Stock options are no longer a perquisite reserved solely for corporate management and key employees. From closely held technology companies to Fortune corporations, more employees are being afforded the opportunity to participate in potential appreciation of their businesses through the use of employer-provided stock options. From the employer's perspective, stock options may be a relatively inexpensive way to reward employees for their hard work and loyalty to the employer.
From the employee's perspective, stock options have become, in many instances, the most important part of their compensation package. Despite the significant and growing attention employees devote to stock options, they spend very little time considering what might happen to their stock options in the event of their death. Estate planners must take into account their clients' stock options when formulating and implementing estate plans. Stock options present special income tax problems that must be dealt with in an estate plan.
Options are not often transferable except on the optionee's death and when they are transferable, care must be taken to address the peculiar attributes of these options. A stock option gives the option grantee for our purposes, the employee a legally enforceable right against the option grantor the employer to purchase stock at some time in the future at a specified price the "strike price". If the grantee, however, does not want to exercise the option and purchase or sell the property, the grantor has no legally enforceable right against the grantee to require the grantee to do so.
Options come in two basic flavors:. A call option gives the option grantee a legally enforceable right against the grantor to purchase property. If the property subject to the call option has a value greater than the option price plus whatever consideration the grantee paid for the option if any , the grantee typically will want to exercise the call option and purchase the property.
Not surprisingly, if the value of the property subject to the call option, however, is below the option price, the grantee generally will not exercise the option. A put option, on the other hand, gives the grantee a legally enforceable right against the grantor to sell the property. The desire to exercise a put option based on the fair market value of the underlying property is the opposite of call options.
If the property subject to the put option has a value less than the option price, the grantee will generally exercise the put option and sell the property. If the value of the property has a value greater than the option price, the grantee generally will not exercise the option. Nonstatutory options granted under employee stock purchase plans NQSOs, also referred to as nonqualified stock options. Under an ISO, the employer grants the employee an option to purchase stock at some time in the future at a specified price.
As the value of the stock increases relative to the option price, the employee has the potential to recognize the appreciation in the option stock's value over the option price with preferential tax consequences. The income tax consequences of ISOs are deceptively simple and could lull the employee into a false sense of security.
In general, the employee does not recognize taxable compensation income at the time the option is granted, becomes vested, or even exercised.
An employee who is subject to AMT in the year the ISO is exercised, however, may be entitled to a tax credit against the employee's regular income tax in some later year when not subject to AMT.
Thus, unless the employee incurs AMT, the employee has a taxable event only on the later sale or disposition of the option stock, using the original option strike price as the employee's basis for determining gain.
In addition, subject to the holding requirements discussed below, the employee recognizes long-term capital gain on such sale or disposition. For the ultimate sale of the stock to be treated as a sale of a long-term capital asset, 1 the employee must hold the stock for at least one year after the date the stock was transferred to the employee and 2 the disposition cannot be before two years after the date the option was granted. The grant of an ISO by the employer typically does not create any tax consequences for the employer because the employer does not receive a tax deduction when it grants the option or when the option is exercised by the employee.
Very strict rules must be complied with to qualify for the beneficial ISO tax treatment. For an option to qualify as an ISO, the recipient must be an employee of the granting corporation or a related corporation at all times beginning on the date of the option grant until three months from the date of exercise the three-month period is extended to 12 months if the employee stopped working because of a disability.
If an option recipient holds a stock option at his or her death, it can qualify as an ISO only if the recipient was employed by the granting corporation on the date of the recipient's death or within the three months immediately preceding the date of death.
If the employee was employed on the date of his or her death, there is no statutory requirement that the estate or heirs exercise the ISO within three months of the date of the employee's death.
Some of these requisites are:. As discussed above, an employee generally incurs favorable tax results when selling stock acquired through the exercise of an ISO unless the employee violates the one- or two-year rule. This is an especially important consideration for an estate planner to take into account to prevent the inadvertent--and usually avoidable--triggering of ordinary compensation income by implementing a plan that will not cause a disqualifying disposition.
In general, a "disposition" of ISO stock is defined as any sale, exchange, gift or transfer of legal title, subject to the following exceptions under Section c:.
An exchange of the ISO stock in a nonrecognition transaction, such as a tax-free reorganization or stock-for-stock exchange. A pledge or hypothecation of the ISO stock but if the stock is actually transferred to another pursuant to such pledge or hypothecation, the transfer is considered a disposition; therefore, ISO stock should not be used as security.
Any transfer of ISO stock between spouses or incident to a divorce and the spouse who receives the stock steps into the shoes of the original employee. The exercise of an option by an individual if such option is taken in the name of the individual and another person jointly with the right of survivorship, or is subsequently transferred into such joint ownership.
A change in joint owners, however, is considered a disposition. The transfer of ownership resulting from the death of one of the joint owners of the stock is not considered the transfer of ownership of the ISO stock. If the joint ownership is terminated other than on the death of one of the joint tenants, the termination of joint ownership is a disposition, except to the extent that the termination results in the employee reacquiring full ownership of the shares. A transfer of ISO stock by an insolvent individual to a trustee in bankruptcy, a receiver, or any other similar fiduciary in any proceeding under the Bankruptcy Code or any other similar insolvency proceeding.
Despite the laundry list of exceptions to the definition of "disposition," the estate planner must note that there are no exceptions for gifts of ISO stock. Thus, a gift of ISO stock triggers capital gain or potentially ordinary income if a disqualifying disposition occurs under Section a 1. This may make ISO stock unattractive for gifts from one generation to the next. Stock options that do not meet the requirements for ISOs are nonqualified stock options and are governed by Section They too include tax traps.
An option generally would have an RAMV only if either:. If the NQSO has an RAMV, the employee has ordinary income at the time of grant equal to the difference between the option's fair market value and any consideration the employee paid for the option. Therefore, they rarely cause the employee to incur an ordinary income tax liability at the time of grant.
Typically, the employee recognizes, as ordinary income, the difference between the strike price and the fair market value of the stock when the option is exercised. This result may be disadvantageous to an employee who desires immediate taxation of the option to ensure that any future appreciation will be taxed as a capital gain.
The employer is entitled to a deduction equal to the spread in the year the employee recognizes the income. If stock acquired through exercise of an option is subject to a substantial risk of forfeiture i. If the stock is not freely transferable because of securities law restrictions, taxation may be deferred until the restrictions lapse. Typically, employers impose restrictions to encourage employees to remain with the employer by offering significant benefits if the restrictions are satisfied.
Employees who hold restricted property such as restricted stock received through the exercise of an option have the ability to close the compensation element in a restricted property transaction at the time the property is transferred e.
The Section 83 b election is not available when the option is granted because an option is not a transfer of property. The Section 83 b election may be made on the exercise of an option to acquire stock that is subject to substantial risks of forfeiture.
If the Section 83 b election is made, the employee is required to recognize as ordinary income any difference on the date the property is transferred between the fair market value and the amount paid for the property. A "painless" election can be made to close the compensation element in a restricted property transaction, even if there is no difference between the fair market value and the amount paid for the property.
If on the date of exercise the fair market value of the stock is the amount paid for it pursuant to the exercise of the option, and the employee makes a Section 83 b election, the employee will not recognize any ordinary or capital gain income. Any realized gain on the ultimate sale of the stock will then receive capital gain treatment. If the stock is subject to any type of restriction, the estate planner should inform the client of the availability of the Section 83 b election if one can still be timely made.
On the date of grant, the option does not have an RAMV. Although NQSOs are likely to be subject to nontransferability restrictions before exercise, such restrictions are not required. In addition, the stock acquired through the exercise of the option does not have to be held for a specified period of time unlike the special one- and two-year rules for ISOs to preserve capital gain treatment on the spread at disposition.
Of course, the general more-than-one-year holding period requirement must be met for long-term capital gain treatment. Thus, the stock acquired through the exercise of an NQSO can also become the subject of a gift-giving program. The employee may then be able to transfer an NQSO to the employee's children or in trust for them when the gift tax value of the NQSO is substantially lower see "Valuation of options," below and, for a low gift tax transfer cost, remove substantial potential appreciation in the underlying stock from the employee's estate.
An employee who makes a gift of an NQSO does not shift the compensation income from the exercise of the NQSO to the transferee, even though it would be the transferee who ultimately exercises and gets the benefit of the NQSO. This liability, however, would reduce the employee's estate. In any event, the employee must recognize that he or she will bear this tax burden and, therefore, must plan for this "phantom income" on the exercise by the donee.
The income tax liability will also help to reduce the donor's estate. Until the issuance of Rev. One such issue was the effective date of an NQSO gift.
The time when the donee's right to exercise the option is no longer conditioned on the performance of services by the transferor. According to this Ruling, the rights the employee possesses in the NQSO do not acquire the character of enforceable property rights susceptible of transfer for federal gift tax purposes before the employee performs the required services.
Therefore, a completed gift of an NQSO can be made only after the employee has completed the additional required services making the right to exercise the option binding and enforceable. The Ruling further provides that if an option becomes exercisable in stages, each portion of the option that becomes exercisable at a different time is treated as a separate option for applying the completed gift analysis. The implication of Rev. Previously, it was believed that nonvested options could be given with a minimal value and thus enable the donor to shift all future growth to the donee without incurring substantial gift tax.
The IRS essentially closed this planning technique because the gift tax cost of transferring unvested options to family members would presumably increase as the value of the stock increases during the delay until the gift is deemed to be complete.
Thus, a valuation expert may have more difficulty justifying a lower valuation since less of an argument could be made with regard to the future value of the company's stock, volatility of the marketplace, or the level of interest rates. Therefore, from an estate-planning perspective, it may be impractical to use unvested stock options in a gift-giving program.
Retaining an experienced valuation expert is essential to support any type of gift-giving program, especially when the property being valued is a stock option. The valuation expert must ensure that the option pricing model takes into account, as of the valuation date, the following six factors:. An NQSO generally provides that the option will pass to the estate or heirs of the employee after the employee's death or any manner the employee and employer contractually agree on and that the transferee may exercise the option under terms similar to those governing exercise of the option by the employee.
The income taxation of the NQSO of a decedent ultimately depends on whether the option was taxed at grant, and whether the option is restricted property.
If the employee dies holding an option that was taxed at grant, the transferee would take the option with a basis equal to its fair market value on the date of the employee's death. Because the compensation income was taxed to the employee, no income in respect of a decedent IRD is inherent in the option.
If the transferee exercises the option, the stock received on exercise apparently must be held for the requisite long-term holding period before it is eligible for long-term capital gain treatment. If the employee dies holding an option that was not taxed at grant, the compensation element remains open. When the transferee engages in a transaction with respect to the option that would close the compensation element in the hands of the employee i.
The transferee is deemed to step into the employee's shoes for purposes of taxing the compensation income inherent in the option. Because IRD is inherent in the option, the option's basis in the transferee's hands is not stepped up to its date-of-death value. If the employee exercises an NQSO not taxed at grant and receives stock subject to transferability and substantial risk of forfeiture, absent a Section 83 b election, the compensation element in the transaction remains open until those restrictions lapse.More...