Last year, the Indian Ministry of Finance surprised us by changing the taxation of equity compensation income by introducing the Fringe Benefit Tax (FBT). Although the annual FBT return is due on October 31st, and the next advance payment installment must be made by December 15th, companies are still struggling with what FBT will mean for them.
The introduction of FBT on stock income abolished the use of tax favorable stock plans in India. All equity awards are now exempt from income tax to employees. Instead, the Ministry of Finance will tax the employer at 33.99% on the ‘value’ of the grants when they vest. I use quotation marks for the word value because the definition of the value of shares on the vest date is unique to India. Only companies that are publicly traded in India may use the market value to determine the gain at vest. All others, including U.S. public companies, must employ a qualified Category 1 Merchant Bank to determine the appropriate fair value. This valuation is good for 180 days; technically a company could obtain a valuation twice per year and satisfy the valuation requirements. This causes some issues with the value taxed vs. value received, especially for employees of companies that are passing the FBT cost on to participants.
Some U.S. companies have chosen to pass the FBT on to their employees. Recovering the FBT from employees creates some unique issues for the employer. Because this is an employer tax, the reimbursement of FBT creates what is essentially a variable strike price and actually decreases the expense valuation of the grant. Basically, the recovered FBT is added back to the award as if it were part of the exercise or purchase price. This means that the employee pays more for the grant, reducing the valuation. Companies should be using a Lattice or Monte Carlo valuation method for these awards. Note that this also means that option grants are more likely to be underwater in a way that your stock plan administration software may not be able to track. According to the Practical Solutions for Stock Plans in India session from our conference this year, we are seeing an even split between U.S. companies that are choosing to pass FBT on to employees for new grants vs. those who are not. Curiously, a gentleman attending the session said that most India companies are passing the cost on to employees.
Another troublesome feature of FBT is that it is charged to the India subsidiary, but does not qualify for a company tax deduction (likewise, the recovery of FBT from employees does not increase the company’s income). This means that if the company does not choose to recover the FBT from employees, it will directly reduce the income of the sub without any cost recovery. To compensate for this, some companies are choosing to reduce the size of grants to Indian employees (which would not help the sub directly if the company is not recharging the award cost). Another option is for employers to turn to a cash-settled incentive, which would not be subject to FBT.
Finally, there is the subject of the estimated FBT payments due by the company on June 15th (15% of estimated FBT), September 15th (45% of estimated FBT, reduced by any actual amounts paid ytd), December 15th (75% less any payments made), and March 15th (100%). These advance payments were a topic of bitter conversation at the convention. Advance payment is pretty straight-forward for restricted stock, especially because the fair value might only be determined twice per year. The more difficult estimate is the option exercises. Even though the value of the FBT is determined using the grant date, it is not payable until the exercise date using a first-in-first-out (FIFO) method. Listening to these conversations, the issue that stood out the most to me is the recovery of over-payment of FBT. Underpayment of advance payments is only subject to a simple 1% interest charge. Overpayment, however, is not recovered by reducing the next year’s payment, but rather by applying for a reimbursement (which could take a considerable amount of time). This means that many companies are taking a hard look at how they estimate those payment as the cost for overpayment is significantly higher than the cost for underpayment.
If you haven’t already, take a look at our India page in the Global Stock Plans portal. There are a number of alerts posted specifically about the FBT tax. Sign up to receive the latest alerts here. You may also find additional details in the India Country Guide by the Jones Day Associate Firm, P&A Law Offices. There have been quite a few questions about India FBT in our Discussion Forum. Don’t hesitate to bring yours up. We have a great team of top international plan experts who are ready to help!
At last week’s NASPP Conference, I presented (along with Michelle Lara of Cooley Godward, Alison Wright of Howard Rice, and Susan Garvin) on how to correct errors that occur during administration of a Section 423 ESPP. It just so happens that this is also a topic covered in the proposed ESPP regs; I thought I’d highlight some of the provisions relating to error corrections this week:
The potentially most damaging error discussed in the proposed regs is a situation where an employee that is eligible to participate in the ESPP is inadvertently excluded. Since Section 423 requires that substantially all employees of the company be allowed to participate on an equal basis, excluding someone that should have been permitted to participate causes the plan to no longer meet the requirements of Section 423. Under the proposed regs, this disqualifies the entire plan from preferential treatment–a serious problem. We discussed this error in our workshop and our conclusion was that the best course of action would be to make the employee whole by allowing her to write a check for the contributions she would have contributed and then issuing to her the number of shares she would have been able to purchase under the plan. The IRS has requested comments as to whether they should implement a formal corrections program for this situation.
The regs don’t directly address a situation where an eligible employee is allowed to participate but is unfairly limited (e.g., his payroll deductions are less than he requested and was eligible to contribute), but it seems to me that this would be analogous to the prior situation (where an employee is inadvertently excluded), and thus would also have the potential to disqualify the entire plan if the employee isn’t made whole.
Of less concern is the situation where an individual that wasn’t eligible to participate is permitted to purchase stock under the plan. Here, the individual’s purchase would be disqualified but the qualification of the rest of the plan would not be impacted.
Another common error addressed in the regs is a situation where an employee is granted the right to purchase stock under terms that are consistent with the plan and then, subsequent to enrollment, is inadvertently allowed to purchase stock on terms that are inconsistent with the plan. The regs give an example in which an employee’s purchase price is computed incorrectly; I think a more common scenario is one where an employee is allowed to purchase stock in excess of the $25,000 limitation or a plan limitation. The key consideration here is that, because the purchase is inconsistent with the terms of the plan, it is now considered to be outside of the plan for tax purposes, which means that it can no longer qualify for preferential tax treatment. So, in the case of a purchase that exceeds the $25,000 limitation, the entire purchase, not just the shares purchased in excess of the limitation, would be disqualified. On the bright side, however, the qualification of the rest of the plan would not be impacted.
Seen and Heard at the NASPP Conference
It wasn’t all work and no play at the NASPP Conference–here are a few scenes to prove that, despite our penchant for accounting, even stock plan professionals have a lighter side.
Over 1,800 Watch John Olson and Crew: The audience for the Conference keynote session was daunting in size (speaking as the person that had to bring the room to attention so we could start–I’ve never said the words “Welcome to the NASPP Conference” with more trepidation), with several thousand more members watching online:
The “We Want Heat” Chant: It got a little nippy during the “3rd Annual Proxy Disclosure Conference,” so Broc Romanek led the audience in a chant:
Baker & McKenzie’s Voodoo Dolls: Our Conference swag is always among the best; this year’s breakout hit was Baker & McKenzie’s voodoo dolls. Attendees were trading them like crazy:
Other notable give-aways included mice (the computer kind, not the live kind) from Sungard and Charles Schwab, stuffed bears (vested and unvested) from Easi, wind-up car/pencils from E*TRADE Financial, and flashing medallions from Smith Barney.
Time for a Little Fun: Many service providers hosted special events for their clients in the evenings. Fidelity booked Howie Mandel for a private show; Merrill Lynch booked the singer Jewel, E*TRADE hosted an event on a riverboat, UBS hosted clients at the Audubon Tea Room (where my co-panelist, Alison Wright, won an aligator–I’m not sure how she got it past airport security on the way home). On Wednesday night, three different parades complete with floats and marching bands left the hotel heading to private events. The hotel said that was two more parades than any other conference has ever had. Merrill Lynch provided keepsakes for their clients:
“Lounge Lizard” Exhibit Space: Stock & Options Solution wins for the coolest exhibit booth:
In the Restricted Stock Fundamentals course this year at the NASPP conference, the issue of retirement provisions on restricted stock was a hot topic. We’ve talked about retirement provisions (the acceleration or continued vesting of a part or all of the unvested shares from a grant upon termination if certain parameters are met that qualify that termination as a retirement) before, especially as FAS123(R) was rolling out. At the Restricted Stock Fundamentals, the fact that these types of retirement provisions on a restricted stock grant will most likely have an impact to FAS123(R) expense, 409A, and tax-withholding. This is because the vesting event for restricted stock awards and restricted stock units centers around the idea around the assumption that shares are subject to a “substantial risk of forfeiture”. This means that a loss of substantial risk of forfeiture (substantial being the key word), creates a situation where the effective vesting date may not coincide with the lapse of restrictions on the underlying shares.
I think that many of us are familiar with the impact to expensing; that the existence of this type of provision may change the amortization of expense. Expense is amortized over the service period (generally the period between the grant date and the vest date). However, if the participant no longer has to remain in service to the company to earn the right to the shares, the service period has effectively ended and the expense must be shortened to reflect the new service period. This may mean that there is a sudden increase in the period expense. To help spread this impact out, the company may begin an accelerated expense amortization in anticipation of an upcoming retirement eligibility date. For more information, see the Frederic W. Cook article FAS 123(R) Requires Acceleration of Equity Compensation for Retirement-Eligible Employees.
What companies may not have considered that this change in the effective vesting date, or service period, may also have a tax withholding and 409A consequence. Assuming no 83(b) election was filed, income and FICA/FUTA taxes will be due on any unvested shares that are no longer subject to a substantial risk of forfeiture. If the grant were an RSU, the loss of substantial risk of forfeiture means that FICA/FUTA taxes are due, with income tax due at the constructive receipt of the shares. For more information on the tax implication of retirement eligibility, see the Towers Perrin alert Potential Tax Problems for Restricted Stock Held by Retirement-Eligible Employees. This treatment of RSUs is where the 409A issue comes up. If the employee has the right to the shares, but is effectively delaying the income related to those shares, this is essentially the deferral of income. There are ways to address the potential 409A issues, which are included in the Frederic W. Cook memo Technical Issues Related to Accelerated Vesting of RSUs at Retirement.
The question that came up in the Restricted Stock Essentials course was, “Can the inclusion of a clause that the retirement provision (whether it is the acceleration or continuation of vesting) is subject to approval, can you avoid any of these issues?”. It appears that there are companies that have gotten buy-off from their auditors that the inclusion of such a clause would essentially mean that there still exists a substantial risk for forfeiture. I think that companies will want to be very careful with this. If the approval is really just rubber-stamping the provision and 100% of the retirement provisions are approved, then I would question whether or not there really is a risk of forfeiture at all. We have seen similar arguments be denied with regards to the fact that retirement eligible employees may actually be terminated “for cause” rather than have the opportunity to retire. However, if your company really does require the retirement provisions to be approved and has a track record for not approving a reasonably substantial number of them, then there may actually be a justifiable claim that the existence of potential acceleration or continued vesting of grants on or after retirement may not push those shares into a situation where there is no longer a risk of forfeiture.
If your company is granting restricted stock with acceleration or continued vesting available at retirement and you have not already considered the expense, tax, and 409A implications, you may find that the Restricted Stock Essentials program has a lot to offer you. If you missed your opportunity to attend in person at our conference, you can still take advantage of our online webcast course which includes the recorded sessions from this year’s conference. For access to the recorded sessions, go here or you can register for the online Restricted Stock Essentials.
The next area of the proposed ESPP regs that I’d like to bring your attention to is the calculation of the $25,000 limit.
As I’m sure you know, under Section 423, participants in an ESPP cannot purchase more than $25,000 worth of stock per year. Where an offering spans multiple calendar years, however, if a participant does not purchase a full $25,000 worth of stock in the first year of the offering, the unused portion of the limitation can be carried forward to the next year and increases the amount of stock the participant can purchase in that year. The proposed regulations “clarify” that participants accrue the right to purchase $25,000 worth of stock only in years in which their options under the plan are both outstanding and exercisable.
This is a key consideration when the first purchase under an offering occurs in a different calendar year than the year the offering began. For example, assume that an offering under a company’s ESPP begins on October 1, 2008 and the first purchase under the offering will occur on March 31, 2009. A common practice now is to allow participants to purchase $50,000 worth of stock on March 31: $25,000 worth carried forward from 2008 and another $25,000 worth for 2009. The regulations would limit the amount of stock that could be purchased on March 31 to $25,000 worth. Since participants did not have the right to purchase stock under the plan in 2008, they do not accrue the right to purchase $25,000 worth of stock for that year, even though the offering began then.
The term “clarify” is significant, implying that the IRS doesn’t consider this to be a rule change but that companies should have been applying the limit in this manner all along. I know that many companies, especially here in California, have taken the more liberal approach and are wondering if they need to change their practices now, before the final regulations are issued. I’m not sure what the answer is–on one hand, changing to the more conservative approach is a less aggressive strategy. But, changing would be administratively burdensome if your ESPP tracking system doesn’t support the conservative approach; may not be necessary, since it’s always possible that things can change in the final regulations; and, in that event, could unfairly restrict employee purchases. The current economic environment doesn’t help any, since employees are more likely to hit the $25,000 limit when stock prices are declining–making this something that many companies are likely to have to address.
In his September 30, 2008 blog on CompensationStandards.com, Ed Burmeister of Baker & McKenzie takes issue with the IRS’s interpretation. Ed makes a good argument that the tax code clearly states that employees can purchase $25,000 worth of stock for each year the option is outstanding. Although, under the code, the right to purchase stock doesn’t accrue until the option becomes exercisable, if, at that point, the option has been outstanding during multiple calendar years, the language in the code doesn’t seem to preclude accruing the right to more than $25,000 worth of stock at that time.
NASPP Conference is Going Great
This week I’m blogging to you from New Orleans, where the 16th Annual NASPP Conference is in full swing. We have a great turn-out this year and so far, all the sessions have been excellent. Those of you that aren’t here don’t have to miss out, however. All of the Conference sessions are being recorded; you can purchase the audio and listen to it at your convenience. I know that my staff and I will be listening to the recordings of the sessions we aren’t able to attend.
In a speech at the Corporate Counsel Institute in March of 2007 (here), Linda Chatman Thomsen of the SEC announced that the SEC would be focusing on finding instances of insider trading through the misuse of Rule 10b5-1 trading plans. Since then, the SEC has been looking for a good test case, and appears to have found it in the case against Countrywide CEO Angelo Mozilo . Even though Mr. Mozilo was trading under a Rule 10b5-1 trading plan, he apparently changed his trading plan to sell more shares more frequently in 2006 and 2007 prior to a drop in share price in early 2007. The SEC has been investigating whether or not those changes were made in response to insider information.
In order to qualify for the affirmative defense against insider trading afforded by Rule 10b5-1, individuals must enter into a trading plan or agreement prior to the becoming aware of material nonpublic information. The trading plan must specify (either by specific number or by formula) the number of shares to be bought or sold, the price at which the transaction should take place, and the date on which the transaction will take place. Not only must the plan be entered into at time when the insider is not in possession of material nonpublic information, it must not be changed on the basis of such information.
Companies need to be taking a close look at their own policies on trading plans. All Section 16 Insiders should be required to trade only within a plan (and only a single plan) that complies with the not only the SEC’s insider trading rules, but also the company’s own policy on trading plans. There should be a specific amount of time between the creation or termination of a trading plan and the first transaction (or terminated transaction), and I do not recommend that companies allow modification of plans at all. It is not only cleaner for administrative purposes to terminate one plan and create an updated plan, it eliminates the appearance of ad-hoc changes to plans. Technically Rule 10b5-1 does not specifically say that terminating a plan in advance of a schedule trade is prohibited, but preventing an upcoming trade from taking place does give the appearance of impacting a market transaction on the basis of inside information. Likewise, there is no stipulation that the individual must have only one such trading plan. However, multiple trading plans can create an administrative burden not only to the company, but also to the broker who is handling the trading plans that may create a situation in which transactions take place incorrectly or are missed.
The SEC will be looking at patterns of trading activity for insiders and the timing of trading activity. If one of your Section16 insiders comes under investigation for insider trading, there will be a negative impact on your company as well as the individual. Your company should have a policy in place to help insiders, or any participant who may have access to material nonpublic information, to enter into a trading plan that will provide the best protection against the appearance of insider trading.
With the deadline to comment on the proposed ESPP regs coming up at the end of the month, I thought I would use my next few blogs to highlight some of the key issues in the regs that our members should be aware of. Today I discuss the definition of grant date under the regs.
ESPP Grant Date
One of the most significant issues addressed by the proposed ESPP regs is the definition of grant date. For Section 423 purposes, the grant date is important for four reasons:
Determination of the minimum permissible price (the price must be at least 85% of FMV at grant or purchase).
Determination of the number of shares that can be purchased under the $25,000 limitation (the value of the shares for purposes of the limit is the FMV at grant).
Start of the two-year statutory holding period (shares must be held for one year from purchase and two years from grant to qualifying for preferential tax treatment).
Determination of compensation income on qualifying dispositions (compensation income is equal to the lower of the discount at grant or actual gain on the sale).
Under the proposed regs, if the purchase price is not fixed when an employee enrolls in an offering, there must be a limit on the number of shares employees can purchase for the enrollment date to be treated as the grant date. The regs specifically state that the $25,000 limit isn’t sufficient for this purpose; the plan must have separate fixed and determinable limit. The limit can be a flat number of shares or can be established via a formula, but you have to be able to determine the maximum number of shares individual employees can purchase at the time that they enroll for their enrollment date to be considered their grant date.
The biggest implication here is that, without this limit, the plan can’t have a look-back. With no limit and no fixed price, the purchase date becomes the grant date. Thus, under #1 above, the price would have to be 85% of the FMV on the purchase date.
The second most significant implication is that the two-year holding period wouldn’t start until the purchase date. This is less of an issue if the company’s stock price is increasing, however. By moving the grant date to the purchase date, as long as the employee sells at a value higher than the FMV at purchase, the employee would recognize the same amount of compensation income on both a qualifying and disqualifying disposition. Of course, if the employee sells at less than the FMV on purchase, there would be a difference in income: on a disqualifying disposition the employee would report income and a loss, whereas on a qualifying disposition the employee’s income would be limited to her actual gain, if any.
If you have a Section 423 plan, now would be a good time to make sure the plan has this limit. If the plan lacks this feature, board action alone should be sufficient to amend the plan to include it (shareholder approval shouldn’t be required). Discuss with your legal counsel whether it makes sense to add this provision now or to wait until the final regulations come out (it’s especially a concern if you have a new offering beginning now that won’t conclude for, say, 24 months, by which time the final regulations may be in effect).
I’ve looked at a couple of plans recently that don’t specify a maximum, but instead provide the plan administrator (usually the board or the compensation committee) with discretion to set one. So long as this limit is established at the start of each offering (and I think it would be acceptable for the board/comp committee to establish a limit that is in effect for all future offerings until it is changed), this should still be sufficient to establish a grant date under the proposed regs and it provides some added flexibility. For an example of this type of plan, see Gilead Sciences’s Employee Stock Purchase Plan (provision 6).
And while we’re on the topic of ESPPs, I’m going to put in a shameless plug for my session, “Oops! Fixing ESPP Problems,” at this year’s NASPP Conference. My panel is going to discuss many common problems that occur in ESPPs, such as share shortfalls, inadvertently included or excluded employees, purchases in excess of plan limits, contribution glitches, and lots more! We’ll highlight legal and accounting considerations for each scenario and provide real-world, practical solutions. It’s going to be a great session covering information that I’ve never seen presented before; I hope to see you there!
Online Registration for the NASPP Conference Closes on Thursday
Online registration for the 2008 NASPP Annual Conference closes at 8:00 PM Eastern on Thursday, October 16. Walk-up registrations will still be accepted on site, but will be subject to an additional $100 charge. Avoid the last minute rush and save $100 by registering today.
The 2008 NASPP Annual Conference will be held in New Orleans from October 21-24 (pre-Conference programs start on October 20). I look forward to seeing you all there!
Underwater options; they’ve been a problem that companies have faced before, but companies are seeing a much larger impact right now. Not only has equity pay become a larger percentage of executive salaries, it is also making its way down the operational chart of companies. Stock prices have been on a decline. In August, Financial Week reported that 40% of the Fortune 500 companies had options that were then underwater; these numbers can only have increased with our recent financial crisis.
Stock options and other equity-based compensation are a great way to provide incentive for employees. They provide employees with a path to ownership in the company even if employees are selling their shares as soon as they vest. The benefit of shares is still tied to the success (or lack of success) of the company. The obvious problem is that when the whole market is sliding down, companies will find their individual stock prices sliding right along. Employees may feel particularly disenfranchised, since there is little they can do individually to impact the success of their own company, let alone the entire market. They may begin to feel underappreciated and, as their income level falls, undercompensated.
Fortunately for many employees, we have also seen a trend toward greater shareholder acceptance of option exchange programs. What once was an ideological battle is now a tangible issue, as both NASDAQ and the NYSE now require shareholder approval for most option exchange programs. Part of this greater acceptance is that FAS123(R) has made it possible to create an option exchange program that has less of an accounting impact than before. An option exchange program allows a company to take worthless stock options from employees and exchange them for new options, restricted stock or RSUs (with reduced share amounts) or cash. The upside for the company is reduced dilution and overhang as well as restored employee ownership, satisfaction, and alignment with shareholder interests.
Engaging in an option exchange program to deal with underwater options is not a decision to be taken lightly. It requires intense employee education; and any communications sent to employees about the exchange must be included in the Schedule TO filing required by the SEC. Companies will need to structure the option exchange in a way that shareholders are most likely to approve. This means paying special attention to the ratios of the exchange as well as determining who may participate. Shareholders will be more likely to feel an option exchange is in their best interest when it involves only the rank-and-file employees. There is an increased negative focus on executive compensation recently, with growing resentment of arrangements that allow executives to profit when the company declines. If you are struggling over how to handle your company’s underwater options, check out these articles from our Practice Alerts:
Welcome to the NASPP Blog! Look for Rachel Murillo, NASPP Editorial Director, and me to post here twice a week on all things related to stock compensation. We’ll be covering industry developments, common questions we hear from NASPP members, trends in practices and plan design, and NASPP announcements.
Suddenly Last Summer
We generally think of summer as vacation time, but that wasn’t true for the regulators this year. For my first blog, I thought I’d highlight some regulatory developments from the past few months that impact your stock plans:
IFRS is Coming: In late August, the SEC approved a proposed roadmap for the adoption of International Financial Reporting Standards in the United States. There are some significant differences in the treatment of stock compensation in IFRS, so this could have a big impact on your stock plans. For more information, see our alert “Impact of IFRS on Stock Compensation in the United States.”
Section 6039 Returns: The IRS proposed regulations that would implement the requirement for companies to file returns (with the IRS) for ISO and ESPP transactions triggering Section 6039 statements. See our alert “IRS Proposes New Regulations for Section 423 ESPPs“; don’t wait on this one–if you want to express your opinion to the IRS on the proposed regs, comments are due by October 15 .
More ESPP Regs: The IRS also issued proposed regulations clarifying the application of Section 423. Of particular note are proposed regulations on the $25,000 limitation, exclusion of highly compensated and non-US employees, determination of grant date, and the impact of violations. See our alert “IRS Proposes New Regulations for Section 423 ESPPs.”
I will have more on these developments in upcoming blogs.
You also can learn more about all of the above developments by attending the 16th Annual NASPP Conference, from October 21-24 in New Orleans. Here are a few of the sessions that are on my short list of panels I don’t want to miss:
The keynote session on “Having the Hard Conversation: Top Consultants and Directors Share Their Approaches”
Yes, I know I’ve listed more workshops than I can physically attend, but luckily we’re recording the entire Conference so I can listen to the recordings of the ones I miss (and so can you, just stop by the Conference registration desk to or visit Naspp.com after the Conference to order the audio)!
I hope you enjoy our blog and I look forward to seeing you all in New Orleans in two weeks!