The NASPP Blog

It feels like I did nothing last week but talk about whether stock options would be taxed at vest. The tax reforms bills proposed by the House and Senate are much broader than you might think based on last week’s blog entries. Today I look at some of the other provisions in the bills that could have at least an indirect impact on stock compensation.

Supplemental Withholding Rate

The bills don’t expressly change the supplemental withholding rate but they could have an impact on it. Currently, the optional flat rate for supplemental payments of less than $1 million per year is tied to the third lowest tax marginal income tax rate. Under the House’s proposal, which has only four income tax brackets, this rate will be 35% (for single filers, this is the rate that applies to the $200,000-$500,000 income tax bracket). Under the Senate’s proposal, which has seven income tax brackets, this will be 22.5% (for single filers, the $38,700-$60,000 income tax bracket). The 25% rate under current law is the rate that applies to the $77,400-$156,150 bracket (for single filers).

The difference in tax rates and brackets is clearly one of the most significant areas of the two bills that will have to be reconciled. As you can see, the bills will produce very different results when it comes to withholding on supplemental payments: the rate under the House bill is likely to result in overwithholding for many employees, while the rate under Senate bill will result in underwithholding on supplemental payments paid to executives and other highly paid employees (intensifying the pressure for companies to allow excess withholding on equity awards). It’s also possible that both bills could be amended to address what rate should apply to supplemental payments.

There isn’t currently anything in either bill that would eliminate the requirement to withhold at the maximum individual rate for individuals who have received supplemental payments in excess of $1 million during a year. Under the House bill, the maximum individual rate would remain 39.6%, but under the Senate bill, it would drop to 38.5%.

AMT

Both bills would repeal the AMT, which makes ISOs a little less complex. I’m not sure this is enough, by itself, to trigger a resurgence of ISOs. But in combination with a significantly reduced corporate rate and the fact that ASU 2016-09 has already equalized ISOs and NQSOs for diluted EPS purpose, maybe this would be enough to at least trigger some renewed interest in ISOs.

Long-Term Capital Gains

Both proposals generally keep the long-term capital gains rates the same. But to the extent that ordinary income rates (and, by extension, short-term capital gains, since short-term capital gains are generally taxed at ordinary income tax rates) are lower, employees may be less inclined to hold stock acquired under equity compensation vehicles.

Estate Taxes

Both bills increase the threshold at which the estate tax applies to $10 million (currently the threshold is about $5.5 million).  The House bill would also repeal the estate tax after six years. If the estate tax is repealed, there would be no reason to transfer stock options prior to death for estate planning purposes; with the threshold increased, fewer employees would need to worry about this.

– Barbara