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Hypothetical scenario: Sole owner of a S corp is very young (under 30), unmarried and has low lifestyle requirements (~60k/yr) but has excessive amounts of income (600k+/yr).  He only expects this income to continue for another 3-6 years at best but could slow down sooner. He is considering forming a C corp for tax reasons because he does not qualify for 199A (specified service business) and the corporation has no value without him and will never be sold. 

In a perfect world, he would like to defer taxes on current income in exchange for future income payments (say between ages of 35-60 and use qualified fund contributions/accumulations for income over 60). This all assumes his effective income tax rates would stay at or below dividend tax rates due to his low lifestyle requirements (forget legislative tax risk). Is it possible to use a deferred comp and/or supplemental plan to defer current income taxes and create future income cash flow as he would like?

My first concern with this arrangement would be that as the sole owner, is it even possible to have a substantial risk of forfeiture with either deferred comp or a vesting schedule on a supplemental plan? If this is not normally possible, is it possible to create a corporate resolution to introduce a substantial risk of forfeiture, for example in irrevocably requiring certain excess profits to be used for corporate philanthropy? 

Is there an issue with the "informal" 10% guidelines if the corporation only has 2 employees (the owner and a manager)? I know this rule normally becomes an issue with larger corps trying to include too many employees on a plan, but is this also an issue with a small company only trying to provide owner benefits?

Are there other considerations that could pose problems in addition to these concerns, like accumulated earnings tax on informally funded liabilities? (assume COLI is an unusually expensive alternative due to ht/wt).


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  • 3 months later...

Why do you need a substantial risk of forfeiture at all?  It's possible to defer money under a nonqualified plan without there being a substantial risk of forfeiture.  Sure, he'll have to pay FICA taxes now, but he won't have to pay income taxes until payment date.  Unless you're trying to take advantage of the Short Term Deferral rule or something, you don't need a substantial risk of forfeiture as long as you follow the 409A rules.

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