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Monthly Archives: December 2010

December 28, 2010

NASPP Poet Laureate Stikes Again

With this being a holiday week, I thought we’d do something lighter in the blog. John Hammond of AST Equity Plan Solutions and Poet Laureate of the NASPP blog has provided another poem on a very timely topic.

My Year-End, Year-End Affair
By John Hammond

Oh, joy! Oh, rapture! It is here
The time that comes just once a year
When carolers sing with great delight
And children dream all through the night
Of presents and candy and snow of white

The Holidays, most think, must please him so
They see my smile, but cannot know
It is year-end…my stock plan year-end
A deeply close and personal friend
Though forced to mock and condescend

It shatters me to put on a ruse
The scorn of others you did not choose
But we have become close, too close they’d say
If I’d show my affection in any way
I fear they may take you away

We’ve had this dance six times before
The first time I stumbled ’round the floor
Now Fred and Ginger – a grander scale
You in your gown, my tux and tails
True perfection in every detail

It is that perfection you reveal in me
That aroused the affections I have for thee
No other task even close compares
To my year-end, year-end affair
Surely you know our love is rare

And because of that, please shed no tears
But this will be our last – this year
I must move on and leave you now
Something I cannot conceive of how
But another year, they’ll not allow

It’s last year’s dance that did impress
Me in my tux, you in your dress
The perfection we showed, your effortless grace
And now some child will take my place
This year will mark our last embrace

Moving up, I should be pleased
My human bride I have appeased
But leaving you with another man
Who may not love or understand
The way I do, of you, year-end
Is something that I cannot stand

So as we go through day and night
I must arrange to make things right
It was us that was meant to be
Not you and this child, my stock trainee
You shall be mine for eternity

So came the night of our last good-bye
And when you gazed up in my eyes
I knew was time to make my move
The fiery passion within me grew
And grasping your throat…you knew it, too

And when was done…I kissed your face
Still holding you in a warm embrace
This…perfection to the last detail
And for eternity they’ll tell our tale
You in your gown, my tux and tails

Happy Holidays!
Rachel and I are taking the rest of the week off from blogging. I hope you are enjoying your holidays and we’ll see you in the new year!

– Barbara

P.S.–Don’t forget to renew your NASPP membership by December 31 or you’ll miss your chance to qualify for the free audio of an NASPP Conference session.


December 23, 2010

Form 5

Form 5 filings, if needed, are due 45 days after the end of a company’s fiscal year or within six months of an individual ceases to be an insider. If December is your year end, now is the time to start reviewing your Section 16 filings to determine if any Form 5 filings are required for your insiders.

Deferred Reporting

Some transactions are exempt from Form 4 reporting requirements under Rule 16b-6 and may instead be reported on a Form 5. There are two types of transactions that are eligible for this deferred reporting: acquisitions and dispositions through gift or inheritance and “small acquisitions.” Although these types of transactions are not required to be reported on a Form 4, insiders may choose to report them on a Form 4.

Many companies encourage Form 4 reporting of transactions that are eligible for deferred reporting. While these transactions themselves may not need to be reported on a Form 4, they do impact the total holdings which must be reported on a Form 4 any time there is a reportable acquisition or disposition of common stock. Reporting the actual transaction on a Form 4 provides clarity for potential investors or shareholders and reminds insiders that the transaction is only eligible for deferred reporting, not exempt from reporting altogether.

Small acquisitions are particularly tricky because they may not exceed $10,000 when aggregated over the preceding six months. Additionally, a disposition of the same class of securities that is not exempt from Section 16-b in the proceeding six months disqualifies an acquisition from deferred reporting; it must be included on a Form 4 within two days of the disposition. Simply reporting the acquisition on a Form 4 in the first place eliminates the need to track the total value of small acquisitions and monitor for matching dispositions.

Form 4 and Form 3 Errors

The other reason a Form 5 may be required is if transactions or holdings were either missed or not reported correctly on a Form 4 or Form 3 during the year (or the past two years if the individual became an insider in the current year). Of course, nobody wants to have to file a Form 5 for this reason (see Barbara’s blog entry, “Ignore the Romeo & Dye Model Forms At Your Own Risk“). For these errors, insiders do not need to file a Form 5; a late or amended Form 4 may also be used. If an issue is discovered prior to the year-end reconciliations, the correction should be reported immediately. Additionally, only Form 4 errors from the same year can be included on a Form 5. If there is a Form 4 transaction between the end of the year and the Form 5 filing deadline, it should not be reported on the prior year’s Form 5, regardless of whether or not it was reported timely and correctly on a Form 4.

Know Your Insiders

Your company should have a process in place to confirm if a Form 5 is needed for each of your insiders. This can be done by reconciling reported transactions and holdings in combination with a questionnaire or other verification completed by the insiders. If it appears no Form 5 is needed, have your insiders confirm your findings in a signed statement.

Form 5 Details

For small acquisitions that are eligible for deferred reporting on a year-end Form 5, use “L” as the transaction code. Code G is used for gifts (either acquisitions or dispositions) and code W is used for acquisitions or dispositions by will or the laws of descent and distribution.

If incorrectly reported holdings from a Form 3 are being reported on the Form 5, add a “3” to the transaction code. When reporting a missed or incorrectly reported Form 4 transaction on a Form 5, no special code is needed. Use the footnotes to explain any Form 3 or Form 4 item included on the Form 5. A Form 5 has checkboxes to indicate that it includes line items that should have been reported on a Form 3 or Form 4, but EDGAR will automatically check the appropriate box based on the transaction code.

For more information on Forms 3, 4, and 5, see the NASPP’s Section 16 portal. The most comprehensive resource on Section 16 filings is the Romeo & Dye Section 16 Annual Service, which includes the Section 16 Deskbook along with the Section 16 Updates Quarterly Newsletter.


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December 21, 2010

Say-on-Pay: What You Can Do

For many stock plan administrators, all the press about Say-on-Pay has been just noise. Companies have been submitting their stock plans for shareholder approval for years, decades even, and stock plan administration often isn’t involved with cash-based executive pay, so what role does stock plan administration have here?

Say-on-Pay=Golden Opportunity?

But, I think that Say-on-Pay is a great opportunity for stock plan administrators to show that they deserve a seat at the table when it comes to designing compensation programs. Stock is likely to be a big part of your executives’ compensation and, likewise, a big part of the CD&A. You can help by making sure the folks drafting the CD&A are aware of which features in your stock plans are likely to draw shareholder criticism–and, therefore, may require additional explanation–and which features are likely to please shareholders–and, therefore, should be highlighted. You might even want recommend changes in your stock compensation programs that would make them more shareholder friendly.

The Critical First Year

I see this first year of Say-on-Pay as critical. Clearly, if shareholders have past grievances against your executive pay programs that they don’t feel have been attended to, this is an opportunity for them to express their ire. But, even more important than the Say-on-Pay vote, is the Say-on-Pay frequency vote–in which shareholders decide whether they want to vote on your executive compensation programs every one, two, or three years.

A well-crafted CD&A that addresses all shareholder concerns is critical this year. You want shareholders to feel absolutely confident about the decisions the company is making about executive compensation, so they don’t feel that they need to vote on the compensation every year (or even every two years).

Write a Memo

Now would be a great time to draft a memo for your manager that highlights the good, the bad, and the ugly in the stock compensation paid to your executives, with appropriate recommendations on how each issue might be addressed (or emphasized, for the good stuff) in the CD&A.

The Bad (and the Ugly)

To get you started, here are few stock-compensation related features that can irritate shareholders. If any of these apply to your stock plans, special discussion in the CD&A may be warranted:

  • Repricing, especially without shareholder approval
  • Mega grants
  • Grants made when your stock was at its low point that are now producing windfalls for executives
  • Paying dividends on unvested performance awards or units
  • Tax gross-ups
  • Performance awards where the performance criteria is too easily achieved or that are paid out even if the goals aren’t achieved
  • Liberal change-in-control provisions (e.g., CIC provisions that allow awards to be paid out even if the deal doesn’t close)

Of course, it goes without saying that discounted stock options are a problem, but, with the backdating scandal mostly behind us and 409A firmly in place, I doubt many, if any companies, still have any of these. Oddly enough, however, shareholders sometimes show an aversion to even at-the-money options over say, full value awards. So if you are still granting predominately stock options to execs, this may bear some discussion, depending on how enlightened your shareholders are.

The Good

And, here’s the flip side–stock compensation-related features that you want to emphasize to your shareholders:

  • Performance awards with appropriately challenging targets and where the board retains (negative) discretion over payouts
  • Hold-through-retirement policies and share retention requirements
  • Clawback and non-complete (and similar) provisions
  • Award deferral programs (a risk-mitigation strategy, similar to stock retention requirements)
  • Double-triggers and other responsible CIC provisions
  • Anti-hedging policies

And More…

Of course, neither of the above is a complete list–this is a blog that is already too long, not an unabridged compendium of executive compensation. If you missed the 18th Annual NASPP Conference, there were a number of sessions presented on Say-on-Pay and executive compensation that provide further information on shareholder hot buttons–purchase the audio for any and all of the these sessions. And the NASPP’s Plan Design Portal has some great articles that might also help with your memo.

Time is Running Out!
All NASPP memberships expire on a calendar-year basis. Renew your membership by Dec 31 and you’ll qualify to receive the audio for one NASPP Conference session for free!  Don’t wait any longer–you have less than two weeks left to take advantage of this offer!

This offer is also available to anyone the joins the NASPP before December 31–tell all your friends!

NASPP “To Do” List
We have so much going on here at the NASPP that it can be hard to keep track of it all, so I keep an ongoing “to do” list for you here in my blog. 

– Barbara 

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December 16, 2010

Tax Cut Extension Bill Passes in the Senate

Honestly, I anticipated that the Bush-era tax cuts would lapse at the end of this year–and I know I’m not the only one. It’s is unusual for Congress to be this active this late in the year. But, yesterday the Senate did approve the tax plan which includes an extension of those tax cuts for two more years. The bill is up for a vote in the Senate today and is expected to pass. (See this article from Reuters.)

So, if your company has been grappling with what, if anything, should be done in anticipation of tax increases, you’ve just been given a couple more years to sort through the issue. If you are wondering what in the world this has to do with your stock plans, since employers can just use a flat rate for withholding on equity compensation, then you must have missed our July webcast, How Upcoming Tax Rate Changes Impact Your Stock Plans. Don’t worry; the full webcast and transcript are still available!

Where this bill could really hit home is this: In addition to the extension of the individual tax rates, the bill includes a one-year decrease in payroll taxes. Specifically, the 6.2% Social Security tax paid by employees would be reduced to 4.2%. Employers would not be given the same tax holiday; employer “matching” stays at 6.2%. The bill doesn’t appear to impact the changes to the Medicare portion of payroll taxes, which are set to increase from 1.45% to 2.35% for wages above the threshold amount starting in 2013. (For more information on the implications of the Health Care and Education Reconciliation Act of 2010, check out that great webcast I mentioned above.)

If this bill does pass, there are a few things you will want to be sure and prepare for. Obviously, you’ll need to make sure to update the Social Security tax rate in your stock plan administration database. Additionally, it will be a good idea to sit down briefly with your payroll department to confirm that there won’t be any glitches exchanging Social Security withholding and year-to-date levels after the payroll system is updated.

On the communication front, this isn’t really the kind of issue that warrants a whole campaign. It’s not confusing and lower taxes are always well received. It is, however, a great reminder of the value of a good disclaimer. Your educational materials, particularly those pertaining to taxes on equity compensation, should have a disclaimer that includes verbiage indicating that the information in the materials may not reflect current regulatory developments. This bill would mean a pretty straight-forward decrease in tax withholding, but the next development may not be so simple. Having a quality disclaimer helps protect the company in case there is a delay in updating your educational materials or if employees are inadvertently referring to outdated printed material. If you’re feeling ambitious, a handy little asterisk notation on any examples you have available to employees noting the one-year reduction in the Social Security withholding rate would be fantastic.

Finally, and maybe only after the dust settles from the changes that 2010 has brought us, take a look at what 2013 might look like for your employees, particularly those making over $200,000 annually, and decide if there are any changes your company may want to implement in anticipation of the tax rates increasing.


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December 15, 2010

ISS Policy Updates

ISS (formerly RiskMetrics, which was formerly ISS–how many times can one company change its name) released updates to its corporate governance policy in late November.

In the spirit of no news is good news, most of my readers will be relieved to hear that the policy doesn’t seem to change much with respect to stock compensation. ISS introduces a cap on the amount that burn rate maximums can change (up or down) from year to year; changes will be limited to a maximum of 2 percentage points difference from the prior year’s maximum burn rate. This is nice, but unless I’m missing something here, it doesn’t seem that significant.

Problematic Pay Practices and Say-on-Pay

ISS identifies a number of “problematic pay practices.” If a company employs these practices, in the past, ISS might have recommended voting against or withholding votes for compensation committee members or voting against a company’s stock compensation plan. Now, however, ISS has another weapon in its arsenal: Say-on-Pay. Problematic pay practices may now result in ISS recommending that shareholders vote against the company’s executive compensation proposal.

Stock compensation-related practices that ISS specifically identifies as problematic include:

  • Paying dividends on unvested performance awards
  • Multi-year guarantees for stock awards or other equity compensation
  • Repricing or otherwise exchanging underwater stock options without shareholder approval
  • Tax gross-ups on restricted stock

Past governance policy updates have specifically mentioned mega grants as problematic as well. While these grants aren’t mentioned this year, I expect that they are still a concern for ISS. I’m sure you all remember how I feel about mega grants.

In another significant change, where companies have problematic pay practices, ISS has revised its policy to no longer allow companies to avoid a negative recommendation by merely committing to eliminate them in the future.

Burn Rates–An Opportunity?

ISS has not released the maximum burn rate tables yet for 2011.  Where a company’s average burn rate for the past three years exceeds the maximum allowable for its industry (or 2%, if higher), ISS will recommend against proposals for new stock plans or allocations to existing plans. 

Once the burn rate tables are released (expected any day now), companies will know whether their three-year average is coming in low or high.  If low, I wonder if this might be an opportunity to make some quick grants. For example, let’s say a company is planning to ask for more shares next year–enough that it doesn’t expect to have to request another allocation for at least three years.  If the company realizes that its three-year average burn rate is low, would it make sense to accelerate some of next year’s grants into this year (assuming the company has enough shares available, of course), so the grants won’t be included in the average four years down the road, when the company might conceivably need to ask for more shares? 

I’m just throwing the idea out there; I admit that, in practice, a lot of stars would have to align perfectly for this to make sense.  It probably isn’t that realistic of a strategy for most companies. 

Post Press Releases to the NASPP Website
I’m excited to announce that we have enhanced the online NASPP vendor hall to allow our online exhibitors to post press releases. The press releases will appear on the NASPP home page and in the vendor hall.  We already have our first press released posted by Morgan Stanley Smith Barney!  For more information, contact

Just a Couple of Weeks Left to Get your Free Conference Session Audio
All NASPP memberships expire on a calendar-year basis. Renew your membership by Dec 31 and you’ll qualify to receive the audio for one NASPP Conference session for free!  Don’t wait any longer–the new year will be here before you know it!

This offer is also available to anyone the joins the NASPP before December 31–tell all your friends!

NASPP “To Do” List
We have so much going on here at the NASPP that it can be hard to keep track of it all, so I keep an ongoing “to do” list for you here in my blog. 

– Barbara 

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December 9, 2010

Symposium Snippets

Yesterday, I attended the Certified Equity Professional Institute’s 7th Annual CEP Symposium in Santa Clara. My only regret is that I could not be in three (or four) places at once to sit in on all of the session! Today, I’d like to share with you which sessions I was able to participate in and give you some take-aways that I benefited from for each.

Speaking of the CEPI–if you are not already a CEP or on your way to becoming a CEP, then I know what your New Year’s resolution should be! What are you waiting for?


The opening session was a fantastic message about employee communications. Fidelity and Starbucks offered us all some insight to their communication partnership. The cool tidbit from this session is that really grabbing your employees’ attention is best done by customizing your message for your specific audience. Starbucks made an awesome move to reach out to employees by creating a Facebook page along with targeted ads for anyone listing Starbucks as their employer. When clicked on, these ads bring the Facebook user to a landing page where Starbucks can put some general (and already public) information with links to the Fidelity site. For a young, hip company like Starbucks, this has been a far more successful approach to the old paper communications–not that those are going away, mind you–and a great way to target an employee population that is completely comfortable with the online world, but doesn’t have access to a computer at work.

Example Examples

I presented in the first break-out session on the difference between providing employees with financial and tax information or advice in Walking the Line: Benefits and Risks in Stock Plan Communications. One of my fabulous co-presenters, Bob Callanan from UBS, gave some great examples on how to communicate transaction decisions to employees. One way to avoid providing investment advice to your employees and also ensure that you are creating effective examples for them to consider is to use three outcomes in your scenarios: what happens when the stock price goes up, drops, and remains flat. He reminded us that the “rule of three” applies also to the way in which information is presented. Providing information in all of descriptive, tabular, and graphical interpretation of scenarios ensures that you’ve captured data in a way that each employee can identify with.


After a rousing game of Equity Compensation Jeopardy (Congratulations to the winners, Elizabeth Dodge of Stock & Option Solutions and Wendy Jennings of Riverbed Technology), I learned about “Achieving Year-End Nirvana” in the second break-out session. This presentation was a great overview of year-end processes including what goes into 10-K and proxy preparation. One essential reminder from this session is regarding you audit process: audit key data points against independent data. For example, verify your transaction share amounts with your broker and TA, not just reconciling against the stock plan administration database. Each section of this presentation included concrete tips. In the 10-K preparation, the NASPP’s Barbara Baksa provided a list of common EPS calculation errors. My favorite was: not considering all sources of proceeds when determining anti-dilutive stock. In particular, she warned us that unvested underwater (or even barely in-the-money) options may be anti-dilutive once the value unamortized expense is incorporated into the calculation

The Big Stretch

The final session I attended gave a detailed look at financial reporting including modification and M&A accounting, forfeiture rates, and calculating your APIC pool in Oops I Did It Again, Myriad Missteps and Misunderstandings In Financial Reporting. Although it was absolutely hilarious watching Elizabeth Dodge make some pretty big leaps to get Britney Spears lyrics to relate to financial reporting, the real value in this session was the very comprehensive explanations provided by each of the panelists. My tidbit from this presentation is a reminder that forfeiture rates are not a one-time calculation. If you are realizing significant true-ups, it is probably time to take a look at your forfeiture rate. This is particularly important of you are aware of an upcoming lay-off or other change that could temporarily wreak havoc on your company’s typical turn-over.


December 8, 2010

Tax Update Potpourri

This week I discuss a hodge podge of tax related updates: IRS Notice 2010-80, Code Y reporting, and the Social Security wage base for 2011.

IRS Expands 409A Documentation Corrections Program to Include Stock Rights
Early this year, when the IRS issued Notice 2010-6, I got a much appreciated reprieve from having to understand it because it handily didn’t apply to stock rights. (Well, handily for me at least; others may not have been so thrilled with this outcome.) Alas, my reprieve lasted less than a year; last week the IRS issued Notice 2010-80, expanding Notice 2010-6 to cover stock rights.

I’m surprised at this development because I wasn’t aware that very many, if any, companies needed this relief. I thought that, by now, companies had pretty much dealt with 409A in terms of their stock plans. If companies are in need of this relief, however, it may be necessary to take action by December 31, 2010–which is coming up quick; you’d think the IRS could have provided a little more time on this.

Luckily, I’m not sure that many companies are in need of this relief. It applies only to options that were not intended to be exempt from Section 409A. In my experience, this is pretty rare. So long as options are granted with a price equal to FMV at grant, it’s relatively easy to ensure that they are exempt. Where a company inadvertently grants a discounted option, assuming the option was intended to be exempt from 409A, it isn’t eligible for correction under Notice 2010-80 (however, it may be eligible for correction under IRS Notice 2008-113, which provides relief for operational errors).

I don’t know any companies that are granting options that aren’t intended to be exempt under 409A. Even where companies had pre-409A grants that weren’t exempt, I think the typical fix was to modify the options to be exempt, rather than to try to comply with 409A. So the bad news is that this relief probably isn’t that helpful for most of you but I guess the silver lining is that you probably don’t need to scramble to understand it by December 31.

Thanks to Art Meyers of Choate Hall & Stewart and Mike Melbinger of Winston & Strawn for helping me with my rudimentary understanding of Notice 2010-80.

Code Y
While we’re on the topic of 409A, I thought I’d mention that Code Y reporting still hasn’t gone into effect.  You will recall–or maybe you won’t, it’s been so long since 409A was enacted–that 409A requires companies to report amounts subject to deferral in Box 12 of Form W-2 using Code Y.  IRS Notice 2008-115 suspended this requirement until Treasury can issue regulations on it.  So far no regulations have been issued so chances are you won’t have to worry about Code Y for this year (but, then again, there are still 23 shopping days left until December 31, so I suppose the IRS could still come through with a late December Code Y surprise).

Thanks to Mike Melbinger of Winston & Strawn for confirming that there wasn’t some announcement about Code Y that I had missed.

Social Security Wage Base
Pursuant to a Social Security Administration press release issued on October 15, the maximum amount of wages subject to Social Security is not increasing for 2011–it will remain at $106,800 for another year. See the NASPP alert on this announcement for more information.

Vote for Broc and Dave!
Broc Romanek and David Lynn’s blog on was selected by the ABA Journal as one of the Top 100 Legal Blawgs. Readers can vote on their favorite blogs and we want Broc and Dave to win (they won last year), so we’re asking our readers to vote.  I know you all would vote for the NASPP Blog if you could, but we don’t count as a legal blog, so this is as close as you’ll come to voting for us. Come on, don’t make me beg!

Anyone can vote, you don’t have to be a member of the ABA. If you read and enjoy Broc and Dave’s blog–or even if you don’t–I hope you’ll vote for it.  BTW–if you have multiple email addresses, you can register and vote under each one. See Broc’s December 6 blog entry for instructions on voting. 

If you’ve never checked out the blog; it’s definitely worth a read. Unlike the lazy folks here at NASPP Blog, Broc and Dave manage to post an entry every day. And it’s free to anyone, whether you subscribe to or not. At a minimum, someone in your legal department should be reading it.

Less Than One Month Left to Get your Free Conference Session Audio
All NASPP memberships expire on a calendar-year basis. Renew your membership by Dec 31 and you’ll qualify to receive the audio for one NASPP Conference session for free!  Don’t wait any longer–the new year will be here before you know it!

This offer is also available to anyone the joins the NASPP before December 31–tell all your friends!

NASPP “To Do” List
We have so much going on here at the NASPP that it can be hard to keep track of it all, so I keep an ongoing “to do” list for you here in my blog. 

– Barbara

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December 2, 2010

Tax Return Mistakes

Today we have a fabulous installment in our Ask the Experts series of webcasts, “Tax Reporting for Stock Compensation.” I thought I’d shake things up and take a look at tax filing from the employee’s perspective.

Income and capital gains associated with equity compensation can be pretty daunting for the average employee. These are my top five reporting mistakes. Your personal top five may differ based on your company’s equity compensation program and the education you provide around taxation.

No Schedule D

Employees who do not understand capital gains at all could have this problem when it comes to reporting any sale. However, it’s much more common when there is a cashless exercise or sell-to-cover transaction, particularly if the company defines the FMV as the sale price. The employee may know that the income is reported and the associated taxes are withheld by the company, assume that the exercise (or vest) and the sale are the same transaction because they happened simultaneously and not even consider the need to report the sale. Alternatively, the employee may understand that the sale price and the FMV on the exercise or vest date is the same and assume that there is nothing to report.

Partial Sale Confusion

When an employee sells only some of the shares from an option exercise or restricted stock vest, it is surprisingly easy to misunderstand what should go on the Schedule D. This is more of a problem for employees doing a sell-to-cover transaction, but can happen even if the sale is from held shares. When referencing the exercise or vest statement, the employee reports all exercised/vested shares as being sold and/or reports the cost basis for the total shares acquired as the cost basis for the shares that were sold. The most likely result is a calculation on the Schedule D that shows a sizable capital loss on the sale. Hopefully, cost basis reporting will eventually help prevent this error.

ESPP – Qualifying Disposition

Qualifying dispositions of ESPP shares are confusing because there is still (in most cases) an income element if there was a discount at purchase. Unfortunately, the most common mistake for employees is not reporting that ordinary income when or if the company fails to do so. The income element of a qualifying disposition is the lesser of the discount as if the purchase took place at the beginning of the offering period (which should now be reported to employees on Form 3922) or the spread between the purchase and sale prices. Failure by the company to report that income doesn’t exempt the employee from reporting it.

The exception is that when the sale price is lower than the purchase price, there is no ordinary income on the qualifying disposition–and that means that employees in this unhappy situation are actually more likely to report it correctly.

Reporting Gain Twice

The most common reason for this error is a misunderstanding of restricted stock vests. The employee reports $0 as the cost basis, effectively reporting the spread at vest twice: once as income and once as capital gains. This can happen with options as well if the employee uses the exercise price as the cost basis for the shares when reporting the sale. Double reporting may also happen if an employee doesn’t realize that the income resulting from a disqualifying disposition of ISO or ESPP shares is already included in the Form W-2 (assuming your company is aware of the disposition and reports it correctly).

Failure to Report an ISO Cash Exercise

Employees with ISO grants have a host of tax concepts to familiarize themselves with, but none is quite as mysterious as the issue of AMT. AMT is such a nebulous issue for most people that it is often given only a brief explanation in equity compensation communications.

Many employees hear the words “no income” and assume that is synonymous with “no reporting obligation.” However, any exercise of ISOs (assuming the shares are held at least through the remainder of the tax year) means that the employee must complete and attach Form 6251 to their tax return, even if she or he is not subject to AMT. If the employee is subject to AMT and fails to report the exercise, this is (of course) potentially a much bigger issue than if the employee simply fails to prove she or he is not subject to AMT.

So, what’s the top five for your company? If you don’t know, start thinking about it now.

Here’s a better question: How do you figure out what mistakes your employees are making? First, anything that you don’t personally understand 100% is bound to be even more difficult for employees. Also, anything comes to you as a question is a potential for a reporting problem. Keep your ears open for horror stories–if it’s happened to one person, it could happen to your employees. Finally, if you’re really ambitious, you could survey a sample of your employees with example scenarios to see if they know how to report different transactions.


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