On August 5, 2015, the Securities and Exchange Commission adopted, by a three-to-two vote, a rule that will require most public companies to disclose, annually, the ratio of the median of the annual total compensation of the company’s employees to the annual total compensation of the company’s principal executive officer. Companies must comply with the
Executive Compensation (US)
Time to Focus on Directors’ Pay?
Although executive compensation has been under significant scrutiny for many years, directors’ compensation has flown somewhat under the radar. That may be about to change: in Calma v. Templeton, a Delaware court recently held that the level of compensation granted to non-employee directors should be reviewed under the “entire fairness” standard rather than under the more lenient “business judgment” standard. The court concluded that the stricter standard was appropriate because:
- the directors had a conflict of interest when they were deciding whether to award themselves any equity compensation; and
- the company’s shareholders did not “ratify” the directors’ equity awards when they approved the plan under which the awards were granted, since the plan did not include “meaningful limits” on the potential awards.
SEC Proposes Clawback Rule
The Securities and Exchange Commission has proposed a rule that will require companies with listed securities to recover incentive compensation based on erroneous financial statements. The proposed rule will also require new disclosures concerning listed companies’ clawback policies and their efforts to recover incentive compensation pursuant to the policies. The proposed rule and a fact sheet are available on the SEC’s website.
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Foreign Compensation and the Long Reach of Code Section 409A
As business becomes increasingly globalized, multinational corporations are sending more executives on international assignments and hiring more expatriates to fill local positions overseas. Compensation connected to these employment patterns can create a series of legal and regulatory challenges. For example, unless an exception applies, U.S. citizens and U.S. residents are subject to U.S. federal income tax on their worldwide income, regardless of where they perform services or earn their compensation. Significantly, this extraterritorial reach of U.S. federal income tax extends to the complex and confounding deferred compensation rules of section 409A of the Internal Revenue Code.
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409A Correction for Unvested Amounts Clarified
Finding a 409A violation generally prompts a sometimes frantic search for a means of correction under various IRS pronouncements. One previously helpful — but now slightly limited — such item was included in the proposed income inclusion regulations, which were issued in December 2008. Those regulations, which have not been finalized but which may be relied upon, state that a 409A violation results in income inclusion under section 409A (including the additional 20% tax) if the violation occurs in a year in which the deferred compensation is vested. The result: If a violation is corrected before the deferred compensation vests, no adverse tax consequences occur under section 409A. A recently released chief counsel advice memorandum clarifies this mechanism for correction. The memorandum indicates that this means of correction is effective only if completed before the taxable year in which the compensation vests, and not merely before the date on which the compensation vests.
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SEC Proposes “Pay for Performance” Disclosure Rule
By David Engvall, Reid Hooper, Keir Gumbs, and David Martin
On April 29, 2015, the Securities and Exchange Commission (the “SEC”) proposed a new rule that would require public companies to provide new disclosures annually regarding the relationship, over a five-year period, between executive compensation actually paid and a measure of financial performance of the…
SEC Hedging Disclosure Proposal Could Cause Companies To Review Trading Policies
On February 9, 2015 the SEC proposed rules, as required by Section 955 of Dodd-Frank, that would require disclosure regarding whether directors, officers and other employees are permitted to hedge or offset any decrease in the market value of equity securities granted by the company as compensation or held, directly or indirectly, by employees or directors. The purpose of the rules, according to the SEC, is to elicit disclosure regarding whether employees or directors are permitted to engage in transactions that mitigate or avoid the incentive alignment associated with equity ownership. Companies may wish to review their trading policies in light of the proposed rules.
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Employers Might Be Liable to Nonqualified Plan Participants for Failing to Follow FICA’s Special Timing Rule
Employers should consider reviewing their procedures for withholding and paying FICA tax in light of the recent district court decision in Davidson v. Henkel Corp. The court concluded that the employer was liable to participants in a nonqualified deferred compensation plan for failing to withhold FICA tax in a manner that would have decreased their overall tax liability. The additional FICA tax reduced the participants’ benefits under the plan, and the court concluded that this result was inconsistent with the plan’s design and purpose. …
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New Medicare Tax Makes FICA Errors Harder to Correct
Withholding and paying FICA tax on nonqualified deferred compensation can be a tricky business. Because special timing rules apply to FICA tax, employers can’t simply withhold and pay FICA tax when they pay deferred compensation to the employee. Instead, FICA tax is due when the deferred compensation vests (or, in some cases, when the amount of the deferred compensation can be determined).
It is not always easy to tell when these triggering events occur. In fact, it is sometimes hard to tell whether compensation is “deferred compensation” that is subject to the special timing rules. Employers faced with these complications often discover long after the fact that they have failed to withhold and pay FICA tax on deferred compensation when the tax was due. The additional 0.9% Medicare tax introduced in 2013 makes these errors much more difficult to correct.
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IRS Issues Guidance on New Medicare Taxes for High-Income Employees
The Affordable Care Act created two new taxes for individuals whose income exceeds $200,000 ($250,000 for married couples filing joint returns). Employees must pay an additional 0.9% Medicare tax on wages in excess of these dollar thresholds. Individuals whose adjusted gross income exceeds the dollar thresholds also must pay a 3.8% tax on their net investment income.
Both taxes became effective in 2013, but high-income employees will pay the taxes for the first time next year, when they file their 2013 tax returns. Employers are required to withhold the 0.9% additional Medicare tax, and are liable for any amount they fail to withhold.
The IRS recently published a final regulation and an updated set of FAQs interpreting the additional Medicare tax. The IRS also published a final regulation, a new proposed regulation, and updated FAQs interpreting the tax on net investment income.
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