The IRS recently proposed new regulations under Section 409A to clarify certain aspects of the current regulations. Here is a quick summary of the most significant clarifications that apply to stock compensation.
Pre-Hire Stock Options
As my readers know, NQSOs are exempt from Section 409A if they meet certain conditions. Under the existing regs, however, it is unclear that NQSOs granted in advance of when an individual starts employment (or starts performing services, in the case of outside directors, consultants, and other nonemployees) can be exempt. The proposed regulations clarify that these options can also be exempt provided they meet the same conditions that apply to other NQSOs. (This issue doesn’t apply to ISOs because ISOs can’t be granted in advance of employment).
Delay of Payment Due to Legal Compliance
The proposed regs would permit a delay of a payment under the short-term deferral exemption, if the payment would violate the federal securities laws or other applicable laws. This could be helpful in the right set of circumstances (e.g., a restatement that causes a company to no longer be current in its public filings, causing the Form S-8 filed for the plan to no longer be effective). But, in my experience, the situations in which issuing stock under an equity plan would violate a law are few and far between. For instance, this would not allow a company to delay issuing shares until the end of a black-out if the short-term deferral period expired before the trading window is scheduled to open. While employees wouldn’t be able to sell the shares until the trading window opens, the issuance is not a violation of securities law. Even in a situation where the S-8 is no longer effective, there might be other exemptions the company could rely on to issue the shares.
Repurchase Rights
The amendments would clarify that stock options are exempt even if stock acquired under the option is subject to repurchase at less than FMV in the event the optionee is terminated for cause or breach of a restrictive covenant. Who knew? I had no idea there was even a concern about this.
Payments Upon Death
The proposed regulations would clarify that a payment will be treated as being made upon death, in satisfaction of Section 409A, if the payment is made no later than December 31 of the year following the calendar year of death. The proposed regs would also provide flexibility around making payments in the event of the death of a beneficiary who has become entitled to payments as a result of an employee’s death (i.e., a situation where an employee dies, the company begins making payments to the employee’s beneficiary, and then the beneficiary dies).
The IRS has announced an audit initiative focused on Section 409A compliance. Frankly, I’m a little surprised that they haven’t undertaken this sort of audit initiative sooner–I’ve heard from practitioners that, up until now, Section 409A has rarely been a focus of IRS audits. Given the complexity of this area of the tax code and the fact that every time I have a question about it, my sources never seem to be entirely sure of the answer (and I sometimes get conflicting answers), it seems like 409A could be an untapped wealth of compliance errors for the IRS.
Who Are the Lucky Winners?
Some companies are just lucky. The IRS has picked 50 companies to be the subject of the audits, all of which have already been selected for employment tax audits–I guess the IRS is a believer of “when it rains, it pours.” The good news is that if you haven’t already been selected for an employment tax audit, you won’t be part of the initial 409A audit initiative.
What Is the IRS Looking For?
The audits will focus on deferral elections (both initial deferrals and re-deferrals) and payments (including payments to key employees upon separation of service). It’s pretty rare that we see deferral elections for stock compensation; only 29% of respondents to the NASPP’s 2013 Domestic Stock Plan Design Survey (co-sponsored by Deloitte Consulting) allow deferrals for time-based RSUs and only 24% allow deferrals for performance awards. Based on this, it seems that the audits will concentrate primarily on more traditional NQDC plans, rather than stock compensation.
This seems like a missed opportunity for the IRS–I’ve always found the application of Section 409A to stock compensation to be particularly confounding and full of traps for the unwary. Moreover, I think this is an area of the tax code that often is overlooked when we are thinking about potential concerns related to stock awards. But perhaps the IRS will expand to stock compensation in the next phase of the audit initiative.
The Next Phase?
I say “next phase” because this could be a precursor to a larger, more intensive audit of Section 409A compliance. In a memo on the initiative, Groom Law Group says “The IRS will assess what further steps, if any, to take after the results of these audits are in.” Now is a good time to get out ahead of this and perform your own self-audit of 409A compliance. In his blog on CompensationStandards.com, Mike Melbinger of Winston & Strawn points out that there is a corrections program available for some operational errors under 409A, but that the corrections program is no longer an alternative once you are the subject of an audit.
The Chairman of the House Ways and Means Committee has released a discussion draft of proposed legislation that could dramatically change the tax treatment of stock compensation as we know it. Here is a summary of the proposals.
No More Deferrals of Compensation
The good news is that Section 409A would be eliminated; I still don’t fully understand that section of the tax code and maybe if I just wait things out a bit, I won’t have to. But the bad news is that it would no longer be permissible to defer taxation of stock compensation beyond vesting. Instead, all awards would be taxed when transferable or no longer subject to a substantial risk of forfeiture.
This would eliminate all elective deferral programs for RSUs and PSUs. The NASPP has data showing that those programs aren’t very common, so you probably don’t care so much about that. On the other hand, according to our data, about 50% of you are going to be very concerned about what this will do to your awards that provide for accelerated or continued vesting upon retirement. In addition to FICA, these awards would be subject to federal income tax when the award holder is eligible to retire. Say goodbye to your good friends the rule of administrative convenience and the lag method (and the FICA short-term deferral rule)–those rules are only available when the award hasn’t yet been subject to income tax. This could make acceleration/continuation of vesting for retirees something we all just fondly remember.
As drafted, this proposal would also apply to stock options, so that they too would be subject to tax upon vest (the draft doesn’t say anything about repealing Section 422, so I assume that ISOs would escape unscathed). But one practitioner who knows about these things expressed confidence that there would be some sort of exception carved out for stock options. I have to agree–I don’t have data to support this, but I strongly suspect that the US government gets a lot more tax revenue by taxing options when they are exercised, rather than at vest (and that someone is going to figure this out before the whole thing becomes law).
Section 162(m) Also Targeted
The proposal also calls for the elimination of the exception for performance-based compensation under Section 162(m). This means that both stock options and performance awards would no longer be exempt from the deduction limitation. At first you might think this is a relief because now you won’t have to understand Section 162(m) either. I hate to rain on your parade, but this is going to make the tax accounting and diluted EPS calculations significantly more complex for options and performance awards granted to the execs subject to this limitation.
And that’s a bummer, because the proposal says that once someone becomes subject to the 162(m) limitation, they will remain subject to it for the duration of their employment. Eventually, you could have significantly more than five execs that are subject to 162(m). That’s right–five execs. The proposal would make the CFO once again subject to 162(m), a change that’s probably long overdue.
And There’s More
The proposal would also change ordinary income tax rates, change how capital gains and dividends are taxed, and eliminate the dreaded AMT (making the CEP exam just a little bit easier). And those are just the changes that would impact stock compensation directly. There is a long list of other changes that will impact how you, your employees, and your employer are taxed. This memo by PwC has a great summary of the entire discussion draft. In addition, we are in the process of recording a podcast with Bill Dunn of PwC on the draft–look for it soon in the NASPP podcasts available on iTunes.
When Does This All Happen?
That’s a very good question. This proposal has a long ways to go on a road that is likely to be riddled with compromise. As far as I can tell, it hasn’t even been introduced yet as a bill in the House. It has to be passed by both the House and the Senate and then signed into law by the President. So I wouldn’t throw out those articles you’ve saved on Sections 409A and 162(m) and the AMT just yet. It’s hard to say what, if anything, will come of this.
Good news for CA taxpayers involved in violations of Section 409A: the state has reduced its penalty tax for these violations from 20% to 5%.
CA’s penalty is in addition to the federal penalties of a 20% tax plus interest at 1% higher than the penalty rate. With the combined federal and CA state penalties, an individual that is subject to the maximum federal and CA state marginal income tax rates of 39.6% and 10.3% respectively, could have incurred a cumulative tax liability as a result of a 409A violation that was close to, or possibly even more than, 100% (don’t forget that FICA would also apply to the income). So now CA taxpayers that end up subject to the 409A penalties are only paying an additional combined federal and state penalty tax of 25% (on top of the standard tax rates that apply to the income) instead of a combined 40% penalty (of course, at the maximum individual tax rates, that’s still potential a tax liability of around 80%).
The new CA penalty tax is effective retroactively to Jan 1 of this year. Here are a couple of alerts on the change: Skadden, Pillsbury, Cooley.
Blog Survey: 409A Compliance Failures Thinking about how draconian the taxes could be for a 409A compliance failure got me wondering whether anyone (other than that poor guy in Sutardja v. United States, see “409A in the Courts“) is actually paying these penalties . So I put together a quick survey.
A court (Sutardja v. United States) recently confirmed that discounted stock options are subject to Section 409A. You probably didn’t even know that there was any question about this. But I guess when someone is slapped with the penalty tax under 409A, they are willing to try just about any argument. It certainly would have been big news if the plaintiff had prevailed.
As it stands, you probably think it’s hardly news worth blogging about. That’s because you don’t write a blog. If you had to come up with something pithy and timely to say every week, you’d know that anything is on the table. Which brings us to today’s blog entry…
Don’t Do That!
First, there are a couple of important lessons here:
Lesson 1) If you are thinking of taking the IRS on with regards to whether stock options are subject to 409A, the fact that a court has now backed the IRS on this matter makes it a lot less likely that you’ll succeed. It might be better to just cut your losses and deal with those discounted stock options that you granted accidentally.
Lesson 2) This issue arose out of a backdating investigation. The option in question was approved by the company’s compensation committee at one meeting and then later, at a subsequent meeting, the compensation committee ratified their earlier decision. When the company later conducted an investigation of its grant procedures, it decided that the grant date was when the decision was ratified at the second meeting. The FMV of the stock was higher on this date than at the earlier meeting, but the option price had been set based on the earlier FMV. As a result, the investigation deemed the option to have been discounted.
I’m not sure why the comp committee would approve the grant at one meeting and then ratify the decision at a second meeting (perhaps there was something wrong with the initial approval). Don’t do that! Approve options just once.
What About the Corrections Program?
Another interesting point in this case is that when the company’s internal investigation concluded that the options were discounted, they required the executive to pay the amount of the discount back to the company. If you’re keeping score, that means this guy has been dinged twice. He’s paid the higher (non-discounted) exercise price for the stock yet has also paid the 409A 20% penalty tax plus interest.
But wait–isn’t there some sort of corrections program for discounted stock options? If the exec has made up the difference in the exercise price, why wouldn’t the option be exempt under the corrections program? Why yes, Virginia, there is a 409A corrections program for discounted stock options–I even blogged about it back in 2009 (“Recent 409A Developments,” Jan. 13, 2009). I think there are several reasons why this option doesn’t qualify for the corrections program, however:
The events in this drama unfolded from 2003 to 2006, long before the corrections program–announced in late 2008–existed.
To be eligible for correction, the option can’t have been exercised yet. The executive in this case didn’t pay the additional cost to make up for the discounted option price until after he had already exercised the option.
Options granted to Section 16 insiders have to be corrected by the end of the calendar year in which they are granted. The options in this case were granted in 2003 but not corrected until 2006.
The grant documentation has to indicate that the option was intended to have price equal to FMV. I have no idea if this is an issue in this case, but it’s a good thing to make sure is specified in your own grant documentation. If you are ever in a situation where you need to rely on the 409A corrections program, you’ll be glad you did.
At this point, the case is not yet resolved. While the judge did agree that discounted stock options are subject to 409A, this decision was a partial summary judgment (meaning the judge thought that the IRS’s case was so obviously right that it wasn’t necessary to go to trial over this issue–something else to keep in mind if you were thinking of taking the IRS on). But the remaining question, which is whether or not the option was actually discounted, remains to be decided.
Is This Up to a Jury?
Coincidentally, I just got a jury duty summons, which got me thinking: are these sorts of tax law questions decided by a jury of my peers? Nothing against my peers, but most of ’em (except, of course, for my colleagues in stock compensation) don’t know beans about stock compensation or tax law. So if that’s the case, that’s a little scary. Also, how come when I’m called for jury duty, it’s never for cases that involve stock compensation? I think I’d have a lot to add as a juror for a case like this. Heck, I could probably even count it as “work.” You know, research for the blog…
Since it is a holiday week, I have a couple of lighter topics for my blog entry.
Behind Every Half-Baked Law Is an Over-Sensationalized Cause In his May 21 Compensation Blog entry on CompensationStandards.com, Mike Melbinger of Winston & Strawn states “…nearly every bad law in the field is the result of Congressional or agency reaction (or overreaction) to some widely publicized occurrence.” To prove it, Mike created a game in which readers can match each half-baked law (Mike’s phrase) with its cause. So you can join in on the fun, I’ve reproduced it here. Match the law on the left with its cause on the right.
Law
Cause
1. 280G
A. Enron executives
2. 409A
B. Change in control payments made to Bill Agee of Bendix in 1982
3. AMT
C. 2007 World Financial Crisis (Wow, was it really that long ago? Shouldn’t my investments have recovered by now?)
4. Dodd-Frank Act
D. Enron, Worldcom, Anderson
5. SOX
E. Treasury Secretary Joseph Barr testifies that, in 1967, there were a total of 155 individuals with incomes over $200,000 who did not pay any federal income taxes; twenty of them were millionaires.
10 pts to anyone who gets all five right. Answers next week.
Deal Cube Wars I’m not quite sure what a deal cube is–I guess it is some sort of souped-up paperweight given to lawyers to commemorate a deal they worked on–but that hasn’t stopped me from enjoying the Deal Cube Tournament that Broc Romanek is running in his blog on TheCorporateCounsel.net. Check out the cubes (he’s gotten readers to send in pictures of over 130 of them) and vote for your favorites. Some of them are quite clever. Broc’s blog is available for both subscribers and nonsubscribers, so anyone can join in on the fun.
Don’t Miss Out: Conference Early-Bird Expires on Thursday The early-bird rate for the 20th Annual NASPP Conference expires this Thursday. You can see by the program that this is going our most informative Conferences ever. You’re going to want to be there, so make sure you register by Thursday to save on your registration.
NASPP “To Do” List We have so much going on here at the NASPP that it can be hard to keep track of it all, so we keep an ongoing “to do” list for you here in our blog.
Register for the 20th Annual NASPP Conference in New Orleans. Don’t wait, the early-bird rate is only available until this Thursday, May 31.
It was great to see everyone at the NASPP Conference last week. One session I look forward to every year at the Conference is “The IRS Speaks“–which I consider to be my chance to get the inside scoop on various IRS projects that impact stock compensation. For today’s blog, I have a few updates from this year’s panel, as well as some other recent tax news.
For highlights of the NASPP Conference, check out my blog entries on November 2 and November 4.
COLAs for 2012 The maximum amount of earnings subject to Social Security tax will increase to $110,100 in 2012 (up from $106,800 this year) (those of you that follow the NASPP on Facebook and Twitter already know this). The tax rate is also scheduled to return to 6.2% (up from 4.2% this year), making the maximum withholding $6,826.20 for 2012 (see the NASPP alert). But stay tuned on this one; President Obama has proposed reducing Social Security tax for 2012.
Also, if any of you exclude highly compensated employees from your ESPP, note that the threshold for who is considered highly compensated increases to $115,000 in 2012.
BTW–COLAs stands for “cost of living adjustments.”
Updates from “The IRS Speaks“ Here are areas where the IRS hopes to issue guidance in the next year or so:
409A income inclusion rules. Note however, that this doesn’t include Code Y reporting. That isn’t likely to happen until some time after the 409A income inclusion rules are finalized.
Finalizing the proposed regs that were issued earlier this year under Section 162(m).
The treatment of dividends and dividend equivalents under Section 162(m).
A model election under Section 83(b) that includes examples illustrating the tax consequences of making (or not making) the election. (Fascinating–I had no idea the IRS even thought there was a need for this.)
Guidance on Section 162(m)(6), which relates to the deduction limit that applies to health insurance providers.
Something about foreign pension plans under Section 402(b) (I have no idea what this is–sorry, when I hear the words “foreign pension plans,” I tune out).
The panel also covered a number of issues relating to Section 6039 returns for ISOs and ESPPs. I don’t have time to cover them all today, but maybe in a future blog.
In terms of cost-basis reporting, the panel did say that the IRS is considering adding a checkbox to Form 1099-B that would indicate whether the reported cost basis includes W-2 income recognized in connection with the shares. We think this brilliant suggestion from Andrew Schwartz of BNY Mellon Shareowner Services would be a big help in explaining the form to employees, but if the IRS makes this change, it won’t be until the 2012 form comes out.
NASPP “To Do” List We have so much going on here at the NASPP that it can be hard to keep track of it all, so I keep an ongoing “to do” list for you here in my blog.
This week I discuss a hodge podge of tax related updates: IRS Notice 2010-80, Code Y reporting, and the Social Security wage base for 2011.
IRS Expands 409A Documentation Corrections Program to Include Stock Rights Early this year, when the IRS issued Notice 2010-6, I got a much appreciated reprieve from having to understand it because it handily didn’t apply to stock rights. (Well, handily for me at least; others may not have been so thrilled with this outcome.) Alas, my reprieve lasted less than a year; last week the IRS issued Notice 2010-80, expanding Notice 2010-6 to cover stock rights.
I’m surprised at this development because I wasn’t aware that very many, if any, companies needed this relief. I thought that, by now, companies had pretty much dealt with 409A in terms of their stock plans. If companies are in need of this relief, however, it may be necessary to take action by December 31, 2010–which is coming up quick; you’d think the IRS could have provided a little more time on this.
Luckily, I’m not sure that many companies are in need of this relief. It applies only to options that were not intended to be exempt from Section 409A. In my experience, this is pretty rare. So long as options are granted with a price equal to FMV at grant, it’s relatively easy to ensure that they are exempt. Where a company inadvertently grants a discounted option, assuming the option was intended to be exempt from 409A, it isn’t eligible for correction under Notice 2010-80 (however, it may be eligible for correction under IRS Notice 2008-113, which provides relief for operational errors).
I don’t know any companies that are granting options that aren’t intended to be exempt under 409A. Even where companies had pre-409A grants that weren’t exempt, I think the typical fix was to modify the options to be exempt, rather than to try to comply with 409A. So the bad news is that this relief probably isn’t that helpful for most of you but I guess the silver lining is that you probably don’t need to scramble to understand it by December 31.
Thanks to Art Meyers of Choate Hall & Stewart and Mike Melbinger of Winston & Strawn for helping me with my rudimentary understanding of Notice 2010-80.
Code Y While we’re on the topic of 409A, I thought I’d mention that Code Y reporting still hasn’t gone into effect. You will recall–or maybe you won’t, it’s been so long since 409A was enacted–that 409A requires companies to report amounts subject to deferral in Box 12 of Form W-2 using Code Y. IRS Notice 2008-115 suspended this requirement until Treasury can issue regulations on it. So far no regulations have been issued so chances are you won’t have to worry about Code Y for this year (but, then again, there are still 23 shopping days left until December 31, so I suppose the IRS could still come through with a late December Code Y surprise).
Thanks to Mike Melbinger of Winston & Strawn for confirming that there wasn’t some announcement about Code Y that I had missed.
Social Security Wage Base Pursuant to a Social Security Administration press release issued on October 15, the maximum amount of wages subject to Social Security is not increasing for 2011–it will remain at $106,800 for another year. See the NASPP alert on this announcement for more information.
Vote for Broc and Dave! Broc Romanek and David Lynn’s blog on TheCorporateCounsel.net was selected by the ABA Journal as one of the Top 100 Legal Blawgs. Readers can vote on their favorite blogs and we want Broc and Dave to win (they won last year), so we’re asking our readers to vote. I know you all would vote for the NASPP Blog if you could, but we don’t count as a legal blog, so this is as close as you’ll come to voting for us. Come on, don’t make me beg!
Anyone can vote, you don’t have to be a member of the ABA. If you read and enjoy Broc and Dave’s blog–or even if you don’t–I hope you’ll vote for it. BTW–if you have multiple email addresses, you can register and vote under each one. See Broc’s December 6 blog entry for instructions on voting.
If you’ve never checked out the blog; it’s definitely worth a read. Unlike the lazy folks here at NASPP Blog, Broc and Dave manage to post an entry every day. And it’s free to anyone, whether you subscribe to TheCorporateCounsel.net or not. At a minimum, someone in your legal department should be reading it.
Less Than One Month Left to Get your Free Conference Session Audio All NASPP memberships expire on a calendar-year basis. Renew your membership by Dec 31 and you’ll qualify to receive the audio for one NASPP Conference session for free! Don’t wait any longer–the new year will be here before you know it!
This offer is also available to anyone the joins the NASPP before December 31–tell all your friends!
NASPP “To Do” List We have so much going on here at the NASPP that it can be hard to keep track of it all, so I keep an ongoing “to do” list for you here in my blog.
Renew your NASPP membership for 2011 (if you aren’t an NASPP member, join today). Renew or join by Dec 31 to qualify to receive the audio of one NASPP Conference session for free.