Note: This is part of a series of articles that discuss legal strategies for design professionals. Earlier posts examined how architects and engineers should choose a business entity and how taxes may impact that choice. This post takes up a question that those articles flagged but left for later, which is how a design firm rewards and retains the talent that drives its value. As in the prior tax post, it runs the analysis on three tracks: federal, New York State, and New York City.
Introduction: How Does a Design Firm Reward Its Best People Without Giving Away the Firm?
Talent is the asset that separates one architecture or engineering practice from another, and the market for that talent is competitive. Firms that want to keep their rising principals, project leaders, and rainmakers eventually confront the question of talent retention.
For design professionals, the answer is constrained before it is even reached. As earlier posts in this series explained, licensing rules limit who may own equity in a professional entity. The licensing constraint shapes everything that follows: real equity can go only to licensed professionals, so firms that want to reward unlicensed talent or to reward licensed talent without diluting ownership may turn to synthetic and deferred arrangements that deliver economics without conferring a share of the firm.
The second threshold question is tax classification, the theme of the prior post: whether the firm is taxed as a partnership, as an S corporation, or as a C corporation determines which tools are available and how each one is taxed. Matching the vehicle to the entity is the first discipline of a workable plan.
The third question threshold is where. For a New York firm, every vehicle must be tested not only against the federal Internal Revenue Code (the “Code”) but against the New York State personal income tax and, for firms in the five boroughs, the New York City tax regime. As the prior post warned, the City is where entity choice swings a firm’s tax bill the most, because it taxes unincorporated businesses and corporations under entirely different regimes and does not recognize S corporation status. That New York City overlay reaches incentive compensation in ways many firms overlook.
This post walks through the principal incentive and deferred compensation vehicles, including equity grants, profits interests, stock and unit options, phantom equity, equity appreciation rights, and nonqualified deferred compensation. For each, this post describes what entity it fits, how the firm and the recipient are taxed at the federal, State, and City levels, and the practical tradeoffs. A consolidated New York section then pulls the cross-cutting State and City themes together.
Key Takeaways
- Licensing narrows the field first. Real equity in a professional design firm is somewhat limited to licensed professionals. To reward unlicensed staff or to reward licensed staff without diluting ownership firms use cash-settled synthetic awards (phantom equity, appreciation rights) that transfer no ownership.
- The entity dictates the vehicle. Profits interests exist only in partnership-taxed firms and generally cannot be granted by a corporation. Incentive stock options require an employer corporation. The single-class-of-stock rule limits how an S corporation can differentiate equity.
- “Deferred compensation” almost always means Section 409A. Phantom equity, appreciation rights, most RSUs, discounted options, and classic salary-deferral plans are all governed by Section 409A, and the penalties for getting it wrong fall largely on the employee: income inclusion at vesting plus a 20% additional tax, late payment penalties, and premium interest.
- New York generally follows the federal result for residents. A New York resident’s income starts from federal adjusted gross income, so equity and deferred compensation are taxed by the State in the same year and with the same character as federally. The complications arise at the City level and for nonresidents.
- The New York City UBT punishes converting an employee into a partner. Wages paid to an employee are deductible in computing Unincorporated Business Tax, but amounts paid to a partner for services are not. Granting a profits interest turns deductible salary into a nondeductible guaranteed payment, thereby raising the firm’s 4% UBT base.
- The PTET rewards owners, not synthetic-equity employees. An owner-partner’s guaranteed payments stay in the pass-through base and generate a matching, refundable State (and City) PTET credit A non-owner employee holding phantom equity, appreciation rights, or NQDC is not a partner, so that compensation is outside the PTET base and earns no credit.
- A profits interest turns an employee into a partner. That conversion ends W-2 treatment, replaces salary with guaranteed payments and a Schedule K-1, and subjects the recipient’s distributive share to self-employment tax, which is enforced against service partners of professional LLPs and LLCs.
- There is no single right answer. The best structure depends on the firm’s entity, who is being rewarded, where they live and work, and whether the goal is current income, long-term capital gain, or retention. Model each option with tax counsel before committing.
The Licensing Issue: Why Design Firms Often Reach for Synthetic Equity
Before turning to the vehicles, it is worth restating the constraint that makes design-firm compensation different from that of an ordinary business. A professional design firm must generally render services through licensed individuals, with those requirements written into the organizational documents as eligibility and transfer restrictions. Thus, a firm cannot solve a retention problem for a talented but unlicensed studio director, marketing lead, or CFO by handing over stock or a membership interest. Likewise, even for licensed professionals, admitting a new owner carries governance, buy-sell, and capital consequences the firm may not want to take on for every promising associate. That is why cash-settled arrangements that mirror equity value without conferring ownership occupy a central place in design-firm planning. The vehicles below fall into two camps: those that transfer real ownership and those that deliver only economics.
Equity Grants: Restricted Stock and Restricted Stock Units
Equity grants are an outright grant of firm stock, usually subject to vesting. Restricted stock makes the recipient a stockholder of record at grant, with the shares subject to forfeiture until they vest. A restricted stock unit (RSU) is not stock at all but an unfunded promise to deliver shares (or their cash value) later if vesting conditions are met.
These are corporate tools, thus for a PC or DPC taxed as an S or C corporation. An S corporation carries a further limit: it may have only one class of stock (differences in voting rights aside), so it cannot use preferred or economically differentiated equity to fine-tune a grant.
Restricted stock is governed by Section 83 of the Code. Absent an election, the recipient recognizes ordinary income when the shares vest, equal to the excess of their fair market value at vesting over any amount paid. The recipient may instead make a Section 83(b) election within 30 days of grant to be taxed on the value at grant. In an early-stage or low-value firm, that election can convert nearly all future appreciation into long-term capital gain and start the holding period at grant, but it requires paying tax while the shares are still illiquid and forfeitable, and if the shares are later forfeited, the tax paid is not recoverable. RSUs are outside Section 83 entirely; no 83(b) election is available, and the recipient recognizes ordinary income only at settlement.
The firm takes a compensation deduction equal to the ordinary income the recipient recognizes, in the same year. The award is wages, so the firm must withhold income and FICA tax; for RSUs, FICA applies at vesting even though income tax is deferred to settlement. Because these are corporate vehicles, the firm is a PC or DPC that pays the New York City Business Corporation Tax rather than the UBT and, as the prior post explained, the City taxes even a federal and State S corporation as a corporation because it does not recognize S status.
Pros. These plans are in direct alignment with the firm’s goals. The recipient becomes a true owner with upside on the whole value of the firm. Restricted stock with a Section 83(b) election offers the best long-term capital gain profile of any vehicle here.
Cons. Ownership is limited to licensed professionals, so this cannot generally reward unlicensed staff. Recipients may owe tax before the shares are liquid. RSUs must be drafted to either settle within the short-term deferral window or comply with Section 409A, or they become defective deferred compensation.
Profits Interests: The Partnership Firm’s Signature Tool
A grant of a partnership interest that entitles the holder to share only in the future profits and appreciation of the firm above a threshold set at the grant date and not in the value that already exists. Profits interests are taxable immediately, but are engineered to have zero value subject to tax. These are the partnership world’s answer to equity compensation.
Only an entity taxed as a partnership can grant a profits interest. Because the holder becomes a partner with the liabilities and rights of ownership, profits interests should be confined to limited-liability vehicles; and because a partner in a professional firm must generally be licensed, the recipient must be a licensed design professional.
If the grant satisfies the IRS safe harbor, which means the interest has zero liquidation value at grant, does not relate to a predictable income stream, is held at least two years, and the firm is not publicly traded, then the recipient recognizes no income at grant or vesting. Later gains flow through and can qualify for capital gain treatment on a sale of the interest. To make the interest “profits only,” the firm sets a hurdle equal to its value at grant; a hurdle set too low risks recharacterizing the grant as a taxable capital interest. If the interest is subject to vesting, Rev. Proc. 2001-43 generally treats it as vested so long as the holder is treated as a partner from grant, though many advisors still file a protective 83(b) election given the strict 30-day deadline.
The catch is that the recipient becomes a partner. An individual cannot be both a partner and an employee. Granting a profits interest to an employee converts salary into self-employment income: the person moves from W-2 to Schedule K-1, loses employer tax withholding (and must pay quarterly estimates), loses employee-only benefits like cafeteria plans, and owes self-employment tax on the distributive share. For service partners of a professional LLP or LLC, the “limited partner” exclusion from self-employment tax generally does not apply. Holders also face potential phantom income, owing tax on allocated profits even in a year the firm distributes no cash.
The New York City wrinkle is the UBT add-back. This is the New York point that catches design firms by surprise. A PLLC or LLP operating in the City pays the 4% Unincorporated Business Tax, and in computing that tax, compensation paid to an employee is a deductible business expense, but no deduction is allowed for amounts paid to a partner for services. Converting a valued employee into a partner by granting a profits interest, therefore, turns deductible salary into a nondeductible guaranteed payment, and the firm’s UBT base rises by that amount. The self-employment-tax and UBT consequences together mean a small profits interest can cost more than it delivers, which is a reason to weigh it against a synthetic alternative for anyone other than a genuine principal.
On the other side of the ledger, a profits-interest holder is now an owner, and owners capture the benefits of the pass-through entity tax. The guaranteed payments and distributive share of an owner-partner remain within the entity’s pass-through items that make up the PTET base, and the partner takes a matching State personal income tax credit plus, for a City resident, the parallel City PTET credit.
Because a properly structured grant is not a taxable compensation event, the firm gets no deduction on the grant, which is the mirror image of the recipient’s tax-free receipt.
Pros. No tax to the recipient on grant, capital gain potential, no cash outlay by the firm, and access to the PTET benefit. The premier tool for admitting a rising principal to the economics of a partnership-taxed design firm.
Cons. Available only to partnership-taxed firms and, generally, only to licensed professionals; converts the recipient to partner status with its self-employment-tax and reporting burdens; increases the firm’s New York City UBT base by eliminating the compensation deduction; and requires careful hurdle, waterfall, and tax-distribution drafting.
Stock Options and Unit Options
These are rights to buy firm equity in the future at a price fixed today (the exercise price). In a corporation these are stock options; in a partnership-taxed firm one can grant options over LLC units, though the mechanics are more complex.
There are two types of stock options. Incentive stock options (“ISOs”) are a statutory, tax-favored option that can be granted only by a corporation and only to employees, under a stockholder-approved plan, with an exercise price no less than fair market value at grant. Nonqualified stock options (“NSOs”) can be granted by a corporation to any service provider with far fewer restrictions.
For an ISO, there is no income at grant, vesting, or (for regular tax) exercise; the spread at exercise is, however, an alternative minimum tax adjustment. If the shares are held at least two years from grant and one year from exercise, all gain is long-term capital gain; a sale inside those windows is a “disqualifying disposition” that produces ordinary income on the exercise-date. ISO exercises are exempt from FICA. For an NSO, the recipient recognizes ordinary income at exercise on the spread between fair market value and the exercise price, with capital gain or loss on a later sale.
With an ISO, the firm gets no deduction unless the employee makes a disqualifying disposition, in which case the firm deducts the matching ordinary income. With an NSO, the firm deducts the spread the employee recognizes at exercise, in the same year. The granting firm is a corporation, so at the City level it pays the Business Corporation Tax rather than the UBT.
Any option granted with an exercise price below grant-date fair market value is treated as deferred compensation under Section 409A, exposing the holder to income inclusion at vesting plus the 20% additional tax and premium interest. Options priced at or above fair market value, with a fixed number of shares and no added deferral feature, stay outside 409A. A defensible, contemporaneous valuation of firm equity is, therefore, essential.
ISOs require a corporation and are limited to licensed-professional employees in a design firm. NSOs work in any corporation. Options over units in a PLLC/LLP are possible but carry significant complexity and are far less common than a profits interest, which usually accomplishes the same goal more cleanly.
Pros. Options reward growth in firm value with no cost to the recipient unless value rises. ISOs offer capital gain treatment and no FICA.
Cons. ISOs give the firm no deduction and can generate AMT for the holder; both types require a defensible FMV strike price to avoid 409A; and, like all real equity, they are limited to licensed professionals.
Phantom Equity
Phantom equity is merely a contractual promise to pay an amount that tracks the value of a notional number of firm shares (or units), settled in cash without issuing any actual equity. The recipient gets the economics of ownership; the firm’s cap table and ownership do not change.
Any entity type, including C corporation, S corporation, PLLC, or LLP, can issue phantom equity. Because no ownership changes hands, phantom equity sidesteps the licensing constraint entirely, and it is not limited by the S corporation single-class-of-stock rule. This makes it the natural choice for rewarding unlicensed key employees, or for rewarding licensed staff the firm is not ready to admit as owners.
The IRS does not treat a phantom awards as transfers of property, so there is no tax at grant or vesting; the recipient recognizes ordinary income only when the award is paid. FICA applies earlier. Under the special timing rule, deferred amounts are taken into account for Social Security and Medicare at the later of when services are performed or when the award vests, and are not taxed again for FICA when paid.
The firm deducts the payment as compensation in the year the employee recognizes the income. Importantly for a City firm, because the recipient is an employee and not a partner, the payment is an ordinary deductible compensation expense for UBT purposes when paid — it does not run into the partner add-back that burdens a profits interest. Note the cash-flow point: settlement is a cash outlay funded from firm earnings.
Phantom equity is nonqualified deferred compensation. So, the plan must limit payment to Section 409A’s permissible events, which include separation from service, disability, death, a fixed time or schedule, a change in control, or an unforeseeable emergency, and must not allow impermissible acceleration or deferral. A drafting failure triggers income inclusion at vesting plus the 20% additional tax and premium interest, all borne by the employee.
Pros. Works with any entity and any employee; no dilution of ownership; deductible to a City firm without the UBT partner add-back; ideal where licensing bars real equity.
Cons. All value is ordinary income to the recipient. Hence, no capital gain, and no PTET credit for the employee because the holder is not an owner. Settlement is a cash cost to the firm. And the arrangement must be drafted and operated in strict compliance with Section 409A.
Equity Appreciation Rights (Stock/Unit Appreciation Rights)
Equity appreciation rights are close cousins of phantom equity. An appreciation right pays the recipient the increase in the value of a notional number of shares or units between grant and exercise, usually in cash and without any exercise price to pay. Where phantom equity tracks full value, an appreciation right tracks only the growth.
Any entity can issue equity appreciation rights. Like phantom equity, an appreciation right transfers no ownership, so it is available across corporations and partnership-taxed firms and to licensed and unlicensed personnel alike.
No tax at grant or vesting; ordinary income at exercise equal to the cash (or stock value) received. FICA follows the special timing rule.
The firm receives a deduction equal to the ordinary income the recipient recognizes, in the same year. As with phantom equity, because the holder is an employee, the deduction is available to a City firm for UBT purposes without the partner add-back.
An appreciation right stays outside 409A only if it is designed within the safe harbor: the measurement is limited to appreciation over a fixed number of shares, the “exercise price” is never below grant-date fair market value, and there is no deferral feature beyond deferring income to exercise. A below-value grant, or any added deferral right, pulls the entire award into 409A, with the 20% additional tax and premium interest on failure.
Pros. Rewards growth in firm value with no cash from the recipient and no dilution; available to any entity and any employee; deductible to a City firm without the UBT add-back; leaner than phantom equity where the goal is to reward appreciation rather than full value.
Cons. Ordinary income only, no capital gain, and no PTET credit; a cash cost to the firm at exercise; and, like phantom equity, dependent on disciplined 409A design and a defensible valuation.
Nonqualified Deferred Compensation Plans
A nonqualified deferred compensation (“NQDC”) plan is a contractual promise by the firm to pay compensation in a future year, which can be a deferral of either the employee’s own salary or bonus or a firm-funded supplemental retirement benefit. The point is to move income into a later year, typically retirement, when the recipient may be in a lower bracket.
Any entity can maintain an NQDC plan, but the economics are most attractive in a C corporation. In a pass-through firm, the owners are already taxed on income as earned, so the classic deferral benefit is muted for owner-participants; NQDC in a design firm is most often used for key non-owner employees or as a bridge for professionals not yet admitted to ownership.
For the deferral to work, the promise must remain unfunded and unsecured, meaning the deferred amounts must stay subject to the firm’s general creditors. Section 409A reinforces this by treating offshore trusts, or assets that become restricted upon a decline in the firm’s financial health, as a taxable transfer of property even if nominally reachable by creditors. The tradeoff for the tax deferral is real credit risk: if the firm fails, the employee is an unsecured creditor.
If the plan complies with Section 409A, the deferred compensation and any credited earnings are taxed only when paid, not when earned. FICA is imposed earlier, which is at the later of when services are performed or when the amount vests, and is not imposed again at payment.
The firm’s deduction is deferred to match the employee’s inclusion: it may deduct the compensation only in the year the employee includes it in income, and for a multi-participant plan only if separate accounts are maintained. The same deferred-deduction rule applies to amounts paid to independent contractors. For a City firm, an NQDC payment to an employee is deductible for UBT when paid, without the partner add-back.
NQDC is the core of what Section 409A regulates. Deferral elections must generally be made before the year the services are performed (with a 30-day window for newly eligible participants and a special rule for performance-based pay); distributions are limited to the six permissible events; and acceleration of payments is prohibited. Failure results in income inclusion of all vested deferrals plus the 20% additional tax and premium interest, imposed on the employee. These plans are typically structured as ERISA “top-hat” plans, limited to a select group of management or highly compensated employees.
Pros. Rewards and retains key people with no equity dilution and no immediate cash outlay; shifts income to a potentially lower-bracket year; and, if paid as a qualifying periodic stream, can remove a departed principal’s benefit from New York tax entirely.
Cons. Deferred and thus at risk to the firm’s creditors; the firm’s deduction is deferred until payment; ordinary income only; the deferral benefit is limited for owners of a pass-through firm; and the plan lives or dies by Section 409A compliance.
The New York Overlay: State and City in One View
Four cross-cutting New York themes run through the vehicles above and deserve to be seen together.
- For residents, New York follows federal. New York adjusted gross income begins with federal adjusted gross income, and none of the State’s modifications carve out equity or deferred compensation. A New York resident is therefore taxed on each of these vehicles in the same year, and with the same ordinary-income or capital-gain character, as under the Internal Revenue Code. The State-level complexity is almost entirely about nonresidents and about the City.
- The New York City UBT is the reason to think twice before granting a profits interest. A partnership-taxed design firm in the City pays the 4% Unincorporated Business Tax. Employee compensation reduces that tax; payments to a partner for services do not, because the UBT expressly disallows a deduction for amounts paid to a partner for services or the use of capital. The moment a valued employee becomes a profits-interest partner, the firm loses the deduction for what it pays that person, and its UBT base climbs. A corporation avoids the UBT but pays the City’s Business Corporation Tax instead, and the City taxes a federal or State S corporation as a corporation because it does not recognize S status. Some form of City tax applies either way. The question is which way, and whether the incentive plan pushes income out of a deductible column and into a nondeductible one.
- The PTET favors owners over synthetic-equity holders. The pass-through entity tax lets a firm deduct New York income tax at the entity level and pass a matching, refundable credit to its owners. That benefit follows ownership. An owner-partner’s guaranteed payments and distributive share sit inside the PTET base, and the partner claims the credit, refundable to the extent it exceeds the tax. State rates are graduated from 6.85% to 10.90%, with a flat 3.876% City PTET available on top once the State election is made. A non-owner employee holding phantom equity, an appreciation right, or an NQDC benefit is not a partner or shareholder. That compensation is ordinary wages outside the PTET base, and no credit attaches. In short, converting a principal to an owner carries a UBT cost but a PTET benefit; keeping talent on synthetic equity avoids the UBT hit but forgoes the PTET benefit. The two effects should be modeled together.
- Nonresidents and departing principals require special care. New York sources equity compensation (options, appreciation rights, and restricted stock) to a nonresident by a grant-to-vesting workday fraction, so a professional who spends part of the vesting period working in New York owes New York tax on that fraction even if the award is exercised or sold years later from another state. Deferred compensation for New York services likewise remains New York-source when later paid. For a firm whose principals may retire out of state, designing a SERP or deferral as a qualifying periodic stream is a meaningful way to keep the benefit out of New York’s hands.
Comparing the Vehicles at a Glance
| Vehicle | Works with | Real ownership? | Employee tax (federal / NY) | Firm deduction | NY City note |
| Restricted stock / RSUs | C or S corporation (licensed owners) | Yes | Ordinary income at vesting (or grant with a Section 83(b) election); NY follows federal, nonresident sourced grant-to-vest | Matches employee income, same year | Firm pays Business Corporation Tax; no S recognition |
| Profits interest | Partnership-taxed firm (PLLC/LLP), licensed partners | Yes (partner) | No tax on grant if safe-harbored; capital gain on sale; SE tax on distributive share | None (no compensation event) | Guaranteed payment nondeductible – raises UBT base; but owner gets PTET credit |
| ISO | C or S corporation, employees only | Yes | No regular tax at exercise (AMT item); capital gain if held; NY nonresident sourced grant-to-vest | None unless disqualifying disposition | Business Corporation Tax |
| NSO | Any corporation | Yes | Ordinary income on spread at exercise; NY nonresident sourced grant-to-vest | Matches spread, same year | Business Corporation Tax |
| Phantom equity | Any entity; any employee | No | Ordinary income at payment; FICA at vesting; NY-source if for NY services | Matches payment, same year | Deductible for UBT when paid; no partner add-back |
| Appreciation right | Any entity; any employee | No | Ordinary income at exercise; FICA at vesting; NY nonresident sourced grant-to-vest | Matches income, same year | Deductible for UBT when paid |
| NQDC plan | Any entity (best in a corporation) | No | Ordinary income at payment; FICA at vesting; 4 U.S.C. § 114 shields periodic retirement pay from NY for nonresidents | Deferred until employee includes income | Deductible for UBT when paid |
A Pragmatic Path Forward
No single vehicle is right for every design firm. A disciplined sequence helps a firm land on the right one:
- Start with licensing and entity. Confirm who may hold equity and how the firm is taxed. A partnership-taxed PLLC or LLP points toward profits interests for its licensed principals; a PC or DPC taxed as a corporation points toward restricted stock or options.
- Identify who you are rewarding. If the goal is to reward unlicensed staff, or to reward anyone without transferring ownership, move to phantom equity, appreciation rights, or an NQDC plan.
- Decide what you want to deliver. Long-term capital gain points toward restricted stock with a Section 83(b) election or a profits interest; pure retention and cash-based upside point toward synthetic or deferred arrangements.
- Run the New York City math before granting a profits interest. For a City firm, weigh the UBT cost of converting deductible employee compensation into a nondeductible partner payment against the PTET benefit the new owner will capture. For some rising professionals a profits interest still wins; for others, synthetic equity is cheaper to the firm.
- Respect Section 409A from day one. Options and appreciation rights need a defensible fair-market-value strike price; phantom and NQDC plans need compliant payment triggers and deferral elections. The penalties fall on your people, not the firm.
- Plan for mobility. For principals who may work across state lines or retire elsewhere, remember that New York sources equity awards on a grant-to-vesting workday fraction and that a properly structured periodic NQDC stream can fall outside New York’s reach for a departed nonresident.
- Coordinate with the firm’s broader tax posture. As the prior post explained, converting employees to partners can affect the firm’s qualified business income deduction, because guaranteed payments are not treated as W-2 wages for that purpose. Model the incentive plan and the entity’s tax elections together, not in isolation.
- Document and revisit. Vesting, forfeiture, valuation, tax distributions, buy-backs, and restrictive covenants should be drafted in at the outset and revisited as the firm grows.
Frequently Asked Questions
Can we give equity to a valued employee who is not a licensed architect or engineer? Generally not, because general licensing rules require owners of a professional design firm to be licensed. The workaround is synthetic equity: phantom equity or an appreciation right delivers the economic upside of ownership in cash, without making the person an owner, and carries no licensing barrier.
What is the difference between phantom equity and an equity appreciation right? Both are cash-settled promises that transfer no ownership. Phantom equity tracks the full value of a notional share; an appreciation right tracks only the growth in that value from grant to exercise. Both are taxed as ordinary income when paid and both must comply with Section 409A.
Does granting a profits interest cost our firm anything at the New York City level? Yes, if the firm is in the City. A PLLC or LLP pays the 4% Unincorporated Business Tax, and while employee wages are deductible, amounts paid to a partner for services are not. Converting an employee into a profits-interest partner turns deductible salary into a nondeductible guaranteed payment and raises the firm’s UBT base. That cost should be weighed against the PTET credit the new owner-partner will receive.
How does New York tax an architect who worked here but has since moved away? For equity awards (options, appreciation rights, restricted stock) New York taxes the portion earned here, measured by the New York workdays over total workdays from grant to vesting, even if the award is cashed out years later from another state. For ordinary deferred compensation tied to New York services, the payment generally stays New York-source. But federal law protects genuine retirement income: New York cannot tax a nonresident on NQDC paid over life or ten years or more, or on post-termination excess-benefit payments.
Why do partnership-taxed firms favor profits interests despite the UBT cost? Because a properly structured profits interest is tax-free to the recipient at grant and vesting and can yield capital gain later and because the new owner captures the PTET benefit. The tradeoffs are the self-employment tax on the distributive share and the loss of the firm’s UBT deduction for a City practice.
What happens if we get Section 409A wrong? The employee, and not the firm, is taxed on all vested deferred compensation immediately, plus a 20% additional tax and premium interest. Because the penalty lands on the very people the plan was meant to reward, 409A compliance is not optional.
Conclusion
For a New York design firm, incentive and deferred compensation is a four-way puzzle: licensing decides who may own the firm, entity classification decides which vehicles are available, Section 409A polices how deferred value is delivered, and the New York State and City regimes decide who ultimately bears the tax. A partnership-taxed firm reaching to admit a rising principal will look to profits interests. A corporation rewarding a licensed key employee will look to restricted stock or options. And any firm that wants to reward talent without parting with ownership, including the unlicensed talent that keeps a practice running, will look to phantom equity, appreciation rights, or a nonqualified deferred compensation plan, each deductible to a City firm without the partner add-back. None of these should be chosen in isolation from the firm’s tax structure or the mobility of its people. Our team helps design firms align licensing, entity, and incentive design into a coherent platform at formation, during growth, and through transition. To discuss an incentive or deferred compensation plan for your firm, contact us for a confidential consultation.
Mr. Shimick is a Partner at Whiteman Osterman & Hanna, LLP. You can contact him at (518) 487-7678 or by email at sshimick@woh.com.
Disclaimer: This post provides general information for educational purposes and is not legal, tax, or accounting advice. Tax rates, thresholds, and elections change; consult qualified counsel and tax advisors about your firm’s specific circumstances.
