If you’re a small business owner or you’re involved in a start-up, you may want to set up a tax-favored retirement plan for yourself and any employees. Several types of plans are eligible for tax advantages.
401(k) plan
One of the best-known retirement plan options is the 401(k) plan. It provides for employer contributions made at the direction of employees. Specifically, the employee elects to have a certain amount of pay deferred and contributed by the employer on his or her behalf to an individual account. Employee contributions can be made on a pretax basis, saving employees current income tax on the amount contributed.
Employers may, or may not, provide matching contributions on behalf of employees who make elective deferrals to 401(k) plans. Establishing and operating a 401(k) plan means some up-front paperwork and ongoing administrative effort. Matching contributions may be subject to a vesting schedule. 401(k) plans are subject to testing requirements, so that highly compensated employees don’t contribute too much more than non-highly compensated employees. However, these tests can be avoided if you adopt a “safe harbor” 401(k) plan.
Within limits, participants can borrow from a 401(k) account (assuming the plan document permits it).
For 2019, the maximum amount you can contribute to a 401(k) is $19,000, plus a $6,000 “catch-up” amount for those age 50 or older as of December 31, 2019.
Other tax-favored plans
Of course, a 401(k) isn’t your only option. Here’s a quick rundown of two other alternatives that are simpler to set up and administer:
1. A Simplified Employee Pension (SEP) IRA. For 2019, the maximum amount of deductible contributions that you can make to an employee’s SEP plan, and that he or she can exclude from income, is the lesser of 25% of compensation or $56,000. Your employees control their individual IRAs and IRA investments.
2. A SIMPLE IRA. SIMPLE stands for “savings incentive match plan for employees.” A business with 100 or fewer employees can establish a SIMPLE. Under one, an IRA is established for each employee, and the employer makes matching contributions based on contributions elected by participating employees under a qualified salary reduction arrangement. The maximum amount you can contribute to a SIMPLE in 2019 is $13,000, plus a $3,000 “catch-up” amount if you’re age 50 or older as of December 31, 2019.
Annual contributions to a SEP plan and a SIMPLE are controlled by special rules and aren’t tied to the normal IRA contribution limits. Neither type of plan requires annual filings or discrimination testing. You can’t borrow from a SEP plan or a SIMPLE.
Many choices
These are only some of the retirement savings options that may be available to your business. We can discuss the alternatives and help find the best option for your situation.
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Borrowing isn’t just for businesses. Many not-for-profits borrow money for major capital purchases, new program funding and even to manage current cash flow. But if you’re hoping to borrow, it’s important to understand that there are likely to be obstacles ahead, including finding a lender that offers reasonable rates.
Common hurdles
Maybe you’ve already determined that your nonprofit needs a loan and can handle the risks of borrowing. Before making the case to lenders, ensure you have a realistic repayment plan, current financial statements, collateral to secure the loan, a proven history of prudent financial management and your board’s support.
The odds of qualifying for a loan are better if you’ve already established a relationship (such as having a business checking account) with the lender. Your reason for applying also plays a big part in the decision. Seeking money to make a major purchase or to stabilize cash flow with a line of credit is more likely to be successful than applying for a loan to start a new program.
Even if you succeed in getting a loan, lender covenants may prevent you from borrowing for other purposes until your existing debt is paid off. This can limit strategic flexibility.
Nonbank sources
While plenty of banks are willing to make term loans or lines of credit available to nonprofits, your organization may not want, or be able, to pay the interest rates attached to them. Fortunately, there are other options, including:
Community foundations. Short-term loans may be available from local nonprofit foundations or funds, such as the Fund for the City of New York or the Chicago Community Trust, or from national groups such as the Nonprofits Assistance Fund. Generally, these organizations charge low interest rates — and, in some cases, no interest at all.
Board members. There are no legal obstacles to borrowing from a board member, but these loans merit caution. To avoid IRS scrutiny, the board member must charge interest at or below market rate, the entire board (absent the lender) must vote to approve the loan, and you must report the loan on your Form 990.
Government bonds. Because these bonds’ income isn’t subject to federal income tax, your nonprofit may be able to borrow at a lower-than-market interest rate. However, fees associated with structuring and issuing the bond could offset interest-rate advantages.
Good rationale
You may think your organization has a good rationale for borrowing, but that doesn’t mean lenders — or your supporters — will agree. If a large portion of your budget is tied up in debt repayment, that can affect how the public, including prospective donors, perceives your organization. Contact us for help weighing this critical decision and finding a lender.
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When you receive a personal gift from a friend or family member — even if it’s not something you particularly want — you accept the gift and thank the person. The same isn’t always true of gifts given to your not-for-profit. Gifts should be examined, and, possibly, refused.
Why? There are many reasons, from space limitations to unsuitability to your mission. It’s never easy to say “no” to a generous donor. But a gift acceptance policy can make the decision and process easier.
Nothing personal
A gift acceptance policy provides an objective way to decline a gift but still maintain a good relationship with the contributor. Your nonprofit’s staffers can explain to donors that a previously set policy prohibits you from accepting certain gifts — in other words, “it’s nothing personal.”
For example, if a donor offers tangible personal property such as an art collection, it may need insurance, special display cases or offsite storage. This could require your organization to incur substantial out-of-pocket costs. You can simply explain to the donor that your policy doesn’t allow you to accept gifts that cost money to maintain.
Getting it down
Before drafting your policy, think about the types of gifts you want to accept and which ones you should refuse. In general, gifts that conflict with your organization’s mission fall in the latter category. And gifts with certain donor restrictions (such as how they can be used) may simply be unmanageable given your mission’s scope or staffing resources.
Most organizations welcome publicly traded securities because they’re easy to convert to cash. But closely held stock can be hard to value and sell. Split interest gifts, where the donor transfers an asset to your organization but draws income from the asset or receives a remainder interest at some point in the future, can also be difficult to manage. These gifts usually require financial expertise and involve obligations to the donor or the donor’s family.
Your policy should not only describe the kinds of gifts that are acceptable, but also how they’ll be valued, managed and, if necessary, disposed of. Be sure to indicate which types of gifts need to be reviewed by your attorney — for example, real estate, because it could have property liens and other encumbrances.
Times change
Ask your attorney and financial advisor to review your policy before giving it to your board for approval. Then review it annually. Over time, your capacity to accept certain gifts may change and require revisions to your policy.
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A primary estate planning goal for most people is to hold on to as much of their wealth as possible to pass on to their children and other loved ones. To achieve this, you must limit estate tax liability and protect assets from creditors’ claims and lawsuits.
The Tax Cuts and Jobs Act reduces or eliminates federal gift and estate taxes for most people (at least until 2026). The gift and estate tax exemption is $11.4 million for 2019. One benefit of this change is that it allows you to focus your estate planning efforts on asset protection and other wealth-preservation strategies, rather than tax minimization. One estate planning vehicle to consider is a “hybrid” domestic asset protection trust (DAPT).
What does “hybrid” mean?
The benefit of a standard DAPT is that it offers creditor protection even if you’re a beneficiary of the trust. But there’s also some risk: Although many experts believe they’ll hold up in court, DAPTs are relatively untested, so there’s some uncertainty over their ability to repel creditors’ claims. A “hybrid” DAPT offers the best of both worlds. Initially, you’re not named as a beneficiary of the trust, which virtually eliminates the risk described above. But if you need access to the funds down the road, the trustee or trust protector can add you as a beneficiary, converting the trust into a DAPT.
Do you need this trust type?
Before you consider a hybrid DAPT, determine whether you need such a trust at all. The most effective asset protection strategy is to place assets beyond the grasp of creditors by transferring them to your spouse, children or other family members, either outright or in a trust, without retaining any control. If the transfer isn’t designed to defraud known creditors, your creditors won’t be able to reach the assets. And even though you’ve given up control, you’ll have indirect access to the assets through your spouse or children (provided your relationship with them remains strong).
If, however, you want to retain access to the assets in the future, without relying on your spouse or children, a DAPT may be the answer.
How does a hybrid DAPT work?
A hybrid DAPT is initially set up as a third-party trust — that is, it benefits your spouse and children or other family members, but not you. Because you’re not named as a beneficiary, the trust isn’t a self-settled trust, so it avoids the uncertainty associated with regular DAPTs.
There’s little doubt that a properly structured third-party trust avoids creditors’ claims. If, however, you need access to the trust assets in the future, the trustee or trust protector has the authority to add additional beneficiaries, including you. If that happens, the hybrid account is converted into a regular DAPT subject to the previously discussed risks.
A flexible tool
The hybrid DAPT can add flexibility while offering maximum asset protection. It also minimizes the risks associated with DAPTs, while retaining the ability to convert to a DAPT should the need arise. Contact us with any questions.
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