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Work with the Clients’ Lawyers. Make Money!

It is a truth universally acknowledged that accountants and lawyers are not always on the best of terms.  Given that some lawyers know little or nothing about tax, you should maintain a good working relationship with your clients’ lawyers.  A simple example:  Your client decides to form an S corporation.  There are 9 other shareholders.  Clearly a shareholders’ agreement is necessary.  The lawyer will draft it, but you should review it.  A partial list for review and comment should include:

  • A provision that any amendment to the shareholders’ agreement that causes a termination of the S election is void and of no effect.


  • A provision listing inadmissible transfers by a shareholder, for example, an individual who is a nonresident alien. (Also include a bucket provision which states that ANY transfer that would cause the termination of the S election is null and void ab initio.)


  • A provision that all of the corporation’s debt instruments must be “straight debt” under Code section 1361(c)(5), thus avoiding any issue that such debt is a second class of stock.


  • A provision that if there is an inadvertent termination, the corporation may request from the IRS a waiver of the inadvertent termination under Code section 1362(f) and each shareholder must agree to any adjustments by the IRS to avoid the inadvertent termination.


  • A provision that if there is a proposed revocation of the S election, stating the percentage of the shareholders with outstanding voting shares that must consent to the revocation.


  • A provision that any shareholder who violates the shareholders’ agreement and causes the termination of the S election will indemnify and hold harmless the other shareholders for any damages they may incur (including taxes, interest, and penalties) because of the termination.


  • A provision stating the percentage of shareholders necessary to make the elections under Code section 1362(f)(4), Code section 1362(e)(3), Code section 1377(a)(2), and Code section 1368(e)(3).


  • A provision requiring the corporation to make pro rata distributions of cash to pay federal and state taxes in a timely manner (using the highest tax rate of a given state for the state distribution to avoid a distribution which is not pro rata).


  • A provision permitting the board of directors to make additional distributions (in addition to the tax distribution described above).


  • A provision listing permissible transferees for estate planning purposes


If you review the shareholders’ agreement, you will not get that awful call from a now former client asking you why you didn’t review the lawyer’s draft of the shareholders’ agreement.  The former client then tells you that the agreement (now final) was badly drafted.

Work with the Clients’ Lawyers. Make Money! was last modified: June 14th, 2017 by Surgent CPE
Nick Spoltore, Esq.: