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HOW THEY SHOULD BE STRUCTURED?

By Dr David Edward Marcinko MBA CMP™

Dr. DEMwww.CertifiedMedicalPlanner.org

A buy–sell agreement provides a ready market for the sale of a medical practice or healthcare business interest, provides liquidity on a timely basis, and provides for a smooth transfer to the desired successors.

A buy–sell agreement may be funded to insure retirement, disability, and death protection. A properly designed agreement may help provide for a smooth financial and managerial transition.

The buy–sell agreement should also include the method for determining the value of the medical office or healthcare business-entity; and the payment terms. A buy–sell agreement may be structured in one of two ways: [1] redemption or a [2] cross-purchase agreement.

Redemptions

A redemption is an agreement between the medical business owner in which insurance proceeds, or other corporate funds, are used to buy out the deceased or retired physician owner’s interest. If life insurance proceeds are to be used to fund the buy-out of a deceased owner, the potential risks that need to be considered include:

  • The possibility of alternative minimum tax (AMT) that would only affect a C corporation.
  • The potential for insurance proceeds to be exposed to corporate creditors.
  • The possibility that undesirable dividend treatment may occur if the constructive ownership rules of Code Section 318 are met. (This requires close scrutiny of Sections 302, 303, and 318 when structuring a plan.)

Private medical business owners who currently have redemptions in their estate plans may desire to switch to a cross-purchase agreement. This modification prevents exposure of the insurance proceeds to corporate creditors and the potential for corporate AMT.

Cross-Purchase Agreements

A cross-purchase agreement between or among the parties, unlike the redemption agreement, provides a stepped-up outside basis. It may be cumbersome to coordinate funding with many shareholders because life insurance policies must be acquired on each particular life. Some CPAs, financial advisors, insurance agents and attorneys suggest that a business insurance trust can solve this, but the current popular solution is a partnership.

***

Buy-Sell

***

Example:

Drs. Jon, Bob, and Brent are three unrelated physicians who are shareholders in a professional corporation. They sign a cross-purchase buy–sell as shareholders, agreeing to purchase the outstanding stock of a deceased shareholder based upon a formula including the prior year’s earnings and the current net worth. They purchase life insurance policies on one another so that they have a way to fund the purchase of the shares from the decedent’s estate. The policies are an approximation of the required funds and are reviewed annually to verify that sufficient insurance exists to cover the needs. They have created a funded cross-purchase agreement.

The shareholders considered having a disability buy-out clause also, but have been unable to agree upon appropriate dollar amounts and have had problems selecting disability insurance coverage. They felt that it was best to have a signed contract on the portion that they could agree on, rather than tie the whole process up seeking agreement on everything.

“Wait and See” Buy–Sell Agreements

The less frequently used option of the “wait and see” buy–sell agreement postpones the decision on how to transfer the business until after the death of the business owner, when more information is available. The purchase price and funding are established currently, but the identity of the purchaser is left open. Typically, the business has the first option to buy. Then, after a set period, the owners have the option to buy. Finally, to protect the heirs of the deceased, if neither of the first two options is exercised, the business must purchase the stock.

Estate Valuation

Certain criteria must be met for a buy–sell to fix the value of the medical business interest for estate tax purposes. For agreements entered before October 9, 1990, that have not been substantially modified, the values established in the buy–sell agreement should serve to establish the value for estate tax purposes, unless the agreement was a device to transfer the business to a family member below fair market value or if the agreement is not a bona fide business arrangement.

For agreements substantially modified after October 8, 1990, or those entered into after that date, the value of the property is determined without regard to any option, agreement, or right to acquire or use the property at less than fair market value or any restriction on the right to sell or use such property, unless the option, agreement, right, or restriction:

  • Is a bona fide business arrangement, and
  • Is not a device to transfer such property to members of a decedent’s family for less than full and adequate consideration in money or money’s worth, and
  • The terms of the option, agreement, right, or restrictions are comparable to similar arrangements entered into by persons in an arm’s length transaction.

If the buy–sell option meets these requirements, its terms may be utilized in the valuation of the interest transferred for estate or gift tax purposes. [IRC § 2703]

If these specific tests are not satisfied, the buy–sell agreement will not establish the value for estate tax purposes and the valuation factors of Revenue Ruling 59-60 probably would prevail. This may leave the estate in the position of having to litigate if the taxing authorities set a value higher than the actual sale value.

***

Business

***

To assist in meeting the three criteria, advisors should not encourage the use of formulas as in the past; but individual appraisals and personalized valuations. Some practices or entities even fix the value of the business annually and justify this by pointing out that nobody knows whether there will be a purchaser or a seller. They have every incentive to try to make a fair valuation. But, the advisor should keep in mind that such a valuation could be used against an owner in the event of a divorce or separation, so he or she should use prudence before publishing a stated value.

In most cases, the IRS will argue that the agreement doesn’t meet the requirements of Code Section 2703 because of the need for the agreement to be comparable to similar arrangements. This means the buy–sell agreement may not be solely determinative in valuation issues, regardless of how carefully it is constructed.

Assessment

A buy–sell between unrelated parties who are not the “natural objects of each other’s bounty” is deemed to have met the three tests for exclusion from Code Section 2703. This means that the new rules generally only apply to intrafamily transfers, although some experts believe that this term may be broad enough to include any potential heir.

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