value of the business interest that is included in the value of your estate.

Caution: If the price received is determined to be less than the fair market value (FMV), the estate will be taxed on the difference between the sale price it received and the FMV determined by the IRS. This means it is possible that the estate could be required to pay tax on value it did not (and never will) receive.

Questions & Answers

What Would Be Considered an Unreasonable (And Therefore Unenforceable) Restriction?

A restriction that may be viewed as extremely prohibitive (thus unreasonable) is one that permanently and absolutely bans lifetime transfers of shares of a business's stock, along with a mandatory resale of the shares to the corporation at death for the original purchase price. A restriction like this could be viewed as a forfeiture, unreasonable, and therefore unenforceable. If the only condition for a profitable transfer of stock is a pure right of first refusal that requires the offer of the stock at the same price to the other parties, it does not restrict the transfer of stock, only the persons who may buy the stock. In this case, the restriction is not extremely prohibitive and would almost always be enforceable.

In general, if the terms of the restrictions were reasonable when the agreement was executed, such as rights of first refusal and rights to buy interests in the business based on a formula set price, then the restrictions would be enforceable. Whenever a buy-sell agreement is ambiguous, there is a risk that the courts will not uphold the enforceability of the restrictions. However, a carefully drafted, clearly outlined buy-sell agreement containing reasonable terms of restriction should be able to avoid any issues with state law.

What Happens If The Existing Agreement Calls for Periodic Updating and It Isn't Done?

If the agreement requires an update, the failure to do the updating could have serious consequences. For example, if the agreement calls for a revaluation of the business at specified intervals, and the revaluation is not calculated, the value set under the agreement may be lower than the taxable value set by the IRS. If you die, your estate would be bound under the agreement to sell your shares at the agreement price. The taxable value assigned by the IRS could be higher, subjecting your estate to taxation on value it didn't receive.

In addition to the potential tax consequence, the failure to update the agreement when called for in the terms could affect the ability of the agreement to stand up in a court case.

This material was prepared by Broadridge Investor Communication Solutions, Inc., and does not necessarily represent the views of  The Retirement Group or FSC Financial Corp. This information should not be construed as investment advice. Neither the named Representatives nor Broker/Dealer gives tax or legal advice. All information is believed to be from reliable sources; however, we make no representation as to its completeness or accuracy. The publisher is not engaged in rendering legal, accounting or other professional services. If other expert assistance is needed, the reader is advised to engage the services of a competent professional. Please consult your Financial Advisor for further information or call 800-900-5867.

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