Please note, the following article originally ran as the Washington Report column in the July 2015 issue of the ESOP Report, the newsletter of The ESOP Association.
No question it was pleasing to have introduced in the House, H.R. 2096, (Promotion and Expansion of Private Employee Ownership Act of 2015), and in the Senate S. 1212 (same title) in late April and early May, with clear cut Republican and Democrat members of the House and Senate as co-sponsors. It is pleasing to see that as of July 7, the bi-partisan support grew, for as of that date, the H.R. 2096 list of sponsors had grown from the original eight to 25 — 17 Republicans and eight Democrats — and S. 1212 had grown from the original 11 to 21 — 11 Republicans and eight Democrats and two Independents, who caucus with the Democrats.
But more support is needed to not only have the provisions of these two bills become law, which would be good, as explained below, but would be very important in making sure what ESOP companies have now that increases their profit after taxes remains the law, in view that sometime in the near future all tax laws will be scrutinized, and many eliminated or reduced.
And the bar we have to measure the support for ESOPs in Congress is the bar set in 1993, when 102 members of the House sponsored pro-ESOP bills, and records indicate the high in the Senate was 29 in 1995. Those numbers made a difference when the Ways and Means Committee in 1996 and the Senate Finance Committee in 1996, without opposition, passed the law permitting S corporations to sponsor ESOPs. [As a general rule, it takes often six to eight years from the day a “new” tax benefit idea is introduced to when the tax committees put the idea into a bill it sends the House or Senate floor.]
To move the Congress to put into law the provisions of S. 1212 and H.R. 2096 that would permit a seller of S stock to an ESOP to defer her/his capital gains tax on the proceeds as the seller of C corporation stock has been able to do since 1985, per the provisions of IRS 1042, and to ease the SBA bias against ESOPs when deciding if a small business that has an SBA preference should continue to have that preference when the ESOP owns more than 50% of the company, there needs to be many more sponsors of H.R. 2096 and S. 1212.
Impossible? No, because there are 124 members of the House and Senate who are ESOP advocates because they have sponsored pro-ESOP bills before this year. So, subtract 46 current H.R. 2096 and S. 1212 sponsors, and there 78 men and women in the House and the Senate that have sponsored bills in prior Congresses that are identical to H.R. 2096 and S. 1212.
ESOP advocates just have to ask, via letter, via an ask during a company visit in August, or a town hall session in August, or at a civic club.
Go to the Advocacy Kit, where there is the suggested letter for co-sponsoring these bills — to get suggested words for the ask.
Resting on laurels because it appears that not having any bad ESOP recommendations in last year’s big tax reform proposal put forward by the former Chair of the Ways and Means Committee, Dave Camp, and recently a task force of the Senate Finance Committee recommended consideration of S. 1212 when it takes up major tax reform legislation in the next two to three years, would be dumb, and dumber.
Let’s raise the bar — let’s have the mark reached in 1993 reached again — let’s expand incentives for creation and operation of ESOPs.
It is doable.