When transferring your business makes sense

By Andrea Young on October 19, 2022

By James Hastings
Senior Wealth Advisor

Small business owners face many challenges when determining how to best transfer assets to their children. In some cases selling the business might not make sense if the family wants to retain the asset.

Due to the illiquidity associated with a closely held business a thoughtful strategy must be developed to transfer all, or a portion of the asset, out of the owner’s name to minimize potential estate taxes.

When selecting the appropriate strategy, there are many questions to be considered to determine which transfer technique is most suitable. Some of the most important ones are:

  • Does the owner still need income?
  • Does the owner want to gift the asset but retain control?
  • Does the owner want to minimize estate taxes?
  • What are the owner’s ages and health?
Image from Offit-Kurman Law study

Transfer Techniques

Installment Sale

The owner of the business or asset sells to another individual but receives the payment in a number of installments over a number of years. This allows the owner to spread out the taxable gain and defer paying taxes on the sale of the property or business over the terms of the installment payments. The seller creates cash flow and removes an appreciating asset & future installment payments from their estate. It also allows the buyer additional time to secure funding for the purchase which may increase the sale price.

Disadvantages – If the seller dies before the end of the terms the remaining present value of the note is included in the seller’s estate. If the seller’s will forgives the reaming debt, it is considered paid to the estate and the seller’s estate reports the remaining gain.

Self-Canceling Installment Note (SCIN)

A type of installment sale was after the seller’s death the remaining payments are canceled and not included in the seller’s estate. The buyer pays a premium for the asset in exchange to the self-canceling possibility. The remaining payments would appear on the seller’s final income tax. This is appropriate for ultra-high-net-worth individuals who have a 40% estate tax.

Sale Lease Back

The owner sells a business asset and the buyer leases it back to the company. This allows the business owner to continue using the asset while deducting the lease payments as a business expense. Additionally, the asset is removed from the seller’s estate.

Transfer Techniques cont’d

Gift Lease Back

The owner gifts a fully depreciated business asset to a child or family member who is in a lower tax bracket. The asset is then leased back to the company. This allows the business owner to continue using the asset and also deducted the lease payments as a business expense. The asset and the income stream of the lease are removed from the business owner’s estate.

S Corporation (Gifting shares)

Using the annual gift tax exclusion shares of an S Corp are transferred to younger family members. The income associated with the shares is shifted to the receiving family member, and the shares are removed from the original owner’s estate. It is important to have

a certified valuation done to determine the percentage being gifted each year based on a valuation formula. It is also critical to be aware of the kiddie tax rules if the recipient is under the age of 24.

Family Limited Partnerships (FLPs)

FLPs are a structure used to transfer the interests of illiquid family investments or businesses. Due to the nature of their illiquidity, the IRS allows the asset to be substantially discounted during the transfer. The transferee of the FLP interest can claim a “lack of control” discount, as the general partner controls the management of the business. The limited partners are unable to sell their interests, thus the transferee also receives a “lack of marketability” discount. As a result, these discounts allow for a larger percentage of the partnership’s interest to be passed using the annual gift exclusion. A third-party appraisal is a good idea if not essential when claiming a discount.

Disadvantages– The transfer of interest is passed with the original basis and does not get a step-up at the time of death. The general partner has unlimited business liability for claims on the business.

Disclaimer
Lexington Wealth Management is a group comprised of investment professionals registered with Hightower Advisors, LLC, an SEC registered investment adviser. Some investment professionals may also be registered with Hightower Securities, LLC, member FINRA and SIPC. Advisory services are offered through Hightower Advisors, LLC. Securities are offered through Hightower Securities, LLC. All information referenced herein is from sources believed to be reliable. [Advisor Practice] and Hightower Advisors, LLC have not independently verified the accuracy or completeness of the information contained in this document. Lexington Wealth Management and Hightower Advisors, LLC or any of its affiliates make no representations or warranties, express or implied, as to the accuracy or completeness of the information or for statements or errors or omissions, or results obtained from the use of this information. Lexington Wealth Management and Hightower Advisors, LLC or any of its affiliates assume no liability for any action made or taken in reliance on or relating in any way to the information. This document and the materials contained herein were created for informational purposes only; the opinions expressed are solely those of the author(s), and do not represent those of Hightower Advisors, LLC or any of its affiliates. Lexington Wealth Management and Hightower Advisors, LLC or any of its affiliates do not provide tax or legal advice. This material was not intended or written to be used or presented to any entity as tax or legal advice. Clients are urged to consult their tax and/or legal advisor for related questions. 

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