The Employee Ownership Update
October 25, 1995
Finance Committee Passes Legislation to Eliminate "Section 133"The Senate Finance Committee approved a Republican proposal to delete section 133 of the Internal Revenue Code. Section 133 currently allows commercial lenders to exclude 50% of the interest income they receive on loans to ESOPs that own (or will own after the loan) over 50% of the company's stock and that pass through full voting rights on the shares acquired by the loan. In practice, the provision has provided a 10% to 20% reduction in loan rates for qualifying loans because the lenders pass through part of the tax benefit to the borrower. Because of its restrictions, however, the provision is only occasionally used in ESOP transactions. Given currently low interest rates, moreover, the provision is rarely, if ever, critical to a transaction.
The committee said the tax savings would be $1 billion over seven years, but this seems wildly excessive. The provision would apply only to new ESOP transactions, not to existing transactions. While the provision itself is not very important any more, but it could send a message that ESOPs are vulnerable to further changes. The proposal is part of the larger tax bill and must be approved by the full Senate. Then it would go to a House-Senate conference. The House did not include the ESOP change in its bill, so the House conferees would have to approve the change. It is then subject to presidential veto. President Clinton has indicated he would not sign the tax cut bill because it contains too many tax breaks for upper-income people.
DOL Reverses Position on Voting Pass-ThroughThe Department of Labor seems to have reversed its opinion on pass-through of voting rights in companies that provide "mirror voting and tendering" provisions on unallocated shares. The Department has always said that trustees can follow employee directions for voting and tendering allocated shares, but has argued that trustees must make an independent decision for unallocated shares. The trustee can look to employee directions on these shares, but cannot simply make a decision based on them. In a lawsuit against the trustee for Polaroid's ESOP (NationsBank), the DOL argued against the plan's provisions directing the trustee to vote or tender unallocated shares and undirected shares based on the way allocated shares are voted or tendered. The trustee should have made an independent decision, the DOL said, and the court has agreed (the case is now on appeal).
Now in a September 28, 1995 letter to Ian Lanoff, a lawyer representing the AFL-CIO, Olena Berg, an assistant secretary at the DOL, said the trustee should in fact follow employee directions on unallocated shares unless there is a "compelling reason" not to do so. How the two contradictory positions will be reflected in future DOL actions is not clear.