Code Section 4960 Apply to ESOPs?

[EB_Associate]

I am wondering if anyone has come across this issue. Does the 4960 tax to excessive compensation paid to executives apply to the executives of a company that is 100% owned by an ESOP? 

[EBECatty]

Others may have given this more thought, and I have not reviewed in any depth, but I would think in most ESOP-owned companies you would meet one or more of the exceptions in determining the five highest-compensated employees under 53.4960-1(d)(2) such that the company's employees would not become covered employees with respect to the ESOP as an ATEO. 

Would be interested to hear other opinions.

[MBESQ]

My initial impression is that the tax would not apply since the exec is employed by the company owned by the ESOP and not the ESOP itself, which is the Sec 501(a) tax-exempt entity under Sec 4960.  The company may not be taxed on corporate income if it is an S Corp., but that does not make it a tax-exempt entity for purposes of Sec 4960.

[Bob the Swimmer]

Agree with MESQ--have not ever seen (or contemplated) an ESOP owned by an ATEO.

[EBECatty]

I think the idea is the ESOP is the ATEO by virtue of being an exempt trust under section 501(a), and the company would be a taxable related organization controlled by the ATEO (the ESOP).

[EB_Associate]

EBECatty is correct, that is the question I am looking to answer.