[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 1612 Introduced in Senate (IS)]

111th CONGRESS
  1st Session
                                S. 1612

To amend the Internal Revenue Code of 1986 to improve the operation of 
        employee stock ownership plans, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             August 6, 2009

 Mrs. Lincoln (for herself and Ms. Landrieu) introduced the following 
  bill; which was read twice and referred to the Committee on Finance

_______________________________________________________________________

                                 A BILL


 
To amend the Internal Revenue Code of 1986 to improve the operation of 
        employee stock ownership plans, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Employee Stock Ownership Plan 
Promotion and Improvement Act of 2009''.

SEC. 2. 10 PERCENT PENALTY TAX NOT TO APPLY TO CERTAIN S CORPORATION 
              DISTRIBUTIONS MADE ON STOCK HELD BY EMPLOYEE STOCK 
              OWNERSHIP PLAN.

    (a) In General.--Clause (vi) of section 72(t)(2)(A) of the Internal 
Revenue Code of 1986 (relating to general rule that subsection not to 
apply to certain distributions) is amended by inserting before the 
comma at the end the following: ``or any distribution (as described in 
section 1368(a)) with respect to S corporation stock that constitutes 
qualifying employer securities (as defined by section 409(l)) to the 
extent that such distributions are paid to a participant in the manner 
described in clause (i) or (ii) of section 404(k)(2)(A)''.
    (b) Effective Date.--The amendments made by this section shall 
apply to distributions made after the date of the enactment of this 
Act.

SEC. 3. ESOP DIVIDEND EXCEPTION TO ADJUSTMENTS BASED ON ADJUSTED 
              CURRENT EARNINGS.

    (a) In General.--Section 56(g)(4)(C) of the Internal Revenue Code 
of 1986 (relating to disallowance of items not deductible in computing 
earnings and profits) is amended by adding at the end the following new 
clause:
                            ``(vii) Treatment of esop dividends.--
                        Clause (i) shall not apply to any deduction 
                        allowable under section 404(k) if the deduction 
                        is allowed for dividends paid on employer 
                        securities held by an employee stock ownership 
                        plan established or authorized to be 
                        established before March 15, 1991.''.
    (b) Effective Date.--The amendment made by this section shall apply 
to taxable years beginning after December 31, 1989.
    (c) Waiver of Limitations.--If refund or credit of any overpayment 
of tax resulting from the application of the amendment made by this 
section is prevented at any time before the close of the 1-year period 
beginning on the date of the enactment of this Act by the operation of 
any law or rule of law (including res judicata), such refund or credit 
may nevertheless be made or allowed if claim therefor is filed before 
the close of such period.

SEC. 4. AMENDMENTS RELATED TO SECTION 1042.

    (a) Deferral of Tax for Certain Sales to Employee Stock Ownership 
Plan Sponsored by S Corporation.--
            (1) In general.--Section 1042(c)(1)(A) of the Internal 
        Revenue Code of 1986 (defining qualified securities) is amended 
        by striking ``C''.
            (2) Effective date.--The amendment made by paragraph (1) 
        shall apply to sales after the date of the enactment of this 
        Act.
    (b) Reinvestment in Certain Mutual Funds Permitted.--
            (1) In general.--Clause (ii) of section 1042(c)(4)(B) of 
        the Internal Revenue Code of 1986 (defining operating 
        corporation) is amended to read as follows:
                            ``(ii) Financial institutions, insurance 
                        companies, and mutual funds.--The term 
                        `operating corporation' shall include--
                                    ``(I) any financial institution 
                                described in section 581,
                                    ``(II) any insurance company 
                                subject to tax under subchapter L, and
                                    ``(III) any regulated investment 
                                company if substantially all of the 
                                securities held by such company are 
                                securities issued by operating 
                                corporations (determined without regard 
                                to this subclause).''.
            (2) Effective date.--The amendment made by paragraph (1) 
        shall apply to sales of qualified securities after the date of 
        the enactment of this Act.
    (c) Modification to 25-percent Shareholder Rule.--
            (1) In general.--Subparagraph (B) of section 409(n)(1) of 
        the Internal Revenue Code of 1986 (relating to securities 
        received in certain transactions) is amended to read as 
        follows:
                    ``(B) for the benefit of any other person who owns 
                (after the application of section 318(a)) more than 25 
                percent of--
                            ``(i) the total combined voting power of 
                        all classes of stock of the corporation which 
                        issued such employer securities or of any 
                        corporation which is a member of the same 
                        controlled group of corporations (within the 
                        meaning of subsection (l)(4)) as such 
                        corporation, or
                            ``(ii) the total value of all classes of 
                        stock of any such corporation.''.
            (2) Effective date.--The amendment made by paragraph (1) 
        shall take effect on the date of the enactment of this Act.

SEC. 5. SMALL BUSINESS AND EMPLOYEE STOCK OWNERSHIP.

    (a) Findings.--Congress finds that--
            (1) since 1974, the ownership of many small business 
        concerns (as defined under section 3 of the Small Business Act 
        (15 U.S.C. 632)) in the United States has transitioned from the 
        original owner, or owners, to an employee stock ownership plan 
        (referred to in this section as an ``ESOP''), as defined in 
        section 4975(e)(7) of the Internal Revenue Code of 1986;
            (2) data collected on the performance of these small 
        business concerns owned 50 percent or more by an ESOP evidences 
        that more often than not these ESOP-owned small business 
        concerns provide significant benefit to the employees of the 
        small business concerns and the communities in which the small 
        business concerns are located;
            (3) under the Small Business Act (15 U.S.C. 631 et seq.) 
        and the regulations promulgated by the Administrator of the 
        Small Business Administration, a business concern that 
        qualifies as a small business concern for the numerous 
        preferences of the Act, is denied treatment as a small business 
        concern once 50 percent or more of the business is acquired on 
        behalf of the employees by an ESOP; and
            (4) a small business concern that was eligible under the 
        Small Business Act before being so acquired on behalf of the 
        employees by an ESOP, will no longer be treated as eligible, 
        even if the number of employees, the revenue of the small 
        business concern, and the racial, gender, or other criteria 
        used under the Act to determine whether the small business 
        concern is eligible for benefits under the Act remain the same, 
        solely because of the acquisition by the ESOP.
    (b) Employee Stock Ownership Plans.--The Small Business Act (15 
U.S.C. 631 et seq.) is amended--
            (1) by redesignating section 44 as section 45; and
            (2) by inserting after section 43 the following:

``SEC. 44. EMPLOYEE STOCK OWNERSHIP PLANS.

    ``(a) Definitions.--In this section--
            ``(1) the term `ESOP' means an employee stock ownership 
        plan, as defined in section 4975(e)(7) of the Internal Revenue 
        Code of 1986; and
            ``(2) the term `ESOP business concern' means a business 
        concern that was a small business concern eligible for a loan 
        or to participate in a contracting assistance or business 
        development program under this Act before the date on which 50 
        percent or more of the business concern was acquired by an 
        ESOP.
    ``(b) Continued Eligibility.--An ESOP business concern shall be 
deemed a small business concern for purposes of a loan, preference, or 
other program under this Act if--
            ``(1) on a continuing basis a majority of the shares of and 
        control of the ESOP that owns the business concern are held by 
        individuals who would otherwise meet criteria necessary to be 
        eligible for the loan, preference, or other program (as the 
        case may be);
            ``(2) control of the ESOP business concern is vested in the 
        shareholders of the ESOP; and
            ``(3) the ESOP that owns the business concern complies with 
        all requirements of a tax qualified deferred compensation 
        arrangement under the Internal Revenue Code of 1986.''.
    (c) Effective Date.--The amendments made by this section shall take 
effect on January 1 of the first calendar year beginning after the date 
of enactment of this Act.
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