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The Business Forum
Retention "Top Hat Plans"
By Brian Clay
firms are finding it harder and harder to obtain, retain, and reward key
employees and executives. Using
a little known technique, employers can use special benefit options to
"give" employees growing cash values in the form of
company-paid cash-value accumulation insurance policies.
While not mainstream, these "savings programs" and
disaster coverage is an effective bonus for employees while remaining a
valid business deduction for employers.
I have found that the executive
bonus is one of the best ways to attract and retain quality employees.
The executive bonus, also called a Section 162 plan, involves the
purchase of life insurance on the life of a select employee and is
extremely beneficial for both the employer and employee.
The employer pays the premium on the policy and includes that
premium in the taxable wages of the employee.
The employee (or a trust) owns the insurance, names the
beneficiary and has all rights in the policy.
The employer has no rights in the policy’s cash values or death
benefit. With the executive
bonus, the employer will take an income tax deduction under Internal
Revenue Code (IRC) Section 162 for the amount of the bonus, which is
usually equal to the premium. The
employer can pay the premium to an insurance company, to the employee or
to the employee’s trust. The
executive bonus is often used as a supplement to IRC Section 79. Section 79 regulates employer non-discriminatory group term
life insurance coverage, usually up to $50,000 per participant.
The executive bonus can be added to a group term plan when the
employer wants to “carve out” a select employee or a select group of
employees to receive additional life insurance protection.
These select employees are carved out of the Section 79 plan on a
discriminatory basis. As
with any executive bonus plan, the employer may deduct the premiums as
does it work?
executive bonus is easy to implement.
The employee purchases and owns life insurance on his or her own
life. The employer pays the
premiums to the insurance company.
The premiums are fully deductible to the employer as compensation
to the employee under IRC Section 162.
The premiums are taxable income to the employee, and the employee
owns the life insurance policy including policy values.
As the policy values grow, the employee benefits.
has been my experience that some employers choose to pay not only the
premium amount, but also the employees’ tax on the premium amount.
This second “bonus” pays the employee’s income tax on the
first premium “bonus” and creates a “double bonus plan.”
The employer should consider a formal resolution or document the
corporate minutes to show that premium payments are intended as
compensation. The employer
and employee may also enter into a modification of ownership rights
agreement. Even though the
employee is the owner of the policy, a modification of ownership rights
agreement may limit the control the employee has over the use of policy
values. The employer may
require that the employee is unable to access policy values for loans or
withdrawals without written consent of the employer.
to the employer:
employer selects employees
employer receives income tax deduction
plan creation and implementation is easy
no administration beyond normal payroll
no ERISA requirements
premiums can be self-completing upon employee disability
tax deductible under Section 162
employee owns life insurance and policy values
employee names beneficiary
employee can control policy use
little or no out-of-pocket cost
source of supplemental retirement income
proceeds may be used for estate costs
but not least
Employer payments are wages to the employee and are subject to FICA and
Since the employee has paid tax on the premiums, he or she has a cost
basis equal to the sum of the paid premiums.
This can be used to offset income tax as amounts are withdrawn or
if the policy is surrendered.
A sole proprietor may not deduct life insurance premiums on his or her
own life. Such premiums are
nondeductible personal expenses. IRC Section 262.
A sole proprietor may however deduct premiums on an employee of
the sole proprietorship. IRC Section 162.
The employer cannot take a deduction for premiums when the employer is a
beneficiary of the policy. IRC 264(a)(1).
An employee’s “reasonable” compensation is deductible by an
employer. Reg. 1.162-7(b)(3). When compensation exceeds what is
customarily paid for like services, the deduction may be denied.
Compensation that is found to be unreasonable by the IRS may be
reclassified as a dividend if paid to the employee shareholder. Reg.
No deduction is permitted for “applicable-employee remuneration” in
excess of $1 million paid to any covered employee by any publicly-held
corporation. IRC Section 162(m)(1). This may not apply to commission
payments that are based on the employee’s performance.
Brian M. Clay
is a Fellow of
The Business Forum Institute and the President of Clay, Malek &
Northam Wealth Management in Southern California; whose clients
include both companies and individuals. He has been recognized for
numerous honors and accomplishments including being named to the
Consumer Research Council of America's "Best Financial Planner"
list. Brian's professional registrations include the Series 6, 7,
24, 63, 66 held with LPL Financial, and CA Life & Health Insurance.
He also holds the Chartered Mutual Fund Counselor (CMFC) and
CERTIFIED FINANCIAL PLANNER� (CFP�) designations. The CFP�
designation is considered by most to be the highest certification in
the industry. To be recognized as a CERTIFIED FINANCIAL PLANNER�,
individuals must meet rigorous experience and ethical requirements,
complete financial planning coursework, and pass a certification
examination covering the financial planning process, risk
management, investments, tax planning and management, retirement and
employee benefits, and estate planning. They must also meet ongoing
continuing education requirements and uphold the CFP� Board Code of
Ethics and Professional Responsibility. Brian is an LPL Registered
Principal. Securities and Financial Planning Services offered
through LPL Financial, A Registered Investment Advisor � Member FINRA/SIPC. For a list of states in which he is licensed to do
business, please visit
Brian holds a Bachelors degree in Economics from the University of
California, Los Angeles (UCLA).
Brian's Web Site
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