Back in November, the IRS proposed additional regulations on cost-basis reporting. These regulations primarily relate to the third phase of implementation of the reporting requirements, which applies to options and debt securities. But there are a few areas in the regulations that are of interest to stock plan professionals.
You Win Some: Sale Proceeds to Be Reported Net of Fees
It will come as a relief to anyone that has reviewed any of my cost-basis reporting flow charts to know that the regulations would require all brokers to deduct the transaction fees from the sale proceeds reported on Form 1099-B. In my humble opinion, this is a requirement that is long overdue. The fees are usually a small amount, sometimes immaterial, but trying to explain how they are included in the tax return when the broker doesn’t deduct them from the sale proceeds (or worse, when you don’t know whether the broker has deducted them) is almost an insurmountable challenge. If the IRS adopts these regulations and requires all brokers to report the sale price net of fees, I’ll be able to reduce my 6039 flow charts from 14 pages down to a mere five pages.
You Lose Some (or The More Things Change, the More They Stay the Same)
Readers of prior NASPP blog entries (see “Four Questions to Ask Your Brokers,” Nov. 30, 2010) know that the current regulations, which have been in effect since January 1, 2011, allow brokers to exclude the compensation component from the reported cost basis until 2013 for shares acquired under stock compensation arrangements. The newly proposed regs not only retain this exclusion but remove the limitation that it is only available until 2013. Thus, it doesn’t look like brokers will be required to report the full basis of shares acquired under stock compensation arrangements for the foreseeable future. I guess the silver lining here is that now you will get more than two years of use out of all those great educational materials you’ve been creating to explain this to your employees.
The regulations state that the IRS is contemplating requiring brokers to indicate whether the shares sold were acquired under a compensatory arrangement on the Form 1099-B (and in transfer statements). Frankly, I’m not really sure this helps much. For most employees, even executives, the only stock of their employer that they own was acquired through compensatory arrangements. When they sell their employer’s stock, I think they probably already know that the stock was acquired through a compensatory arrangement.
The proposed regs also state that the IRS will update the instructions to Schedule D and Form 8949 to clarify that the basis for shares acquired under compensatory arrangements may be incorrect. I have to admit that I’m not confident this is going to help much, especially given how clear the instructions included with Forms 3921 and 3922 are.
I will be hauling my cost-basis reporting soapbox to the February Silicon Valley and Sacramento chapter meetings, where Larry Reynolds of E*TRADE and I will provide a just-in-time overview of cost basis and the new Forms 1099-B. I hope to see you there!
Get in the Game If you haven’t been playing the NASPP Question of the Week Challenge, now is a great time to join the game. A new challenge just started and you have until Feb 3 to answer all the questions posted in January (after that, you only have a week to answer each question). All the cool kids are doing it–sign up today.
NASPP “To Do” List We have so much going on here at the NASPP that it can be hard to keep track of it all, so I keep an ongoing “to do” list for you here in my blog.
It feels like the holidays were just here; then year-end (for calendar year companies) and tax season moved in with a flurry. What’s next? For many: proxy season. This week I was thinking about all of the associated proxy “to-dos”. In anticipation of proxy season, I want to highlight some tips for managing one important aspect of stock plan management: plan reserves.
Plan reserves are the lifeblood of an equity plan. Without adequate shares to issue to employees, stock compensation programs will fall short. As proxy season approaches for a company, usually consideration is given to whether or not there are sufficient reserves available in the company’s stock plans to satisfy future anticipated grants and awards. If not, then shareholder approval may be necessary in order to procure additional shares. If your plan is set up such that shareholder approval is not necessary, this may create some backlash from shareholders since they will not be consulted in the matter. Nobody wants to run out of shares in their stock plans. Sadly, I’ve seen it happen several times – it’s not as unique a situation as one might envision. Here are some ideas to help ensure best practice management of your share reserves:
Forecast, Forecast, Forecast
Work with Human Resources and other interested parties to ensure proper planning includes some conservative assumptions in predicting an adequate reserve. Sometimes a couple of events can put an otherwise healthy share reserve in jeopardy of running out. For example, if the CEO resigns and vesting of his unvested stock options is accelerated (rather than being cancelled and returned to the share reserve pool for future issuance), there won’t be any shares to “return” to the share pool. Furthering the challenge: what if the company now hires a new CEO and grants that CEO a sizable award? Those two events alone could monopolize a large portion of the share reserve pool. While these events don’t happen every day, sometimes it only takes a single occurrence to create a problem. Careful attention should be given to ensuring a buffer of reserved shares that can cover unforeseen events. Proper forecasting could be the difference between asking shareholders to approve additional shares this year rather than next year.
Remember to Track Fungible Share Pools
Fungible share pools are gaining popularity, in part because shareholders are demanding more depth in managing plan reserves. The concept is that not all share issuances from a plan are created equal. For example, a single share of a full value award may be perceived as more ‘valuable’ (and costly from an accounting perspective) than a single stock option share. As a result, a ratio is established to give more weight to the shares that seemingly have more cost/value. A 2:1 ratio for a full value award means that for every full value share actually awarded, two shares are deducted from the plan reserve. When forecasting plan issuances and future balances, remember to take into account any such ratios that have been established for the plan.
Shareholder Opinions Do Matter
Many companies dread approaching shareholders for plan reserve increases. In fact, companies often take great care to ensure several years pass between such requests. Since the most common way for a public company to obtain shareholder approval for plan reserve increases is via the proxy statement/annual meeting process, it’s important to remember that such requests are only a small part of a company’s overall interaction with its shareholders. If shareholders are unhappy about other aspects of a company’s practices, such as executive compensation, then there is always the possibility that they may voice their objections by rejecting certain proposals in the proxy. Additionally, they may not like certain aspects of the plan itself, and may wish to see some changes before they will consider approving additional shares. Shareholders are becoming more vocal. If you have a large institutional investor population, you may want to communicate with them early on, prior to the distribution of the proxy, to gauge their feedback on the proposal and establish any potentially problematic concerns.
While there are never guarantees, the above steps will help minimize unexpected hurdles in managing your equity plan reserves.
It’s been months since I last discussed anything related to the Dodd-Frank Act so in today’s blog, I provide an update on SEC rulemaking related to the Act.
The SEC recently updated its calendar for rulemaking activities pertaining to Dodd-Frank to delay a number of projects, including:
Requirements for companies to adopt clawback policies for compensation paid to executives.
Disclosure of the ratio of CEO pay to the median pay of all employees.
Disclosure of the relationship of executive compensation to corporate financial performance.
Disclosure of hedging policies for employees and directors.
Final rules on these projects are now scheduled to be issued no earlier than July and possibly as late as December 2012. This means we won’t have final rules in time for this year’s proxy season (but you had probably already figured that out for yourself). The SEC expects to issue proposed rules during the first half of 2012.
The SEC has amended the definition of an “accredited investor” to exclude the value of primary residences from net worth. This is an important definition under Regulation D, which provides a number of exemptions from registration for offerings of stock, some of which limit the number of nonaccredited investors that can participate in the offering.
Next up, the SEC is set to finalize rules prohibiting “bad actors” from participating in Rule 506 offerings. At first I thought this meant that Pauly Shore and David Caruso wouldn’t be able to participate in unregistered offerings, but it actually relates to felons and others that have been convicted of or sanctioned for securities fraud and similar activities.
These changes probably don’t impact the operation of most companies’ stock plans. Public companies generally register all the shares issued under their stock plans and private companies are generally relying on Rule 701 for an exemption from registration. Either way, neither has to worry about accredited investors or complying any with of the Regulation D exemptions (including Rule 506). But where a private company has exceeded the limitations in Rule 701 (10 points if you know what they are off the top of your head–no Googling) or where either public or private companies are making private sales of stock to investors outside of their stock plans, the Regulation D exemptions can come into play.
Many companies are in the throes of year-end related activities. If your fiscal year ended on December 31, then you have the double duty of year-end financial reporting tasks combined with U.S. tax reporting requirements. Typically when I think about “year-end” and all the associated to-dos, things like W-2s, 1099s and participant communications are the first things that come to mind. In thinking further, I realize my perspective is a bit narrow. It’s a big world out there, and, for companies with employees outside of the U.S., there are additional reporting tasks associated with all the various non-U.S. jurisdictions that must be completed. In today’s blog I highlight some thoughts and tips for complying with year-end reporting requirements in non U.S. jurisdictions.
Thanks to a recent article published by Jones Day, available in our Global Stock Plans portal, I’ve been able to refresh my understanding on several key aspects of global year-end reporting compliance. I’ll focus on some general tips that came to my mind; country specific detail is available in the article and I’ll leave it to the law experts to share those tidbits.
It’s a Big World Out There
Yes, it’s true, the U.S. is not the only jurisdiction that requires year-end tax reporting related to stock plan transactions. I find that working in the U.S., it’s natural for us to be more intimately in the know when it comes to U.S. tax reporting compliance. However, as we know, there are many other locations that have similar reporting requirements. It’s important to understand which countries have existing legislation or measures and then formulate a plan to comply. Will a local resource be tasked with compliance? Will this be outsourced to a third party? Will corporate representatives facilitate such reporting?
Not All Tax Years Are Created Equal
One challenging aspect of managing stock compensation globally is the individuality of each global jurisdiction and their securities, tax, labor and other laws and requirements. These challenges remain consistent in the year-end reporting process as well. Not all tax years end on December 31. In fact, it’s common to see tax years ending in April, June and other parts of the year. For example, Australia’s tax year ends on June 30th. India’s tax year ends on March 31st. In some ways varied year-end dates may lessen the calendar year end burden placed upon stock administrators, payroll personnel, and others who work in managing global operations. However, it can be tricky to keep track of the multiple dates, deadlines and corresponding requirements. If you have employees with reportable transactions in multiple countries, you may want to create a global tax reporting calendar for the purpose of tracking important deadlines and requirements.
When You Assume…
There’s an expression about making assumptions, but in order to keep things professional I can’t write it here. If you’ve heard it, you know what I mean (and if you haven’t, I’ll be happy to share it with you offline). Anyhow, assumptions can lead to failures, and those of the compliance kind we certainly want to avoid. I’ve seen it happen many times – an assumption is made that local payroll is handling stock compensation related tax reporting. The problem? Payroll didn’t know they were supposed to do it, or, in some cases that there was even a requirement to report. Other possible vulnerabilities can be found in withholding rates (some locales have different rates for different situations, such as for current and terminated employees). While in many cases, local resources may know more about their own reporting requirements than those in the corporate office, it’s unwise to assume that everything will happen autonomously at the local level as intended. Even if you plan to have local resources handle the bulk of tax reporting and other year end compliance tasks, plug yourself in. Get involved and understand exactly what is being reported, for whom, and by when. This may involve internal business partners and external advisers with expertise in this area, and cross-communication is important.
Back to Work
I know we could talk for days about the extent and complexity of managing global stock plans, but alas it’s time to get back to work. I wish everyone a smooth year-end process, whenever that “year-end” may be.
Last year was the first year companies filed Section 6039 returns with the IRS for ISO and ESPP transactions. Those of us who lived through those filings are a little older and wiser now. So, as we head into our sophomore year of 6039 returns, I have a few tips for you.
Update Your FAQ
Participant statements have to be sent out by January 31, so updating your FAQ on Forms 3921 and 3922, as well as any other communications you include with the statements, should be first up on your list of things to do. The materials you created last year probably refer to the forms as “new,” state that this is the first year employees are receiving them, and fail to mention Form 8949 (and instead just tell employees to complete Schedule D). I’ve updated the sample memos and FAQ available in the NASPP’s Section 6039 Portal:
If you are interested in seeing what I changed in the FAQ, I’ve posted a redline version of it in the NASPP Document Library. And, of course, I posted the updated Section 6039 Flow Charts last week.
Forms 3921 and 3922 are currently not available through the IRS’s online order form (if you recall, last year the forms weren’t available until mid-March, well after the deadline for filing on paper). Yesterday was a federal holiday, so I couldn’t verify whether or not the forms were available through 1-800-Tax Forms, but I suspect not. If the forms aren’t available right quick, companies will have to use substitute statements for participants again this year. Hopefully the forms will be available this year before the deadline to submit paper filings. If they aren’t, anyone filing on paper will need to file for an extension on Form 8809. It’s best to file for the extension online, using the IRS FIRE system, even if you are submitting the returns on paper.
Here are a few tips and other things that I learned from last year’s filings:
You can email the IRS many, many times with the same question and they won’t take out a restraining order against you. But they also still won’t answer your question. This probably isn’t the kind of tip you were looking for.
You have to include employees’ full social security numbers on the participant statements. Yes, I know that employees already know their social security numbers and that this presents a security risk. It’s not my rule–email the IRS about it (see my first tip).
If you are having trouble figuring out your grant date and grant date FMV for Form 3922, you are probably thinking too much. If you have a look-back, it’s the same date and FMV you use to determine the purchase price. If you don’t have a look-back, I take it back; you aren’t thinking too much.
The corporation on Form 3922 has to be the corporation whose stock is purchased under the plan, even if this isn’t the company that operates the plan. I’ve asked this question of IRS staffers multiple times and I get the same answer every time; I don’t think they are going to change their minds. But I think you could include the address of the company operating the plan rather than the address of the corporation whose stock is purchased, so that any IRS communications about the filings at least go to the right place.
If you are filing electronically, you probably went through some angst last year relating to rounding shares and/or monetary amounts. Publication 1220 was updated this year to specify that a true round should be used on share amounts. There’s still no instruction on how monetary values should be rounded, but it would seem reasonable to do the same thing. Then again, this seems like such an immaterial issue that I think you could probably use any reasonable rounding method (up, down, true) you want, so long as you are consistent about it.
Account number is really a transaction number. And it’s important, because if you have to file a corrected return, the account number could be critical to matching the corrected form to the original filing. You can come up with your own system for assigning account numbers, just so long as each transaction you report has a unique number and the numbers aren’t longer than 20 digits. They can include numbers, letters, and symbols.
You have to file Form 3921 for all ISO exercises, even same-day sales, even though an AMT adjustment is necessary for same-day sales. This is the way the law was passed by Congress, so the IRS can’t really do anything about it. Blame your Congressman.
Dead men don’t wear plaid but they do still get Section 6039 statements. The death of an employee does not relieve you of the obligation to file Forms 3921 and 3922.
Just before the turning of the New Year, the New York Times printed an article about the potential for large cash windfalls to CEOs who received mega-sized stock option grants during the lowest points of the stock market downturn in 2008 and 2009. Judging from the number of Google Alerts that subsequently came to my inbox on this topic, it seems the article stirred some strong opinions, particularly about the corresponding potential corporate tax deductions.
High Value Non Qualified Stock Option Exercise = Hefty Corporate Tax Deduction
In summary, during the lowest points of stock market performance, many companies issued larger-than-usual stock option grants to their executives. Now, with the market on the rebound, and barring a relapse, many of these grants are well in-the-money and primed to generate huge windfalls of cash for the executives upon exercise. Hand in hand with large cash gains for the executive would be a hefty tax deduction for the company. Estimates run in the billions in terms of shares granted and potential dollars in gains resulting from the grants in question. According to the article, “of the billions of shares worth of options issued after the crisis, only about 11 million have thus far been exercised, according to data compiled by InsiderScore, a consulting firm that compiles regulatory filings on insider stock sales.” This seems to indicate that most of the potential windfall is still on paper, and there may be many significant stock option exercises to come.
What’s the Buzz?
Critics of the stock option tax deduction provisions within the Internal Revenue Code are already vocalizing dissent over the possibility that many companies may drastically reduce, or altogether eliminate, their tax liability due to the large sized deductions that would accompany such significant executive gains. Barbara blogged about a similar concept back in September. As I thought about this possibility, it occurred to me that this is not the only time in history that large windfalls equaled large deductions. In fact, anytime there is an uptick in a company’s stock and a stock option appreciates, there is value. This could be in parallel with market conditions, or simply because a company is performing well, or both. When that value is recognized in the form of an exercise of a non-qualified stock option, the company receives a corresponding tax deduction. Since executives are usually the employees with the largest stock grants, it’s likely that the largest corporate tax deductions typically originate from executive transactions. This isn’t a new trend.
I’m thinking back to the 1990s up through 2000 when the stock market was bullish, and feeling like I’ve been here before. Which prompts me to say “so what?” Now, before I get dozens of emails correcting me on statement, the “what” that is different in this situation is that it seems many of the stock options granted in 2008 and 2009 were particularly oversized, seemingly because of the state of the economy and miserable market conditions. In addition, many of those grants were free of performance conditions, which means that the potential windfall in many cases may be a pure reflection of a market rebound, and has nothing to do with the executive or company’s performance. That thought has stirred some buzz, and it seems likely to continue as more paper gains translate into real cash through exercises. It seems that time is upon us, or not too far into the future. This will be a topic that is bound to generate some buzz in the coming months. I wonder if Senator Levin will use this as yet another opportunity to try and get his bill (limiting stock option tax deductions to the expense recognized for them) through Congress. It seems like 2012 may be a year of epic stock option gains; we’ll just have to wait and see.
As our faithful readers know (because we’ve certainly harped on this topic enough), 2011 Forms 1099-B (which brokers will be sending out shortly) are subject to the new cost-basis reporting requirements. We’ve posted some resources to help you understand the new requirements and help you get a start on materials explaining them to your stock plan participants. In today’s blog entry, I highlight the new (and a few old) materials now available on Naspp.com.
We’ve created the following reporting reporting examples. Each example includes an annotated Form 1099-B, Form 8949, and Schedule D so you can see how sales of shares acquired under the various scenarios will appear on each of these forms:
We’ve also posted a sample FAQ on the new cost-basis reporting requirements and the new Form 8949. It even includes an annotated Form 8949. Use this as a starting point for your own FAQ for your stock plan participants.
We’ve also posted a sample email that might be sent to employees to alert them to the dangers of not verifying that the cost basis reported on their Form 1099-B is correct.
Last year, we created the renowned Section 6039 flow charts (one member told us these charts alone made membership worth the cost), which explain how employees can use Forms 3921 and 3922 to report sales of shares acquired under ISOs and ESPPs on their tax returns. Those flow charts have now been updated for the new Form 1099-B and Form 8949. In addition, we’ve created flow charts for NQSOs and RS/RSUs.
Over the last couple of weeks I’ve blogged about the status of the social security payroll tax cut. If you’re catching up after a nice holiday break, the gist of the issue was whether Congress would extend the 4.2% social security tax withholding rate that was in effect for 2011 (in the end they did, for 60 days, through February 29, 2012.) Today, I explore some of the administrative considerations associated with the temporary extension of the payroll tax cut.
Administering Multiple Social Security Withholding Rates in One Calendar Year
Although the continuance of the social security withholding rate at 4.2% for another 60 days is seemingly good news for an estimated 160 million affected workers, there are some administrative areas that will need monitoring or adjustment. First, if the social security tax withholding rate changes mid-year (as is now scheduled to happen effective March 1, 2012), the maximum withholding amount for 2012 will be different for each employee, based on how much they earned before and after the rate change. This could be a challenge for software programs that cap social security withholding based on a maximum withholding amount, rather than wages.
Let’s look at some examples:
Employee A earns $20,000 in wages up through February 29, 2012. The same employee earns $100,000 between March 1 and December 31, 2012. In this example, his/her maximum withholding in 2012 is $6,426.00 ($20,000 x 4.2% and $90,100 (the $110,100 limit less the $20,000 already paid) x 6.2%).
Employee B earns $25,000 in wages up through February 29, 2012. This employee earns another $125,000 in wages between March 1 and December 31, 2012. His/her maximum withholding is $6,326.20 ($25,000 x 4.2% plus $85,100 x 6.2%).
Software programs that cap social security based on a maximum number will be looking to max people out at the same maximum amount across the board. As we can see from the examples above, the maximum amount of social security withholding will vary by individual. Be sure to check with your software provider or third party administrator to understand how social security withholding is calculated, and whether any work around will be necessary. The first two months of the year will be easy: you just withhold at the 4.2% rate across the board, up to the maximum of $4,624.20 ($110,100 x 4.2%). If Congress acts to extend the payroll tax cut for the entire year, none of the concern about the maximum withholding will matter. We’ll just simply apply the 4.2% withholding rate, up to the maximum of $4,624.20 for the entire year. However, if Congress does not extend the 4.2% rate and it reverts back to 6.2%, you may need to have some procedures in place to ensure that each person’s withholding reflects the correct maximum (again, it will be individually based, depending on what was withheld before and after the rate change). I’m already seeing postings in our discussion forum about this topic, so those who have ideas about how to administer this, please stop on by and share them.
A Tax Cut Recaptured
Also included in the legislation is a “recapture” provision that essentially recoups some tax dollars from employees who earn more than $18,350 by February 29th. Employees who earn more than $18,350 during the first two months of 2012 will be subject to an additional 2% in income tax (not additional social security tax). While it makes for a basically tax-neutral position for the employee (4.2% social security + 2% income tax = 6.2%, simply speaking), the company still needs to withhold at the lower 4.2% social security tax rate. This could be a key area of communication for employees who have significant income events in January and February (such as option exercises, RSU vestings, performance share delivery, etc.). How the 2% recapture tax will be collected is not yet entirely clear.
Lastly, the IRS has published notice IR-2011-124 with information regarding the payroll tax cut and recapture tax. In short, the new tax rate of 4.2% needs to be in effect by January 31, 2012, and any over withholding (for companies that went back to 6.2% in anticipation of the tax cut expiring) should be returned through an offsetting adjustment in pay as soon as possible, but no later than March 31, 2012.
It looks like our 2012 year is off to an interesting start!
Is your calendar full for January yet? As we head into the new year, now is a good time to touch base with other departments that you work with throughout the year to review procedures and plan for the coming year. In today’s blog, I discuss a few of the groups you might want to meet with. Looks like it’s going to be a busy month…
Schedule a meeting with payroll to kick off the start of the year. A few items for the meeting agenda include reviewing W-2 reporting procedures for various stock plan transactions (see our “Form W-2 Reporting Checklist” and “W-2 and 1099 Reporting for Equity Compensation – FAQs“); reviewing tax rate and limit changes for the upcoming year; and reviewing current procedures–what’s working and what isn’t working.
Forms 1099-MISC are typically prepared by accounts payable. If you grant equity to outside directors and other non-employees, it’s a good idea to meet with this group to ensure that any of their taxable stock plan transactions for the year will be reported appropriately. Ditto for any taxable transactions that occurred after the death of an employee or subsequent to the transfer of options/awards pursuant to divorce.
For calendar year-end companies that haven’t done so since last year, now is a good time to review your valuation assumptions (volatility, dividend yield, interest rates, and expected life) for stock option grants. It’s also a good time to revisit the expected forfeiture rate applied to options and awards. Set up a meeting with accounting/finance to have a conversation about this. If you’ve had unusual transactions that occurred during the year (acceleration of vesting, changes in employee status, option exchange programs, other option/award modifications), it’s a good idea to review how these transactions are accounted for as well. You don’t want any surprises when your auditors review your financial reports.
You’ve probably already done this if your company has a calendar year-end, but if you haven’t, you’ll want to schedule a meeting with the folks responsible for preparing your company’s Form 10-K and proxy solicitation statements to ascertain what your contributions will need to be. Reviewing last year’s statements to remind yourself of the information included relating to stock compensation can be a good preparatory step for this meeting. It’s also a good idea to review the number of shares available in your stock plans, expected share usage for the next two years, and plan expiration dates, so you’ll know if a shareholder proposal relating to your stock plans is necessary.
Review your current grant guidelines with HR to determine if any tweaking is necessary and to find out if HR has planned any changes to your equity programs for the next year.
With cost-basis reporting going into effect for the first time with 2011 Forms 1099-B, you’ll want to meet with your brokers to find out what will be reported as the cost basis for stock issued under your stock plans and what information they will be providing your employees about the new reporting procedures. See my November 30, 2010 bog, “Four Questions to Ask Your Brokers.”
Section 6039 Service
If you plan to use an outside provider to prepare and/or file Section 6039 returns with the IRS and provide statements to employees, don’t wait any longer to get the conversations with your provider started. The deadline for employee statements is January 31!
If you offer stock compensation to non-US employees, it’s a good time to check in with your external advisors for international compliance to find out if any local requirements have changed and if there are any year-end reporting requirements you need to comply with outside of the United States. Where US employees have relocated to other countries, or foreign nationals have moved into the United States, also review the US tax reporting requirements with respect to these folks (even for foreign nationals that moved back out of the US by the end of the year).
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.