A phantom stock plan is a tool that may be used to transfer equity to key employees or valued team members while maintaining complete dictatorial control over your company. Virtually absolute protection is available from claims against the issuing corporation or company for claims related to management or operations by participants in the phantom stock plan.
I first designed and utilized a phantom stock plan in the mid-1990s. I assisted a company that manufactured metal racks, stands and other items with a particular emphasis on the wire industry. To complete the sale, the buyers obtained bank financing. However, the buyers needed to utilize an outside investor at the last minute when a transaction term change caused the bank to withdraw financing.
They reached out to a very successful investor, who negotiated a very favorable interest rate along with an option to acquire 20% of the company for a stated amount. The sale closed just before a big boom in the wine industry. The company was way more profitable than anyone ever expected.
Sign up for Kiplinger’s Free E-Newsletters
Profit and prosper with the best of expert advice on investing, taxes, retirement, personal finance and more - straight to your e-mail.
Profit and prosper with the best of expert advice - straight to your e-mail.
The outside investor who provided financing exercised his option to acquire his 20% interest in the much-improved company. At the same time, he objected to the “excessive” salaries being paid to the two other owners. This began an expensive, emotionally draining shareholder dispute that was eventually settled for a substantial sum. One of the shareholders was so affected that he retired and sold to his partner.
The remaining partner vowed never to have another partner or co-owner. However, he wanted to compensate and more fully engage a key salesman critical to the company’s continuing success. We utilized a phantom stock plan to provide this salesman an ownership interest if the company was sold to a third party.
How a phantom stock plan works
The phantom stock plan is a form of deferred compensation providing an incentive, which increases as the company value increases and falls when the company value decreases. The participant has a binding contractual right to become a shareholder if the stated triggering event occurs, such as the sale of the company or a change in control of the company.
The participant is not a shareholder, member or owner prior to the occurrence of the event. The participant does not have any voting rights or say whatsoever in the management of the company. The IRS recognizes that the participant is not a shareholder in an S corporation, so there is no effect on a corporation’s subchapter S election. Similarly, because the participant holds only a contractual right to obtain actual shares in the future, there are no payroll tax consequences, and a participant is not considered to be an employee due to his or her participation in the phantom stock plan.
The phantom stock plan can be drafted to provide the participant direct ownership in the company upon the occurrence of the triggering event. The plan can also be drafted to provide an amount, such as the value of the increase in the stock value after the participant joined the plan.
What to keep in mind
When drafting, consider who first would be desired participants and the behavior and performance that the company seeks to incentivize. Consider whether participants should receive direct ownership or units with some base value. Should the participant share in only the growth with share or membership value or the total value? A specific vesting term or schedule should also be spelled out in the phantom stock plan document.
The phantom stock plan provides a unique, safe way to incentivize key team members or employees with an equity interest without giving away any of the day-to-day or long-term control of the company.
related content
- A Tax Planning Cautionary Tale: Timing and Formalities Are Critical
- Business Owners Should Review Their Buy-Sell Agreements
- How Does an Employee Stock Ownership Plan, or ESOP, Work?
- Risk Management in the Digital Age: Protecting Your Business’ Finances
- What Happens When Bosses Heap Praise Only on Their ‘Stars’?
-
Stock Market Today: Dow Pops 703 Points on Cooler InflationA benign reading from the Consumer Price Index report assuaged market fears about the path of borrowing costs.
-
CPI Report Keeps the Fed on Track: What the Experts Are Saying About InflationCPI Disinflation in key areas of consumer prices should help the Federal Reserve stick to its policy path of gradual cuts to interest rates.
-
Generational Wealth Plans Aren't Just for Rich PeopleEverybody needs to consider what will happen to whatever assets they have and ensure their beneficiaries aren't stuck with big tax bills.
-
To Insure or Not to Insure: Is Life Insurance Necessary?Even if you're young and single with no dependents, you may need some life insurance. Here's how to figure out what and how much you may need.
-
Irrevocable Trusts: So Many Options to Lower Taxes and Protect AssetsIrrevocable trusts offer nearly endless possibilities for high-net-worth individuals to reduce their estate taxes and protect their assets.
-
How to Organize Your Financial Life (and Paperwork)To simplify the future for yourself and your heirs, put a financial contingency plan in place. The peace of mind you'll get is well worth the effort.
-
Financial Confidence? It's Just Good Planning, Boomers SayBaby Boomers may have hit the jackpot money-wise, but many attribute their wealth to financial planning and professional advice rather than good timing.
-
Will You Be Able to Afford Your Dream Retirement?You might need to save more than you think you do. Here are some expenses that might be larger than you expect, along with ways to ensure you save enough.
-
Three Steps to Simplify Paying Your Taxes in RetirementOnce you retire, how you pay some of your taxes can change. Here's how to get a handle on them so you don't run afoul of the IRS and face penalties.
-
More SECURE 2.0 Retirement Enhancements Kick in This YearSaving for retirement gets a boost with these SECURE 2.0 Act provisions that are starting in 2025.
