The IRS and the Social Security Administration have announced the COLAs for next year. That’s COLAs as in “cost of living adjustments” (in case you were wondering what the IRS and SSA have to do with soda pop).
A Quiet Year
Some years are quieter than others when it comes to tax-related changes. At this time last year we were looking at changes to FIT withholding rates, FICA withholding rates, a new Social Security wage cap, new Medicare taxes, a threshold increase relating to highly compensated employees, plus last minute tax legislation at the start of the year to restore some FIT withholding rates to 2012 levels. I count at least seven NASPP Blog entries on the tax rate changes that went into effect (and didn’t go into effect after all) at the start of 2013.
What a difference a year makes! Things are a lot quieter this year. At the federal level, it looks like the only change that impacts stock compensation is the Social Security wage cap. Bad news for Jenn and I since now we’ll have to come up with other ideas for six more blog entries but good news for you since you won’t have to sort through and implement a bunch of tax rate changes over the holidays.
FICA
As noted, the wage cap for Social Security tax purposes will increase to $117,000, up from $113,700 last year. The tax rate remains the same at 6.2%, so this increases the maximum Social Security withholding to $7,254 per employee. Incidentally, the SSA estimates that about 10 million workers will pay higher taxes as a result of the increase.
As far as I know, the Medicare rates and the threshold at which the additional Medicare tax applies will remain the same in 2014.
Highly-Compensated Employees
The threshold at which an employee is considered highly compensated for purposes of Section 423 will remain at $115,000 in 2014. (Section 423 allows, but does not require, highly compensated employees to be excluded from participation.)
In today’s entry I highlight a few articles that are available on the NASPP website that I think are particularly valuable. Many of these articles are updated on an annual basis; together they comprise the core foundational knowledge necessary to be proficient in stock compensation.
Restricted Stock and Units: The article “Restricted Stock Plans” covers just about anything you could want to know about restricted stock and unit awards and is updated annually.
ESPPs: “Designing and Implementing an Employee Stock Purchase Plan” takes an in-depth look at the regulatory and design considerations that apply to ESPPs, particularly Section 423 plans. This is a reprint of my chapter in the NCEO’s book “Selected Issues in Equity Compensation” so it is updated annually.
Securities Law: Alan Dye and Peter Romeo’s outlines of Rule 144 and Section 16 provide great overviews of these areas of law and are also updated annually.
It’s that time of the year again…actually, I wonder how many times during each year we say that…(“it’s that time of the year…time for year-end”, “it’s that time of the year…time for 6039 reporting”, “it’s that time of the year…proxy time”). Ah, but I digress. The time of the year I’m talking about today is “tax time”. I just finished compiling a mountain of paperwork and explanations for my accountant and was painfully reminded of just how much paperwork we do receive in preparation for our tax returns. I started to wonder – are your employees lining up at your doorway with questions? Have your communications been sufficient to anticipate and address their likely questions? In today’s blog I explore some of the key misconceptions that employees develop at tax time when it comes to reporting their stock transactions.
Employee Misconceptions
Thinking that restricted stock unit/awards been reported and taxed based upon the sale of shares. If you don’t believe me, just visit Turbo Tax’s question forums. Employees are out there complaining that the sale has not been properly recorded on their W-2. This points to needing clearer communication about what exactly gets recorded on the W-2, and there the company’s obligation to report stops.
Assuming all cost basis information for stock plan shares is recorded on the new 1099-B. Since this is a fairly new reporting requirement, and the rules only apply to stock that was acquired in 2011 or later, it’s a common possibility that not all transactions will have accurate cost basis information on the 1099-B. Employees need to be able to distinguish between transactions and know exactly what the broker is reporting. The 1099-B originates from the broker, so stock administrators should be aware of how the broker is explaining this to employees. Even though issuers aren’t tasked with preparing these forms, you’re likely to get questions about them. Sometimes a simple factual reminder that “anything before 2011 may not be on there” can go miles to clearing up confusion.
Not understanding which ESPP dispositions are recorded on their Form W-2. In theory employers should be recording both qualified and disqualified dispositions for Section 423 plans on the employee’s W-2. The reality is not all employers report qualified dispositions. The employee will get a Form 3922 from the company for the year of the purchase, and then a 1099-B from the broker for subsequent sales. Those are important pieces of information, but also of importance is the portion of income recorded on the W-2. If employees fail to recognize the W-2 component, they run the risk of paying double taxes.
There are many mistakes and assumptions that employees can make in preparing their tax returns. These misconceptions or misunderstandings can vary by employee level of understanding, advice received from advisers and other factors. Stock administrators can mitigate some of these misconceptions by anticipating common areas of assumption and developing an FAQ to proactively head off or clarify areas of question. You may not be tax advisers, but you can certainly help employees to avoid a mountain of misunderstanding, leading to costly mistakes during tax time. For sample communications and other ideas, visit our Tax Withholding and Reporting Portal.
Whether you’ve been in stock compensation for a short time or for years, you’re likely aware of the IRS regulations that require the timely deposit of taxes withheld from employees by employers. We often hear about the fact that penalties and interest may apply when tax deposits are late, but I rarely hear discussion about the specifics of just what those penalties and interest consequences translate to in real dollars and cents. Sometimes it’s good to have a context for just how much impact practice failures can have, so in today’s blog I will attempt to define the true financial consequences for missing tax remittance deadlines.
I’m in Stock Admin…Do I Really Need to Care About IRS Penalties?
In short, the answer is yes. Although the stock administration function in the organization typically does not, by virtue of job description, have a direct role in remitting tax withholdings to the IRS, the function certainly can have a material impact in generating those withholdings. The most common area where stock plan activity puts payroll deposits at risk of penalties is where those transactions (either as stand alone, or, in combination with the company’s other tax withholdings for that day) are in excess of $100,000 on a single day, triggering the requirement that those dollars must be remitted to the IRS within one business day. As a result, you should care about what happens if Payroll (or whomever is tasked with interfacing with the IRS) cannot meet the deadline in a timely manner. If the stock administration function has any role in the delay, then eyes are likely to turn towards to you as potentially significant dollars are spent on penalties and interest. It’s one thing to know that there are some abstract penalties involved, but when you put a quantity to it, the significance of it starts to set in.
Dollars and Sense
Here’s the bottom line about what could be levied by the IRS for late tax deposits:
Interest: Any underpayment of taxes due may trigger interest. Typically, the amount of interest is equal to the Federal short-term interest rate plus 3%. The 3% may increase to 5% in cases where the underpayment was in excess of 100k for periods after the IRS issues a notice of proposed deficiency. I’m told that it may be possible to avoid the interest part of the consequence if any underpayment of FICA or Federal tax withholdings is corrected by the due date of the Federal Form 941 relative to the period in which the underpayment error occurred.
Penalties: First off, the amount of the penalty will directly correlate to just how late the taxes are deposited with the IRS. If the deposit is made within 5 days of the deadline, the penalty is 2%. For periods more than 5 days to not more than 15 days, the penalty increases to 5%. Deposits more than 15 days late are subject to a 10% penalty. The amount could potentially increase to 15% if not paid within a certain time frame after the IRS notifies the company of the penalty.
Yikes! What’s a Stock Administrator to Do?
There are certain transaction types where the IRS has given directive that allows the company ample time to receive funds and make a deposit. For example, in the case of a non-qualified stock option exercise, the funds are due to the IRS within one business day of the settlement of the exercise (if a broker trade was involved, and provided the settlement occurs within 3 days of the exercise). This allows the company to actually receive the funds, and then turn around and remit them to the IRS. I should clarify that this interpretation stems from an IRS 2003 Field Directive that basically says that in absence of other guidance, the IRS auditors won’t challenge deposits made within that time frame (there is no regulation that actually says taxes can be paid on T+4). Most companies now operate in reliance on that directive.
Other transactions, such as those involving the vesting of restricted stock awards or units, do not have such a settlement period (at least not one clearly defined by the IRS – there simply is no guidance in this area). For this reason, most companies operate on the assumption that taxes must be deposited within one business day of the vesting date (when combined withholdings for the company are in excess of 100k on the vesting date). Since in most cases, the amount of tax due isn’t actually known by the company until the date of the vest (and this may be late in the day, after the stock market closes, depending on how you define the fair market value to be used in the calculation), it’s very challenging to meet the IRS’s requirement for one-business day deposits of those amounts in excess of $100,000. In considering the potential interest and penalties for failing to deposit on time, many companies have adopted the practice of estimating their tax deposits and then doing a subsequent true-up. One piece of advice: if you’re going to estimate taxes due – overestimate rather than underestimate. If you overestimate you avoid all potential penalties and interest. If you underestimate, you still may trigger penalties and interest. According to our NASPP Quick Survey (May 2011) on Restricted Stock Units and Awards, 38.9% of companies say they deposit restricted stock tax wtihholdings timely based on an estimate (compared to only 9.5% who were depositing on time using the actual liability instead of an estimate). Estimating deposits requires cash flow planning on the part of the company, but is a proactive way to avoid getting into a penalty situation with the IRS.
The Bottom Line
In short, failure to make timely tax deposits can become a costly situation for companies, particularly when repeat offenses or overly large deposits are involved. This is not an area where a simple $50 or $100 fine is slapped per occurrence. With penalties equivalent to a direct percentage of the tax deposit amount, and interest rates of more than 3%, the dollars can add up quickly. These consequences further underscore the need for Payroll and the Stock Plan function to have a close working relationship. To learn more about the inner-workings of Payroll and how to better forge that relationship, you may be interested in our upcoming webcast (February 26th) on Understanding Payroll Administration Related to Equity Compensation.
For today’s entry, I have several follow-up items relating to a few of my recent blog entries.
Your Favorite Words 10 pts. to Sheila Jan of Life Technologies for accepting my challenge in “Holiday Fun” (December 18, 2012) and submitting her own favorite word with an example of how it might be used at a holiday gathering. Sheila’s submission:
Tranche: I’m going to help myself to a second tranche of the mashed potatoes!
A Little More on Excess Withholding Susan Eichen of Mercer reminded me that allowing employees to use share withholding to cover more than just the statutorily minimum required tax payment will trigger liability treatment under ASC 718, even if the proscribed W-4 procedures are followed (see my blog entry from last week, “Supplemental Withholding“). If the difficulty of the W-4 withholding process wasn’t enough, this makes one more reason to prohibit excess withholding for restricted stock and units (for NQSOs, where shares are generally sold on the open market, rather than withheld, to cover taxes, this is less of a concern).
Proposed Regs on New Medicare Tax The IRS has issued proposed regs on withholding the additional 0.9% Medicare tax that applies to wages in excess of $200,000 for individuals/$250,000 if married filing jointly. No surprises here, the procedures are as I described them back in August (“The Supreme Court and Stock Compensation“):
The company withholds the additional 0.9% tax on any wages in excess of $200,000 that are subject to Medicare, regardless of the employee’s filing status or wages paid to his/her spouse.
Any overpayments or underpayments as a result of the employee’s filing status/spousal income will be sorted out on the employee’s tax return. The company has no obligations here.
Employees can’t request that the company withhold additional Medicare tax (for example, if they have received wages of less than $200,000 but know that their wages, when combined with their spouse’s wages, will exceed $250,000). In this case, employees should submit a new Form W-4 to increase their withholding for federal income tax purposes. This will then offset the deficit in Medicare withholding when they file their tax returns.
Follow-up on Lawsuits Targeting Stock Plan Proposals On November 6 (“Martha Steward and Your Proxy Statement“), I blogged about a new type of shareholder lawsuit that seeks to extract plaintiffs’ attorney fees from companies by alleging that the disclosures in connection with their stock plan proposals (e.g., adopting a new stock plan or allocating shares to an existing plan) are inadequate. There now have been over 30 of these suits filed, with no end in sight as proxy season ramps up. We’ve posted a new alert, “Shareholder Lawsuits Target Stock Plan Proposals,” that collects several law firm memos on the suits as well as a interesting commentary on them from Stanford (“Shareholder Lawsuits: Where Is the Line Between Legitimate and Frivolous?“). It’s worth your time to catch up on this issue.
This week, I have a couple of updates on the tax rates and procedures for withholding federal income taxes on supplemental payments.
2013 Supplemental Withholding Rates When Jenn blogged about the American Taxpayer Relief Act last week, the ink was still wet on President Obama’s signature on the Act and we were all still trying to figure out exactly what it meant in terms of tax withholding in 2013. It now seems clear that the flat rate that applies to supplemental payments of $1 million or less per year will remain at 25% and the flat rate that applies to supplemental payments of more than $1 million has increased to 39.6%.
ADP has confirmed these rates and, while that isn’t quite the same thing as the IRS confirming them, my sense is that ADP knows what they are talking about, their confirmation agrees with my understanding of how these rates work, and it agrees with what I’ve heard from other practitioners (e.g., Baker & McKenzie), so I’m considering this issue put to rest.
No Other Rate is Allowed While we’re on the topic of supplemental rates, a question I get frequently is whether companies can permit employees to request that taxes on their stock plan transactions be withheld at a higher rate than the prescribed flat rate. This was a topic of two of my earliest blog entries (“Excess Tax Withholding,” December 1, 2008 and “Excess Tax Withholding – Part 2,” December 9, 2008).
In September of last year, the IRS issued Information Letter 2012-0063 confirming that when you are using the flat rate (regardless of whether you are choosing to use the flat rate over the employee’s W-4 rate on an optional basis or the employee has received over $1 million in supplemental payments for the year and you are required to withhold at the maximum rate), you are required to withhold at the specified rate (25% for optional flat rate withholding, 39.6% for mandatory flat rate withholding). From the IRS’s discussion of optional flat rate withholding:
“If the employer is using the optional flat rate withholding method, the employer must withhold at the optional flat rate and cannot take into account requests by the employee that the rate be increased or lowered. Only one rate applies for purposes of optional flat rate withholding on supplemental wages.”
Where employees have received more than $1 million in supplemental payments, you have to withhold federal income tax at 39.6% on their stock plan transactions–no other rate (either higher or lower) is permissible.
Where employees have recieved $1 million or less in supplemental payments, the only way to withhold federal income tax at a rate of other than 25% is to use the employee’s W-4 rate (which the IRS refers to as the “aggregate procedure”). In that case, you could have the employee complete a new W-4 requesting the higher rate for federal income tax purposes just prior to his/her stock plan transaction and then complete another W-4 resetting the FIT rate back to the prior rate after the stock plan transaction is concluded (without the second W-4, the higher rate will apply to all of the employee’s regular pay). But then you’d have to figure out the W-4 rate–good luck with that.
Where you don’t want to deal with the hassle of figuring out W-4 rates, you can offer employees two other alternatives when they are worried that the withholding on their stock plan transactions isn’t sufficient:
Increase the withholding on their regular pay (which does require a new W-4, but at least you don’t have to be involved).
Make estimated payments to the IRS.
The information letter doesn’t provide any information on what the penalties would be if you do withhold at a different rate without following the W-4 procedure or whether those penalties would apply to the company or the employee. For now, those mysteries remain unsolved.
On New Year’s Eve, as I was watching the various countdowns and celebrations on TV, I couldn’t help but notice the volume of interruptions and the stark contrast of “serious” reporting going on about the fiscal cliff negotiations. It was like watching two different television shows at once: celebrate, fiscal cliff, celebrate, fiscal cliff. All that reporting did lead to somewhere this time – a deal was eventually reached and passed shortly thereafter (formally known as “The American Taxpayer Relief Act 89-8”). Sorting through the outcomes has become the next challenge at hand. In today’s blog I’ll attempt to provide the current lay of the land for tax withholding in 2013.
For Many, A Reprieve
One of the big stories of the fiscal cliff doom scenario was that not only were some tax cuts expiring, but that there were so many of them slated to change all at once. The Bush Era income tax rates were set to expire and revert upward. The Social Security payroll tax holiday was coming to an end. New medicare rates were set to be introduced in 2013 for high earners and on certain types of income. So what’s the bottom line? What changed and what didn’t? The good news for many taxpayers is that it’s not as bad as it could have been, though some taxes will still increase. Higher earners will be impacted more, with increased federal rates.
Federal Withholding Rates: The American Taxpayer Relief Act effectively maintains the reduced income tax rates adopted in 2001 and 2003 for individuals earning up to $400,000 and families earning less than $450,000. Income above those levels will be taxed at 39.6%, up from 35%.
Social Security: The end of the road has come for the Payroll tax holiday of 2011 that was eventually extended through 2012. That means the 4.2% employee withholding rate that’s been in effect for the past two years has returned to 6.2% effective January 1, 2013. Employers have until February 15, 2013 to implement the new rate and until March 31, 2013 to make any adjustments related to rate implementation post effective date.
Medicare: The new medicare tax rate previously enacted remains in force and unchanged. Essentially, for income over a certain threshold, an additional 0.9% in medicare tax is withheld beginning with tax years after December 31, 2012. For more details, click here or visit our Tax Withholding and Reporting Portal.
Supplemental Income Withholding Rates: At this point, our eyes are looking for additional guidance from the Treasury Department on the status of supplemental income withholding rates. Our current thought is that the rate for supplemental payments below $1 million will stay at 25%, since this is tied to the third highest individual tax rate (which didn’t change), but that the rate for supplemental payments in excess of $1 million will increase to 39.6%, since this is tied to the highest individual tax rate. This interpretation is not based on any guidance from the Treasury, and we’ll have to wait until they release more information to confirm this component.
Timeframe to Implement
Companies have until February 15, 2013 to make the changes to withholding rates. It may make sense to move forward in making changes to known rates (like social security and medicare) as quickly as possible, and wait a bit longer to change other rates until the Treasury has issued further guidance on how the supplemental (and other) rate(s) will be affected. The IRS did release Notice 1036, which is essentially contains the rate tables to guide withholding for 2013, but that was on New Year’s Eve, before the Act was passed. As a result, their 2013 tables will need to be updated to reflect the withholding rates that are now in effect.
The NASPP is Hiring!
On a completely separate note, the NASPP is hiring! Check out our job listing in the NASPP Career Center for additional information.
I wish everyone a happy, healthy and prosperous new year!
The election is over, and I have to say I am thrilled. No, I’m not talking about the outcome (I’ll withhold my opinions there, since this is not a political blog, though I will say I think election night set a record in terms of the number of banter-by-text messages I exchanged with many friends and family.) I’m referring to the fact that I don’t have to hear a campaign ad every 30 seconds, everywhere I go, for a long, long time. Regardless of your political affiliation, I’m guessing you may agree. So now what? As I moved into the first day post Obama re-election, I found myself wondering about what was next. What’s going to happen to all those tax holidays? How about the impending fiscal cliff? Some of these things affect stock compensation directly, others peripherally. In today’s blog, I explore the impact of the election on some of these key issues, as relates to our world of stock compensation. I apologize in advance because it’s a long one this week, but sometimes it just ends up that way.
What’s What?
First, I leveraged an expert for today’s blog, Bill Dunn of PricewaterhouseCoopers. He’s spent a good part of the past several months doing presentations, including one at our recent NASPP Annual Conference, on the impact the election would likely have on a number of issues, like taxes (if you attended the conference, you have the slides from Session 6.2: “Election 2012! The Campaign Trail and Equity Compensation,” and if you didn’t attend or did and would like to hear the presentation, you can obtain the materials/audio on our web site.) Bill is the perfect source to add flavor to today’s blog, and I’ll refer to several of his insights and comments.
Let’s start by examining the makeup of Washington. The outcome of election 2012 was basically that the American people ratified the status quo. President Obama has won another four years in the White House, the Republicans still control the House, and the Senate remains in Democratic hands. In terms of the balance of power, we are in essentially the same place as we were before the election.
With the status quo in place, I asked Bill about what significant events would occur in the coming months, relative to taxes and equity compensation. Here’s what I learned:
Bush era tax cuts are set to expire December 31,
2012. Also set to expire are the current tax holidays, like that on FICA (which was temporarily reduced to 4.2%, down from 6.2%).
Automatic government spending cuts go into
effect in 2013, cutting the defense budget amongst other things.
The combination of the two points above result in a
worst-case scenario known as the “fiscal cliff”: reduced government spending
and increased taxes. Predictions include possibility of recession if
changes are not made.
· The retained balance of power in Washington presents
challenges in dealing with the fiscal cliff and future tax policy because:
o The President could sustain a veto
o The House will control tax legislation, and
o Either party could filibuster
(non-reconciliation) bills in the Senate
With huge tax and spending changes on the horizon, one primary concern is the abruptness of the change. You have a “perfect storm” of huge spending cuts coming together with huge tax increases all at once. So what’s on the table for each party in terms of a path to resolve this potential crisis? Most agree that some action is needed. Bill shared some
perspective on both parties’ stated views on the topic:
Democrat View:
Propose selectively eliminating the “Bush Tax
Cuts”
o Increase Ordinary income tax rate (top rate from
35% to 39.6%)
o Long-term capital gains increase from 15% to 20%
o Qualified dividends increase from 15% to 39.6%
o Associated supplemental income rates would
increase (28% up to $1M (from 25%), 39.6% for $1M+ (up from 35%))
Republican View:
No tax increases
Scenarios, Scenarios
With divided view points on how to
handle tax policy in Washington, what
are possible outcomes and when? Here are a few plausible scenarios:
Postpone action by extending all the tax cuts
and suspend spending cuts until Congress comes up with a solution in 2013
Temporary compromise on rate action before
December 31, 2012
o In this scenario, results would likely be skewed
towards Democrats’ terms and result in tax increases for upper income taxpayers
o Qualified dividends might stay aligned with
long-term capital gains rates, perhaps at a rate of 20% for certain taxpayers
o Tax rates could also rise for upper-income
taxpayers, but with redefinition to increase threshold ($1M?)
Republicans could hold fast to their anti-tax
increase pledge, presenting the “fiscal cliff”
o But maybe only until enough pain is felt by both
parties, enough blame is given to one party, or the government suffers a
promised downgrade in its debt rating by Moody’s.
Why Do I Care?
As a stock plan professional, the obvious question is “Why
do I care about all this government policy stuff?” While I’d like to just turn
my head for several months until something changes, I realize that the issues
on the horizon are significant and problematic for our economy and
taxpayers.As stock plan professionals,
we are directly involved in withholding ordinary income taxes and informing plan
participants about our withholding obligations. I’m not going to get into the
debate on “what” tax topics should be presented to employees (that’s for you
and your counsel to dissect). What I will suggest is that there is a vastly
different tax landscape slated for 2013 and beyond. If Congress does not take
action to make changes or extend tax cuts/holidays by December 31, 2012, these changes
will come to fruition, at least until further action is taken.I don’t recommend advising employees on the
timing of making a transaction (leave that to their advisers), but if the tax cuts expire, it’s likely that
some (if not all) participants will experience a material difference between
executing a stock transaction in 2012 vs. 2013 in terms of the tax impact. As a
result:
If
no action is taken to change rates or extend tax cuts, be ready for the
possibility of increased transactions towards year-end.
If
action is taken to change tax rates or extend tax cuts, then
stock plan professionals will need to be prepared to implement new or extend existing withholding
rates.
With a lot of uncertainty around what the future will hold
in terms of tax policy, one thing is certain: be prepared for changes, lots of
them. Not only will plan administrators likely have to adjust withholding rates, but the education
message to participants will need to be tweaked. For these reasons, I do care
about the impending fiscal cliff and how Congress intends to move forward.
Two weeks ago, I discussed the Medicare tax rate hike that goes into effect next year (“The Supreme Court and Stock Compenation,” August 7). Today I discuss some additional considerations relating to that tax increase and other possible tax increases for 2013.
A Busier Second Half of the Year
Any time there is a tax rate increase on the horizon, tax advisors get on their soap boxes about accelerating transactions to take advantage of the current lower rates. In our world, that translates to employees possibly exercising their NQSOs this year, rather than waiting until next year or later.
Of course, here we’re only talking about an additional .9% in tax. Generally, tax considerations shouldn’t drive investment decisions and I would think that this is especially the case when we’re taking about such a small increase–on a gain of $1 million, that’s only $9,000 in additional tax. If you think the stock is going to increase in value, I’m not sure it’s worth it to exercise early just to save the $9K. But Jenn Namazi, the other half of the NASPP Blog, tells me that she has heard several advisors (including some very large, well-respected firms) suggesting this investment/tax strategy, so what do I know?
More Sales
In addition to NQSO exercises, you also may find more of your insiders selling stock in the latter half of this year. This is because, in addition to the rate hike I described last week, a completely new Medicare tax also goes into effect next year. This is a 3.8% tax that applies only to “unearned income” in excess of the same $200,000/$250,000 threshold. Unearned income sounds like something bad, like you it is income you don’t deserve, but it really just refers to income you didn’t earn by toiling away for your employer. Primarily, this is income from investments, such as capital gains realized on the sales of stock.
3.8% is a little more significant (actually about four times as significant) than .9% (it amounts to $38,000 on a gain of $1 million). On top of that, if Congress doesn’t take action to extend the Bush-era tax cuts, the long-term capital gains rate is going to increase from 15% to 20%. Consequently, long-term capital gains that would currently be taxed at 15% might be taxed as high as 23.8% next year. That’s the sort of tax rate increase that I expect to be more likely to change investment strategies.
Of course, there’s no tax withholding on long-term capital gains and this applies to the new Medicare supplement as well. There’s also no matching company payment, so the company doesn’t have any reporting or withholding obligations with respect to this tax.
But, where the sellers are executives, the sales could have other impacts to the company. At a minimum, the sales have to be reported for Section 16 purposes. And where executives have Rule 10b5-1 plans set up, you might find a flurry of changes to increase sales under these plans, which most companies would need to review/approve.
Shareholder optics are also a consideration; having several executives (or all executives) suddenly appear to be dumping company stock around year-end may not be the best thing for the company’s stock price. Your investor relations group may want to get out in front of this one.
Important Reminder This is the last week to participate in the NASPP-PwC Global Equity Incentives Survey. Issuers must participate to access the full survey results; you’re going to be sorry if you miss out. You must complete the survey by May 25; I would not count on this date being extended.
My $.02 on Facebook Facebook’s IPO is all over my Google alerts these days, so it feels like I ought to say something about it. Earlier this year, Jenn covered the painting contractor that was paid in Facebook stock and stands to make a bundle in the IPO (see “Tax Cuts and IPOs: Part II,” February 16, 2012). And he’s not the only one. Based on what I’ve been reading, many Facebook employees are going to do quite well–but not for another six months, when the lock-up ends.
Here are a few interesting tidbits about Facebook that I’ve read:
Facebook has a broad-based RSU plan. While RSUs have been commonly used at public companies for years now, they are relatively new for Silicon Valley start-ups, which have traditionally offered only stock options. Facebook is definitely a groundbreaker here–other start-ups have followed suit (e.g., Twitter).
Even more unusual, the RSUs won’t pay out until six months after the IPO (typically RSUs pay out upon vesting). From an administrative standpoint, the delayed payout makes a lot of sense. You wouldn’t want the RSUs to pay out while the company was still private because then employees would have a taxable event before the shares were liquid–I could write a whole blog entry on why this is something to avoid. Plus, in the pre-JOBS era, the employees would have counted as shareholders, which could have forced Facebook into registration with the SEC earlier than they wanted.
Here in the US, Facebook is looking at a pretty hefty tax deposit–Facebook estimates the deposit liability at over $4 billion–that will most likely have to be made within one business day after the awards pay out. Facebook is planning to use share withholding to cover employee tax liabilities, making cash flow an important consideration. Facebook’s S-1 states that they intend to sell shares to raise the capital to make this deposit, but may use some of the IPO proceeds or may draw on a credit arrangement that they have in place. If Facebook sells stock to raise the capital, the stock that is sold would have to be registered and could, of course, impact their stock price.
Facebook estimates the tax withholding rate to be 45%. I’m not completely sure how they are arriving at this rate. It’s possible they are going to withhold using W-4 rates or, perhaps, the payouts will be so large that most employees will be receiving more than $1,000,000 in supplemental payments for the year and they are going to have to withhold Federal income tax at 35%. Where a payment, such as payout of an RSU, straddles the $1 million threshold, the company can choose to apply the 35% rate to the entire payment (35% + the applicable CA tax rate = about 45%).
All of these employees making lots of money creates problems beyond the tax considerations. As other highly successful high-tech IPOs have experienced, employees may decide they don’t need to work anymore and end up leaving. Those that do stick around, may not be so motivated anymore–maybe I’m wrong but it seems like a millionaire employee is an attitude problem waiting to happen. And there will be the pay disparity to deal with as well; employees that were hired more recently may not do so well in the IPO (and those that are hired after the IPO will really be at a disadvantage).
More at the NASPP Conference
Facebook is presenting on a panel at the 20th Annual NASPP Conference (“Liking Global Equity: Learning from Facebook’s Successful Communication and Compliance Strategies”); while none of the problems I’ve described here are new, Facebook is a company known for innovation and I’m excited to hear their approaches, as well as new ideas they have to offer in other areas of stock plan administration. Register for the Conference by May 31 for the early-bird rate.
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 May 31.