The NASPP Blog

Last week, I covered the basic rules that apply for tax purposes when options are exercised or awards pay out after an individual has changed status from employee to non-employee or vice versa.  Today I discuss a few more questions related to employment status changes.

Is it necessary that the consulting services be substantive?

When employees change to consultant status an important consideration is whether the consulting services are truly substantive.  Sometimes the “consulting services” former employees are providing are a little (or a lot) loosey goosey (to use a technical term). For example, sometimes employees are allowed to continue vesting in exchange for simply being available to answer questions or for not working for a competitor.  It this case, it’s questionable whether the award is truly payment for consulting services.

A few questions to ask to assess the nature of the consulting services former employees are performing include whether the former employee has any actual deliverables, who is monitoring the former employee’s performance and how will this be tracked, and will the award be forfeited if the services are not performed.

If the services aren’t substantive, it’s likely that all of the compensation paid under the award would be attributable to services performed as an employee (even if vesting continues after the employee’s termination) and subject to withholding/Form W-2 reporting.

Is the treatment different for an executive who becomes a non-employee director?

Nope. The same basic rules that I discussed last week still apply. The only difference is that I think it’s safe to presume that the services performed as an outside director will be substantive (unless the director position is merely ceremonial).

What about an outside director who is hired on as an executive?

The same basic rules still apply, except in reverse.  For options and awards that fully vested while the individual was an outside director, you would not need to withhold taxes and you would report the income on Form 1099-MISC, even if the option/award is settled after the individual’s hire date.

For options and awards granted prior to the individual’s hire date but that vest afterwards, you’d use the same income allocation method that I described last week. As I noted, there are several reasonable approaches to this allocation; make sure the approach you use is consistent with what you would do for an employee changing to consultant status.

What about a situation where we hire one of our consultants?

This often doesn’t come up in that situation, because a lot of companies don’t grant options or awards to consultants. But if the consultant had been granted an option or award, this would be handled in the same manner as an outside director that is hired (see the prior question).

What if several years have elapsed since the individual was an employee?

Still the same; the rules don’t change regardless of how much time has elapsed since the individual was an employee.  The IRS doesn’t care how long it takes you to pay former employees; if the payment is for services they performed as employees, it is subject to withholding and has to be reported on a Form W-2.

So even if several years have elapsed since the change in status, you still have to assess how much of the option/award payout is attributable to services performed as an employee and withhold/report appropriately.

What if the individual is subject to tax outside the United States?

This is a question for your global stock plan advisors. The tax laws outside the United States that apply to non-employees can be very different than the laws that apply in the United States. Moreover, they can vary from country to country.  Hopefully the change in status doesn’t also involve a change in tax jurisdiction; that situation is complexity squared.

Finally, When In Doubt

If you aren’t sure of the correct treatment, the conservative approach (in the United States—I really can’t address the non-US tax considerations) is probably going to be to treat the income as compensation for services performed as an employee (in other words, to withhold taxes and report it on Form W-2).

What is the US tax reg cite for all of this?

My understanding is that none of this is actually specified in the tax regs—not even the basic rules I reviewed last week.  This is a practice that has developed over time based on what seems like a reasonable approach.

– Barbara