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Executive Compensation Paths to Safety
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There are Two Paths

IRC § 4958 sets a framework for corporate governance. It establishes a "rebuttable presumption" where the burden of proof is shifted. This consists of a simple 1, 2, 3 set of board level steps: advanced planning, fact finding, and documentation. The 2nd step includes using survey data "compiled by independent firms. In such cases, IRC § 4958 excise taxes can be imposed only if the IRS develops sufficient contrary evidence to rebut ... "

The second path provides additional protections for organization managers who may not have benefited from any excess benefit but where a certified and "reasoned written opinion" by a lawyer, CPA, or valuation expert (compensation consultant) provides personal joint and several liability protection; see Notes for Attorneys and CPAs.

And Two Rest Areas

"For organizations with annual gross receipts of less than $1 million reviewing compensation arrangements, the authorized body will be considered to have appropriate data as to comparability if it has data on compensation paid by three comparable organizations in the same or similar communities for similar services." See Salary Expert's Preliminary Executive Compensation Reports where twelve comparable entities are identified (allowing an organization to easily select the three best comparables).

For larger organizations "good data may not be sufficient" if an authorized body (compensation committee) is shown as unable to understand the recommendations or plans. See the ERI Distance Learning Center's Compensation Committee Certificate.

The Board Path – Independent Data

The IRS Tax-Exempt and Government Entities Division recently purchased 30 annual subscriptions of ERI's Executive Compensation Assessor® software/database, joining the New York State Attorney General's Charities Bureau and thousands of other subscribers. ERI is optically reading 2,000,000 publicly available Form 990s/PFs/EZs and creating an evergreen salary survey. The Assessor Series have been used since 1989 in Federal Tax Courts to research publicly traded and privately-held executive compensation (electronically reading US SEC proxies, 10-Ks and UK/EU annual reports). This is important because Intermediate Sanctions allow for the creation of a "rebuttable presumption" using data from both taxable and tax-exempt organizations, easily and quickly accomplished via ERI's Nonprofit Salary Survey Assessor™ software. These patented applications also allow for the retrieval of the original source material. Click on a graphic dot and retrieve any one of millions of filed reports, 1994 - present.

An Organization Manager's Path

Silence now costs. Personal liability for organization managers who observe unreasonable executive pay in silence is something new. IRS fines for executives and their managers, rather than an organization, are new. IRC § 4958's definition of "reasonable compensation" is new. Professional firms admitting to "inaccuracies" and "omissions"* forever captures the conflict of interest between the provision of consulting and legal, accounting or insurance services. IRS protection for managers who seek written reasonableness opinions (from an independent, non-service provider) is new, as is the shifting of the burden of proof in a "rebuttable presumption" with survey data "compiled by independent firms." ERI and Salary Expert provide compensation training, reports, and software to support the services of independent compensation consulting firms.

Ask these Questions – While There is Time to Take Both Paths

"Good data is not enough; will our Board be shown as competent?" "A rebuttable presumption calls for a 1, 2, 3 sequence of planning, fact, and documentation in Board minutes; does evidence of "fact" exist in ours?" "Are our managers protected by a written reasonableness opinion, or are they personally jointly and severally liable in any future excess benefit conflict?" If the readers' tax advisor or counsel is unaware of this new Tax Code, an end result of the negative publicity surrounding executive compensation, please auto email them this page's link. Ask them to review the Notes for Attorneys and CPAs. It may be only a matter of time before the logic of IRC § 4958 and Sarbanes-Oxley applies to all US organizations: privately-held, publicly-traded, not-for-profit and nonprofit. California and New York are already making it a states' issue of "just and reasonable" executive compensation. Even the lowest paying organization needs documentation, as it shifts the burden of proof. Silence costs. Inaction costs.

But good corporate governance is inexpensive; find solutions here.

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Analyze publicly-traded corporations' executive compensation as reported in 10-Ks, proxies, and annual reports (becoming mandatory in EU countries, already mandatory in the UK). This software provides competitive cash compensation data specific to your organization's industry and size. An executive compensation survey graph includes interactive dots. Click on a dot to review source data, including the 10-K, proxy, annual report, or government filing of the executive compensation data. More.

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Executive Compensation Data Methodology

ERI reads US SEC reports, UK/EU annual reports, and optically scans over 500,000 publicly available nonprofit salary reports and for-profit financial statements per year. (Source data made available here.) This creates the largest executive compensation survey known, and allows users of ERI software to make in-house analyses based on industry groupings, location (state/territory, unitary aggregate, county/district, or city), year, and organization size (assets, revenues, turnover, or number of employees).

One-Time Executive Compensation Reports

Executives who require one-time executive compensation reports to evaluate the competitiveness of salary offers are encouraged to use Salary Expert's:

For-Profit Executive Compensation Report $89

Nonprofit Executive Compensation Report $39

For more in-depth analyses, contact us about our Quick-Call Compensation Reports. These fast, accurate, economical reports provide you with confidential data and personal attention. ERI's customized compensation reports are used by consultants, executives, and HR professionals to answer pressing salary planning questions in a timely manner. For more information please call us at 800-627-3697.

Compensation Solutions

Q: As a member of a Compensation Committee, I need competitive pay data to help set attractive compensation packages for our CEO and other executives so they don't move onto greener pastures. Where can I find this data?

A: ERI's executive compensation software is used to create customized executive compensation reports that factor in organization industry, size in revenue, location, and pay strategy for more than 400 top management position titles.

Q: I am preparing to serve as an expert witness testifying in a (divorce) case where I need to report what is reasonable and competitive pay for a position. Does ERI data hold up in court?

A: Yes, ERI provides its sources and reliability statistics (needed to meet a Daubert court challenge) for its compensation survey data. To view this material, download a free Executive Compensation Assessor demo, then click on View / Reliability Statistics from the Survey & Proxy Analyses screen.

Q: We want to be sure that an executive compensation package will not be deemed too high by the IRS. How can we determine reasonable pay ranges?

A: ERI’s Executive Compensation Assessor software includes maximum reasonable compensation estimates. These are defined as a range of pay containing roughly 95% of the executive population. The range corresponds to approximately 2 standard errors above and below mean. Both the IRS and State Attorneys General rely on ERI executive compensation data for reasonable pay analyses.

Web Resources and White Papers

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