Latest Posts

US Tax Reform: Compensation Update #1: House Ways and Means Committee Revisions & Senate Mark of Tax Cuts

November 14, 2017 By Narendra Acharya, Anne Batter, Victor Flores, Christopher Guldberg and Sinead Kelly 2 Mins Read

If you have been following the progress of U.S. tax reform, you will know that one of the most significant proposed changes in the compensation arena is currently up in the air, with a conflict between the final bill approved last week by the House Ways and Means Committee and the conceptual mark-up now under review by the Senate Finance Committee (the “Senate Mark”). Specifically, the final House bill eliminated proposed changes that would have taxed nonqualified deferred compensation at vesting, while this proposal is still under consideration in the Senate.

There are numerous other compensation-related differences between the House bill and the Senate Mark, including that the Senate Mark does not include a House proposal to permit tax deferral outside of Section 409A on certain private company equity awards, and that the Senate Mark introduces the new concept of a 5% federal income tax withholding requirement on payments to independent contractors. Notably, however, the House and Senate proposals currently appear aligned on the elimination of the performance-based compensation exception to Section 162(m)’s $1 million limit on the deductibility of covered employee compensation (as well as other changes expanding the scope of the covered employees).

For a full discussion of the current state of play, please refer to our alert dated November 13, 2017 which covers the following topics:

For more information on the broader implications of the proposed tax legislation on your company, please see the Tax News and Developments alert, Senate Finance Committee Releases “Chairman’s Mark” of Tax Reform Legislation; Mark Up Begins, issued by Baker McKenzie’s tax practice (November 13, 2017).

Author Narendra Acharya

Narendra Acharya focuses his practice on matters relating to US and international employee benefits and executive compensation — including global stock plans and pensions, as well as matters pertaining to pensions, executive compensation and employment issues in mergers and acquisitions. Mr. Acharya assists US and non-US companies – both publicly traded and private – in the design and implementation of employee stock plans. He has extensive experience advising clients on income tax, social security, payroll withholding and reporting, local corporate tax deduction, employment law, securities and other regulatory issues applicable to equity awards in numerous jurisdictions.

Author Anne Batter

Anne Batter is a partner in Baker McKenzie's Tax Practice Group with over 35 years of tax experience. She focuses her practice on the tax treatment of executive compensation and fringe benefits arrangements. She also handles excise tax matters, particularly those involving the air transportation excise tax. She previously served as an attorney in the Income Tax & Accounting Division of the IRS’s Office of Chief Counsel and as attorney-advisor with the US Tax Court.

Author Victor Flores

Victor Flores is a partner in Baker McKenzie’s Employment & Compensation Practice, with a focus on Executive Compensation and Employee Benefits. Victor advises global US and non-US companies – both public and private – on all aspects of executive compensation and benefits matters, including the corporate, securities and tax law, and ERISA issues arising in the implementation and administration of compensation programs. He regularly helps clients with the design and implementation of equity and non-equity based incentive compensation programs and nonqualified deferred compensation programs. Victor also has extensive experience advising on compensations and benefits issues in mergers and acquisitions, corporate reorganizations, private equity and other corporate transactions.

Author Christopher Guldberg

Christopher Guldberg has been practicing in the employee benefits and executive compensation areas since 1992 and is a senior member of the Firm’s benefits practice. Mr. Guldberg advises on a wide range of benefits issues including design, implementation, operation and termination of tax-qualified retirement plans and welfare benefit plans. He assists with all aspects of regulatory compliance associated with employee benefit plans and regularly advises clients on ERISA's fiduciary and prohibited transactions provisions. He also has helped clients correct benefit plan defects through DOL and IRS voluntary correction programs and has assisted clients with negotiated settlements with regulatory authorities.

Author Sinead Kelly

Sinead Kelly is a partner in Baker McKenzie’s Compensation practice in San Francisco. She advises on U.S. executive compensation and global equity and has practiced in the compensation field since 2005. In her practice, Sinead counsels U.S. and non-U.S. public and private companies on all aspects of equity and executive compensation plans and arrangements, including plan design, drafting, administration and governance. In this regard, Sinead advises on and assists companies with compliance with U.S. federal and state securities and tax laws relating to compensation arrangements, as well as with preparing SEC disclosures, complying with stock exchange rules and addressing non-U.S. tax and regulatory requirements. She has been repeatedly recognized by Legal 500 as a leading lawyer for Executive Compensation and Employee Benefits.