One of the more wide-reaching changes is the new law’s expanded application of tax code Section 162(m). This section limits the deduction public companies can take for compensation of more than US$1m paid annually to a “covered employee,” which now includes the CEO, CFO and three most highly compensated officers. Under prior law, the CFO was explicitly exempted from “covered employee” status.
Additionally, foreign private issuers and public debt issuers that were not formerly subject to Section 162(m) may now be pulled in, as Section 162(m) now applies to any corporation that is an “issuer” under the Securities and Exchange Act of 1934 and is required to file certain reports with the U.S. Securities and Exchange Commission (SEC).
As a result, companies that previously were exempt from the Section 162(m) deduction limits are covered, which means that to the extent a deduction is being claimed for a named executive officer on the US tax return, any compensation of more than US$1m annually to a covered employee is no longer deductible.
The new law also makes clear that issuers are subject to the Section 162(m) deduction limit even if they have not been required to report the compensation of their named executive officers under SEC rules; in such cases, Section 162(m) applies to the individuals who would be named executive officers if such reporting were to apply.
The new law also eliminated the exemption for performance-based compensation, including stock options, and for post-employment pay, such as supplemental pensions, deferred compensation and severance. Before the new tax law, performance-based compensation plans had to meet a variety of requirements to qualify for a deduction, but with this exemption gone, some companies may rethink how they structure such programs.
The goal of performance-based programs should be attracting, motivating and retaining employees, says EY Americas Reward Leader Michael Schoonmaker. “Now that we’re unshackled from [Section] 162(m), is there a new design that works better for us from a business or commercial perspective?”
The ties that bind
Under the new law, once people are identified as covered employees, they (or their beneficiaries) remain covered employees, even if they leave the company — for example, a retired executive who continues to receive compensation.
“It is the gift that keeps on giving,” Schoonmaker said in our webcast, “even post death, believe it or not.” As such, a company’s group of covered employees is likely to expand over time and must be managed. “As the years go by, you could end up with 20, 30, 40 covered employees,” he says. “You’re going to have to have the ability to track them and the payments made to them.”
The new law does include some transition relief: an exception allowing companies to rely on prior law for compensation arrangements governed by “binding contracts” in effect as of 2 November 2017 — the date the House Ways and Means Committee Chairman Kevin Brady released the tax reform bill. To the extent compensation falls within this exception and would have been deductible under prior law, companies can still deduct it.