Saturday, July 3, 2010

The Closely Held Business - What to do?

Estate planning attorneys are always talking with clients about how to best plan for their retirement and estate planning. For those clients who own a business, planning for the transfer of that business upon death or disability must be built into the process. The challenge of how to treat both the family and the employees of the business fairly is a difficult challenge.

Current Climate for Business Transfers

With the aging of the baby boomers, there are more and more closely held businesses coming onto the market every month. There may be a myriad of more sellers than qualified buyers. Coupled with the current stock market losses, these factors affect the value of one's closely held business. Coupling that with increased governmental regulation in all areas of the law dealing with commerce, labor, anti-discriminatory employment practices, new tax laws and the like, the small closely held business is under assault. Trying to get a bank to make a loan to buy a closely held business is almost impossible given the increased standards of the banking and finance industries. And, to top it off, for the first time in years individual income tax rates are increasing to exceed corporate income tax rates. Income taxes next year could be as high as 39.6% for an individual ( federal rate), plus 6% for Missouri state income tax, with any a new 3.8% healthcare tax on higher incomes. We are now looking at a first-time Medicare tax on passive income. Long-term capital gains tax rates will be increasing from 15% to 20 - 28%. And, if Congress fails to act, estates of more than $1M dollars starting on January 1, 2011 will be taxed at 55%.

Public corporations can pass along their increased costs to the consumers. But, a privately owned company must absorb these increased costs out of what goes to the owners of the business. If a private business wants to borrow money to keep a business afloat, the owners will have to sign a personal guaranty with the bank pledging their personal assets for the business loan. If the business fails, often the fortunes of the family go with the business.

The analysis has to start with "What does the client want?" Here it is often difficult for clients to resolve inherent conflicts. How does a business owner treat children who work in the business with those who work outside the business? Is the goal to pass the business down to the next generation? Who will provide the management of the transferred business? Are the children of the owners the best "qualified" people to lead the company? Sometimes bringing in an outside consulting firm to give the owners an unbiased opinion is a good start to the succession planning process. Retaining employees who feel that they have merited consideration can be extremely difficult in a business succession plan. Protecting the business's good will through contracts with key employees that restrict competition, or soliciting customers or vendors and employees are critical components in maximizing the valuation of the business.

The very best time to sell a business to maximize it's value is when things are going well. Unfortunately, this is the very last thing a successful closely-held business owner is thinking about until some disastrous event occurs. The transfer of a company has to be incorporated in the client's retirement, estate and income tax planning.

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