The conference committee charged with aligning the Senate and House versions of the Tax Cuts and Jobs Act announced late last week that they have come to an agreement. The final bill is expected to be approved in both the House and Senate this week and then signed into law by the president.
Here’s where the bill ended up with respect to the provisions that impact stock compensation.
Individual Tax Rates: The final version of the bill released by the conference committee largely matches what was in the Senate version, except that the maximum individual tax rate is reduced to 37%. So we end up with seven individual tax rates: 10%, 12%, 22%, 24%, 32%, 35%, and 37%. The highest rate kicks in at $500,000 of income for single taxpayers but at only $600,000 for joint filers (instead of the $1 million threshold that was originally proposed). The individual tax rates sunset after 2025 and will revert back to the current rates at that time.
Supplemental Withholding Rate: For employees who have received supplemental payments of $1 million or less during the year, the supplemental rate is tied to the third lowest individual tax rate, which will be 22% under the aligned bill. For employees who have received supplemental payments of more than $1 million during the year, the rate is tied to the maximum individual tax rate, which will be 37%.
AMT (for Individuals): This is probably the closest we’ve come to a repeal of the AMT (at least in my memory) but still no cigar. The bill does increase the exemption amounts and phaseout thresholds, so fewer taxpayers will be subject to the AMT. These changes sunset after 2025.
Corporate Tax Rate: Reduced to 21% with no sunset.
Estate Tax: Increases the estate tax threshold to about $11 million; no repeal and no sunset.
Section 162(m):
The CFO is once again subject to 162(m).
Anyone serving as CEO or CFO during the year is also subject to 162(m) (instead of just the individuals serving in those roles at the end of the year).
Once a covered employee for a company, always a covered employee for that company.
Stock options and performance awards will no longer be exempt from the deduction limitation.
Includes an exemption for compensation paid pursuant to a written, binding contract (such as a stock option or award agreement) in effect as of November 2, 2017, if not modified after that date.
Qualified Equity Grants: The final bill includes a provision that would allow employees in privately held companies to elect to defer tax on stock options and RSUs until five years after the arrangements vest, provided certain conditions are met.
Stock Options and RSUs: No change to the current tax treatment of stock options, SARs, or RSUs. The provision that would have taxed these arrangements at vest was removed from both versions of the bill before it was passed by House and Senate.
Determination of Cost Basis: No change from current law. The Senate version of the bill would have required identification of securities sold to be on a FIFO basis but this is not included in the final bill.
The proposed tax reform bill is the gift that keeps on giving in terms of blog entries. Emily Cervino of Fidelity pointed out this gem to me: the Senate version of the bill would no longer permit investors to identify which lot of securities they are selling if they have securities in their account that have different bases for tax purposes.
What the Heck?
Say an investor makes the following purchases of stock in a single company:
100 shares at $10 per share on January 10
100 shares at $15 per share on March 15
Next, assume the investor chooses to sell 100 shares in April at $17 per share. Under current tax law, the investor could decide which of the two “lots” to sell. In this example, the obvious choice would be the shares purchased at $15; this would minimize the capital gain on the sale, making it more profitable on a post-tax basis.
Under the proposed rules in the Senate version of the Tax Cuts and Jobs Act, investors would be required to sell shares held in a single brokerage account on a first in, first out (FIFO) basis. In my example, the investor would be required to sell the shares acquired at $10 per share first, which would increase her capital gain.
Couldn’t Investors Just Transfer the Shares to Another Account Before Selling Them?
Andrew Schwartz of Computershare pointed out to me that there’s a big loophole to the proposed rules: if the investor in my example is savvy, she’ll quickly figure out that all she needs to do is transfer the shares she bought at $15 to a different brokerage account (in which she doesn’t hold any other shares of the company’s stock) and sell the shares from that account. Problem solved.
What About Stock Compensation?
That solution works great for stock purchased on the open market but it doesn’t work so well for stock acquired under stock compensation programs.
The new law is written very broadly and appears to also apply to sales executed in connection with same-day-sale or sell-to-cover transactions. Currently, there’s little to no capital gain or loss on these transactions because the sale price is very close to the basis of the stock being sold. But if employees already hold company stock in their plan accounts and we have to assume that the shares being sold are the shares acquired earliest, this would no longer be the case, potentially making both of these transactions significantly more expensive for employees.
In the case of ISOs and ESPPs, companies don’t want employees to transfer the shares to another brokerage account (and sometimes even prohibit employees from doing so), because this makes it significantly harder to track dispositions. But if employees hold shares acquired under ISOs or ESPPs in their plan account, same-day-sale or sell-to-cover transactions might inadvertently force a disposition of the qualified shares.
Finally, for those of you who handle Section 16 reporting, the last thing you want is for insiders to open additional brokerage accounts to manage their sales. Keeping tabs on insider transactions is hard enough as it is.
When Does This Apply?
It doesn’t—yet. The bill hasn’t yet been passed by the Senate and this provision isn’t in the House version of the bill, so there is hope that, just like the rules requiring options to be taxed at vest, it will be removed from the bill before the Senate votes on it. If it isn’t removed before the vote and the bill passes, there’s still a chance it could be removed during the reconciliation process for the two bills. But if it is enacted into law, it will be effective for sales starting next year.
Our first discussion of cost-basis reporting was posted back in 2009, yet, here we are, still talking about it half a decade later.
Why Am I Still Blathering On About This?
This is still a topic for discussion because the rules have changed again this year. For any shares acquired on or after January 1, 2014, brokers are no longer allowed to voluntarily include the compensation income recognized in connection with the option or award under which the stock was acquired in the cost basis reported on the Form 1099-B issued for the sale. This means that for any shares employees acquired under their options and awards this year, the cost basis reported on Form 1099-B is likely to be too low. Employees will have to report an adjustment on Form 8949 when they file their tax return to correct their capital gain/loss for the underreported basis.
Let’s Review
When you sell stock, your cost basis in the stock is subtracted from your net sale proceeds to determine what your capital gain or loss is. For shares acquired under stock awards, your cost basis is the amount you paid for the stock, plus any compensation income recognized in connection with the acquisition (in the case of NQSOs and restricted/units) or disposition (in the case of ISOs and ESPPs) of the stock.
Brokers have been required to report a cost basis on Form 1099-B since 2011. Previously, brokers were allowed to voluntarily include the compensation income recognized in connection with the award in the reported cost basis. This was good because it meant that sometimes the basis reported on Form 1099-B was correct, making it easy in those instances for employees to report their sales on Schedule D and calculate the correct capital gain/loss. But it was also bad because there was no way to tell, when looking at Form 1099-B, whether the reported basis included the compensation income or not. The end result was a lot of confusion and possibly a lot of over-reported capital gains.
Where Are We Now
You might think the IRS would fix this problem by making brokers indicate whether the basis reported on Form 1099-B includes the compensation income. But you would be wrong. Instead, the IRS decided that the basis reported on Form 1099-B should only be the purchase price. This way everyone knows what basis is reported on Form 1099-B. It’s the wrong basis in most cases, but at least we know what it is. That’s a step in the right direction, I guess.
To make things more confusing, for shares acquired before January 1, 2014, brokers can still voluntarily include the compensation income in the basis reported on Form 1099-B (and still can’t indicate on the form if they’ve done this). And, for option grants, brokers can treat the grant date as the acquisition date. I think that most brokers are planning to apply the new rules to everything, regardless of when the shares were acquired/option was granted, but you should check with your brokers to verify what they are doing.
What This Means for Employers
Forms 1099-B will be issued around mid-February. You should plan on distributing some educational material to employees to explain this. The NASPP webcast “The New Forms 1099-B Are Coming! Are You Ready?” will provide more information on the topic. In addition, we’ve updated all the sample forms, flow charts, and FAQs in our Cost-Basis Reporting Portal for the new rules and the 2014 forms. New this year, we’ve added Cost Basis Cheat Sheets, featuring flow charts explaining how to calculate the adjusted cost basis for most types of stock awards.
I feel like I’ve been blogging about proposed and final cost-basis reporting regs for Form 1099-B for three years now. Wait, I have been blogging about this topic for that long–my first entry was on June 2, 2010 (“Cost-Basis Reporting: Complicating an Already Confusing Topic“). Over that period, we’ve seen several iterations of regulations–this was, after all, a three-phase project for the IRS. But we’re now at the end of phase three and the final set of final regulations have been issued.
Not the News You Were Hoping For
As my readers know (because you’re all so smart and also I’ve blogged on this to the point where you probably wish I’d just shut up about it), the cost basis of shares acquired under stock compensation arrangements includes two components: 1) the amount paid for the stock and 2) any compensation income recognized in connection with the arrangement.
Under the first set of regs that were released in 2010, brokers were temporarily relieved (until 2013) of the obligation to include #2 (the compensation income component) in the cost-basis reported on Form 1099-B. Brokers could, however, voluntary report the correct basis if they were able to (and, to my knowledge, several brokers did this). Then, in 2012, the IRS issued proposed regs that indefinitely extended this relief beyond 2013. In the final regs, not only is this relief made permanent but brokers are prohibited from even voluntarily including the compensation income in the basis.
Thus, for sales of any shares acquired under stock compensation arrangements after January 1, 2014, brokers are required to report only the amount paid for the stock as the cost basis on Form 1099-B. This basis will almost always be wrong (twenty points if you know the two circumstances for which it is the correct basis). Employees will then have to adjust the gain on Form 8949 when they file their tax return to avoid overpaying tax on their sales.
By prohibiting brokers from voluntarily reporting the correct basis, the IRS was hoping to achieve consistency on Form 1099-B. And, having written all the various iterations of flow charts for reporting sales that we have available in our Cost-Basis Reporting Portal, I have to say that I think consistency will be helpful. But I kinda wish the IRS had gone for consistency in the other direction–i.e., requiring brokers to report the correct basis, rather than an incorrect basis.
A Silver Lining
One bit of good news in the regs is that, beginning in 2014, brokers will be required to report sale proceeds net of fees on Form 1099-B. This small change will eliminate about two-thirds of the flow charts in the Cost-Basis Reporting Portal so I expect it also make your educational materials a little simpler as well.
As my readers know, cost-basis reporting went into effect last year for Forms 1099-B. This resulted in a number of changes to Form 1099-B, introduced Form 8949 to the stock plan administration lexicon, and created a whole new “opportunity” for employee education.
If you were thinking we were done with this topic–think again! This year, the IRS has further revised Form 1099-B and also changed Form 8949–finally issuing instructions to the new Form 8949 just last week. Any educational materials you may have created last year will likely need to be updated. The examples, FAQs, and flow charts in the NASPP’s Cost Basis Portal have all been updated for the new forms and instructions (now you know what I did this weekend).
New boxes 1d and 1e report the stock symbol and number of shares sold. There is still a description box (now box 8, formerly box 9 in 2011) where this information also appears.
Former box 2 (sales price) is now box 2a. This makes room for new box 2b, which has something to do with losses that are disallowed for reasons I don’t understand. Something about acquisitions/changes in corporate structure and foreign corporations–I’m pretty sure it doesn’t have anything to with stock compensation.
Former box 8 (short- or long-term gain) is now box 1c.
Box 6 now has two checkboxes: a) for noncovered securities, and b) indicates that the basis was reported to the IRS. Presumably the IRS can figure out whether or not the basis was reported to them, so I assume that box 6b is there to confirm for employees (and their tax preparers) that the basis was (or was not) reported to the IRS (e.g., if the broker reported the basis on the substitute Form 1099-B issued to the employee but didn’t report the basis to the IRS, box 6b would not be checked).
A bunch of other boxes that I don’t care about were renumbered.
Former column (b) (adjustment code) is now column (f). This also means that former columns (c) through (f) have all shifted to the left and are now columns (b) through (e). I guess it makes sense to have the adjustment code next to the adjustment column, but I do kinda wish the IRS had thought of this when they first created the form–it took a long time to update all the column references.
New column (h) now shows the taxpayer’s gain or loss for each transaction. Last year, gains/losses were only shown in aggregate on Schedule D.
Where the cost basis is reported to the IRS, new code “E” is entered in column (f) when the transaction fees are not reflected in either the sale proceeds or the cost basis reported on Form 1099-B (an adjustment in the amount of the fees is also entered in column (g)).
If the employee’s copy of Form 1099-B (or substitute) reports an incorrect basis and that basis was not reported to the IRS (indicated in new box 6b of Form 1099-B), the employee should report the correct basis in column (e) of Form 8949 but should also report code “B” in column (f), even though no adjustment will be entered in column (g). I’m not sure why the IRS wants taxpayers to enter an adjustment code when there’s no adjustment. It’s the IRS; go figure…
If multiple codes are entered in column (f), they should not be separated by a space or comma. Last year, they were supposed to be separated by a space or comma. Seriously? Ok, now it seems like the IRS is just changing things to change them–that’s just rude.
Some Things You Can Still Count On
The good news is that there have been no changes to Forms 3921 and 3922 (or maybe that’s bad news if there’s something you were hoping the IRS would change about them). Also, tax preference income for ISO exercises is still reported on line 14 of Form 6251 (for all I know, the whole rest of Form 6251 has changed, but at least line 14 is still the same). I feel a little better now.
A Great Resource for Employees
A shout-out to Bruce Brumberg of myStockOptions.com for letting me know that the IRS had issued new instructions to Form 8949 and for giving me a quick run-down of the changes. If your employees have questions about the tax treatment of their stock compensation, myStockOptions.com is a great resource for them. The myStockOptions Tax Center has oodles of resources on reporting stock plan transactions on tax returns, even a free video on this topic.
Back in November, the IRS proposed additional regulations on cost-basis reporting. These regulations primarily relate to the third phase of implementation of the reporting requirements, which applies to options and debt securities. But there are a few areas in the regulations that are of interest to stock plan professionals.
You Win Some: Sale Proceeds to Be Reported Net of Fees
It will come as a relief to anyone that has reviewed any of my cost-basis reporting flow charts to know that the regulations would require all brokers to deduct the transaction fees from the sale proceeds reported on Form 1099-B. In my humble opinion, this is a requirement that is long overdue. The fees are usually a small amount, sometimes immaterial, but trying to explain how they are included in the tax return when the broker doesn’t deduct them from the sale proceeds (or worse, when you don’t know whether the broker has deducted them) is almost an insurmountable challenge. If the IRS adopts these regulations and requires all brokers to report the sale price net of fees, I’ll be able to reduce my 6039 flow charts from 14 pages down to a mere five pages.
You Lose Some (or The More Things Change, the More They Stay the Same)
Readers of prior NASPP blog entries (see “Four Questions to Ask Your Brokers,” Nov. 30, 2010) know that the current regulations, which have been in effect since January 1, 2011, allow brokers to exclude the compensation component from the reported cost basis until 2013 for shares acquired under stock compensation arrangements. The newly proposed regs not only retain this exclusion but remove the limitation that it is only available until 2013. Thus, it doesn’t look like brokers will be required to report the full basis of shares acquired under stock compensation arrangements for the foreseeable future. I guess the silver lining here is that now you will get more than two years of use out of all those great educational materials you’ve been creating to explain this to your employees.
The regulations state that the IRS is contemplating requiring brokers to indicate whether the shares sold were acquired under a compensatory arrangement on the Form 1099-B (and in transfer statements). Frankly, I’m not really sure this helps much. For most employees, even executives, the only stock of their employer that they own was acquired through compensatory arrangements. When they sell their employer’s stock, I think they probably already know that the stock was acquired through a compensatory arrangement.
The proposed regs also state that the IRS will update the instructions to Schedule D and Form 8949 to clarify that the basis for shares acquired under compensatory arrangements may be incorrect. I have to admit that I’m not confident this is going to help much, especially given how clear the instructions included with Forms 3921 and 3922 are.
I will be hauling my cost-basis reporting soapbox to the February Silicon Valley and Sacramento chapter meetings, where Larry Reynolds of E*TRADE and I will provide a just-in-time overview of cost basis and the new Forms 1099-B. I hope to see you there!
Get in the Game If you haven’t been playing the NASPP Question of the Week Challenge, now is a great time to join the game. A new challenge just started and you have until Feb 3 to answer all the questions posted in January (after that, you only have a week to answer each question). All the cool kids are doing it–sign up today.
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.
With the new Forms 1099-B that will be issued for the first time next year, the process for reporting sales of stock on Schedule D has changed significantly. In today’s blog, I take a look at the new procedures.
But First, New Form 8949
The biggest change to the process is that taxpayers now have to report every sale of stock on Form 8949, which was introduced for the first time this year. The instructions to the form will be included in the instructions to Schedule D, which were not available as of one minute ago, when I started writing this blog entry. Luckily, however, Andrew Schwartz of BNY Mellon Shareowners Services managed to snag a draft of the instructions from the IRS and generously provided it to me. I also had the benefit of listening to Andrew explain how Form 8949 is used when we presented on cost-basis reporting at the NASPP Conference (you can enjoy this benefit as well by purchasing the audio from our session).
Form 8949 will include information that used to be reported on Schedule D, including the description of the property that was sold (column a), the date acquired (column c), and the date sold (column d). It will also include information that will still be reported on Schedule D, including the sales price (column e on both forms), cost basis (column f), and any adjustments to the gain or loss (column g). Finally, it includes a code that explains the reason for the adjustment to the gain or loss (column b).
When reporting sales of stock, employees will report the cost basis as reported on Form 1099-B in column f. If this basis isn’t correct (see the Nov 18, 2010 blog entry “Pave the Way for Cost Basis Reporting Now“), then employees will report code B in column b and will report an adjustment in column g. If there is no basis reported on the Form 1099-B, then employees will report the correct basis in column f, but won’t report anything in column b (code) or column g (adjustments).
Multiple Forms 8949
Employees will fill out separate Forms 8949 for the following transactions:
Sales for which a basis is reported on Form 1099-B
Sales for which a basis is NOT reported on Form 1099-B
Sales for which a 1099-B is not issued (e.g., if your broker relies on Rev. Proc. 2002-50 to not issue a Form 1099-B for same-day sales).
Form 8949 has two parts, one for short-term capital gains and one for long-term gains, so employees could have to include up to six of these forms with their tax return.
What About Schedule D?
Rather than reporting each individual sale on Schedule D, this form is now just an aggregate of the individual transactions reported on Form 8949. This is where employees will subtract their cost basis and any adjustments from their sale price to determine their actual gain, which is reported in column h.
Things Could Change
Note that today’s blog entry is based on a draft of the instructions. I don’t expect any significant changes in the final instructions, but you just never know with the IRS.
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.
Since cost-basis data won’t show up on Forms 1099-B until January 2012, this probably seems like something you don’t need to worry about right now. But the data you are transmitting to your brokers beginning this January could impact what is reported on Forms 1099-B next year. In light of this, I have four questions you should ask your brokers now about their plans for compliance with the cost-basis reporting requirements.
1. What is the broker planning to report as the cost-basis for shares acquired pursuant to NQSOs? Brokers are only required to report the purchase price as the cost basis but can voluntarily report the full cost basis. More importantly, are your brokers looking to you to provide the cost basis? If so, perhaps you can avoid some of the mess (and potential for employees to double tax themselves) that Rachel Murillo describes in her Nov. 18 blog entry “Paving the Way for Cost-Basis Reporting Now,” by providing the full cost-basis (price + income recognized), so that the correct basis is reported on Forms 1099-B in 2012. This could be a life-saver for your employees in terms of getting their tax returns correct and for you (and your broker) in terms of the amount of employee education necessary and inquiries that have to be fielded.
2. Ditto for shares issued under restricted stock units and awards. These are considered non-covered securities, so brokers don’t have to report any cost-basis data for them at all, but as with NQSOs, brokers can voluntarily report. Having that data on Form 1099-B could be a big help for employees–if it is correct, of course. If you provide your brokers with the correct cost basis for shares issued under awards, will they report it on Form 1099-B for your employees?
3. Ditto for shares acquired under ISOs and ESPPs. Here, however, things are more complicated because employees often recognize ordinary income at the time of sale, resulting in a stepped up basis that isn’t known until the sale occurs. In some cases, it is literally impossible for you to pass the correct basis to your brokers at the time the shares are acquired. But, in other cases, you might be able to make an educated guess. What makes the most sense to pass as the cost basis? For ESPPs, the FMV at purchase would be the right basis if employees engage in disqualifying dispositions but will be wrong for qualifying dispositions. But, the purchase price is almost always wrong, for both qualifying and disqualifying dispositions (the only time it is the correct basis is for qualifying dispositions where the shares are sold at a loss). For ISOs, FMV at exercise will be the right basis for disqualifying dispositions only if the shares are sold at a price higher than this amount. For qualifying dispositions of ISOs, the exercise price is the correct basis. Where does this leave you in terms of the data you pass to your brokers–now would be a good time to ask, before you start transmitting all this data.
4. How should you transmit this data to your brokers? I understand from the recent Stock & Option Solutions webcast, “Cost Basis Confusion: What Do the New Regulations Mean for Stock Plan Professionals?,” presented by Elizabeth Dodge of SOS and Andrew Schwartz of BNY Mellon Shareowner Services, that issuers may be able to use the DTCC’s Cost Basis Reporting Service (CBRS) to transmit cost-basis data for shares acquired through stock plans. Do your brokers want you to use this service and, if yes, how will you get training on it? If no, what method will you use to transmit this data to them?
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