House Majority Tax Bill Includes Fundamental Changes to Common Executive Compensation Arrangements and Benefits
By Steven Rabitz, Stroock
On November 6, 2017, House Ways and Means Committee Chairman Kevin Brady (R-TX) introduced the Tax Cuts and Jobs Act, the long-awaited Republican-sponsored tax bill (the “House Bill”). The House Bill proposes a significant overhaul to the Internal Revenue Code of 1986, as amended (the “Code”).
This bulletin provides a brief overview of the provisions in the House Bill that significantly impact executive compensation and employee benefits, including the following notable changes:
- The effective elimination of the deferral of U.S. Federal income taxation on amounts deferred under many commonly utilized non-qualified deferred compensation arrangements;
- Elimination of the performance-based compensation exception to the Code Section 162(m) deduction limitation for publicly-traded companies;
- Imposition of a 20 percent excise tax on amounts paid over $1,000,000 to certain covered employees and parachute payments to certain covered employees of tax-exempt organizations;
- Eliminations of and/or limitations on certain deductions and income exclusions currently provided on benefits to employees; and
- Technical adjustments to tax-qualified retirement plan provisions.
This Bulletin does not address the many other topics associated with the House Bill. There is considerable uncertainty about the prospects of the House Bill in its currently proposed form, as it is expected that the Senate Republicans will soon offer their own version of tax reform. Further, it is possible that at the end of the day, either no tax reform will be enacted in 2017 or any tax reform enacted will look dramatically different than in the proposal.
Acceleration of Income for Most Compensatory Deferral Arrangements.
Under long established tax principles, service providers, including employees, are not generally taxed on compensation in respect of services they render unless they actually receive it, or are deemed to have constructively received it. For example, if an employer promises to pay an employee $1 million on the third anniversary of the promise, the employee is not generally taxed unless and until the amount is actually received by the employee. An employee may be deemed to constructively receive such amounts if, for example, amounts are set aside specifically for the employee’s benefit in a trust (and the trust’s assets are not otherwise subject to the claims of creditors of the employer under so-called “rabbi trust” arrangements), or the employee is allowed to access the unpaid amounts for security for a loan. These general principles have applied not only to promises in the form of cash payments, but also equity-based awards, such as restricted stock, restricted stock units and “phantom” units.
In the wake of the Enron bankruptcy, Congress enacted Code Section 409A, which has placed significant restrictions on the timing and form of the promises associated with, and the timing of the actual payments in respect of non-qualified deferred compensation. Separately, Code Sections 457(b) and 457(f) impose additional requirements on the deferral of income under a non-qualified plan sponsored by a governmental or tax-exempt entity and Code Section 457A imposes similar requirements on the deferral of income under non-qualified plans sponsored by tax-indifferent entities (e.g., entities not subject to taxation in the U.S.).
The House Bill would repeal Code Sections 409A, 457(b), 457(f), and 457A and replace them with new Code Section 409B. Pursuant to the proposed Code Section 409B, income deferred under a “non-qualified deferred compensation plan” is includible in income of the person who performed the services when there is no substantial risk of forfeiture of such individual’s right to compensation. As drafted, Section 409B would effectively eliminate the ability of an employee to defer taxation of income outside of a qualified plan other than via the short-term deferral exception rule of Section 409A which was retained in Section 409B.
Section 409B defines rights “subject to a substantial risk of forfeiture” as rights to compensation that are “conditioned upon the future performance of substantial services by any person.” Specifically excluded from conditions constituting a substantial risk of forfeiture are (i) covenants not to compete and (ii) the occurrence of a condition related to a purpose of the compensation other than the future performance of services. This suggests a very restrictive standard that would eliminate most common vesting conditions from qualifying, including, for example, vesting upon a change in control.
In a formulation reminiscent of, but more restrictive than, the currently effective Section 457A, Code Section 409B expands the definition of “non-qualified deferred compensation plan” to include equity compensation currently excluded from Section 409A coverage, specifically the right to compensation based on the appreciation in value of a specified number of equity units of the service recipient, whether paid in cash or equity, stock appreciation rights and stock options. The Code Section 409B definition of “non-qualified deferred compensation plan” does exclude the “portion of any plan which consists of a transfer of property described in Section 83.” The House Bill, however, leaves open the question of how the taxation of equity grants that vest long before payment will be handled. For example, there are open questions as to the treatment of awards that become vested upon an employer-initiated termination other than for “cause” or when an employee terminates after meeting “retirement” age (i.e., has satisfied certain age and service requirements).
While it appears that this provision of the House Bill will not affect fully-vested 2017 year-end compensation awards grants, the impact over the intermediate term is more uncertain. Even those companies that are currently planning multi-year arrangements or staggered grants occurring over multiple years will have to be mindful of developments.
The concept of deferred compensation is not new, and there are many commercial reasons why companies have employed deferred compensation. Many have found deferred compensation an effective retention tool, and many have also found that deferred compensation helps to align the interests of employees and enterprise owners. Like many pay practices, deferred compensation has generated much debate and discussion. One need only look back to two major developments in this century alone to witness how regulatory perceptions have informed the structure of deferred compensation.
First, the Enron bankruptcy promoted an environment in which deferred compensation was regarded as potentially subject to abuse, and thus needing strict regulation. Next, the financial crisis of 2007 and 2o08 appeared to place greater primacy on ensuring that key employees maintained sufficient “skin in the game.” Deferral of income and of income tax was perceived as a necessary bulwark against untoward risk and undesirable short-term incentives. Should the House Bill provision pass in its current form, there could be yet another paradigm shift, dramatically altering pay practices.
Elimination of Performance-Based Compensation for Section 162(m)
The House Bill substantially expands the application of the Section 162(m) $1 million limitation on deduction of compensation paid to covered employees under Code Section 162(m) (currently, the CEO, and four other highest paid executive officers, other than the principal financial officer) of publicly-traded companies by eliminating the exception for qualifying performance-based compensation and expanding the universe of people and companies subject to Code Section 162(m). The House Bill applies this elimination of the exception to stock options and stock appreciation rights (although coupled with the current inclusion of stock options and stock appreciation rights as non-qualified deferred compensation, it is questionable whether companies would continue to favor such types of awards or with what features and in what contexts).
If this provision of the House Bill is enacted in its current form, it could be expected to have a significant impact on the compensation structure for executives of public companies, as incentive compensation for such employees is often structured to qualify for the performance-based exception to prevent loss of deduction of payments of compensation to officers in excess of $1 million. More importantly, it likely will have a decidedly greater impact on shareholders of those companies—should those companies choose to pay compensation in excess of $1 million to covered executive officers.
Of lesser impact, the House Bill also (i) expands the definition of covered employees to include any employee who (A) was the “principal executive officer” or “principal financial officer” any time during the taxable year (B) who is required to have his or her income disclosed pursuant to the Securities and Exchange Act of 1934 (“the ’34 Act”) by virtue of being one of the three most highly compensated officers of the company (other than the principal executive) or (C) was a covered employee of the taxpayer of any previous year starting with 2017 and (ii) expands the definition of a public company to include any corporation which is an issuer that is required to file reports under Section 15(d) of the ’34 Act. Thus, under the House Bill, a covered executive would continue to be subject to Code Section 162(m)’s limitations even if no longer considered a “covered employee.” In addition, as a result of expanding the definition of “public companies,” some companies with registered debt securities, or that are not listed on an exchange but that have a large number of equity holders, would under the proposal become subject to Code Section 162(m), as may foreign private issuers that have traditionally avoided such limitations.
Excise Tax on Tax-Exempt Executive Compensation
In what appears to be an attempt to align compensation paid to executives of tax-exempt organizations with the compensation limits imposed on public company executives, the House Bill imposes a new 20 percent excise tax (payable by the employer) on compensation in excess of $1 million paid to the five highest paid employees for the tax year of an applicable tax-exempt organization. The excise tax also applies to any excess parachute payments paid to such individuals. The definition of excess parachute payment generally follows the definition of Code Section 280G parachute payments, but instead of a parachute payment being defined based on payments contingent on a change in control, parachute payment is defined in reference to a payment contingent on the employee’s separation from employment from the employer.
Elimination of Deductibility of Certain Employee Fringe Benefits
The House Bill reduces or eliminates a number of tax benefits for employees and their employers. The income exclusions for Dependent Care Assistance Programs, Adoption Assistance Programs and Qualified Moving Expenses provided by employers are all eliminated in House Bill and a $50,000 limit is imposed on the exclusion of employer-provided housing from income (reduced further for high income individuals and completely eliminated for 5 percent owners).
The House Bill eliminates deductions for entertainment expenses regardless of relation to the taxpayers trade or business and for deductions for certain fringe benefits provided by an employer to an employee and not included in the income of the employee.
A new Code provision is also added under the House Bill for Tax-exempt entities, requiring them to treat the cost of transportation fringe benefits, on-premises gyms and other athletic facilities provided to employees as unrelated business taxable income subject to the corporate tax rate.
Adjustments to Tax Qualified Retirement Plans Provisions
The House Bill also makes a number of technical changes to provisions of the Code governing tax qualified retirement plans, including:
- The elimination of the option to re-characterize a Roth contribution as a traditional IRA contribution;
- Reduction of the minimum age for in service distributions from defined benefit plans and state and local government defined contribution plans from 62 to 59 1/2;
- Relaxation of certain rules regarding hardship distributions and loans from defined contribution plans; and
- Technical changes to rules regarding testing of tax-qualified plans for compliance with nondiscrimination rules.
The proposals in the House Bill raise not only many interpretative and operational issues but also on the design and structure of compensation and benefit arrangements. They may also have knock-on effect for those service providers to such arrangements, including trustees and custodians to IRAs and record-keepers to qualified plans.
In coming days and weeks, we will learn more about whether these proposals will take more definitive form, or be deferred indefinitely.
See, Section 451(a), and Treasury Regulation section 1.451-1(a).
Code Section 409B in the House Bill provides that compensation will not be treated as deferred for purposes of Section 409B if the service provider receives payment of such compensation not later than 2 1/2 months after the end of the taxable year of the service recipient during which the right to payment is no longer subject to a substantial risk of forfeiture.
The Psychology Behind a Strong Security Culture in the Financial Sector
By Javvad Malik, Security Awareness Advocate at KnowBe4
Banks and financial industries are quite literally where the money is, positioning them as prominent targets for cybercriminals worldwide. Unfortunately, regardless of investments made in the latest technologies, the Achilles heel of these institutions is their employees. Often times, a human blunder is found to be a contributing factor of a security breach, if not the direct source. Indeed, in the 2020 Verizon Data Breach Investigations Report, miscellaneous errors were found vying closely with web application attacks for the top cause of breaches affecting the financial and insurance sector. A secretary may forward an email to the wrong recipient or a system administrator may misconfigure firewall settings. Perhaps, a user clicks on a malicious link. Whatever the case, the outcome is equally dire.
Having grown acutely aware of the role that people play in cybersecurity, business leaders are scrambling to establish a strong security culture within their own organisations. In fact, for many leaders across the globe, realising a strong security culture is of increasing importance, not solely for fear of a breach, but as fundamental to the overall success of their organisations – be it to create customer trust or enhance brand value. Yet, the term lacks a universal definition, and its interpretation varies depending on the individual. In one survey of 1,161 IT decision makers, 758 unique definitions were offered, falling into five distinct categories. While all important, these categories taken apart only feature one aspect of the wider notion of security culture.
With an incomplete understanding of the term, many organisations find themselves inadvertently overconfident in their actual capabilities to fend off cyberthreats. This speaks to the importance of building a single, clear and common definition from which organisations can learn from one another, benchmark their standing and construct a comprehensive security programme.
Defining Security Culture: The Seven Dimensions
In an effort to measure security culture through an objective, scientific method, the term can be broken down into seven key dimensions:
- Attitudes: Formed over time and through experiences, attitudes are learned opinions reflecting the preferences an individual has in favour or against security protocols and issues.
- Behaviours: The physical actions and decisions that employees make which impact the security of an organisation.
- Cognition: The understanding, knowledge and awareness of security threats and issues.
- Communication: Channels adopted to share relevant security-related information in a timely manner, while encouraging and supporting employees as they tackle security issues.
- Compliance: Written security policies and the extent that employees adhere to them.
- Norms: Unwritten rules of conduct in an organisation.
- Responsibilities: The extent to which employees recognise their role in sustaining or endangering their company’s security.
All of these dimensions are inextricably interlinked; should one falter so too would the others.
The Bearing of Banks and Financial Institutions
Collecting data from over 120,000 employees in 1,107 organisations across 24 countries, KnowBe4’s ‘Security Culture Report 2020’ found that the banking and financial sectors were among the best performers on the security culture front, with a score of 76 out of a 100. This comes as no surprise seeing as they manage highly confidential data and have thus adopted a long tradition of risk management as well as extensive regulatory oversight.
Indeed, the security culture posture is reflected in the sector’s well-oiled communication channels. As cyberthreats constantly and rapidly evolve, it is crucial that effective communication processes are implemented. This allows employees to receive accurate and relevant information with ease; having an impact on the organisation’s ability to prevent as well as respond to a security breach. In IBM’s 2020 Cost of a Data Breach study, the average reported response time to detect a data breach is 207 days with an additional 73 days to resolve the situation. This is in comparison to the financial industry’s 177 and 56 days.
Moreover, with better communication follows better attitude – both banking and financial services scored 80 and 79 in this department, respectively. Good communication is integral to facilitating collaboration between departments and offering a reminder that security is not achieved solely within the IT department; rather, it is a team effort. It is also a means of boosting morale and inspiring greater employee engagement. As earlier mentioned, attitudes are evaluations, or learned opinions. Therefore, by keeping employees informed as well as motivated, they are more likely to view security best practices favourably, adopting them voluntarily.
Predictably, the industry ticks the box on compliance as well. The hefty fines issued by the Information Commissioner’s Office (ICO) in the past year alone, including Capital One’s $80 million penalty, probably play a part in keeping financial institutions on their toes.
Nevertheless, there continues to be room for improvement. As it stands, the overall score of 76 is within the ‘moderate’ classification, falling a long way short of the desired 90-100 range. So, what needs fixing?
Towards Achieving Excellence
There is often the misconception that banks and financial institutions are well-versed in security-related information due to their extensive exposure to the cyber domain. However, as the cognition score demonstrates, this is not the case – dawdling in the low 70s. This illustrates an urgent need for improved security awareness programmes within the sector. More importantly, employees should be trained to understand how this knowledge is applied. This can be achieved through practical exercises such as simulated phishing, for example. In addition, training should be tailored to the learning styles as well as the needs of each individual. In other words, a bank clerk would need a completely different curriculum to IT staff working on the backend of servers.
By building on cognition, financial institutions can instigate a sense of responsibility among employees as they begin to recognise the impact that their behaviour might have on the company. In cybersecurity, success is achieved when breaches are avoided. In a way, this negative result removes the incentive that typically keeps employees engaged with an outcome. Training methods need to take this into consideration.
Then there are norms and behaviours, found to have strong correlations with one another. Norms are the compass from which individuals refer to when making decisions and negotiating everyday activities. The key is recognising that norms have two facets, one social and the other personal. The former is informed by social interactions, while the latter is grounded in the individual’s values. For instance, an accountant may connect to the VPN when working outside of the office to avoid disciplinary measures, as opposed to believing it is the right thing to do. Organisations should aim to internalise norms to generate consistent adherence to best practices irrespective of any immediate external pressures. When these norms improve, behavioural changes will reform in tandem.
Building a robust security culture is no easy task. However, the unrelenting efforts of cybercriminals to infiltrate our systems obliges us to press on. While financial institutions are leading the way for other industries, much still needs to be done. Fortunately, every step counts -every improvement made in one dimension has a domino effect in others.
Has lockdown marked the end of cash as we know it?
By James Booth, VP of Payment Partnerships EMEA, PPRO
Since the start of the pandemic, businesses around the world have drastically changed their operations to protect employees and customers. One significant shift has been the discouragement of the use of cash in favour of digital and contactless payment methods. On the surface, moving away from cash seems like the safe, obvious thing to do to curb the spread of the virus. But, the idea of being propelled towards an innovative, digital-first, cashless society is also compelling.
Has cashless gone viral?
Recent months have forced the world online, leading to a surge in e-commerce with UK online sales seeing a rise of 168% in May and steady growth ever since. In fact, PPRO’s transaction engine, has seen online purchases across the globe increase dramatically in 2020: purchases of women’s clothing are up 311%, food and beverage by 285%, and healthcare and cosmetics by 160%.
Alongside a shift to online shopping, a recent report revealed 7.4 million in the UK are now living an almost cashless life – claiming changing payment habits has left Britons better prepared for life in lockdown. In fact, according to recent research from PPRO, 45% of UK consumers think cash will be a thing of the past in just five years. And this UK figure reflects a global trend. For example, 46% of Americans have turned to cashless payments in the wake of COVID-19. And in Italy, the volume of cashless transactions has skyrocketed by more than 80%.
More choice than ever before
Whilst the pandemic and restrictions surrounding cash have certainly accelerated the UK towards a cashless society, the proliferation of local payment methods (LPMs) in the UK, such as PayPal, Klarna and digital wallets, have also been a key driver. Today, 31% of UK consumers report they are confident using mobile wallets, such as Apple Pay. Those in Generation Z are particularly keen, with 68% expressing confidence using them.
As LPM usage continues to accelerate, the use of credit and debit cards are likely to decline in the coming years. Whilst older generations show an affinity with plastic, younger consumers feel less secure around its usage. 96% of Baby Boomers and Generation X confirmed they feel confident using credit/debit cards, compared to just 75% of Generation Z.
Does social distancing mean financial exclusion?
As we hurtle into a digital age, leaving cash in the rearview, there are ramifications of going completely cashless to consider. We must take into consideration how removing cash could disenfranchise over a quarter of our society; 26% of the global population doesn’t have a traditional bank account. Across Latin America, 38% of shoppers are unbanked, and nearly 1 in 5 online transactions are completed with cash. While in Africa and the Middle East, only 50% of consumers are banked in the traditional sense, and 12% have access to a credit card. Even here in the UK, approximately 1.3 million UK adults are classed as unbanked, exposing the large number of consumers affected by any ban on cash.
Even when shopping online – many consumers rely on cash-based payments. At the checkout page, consumers are provided with a barcode for their order. They take this barcode (either printed or on their mobile device) to a local convenience store or bank and pay in cash. At that point, the goods are shipped.
There are also older generations to consider. Following the closure of one in eight banks and cashpoints during Coronavirus, the government faced calls to act swiftly to protect access to cash, as pensioners struggled to access their savings. Despite the direction society is headed, there are a significant number of older people that still rely on cash – they have grown up using it. With an estimated two million people in the UK relying on cash for day to day spending, it is important that it does not disappear in its entirety.
Supporting the transition away from cash
Cashless protocols not only restrict access to goods and services for consumers but also limit revenue opportunity for merchants. While 2020 has provided the global economy with one great reason to reduce the acceptance of cash, the payments industry has billions of reasons to offer multiple options that cater to the needs of every kind of shopper around the world.
Whilst it seems younger generations are driving LPM adoption, it is important that older generations aren’t forgotten. If online shops fail to offer a variety of preferred payment methods, consumers will not hesitate to shop elsewhere. With 44% of consumers reporting they would stop a purchase online if their favourite payment method wasn’t available – this is something merchants need to address to attract and retain loyal customers.
UnionPay increases online acceptance across Europe and worldwide with Online Travel Agencies
- UnionPay International today announces that two of Europe’s leading travel companies, Logitravel and Destinia, have started accepting UnionPay.
- This acceptance will enable users of the groups’ travel websites to make purchases using UnionPay payment methods.
The acceptance partnerships between the OTAs and UnionPay began in July 2020 for customers across 13 European countries and another 90 countries and regions worldwide. The European countries covered by the agreements include the UK, Germany, France, Italy, Spain, Portugal, Norway, Denmark, Sweden, Austria, Switzerland, Hungary and Ireland. The brands covered by these acceptances include Logitravel.com and Destinia.com which together deliver more than 8.5 million worldwide travel bookings each year covering flights, hotels, holidays, car hire and other experiences.
With over 8.4 billion cards issued in 61 countries and regions worldwide, UnionPay has the world’s largest cardholder base and is the preferred payment brand for many Chinese and Asian expatriates and students based in Europe, as well as an increasing number of global customers. These cardholders are also particularly attractive to the two OTAs. Despite the impact of Covid-19, Logitravel and Destinia expect to see the demand for travel across the European continent as well as that between Europe and Asia return to growth in the coming years. They are now placing significant focus on offering more payment options and smoother payment services to meet this demand.
The partnerships incorporate UnionPay’s ExpressPay and SecurePlus technology, which will ensure seamless transactions for the customers, contained within a single process through the relevant websites. UnionPay’s technology also provides for the requirement to authenticate transactions under the EU regulation Payment Services Directive 2 (PSD2) ensuring that sites will be compliant as soon as the relevant countries apply the requirements.
Wei Zhihong, UnionPay International’s Market Director, said: “This is a major partnership with two of Europe’s leading online travel companies. Logitravel and Destinia are brands which have been at the forefront of e-commerce for many years and we are very excited to be working with them to extend their reach to new audiences. This highlights the work that we have carried out in ensuring that our technology provides effective solutions for the biggest e-commerce sites both in Europe and around the world. We look forward to announcing many more similar agreements in the near future.”
Jesús Pons, Chief Financial Officer at Logitravel Group said: “UnionPay has always been on our radar, and since travel has become a crucial part of its development, Logitravel felt it important to develop this important partnership. It really was an obvious decision for Logitravel since both companies share a passion for e-commerce and emphasising the payment experience for their customers.”
Ricardo Fernández, Managing Director at Destinia Group said: “We believe that this is the beginning of a really strong relationship. Our discussions with UnionPay in reaching this partnership have demonstrated their understanding of the needs of major online merchants and their ability to deliver the highest quality systems. We look forward to working together on further partnership as we move forward.”
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