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March 08, 2013 at 12:29 AM
Individuals who own substantial family businesses have a unique opportunity to do succession planning while maintaining family harmony and saving taxes. The situation, however, brings to mind that old adage, “You don’t know what you’ve got till it’s gone.” That’s because interest rates aren’t going to stay low forever, and elements of the government want to curtail or eliminate a couple of planning ideas that work exceptionally well together in a low interest rate environment.
The techniques I am referring to are sales to an irrevocable grantor trust and the establishment of family limited partnerships. Generally these ideas are associated with tax-oriented estate planning. But what people overlook is the role they also play in succession planning, which can preserve not only the business, but also family harmony.
I am sure some of your customers were tired of hearing about the lost opportunity that would happen if they did not make gifts last year and the applicable exclusion dropped from $5.12 million to just $1 million. Well, it didn’t drop, so what’s the big deal? The big deal is that your customers are playing poker and betting the store on the next hand the government deals. On that score, remember that, in the long run, the house always wins because the House (of Representatives, that is) makes the rules.
See also: No more estate planning excuses
So what are the potential consequences of interest rates rising and losing the sale to a grantor trust and family limited partnership techniques? The answer lies in the fact that once you cross the gift tax threshold ($5.25 million for singles and $10.5 million for married couples), any additional transfers of family business interests to future generations have to be structured as something other than a gift to avoid the gift tax.
Keep in mind that people are very unlikely to want to make transfers to family members if they have to pay a 35 percent gift tax on the transfers. And this is where structuring the additional transfers as a sale to a grantor trust at a low interest rate comes into play. The reason is that the cash flow from the business is going to be used by the trust to pay the notes plus interest that are funding the sale. Consequently, if the interest rate is low, the cost of the sale to the trust is reduced, and the cash flow of the business can more easily service the debt.
