2014 succession planning business structures v 01-10-14

1. January 23, 2014 BUSINESS STRUCTURES AND TAXES Legal and Tax Considerations

2. What are your goals? Ease of operation  Transferability  Tax benefits  Liability protection  Self-Employment tax  Fringe Benefits  Flexibility  Real Estate Basis 

3. Other Considerations Life/stage of business  Sources of capital  Inter/intra family issues  Taxes  Risk management  Preparing for next generation  Estate planning implications  Management or control  Termination of business  Multiple entities  Key Employees 

4. Using Entities in Farm Planning  Business Purpose  Liability Protection  Organize Operation(s)  Greater Flexibility  Better profitability analysis  Estate Planning Purpose  Protect Farm Assets from family or creditors  Greater flexibility in planning  Easier transfer of assets

5. Types of Entities C Corporation  S Corporation  Limited Liability Company  Partnership/Family Limited Partnership   Other  Sole Entity types Proprietor (Schedule F)  Trust (Revocable – Irrevocable)

6. Typical Scenario – Preferred Choice  Limited Liability Company or S Corporation  Flexibility, Tax benefits, taxed at owner rate  Multiple Entities – greater flexibility  Equipment  Land  Livestock and labor pool

7. When To Choose Other Entity Types  C Corporation  Need for control at the top  Shareholders who would have trouble with pass-through income  Special needs shareholders, “stranger” shareholders  Limits movements of assets and cash  WATCH – Dividends are double-taxed.

8. When To Choose Other Entity Types  Partnership  Well-suited for short-term project  Can be adapted or evolved into LLC  Can be terminated at end of project  Highest liability issues and joint-partner risk

9. When To Choose Other Entity Types  Sole Proprietor  Greatest liability risk – both business and personal assets at stake

10. LLC versus S Corp Limited Liability Company    Tax free in-and-out (mostly) Easy to change as circumstances change Can have many layers Structure S Corporation   Prevents decapitalization of Corp by young owners Stronger mgmt control in officers

11. LLC versus S Corp Limited Liability Company   GENERAL (Active) Members pay SE Tax LIMITED (Passive) Members are exempt from SE Tax SE Taxes S Corporation  Can be exempt from SE Tax if salaries are paid to SH

12. LLC and Trusts LLCs and Land Ownership     LLCs – “easy-in, easy-out” flexibility Basis locked at formation Can change structure at any time Can organize as Business Land Trusts and Land Ownership     Locked-in for duration of Trust Basis locked at formation Cannot change structure More difficult to operate as “business”

13. LLCs and Tax Form Partnership LLC   Pass-through income, depreciatio n, etc. Humans usually lower tax rate than corps Corporation LLC   No pass-through tax Corps taxed at higher level than humans

14. Entity Structure and Risk Management  Liability Insurance – adapted for every entity type, but does not make you “risk-proof”  Entity structure can either “keep in” or “keep out” risk  You cannot insure against your own bad behavior  Does not protect against financial liability (bad debt, bad business decisions, overextended credit)

15. Entity Structure and Risk Management Keep Risk Out   Liability for outside events limited to assets in LLC – cannot get at your personal assets Can protect real estate from operational liability Keep Risk In   High-risk elements (equipment, labor) in one LLC Liability limited to assets in one LLC (not entire operation)

16. Insurance Basic liability insurance  Basic casualty insurance  Crop insurance  Vehicle insurance  Workers Comp  Umbrella/Operations insurance  Life insurance 

17. Entity Choice and FSA/Farm Program  No more “3-entity Rule” – payment limit falls to individual owners  Critical factor is “active participation” by owners  Careful structure of “cash rent” entities  Watch issues of Seniors and Minors  Now

18. Death and Taxes  Indiana Inheritance Tax – repealed  Federal Estate Tax  2014 - $5.34M per person (adjusted for Inflation)  Portable between spouses  Unified Gift/Estate/Generation Skipping Rate  Capital Gain Taxes

19. “Stuck” Structures What do you do when you can’t get out?      Built-in Capital Gains Low basis – High value real estate Cash in the entity – not in your pocket Planning ahead – looking out 10+ years Restructure business operations away from “stuck” entity

20. Odd and Unusual Factors         Conservation easements Shared well (water or gas) Water, Mineral, Gas rights to 3rd parties Hunting Rights Cell Towers – long term leases Wind Towers – long term leases Air Space/Overhead encroachment General easements and other Deed restrictions

21. Fair – vs – Equal  Planning should consider the needs of both “farm” and “Non-farm” heirs Whether “farm” heir should have preference for land over cash or inventory inheritance Whether all heirs can cooperate for operating an entity

22. Fair – vs – Equal  Planning should consider the needs of both “farm” and “Non-farm” heirs  Whether “Non-farm” heirs can incorporate farm income into their personal financial picture  Use of “non-farm” planning tools to equalize an estate and leave more “farm” assets to “farm” heirs  Life Insurance, Cash investments  Special Needs – Special Heirs  Physical/mental entitlements  Legal issue infirmity – qualification for Gov’t

23. Plan for Transition – Gen 1 QUESTIONS What will be the most effective and fair way to pass the farm business to the next generation? When should the change take place? OPTIONS Buy out Rent out Other Family Gift Bequest TIMING OF TRANSITION During Life After Death of Spouse 1 After Death of Spouse 2

24. Case Study Goodacre Farms LLC A&B Goodacre Farm Management LLC Goodacre Hogs LLC Bill & Ann Goodacre Mary – Tom – Jane

25. Assets Farm Assets    1,400 acres owned ground 1,400 acres rented ground $2M machinery, buildings , bins Personal Assets   $500,000 Savings $500,000 Retirement Value of Estate (March 2013)    RE = $ 9.8M Farm EQP = $ 2.0M Cash assets = $ 1.0M

26. • Machinery • Labor • Contract Farming • Key Employee Goodacre Hogs LLC • Farm Real Estate • Cash or Share Rent A&B Goodacre Farm Goodacre Farms, LLC Organizational Structure • Livestock contracts • Animal buildings

27. Real Estate LLC Entity Relationships • Contract with MGMT LLC • Liability insulation • Estate Plan – Ownership to all children Management LLC Cross Contracts • Contract Farming • Production “stake” for sweat equity (Son & Key Employee • Liability insulation Livestock LLC • Production stake • Liability insulation from Real Estate

28. Family Relationships Real Estate LLC • • • • Starting out - Owned by Parents Gifted to/inherited by children Rental income to owners Downside – Basis lock! Management LLC • Starting out - Owned by Parents • Sweat Equity and gradual “buy in” by farming child Livestock LLC • Opportunity for start-up by Gen 2 (Son) • Can be co-ownership by parents/son

29. Considerations  Income tax effect of LLC on off-farm owners  K-1 and personal tax rate  Unwelcome complications to Gen 2 taxes  Issue of locked-in basis for real estate  Yes,  but is that important? Will there be liquidation? Estate Tax  Planning for entity discount  Minimizing estate taxes in high value real estate market

30. Factors in Farm Planning Entity structure Business Operations Risk Mgmt Taxes Fair v Equal Transition

31. Farm Entity Structure   Flexibility is KEY Goals suggest structure  Estate Planning – Will there be an Estate Tax Risk?  Transition to Gen 2  Consideration of on-farm and off-farm children  Needs of Gen 1, Gen 2 and Gen 3  Liability protection/insulation of assets

32. Business Structures and Taxes Questions? Contact information: Derek Fisher, Fisher & Associates Email: derekf@fisheraccounting.net Miriam Robeson, Attorney at Law Email: miriamrobeson@lawlatte.com Website: lawlatte.com

2014 succession planning business structures v 01-10-14

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