On August 9, the IRS issued a news release, IR-2023-144, warning taxpayers and advisors of “numerous compliance issues” with ESOPs, such as “valuation issues with employee stock,” “prohibited allocation of shares to disqualified persons,” “failure to follow tax law requirements for ESOP loans causing the loan to be a prohibited transaction” and “promoted arrangements using ESOPs that are potentially abusive.” Naturally, this out-of-nowhere release caused quite a bit of bad blood in the ESOP community because the tone of the release made it sound like ESOPs were in trouble. We fielded questions from several ESOP clients asking what this was about and if they should be concerned about an IRS agent arriving to audit their plans – which, if timed right, could lead to a cruel summer.

Since then, the IRS has provided more insight into what triggered the news release, and as expected, most ESOP sponsors should be able to shake it off. We’ve learned that the IRS issued the release to alert interested parties and the employee ownership community that they’ve identified what they’ve termed a “questionable transaction” sold by a small number of promoters. These generally involve small medical or dental practices in which an ESOP is set up through a management company that provides services to the practice (which, in most states, can’t have an ESOP due to ownership restrictions). The management company then charges fees to the practice for management services, but at a level that takes most or all of the profit out of the practice, resulting in the group’s income flowing into a 100% ESOP S corporation, which is exempt from income taxes. Then, the management company loans its retained earnings to the practice’s owners, giving those owners cash flow without taxes. How or when those loans ever get paid back is somewhat of a mystery. 

The good news is that the IRS has made an effort to let the ESOP world know that its concerns only involve a few promoters, and the broader community still has a good reputation. Most plan sponsors who set up ESOPs for the right reason have no need for concern about enhanced IRS enforcement activities. The release is only about those promoters who twist the law to a point where the transactions toe the line of abusiveness, which happens with nearly every other part of the tax code. It sounds like karma will ultimately catch up to those promoters.