Companies and individuals tapped to undergo Internal Revenue Service examinations of golden parachute payments should review the updated Golden Parachute Payments Audit Technique Guide (2017 ATG) issued by the IRS on Jan. 20.
Golden parachutes are arrangements that provide executives or key employees with significant financial compensation in the event of a change in ownership or control of the employer. The IRS examines golden parachute payments to determine whether: (1) the payer can claim a deduction for the payment under I.R.C. § 280G, and (2) the recipient is subject to a 20 percent excise tax as an excess payment under § 4999.
Audit Technique Guides
The 2017 ATG conforms the previous version of the ATG with current tax code provisions and Securities and Exchange Commission filing requirements. The IRS initially issued ATGs on several executive compensation topics, including golden parachute payments, in 2005. The 2005 Golden Parachute Payments ATG provided guidance on the following topics:
The IRS website states that ATGs “help examiners during audits by providing insight into issues and accounting methods unique to specific industries.” Although the ATGs primarily are referenced by IRS examiners, the ATGs contain helpful information for companies and individuals to defend themselves during IRS examinations.
1. The 2017 ATG specifies two additional types of documents reviewed by IRS examiners in golden parachute payment examinations, including:
2. The 2017 ATG specifies the interplay between I.R.C. § 162(m) and golden parachute payments. The ATG states, "Section 162(m) provides that the $1 million limitation should be reduced by any amount of excess parachute payments. For example, if the chief executive officer of a publicly-held company received $2 million dollars from his company in the year it was being acquired, of which $200,000 was excess parachute payments under IRC § 280G, the IRC 162(m) limitation for the CEO would be reduced to $800,000 ($1,000,000 - $200,000). However, this provision for reducing the $1 million limitation for the excess parachute payment may not apply if the executive of the target is not considered a covered employee during the year of an acquisition since the target goes out of existence and his pay is not reported in the proxy statement."
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