[Federal Register Volume 73, Number 146 (Tuesday, July 29, 2008)]
[Proposed Rules]
[Pages 43875-43890]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-17255]
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DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Part 1
[REG-106251-08]
RIN 1545-BH68
Employee Stock Purchase Plans Under Internal Revenue Code Section
423
AGENCY: Internal Revenue Service (IRS), Treasury.
ACTION: Notice of proposed rulemaking.
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SUMMARY: This document contains proposed regulations relating to
options granted under an employee stock purchase plan as defined in
section 423 of the Internal Revenue Code (Code). These proposed
regulations affect certain taxpayers who participate in the
[[Page 43876]]
transfer of stock pursuant to the exercise of options granted under an
employee stock purchase plan. These proposed regulations provide
guidance to assist taxpayers in complying with section 423 in addition
to clarifying certain rules regarding options granted under an employee
stock purchase plan. This document also contains proposed regulations
under sections 421 and 422 of the Code.
DATES: Written or electronic comments must be received by October 27,
2008.
ADDRESSES: Send submissions to: CC:PA:LPD:PR (REG-106251-08), room
5203, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station,
Washington, DC 20044. Submissions may be hand delivered Monday through
Friday between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (REG-
106251-08), Courier's Desk, Internal Revenue Service, 1111 Constitution
Avenue, NW., Washington, DC, or sent electronically via the Federal
eRulemaking Portal at http://www.regulations.gov/ (IRS REG-106251-08).
FOR FURTHER INFORMATION CONTACT: Concerning these proposed regulations,
Thomas Scholz at (202) 622-6030; concerning submissions of comments,
and/or to request a hearing, Oluwafunmilayo Taylor, at (202) 622-7180
(not toll-free numbers).
SUPPLEMENTARY INFORMATION:
Background
This document contains proposed amendments to 26 CFR part 1 under
section 423 of the Code. This document also contains minor proposed
amendments to 26 CFR part 1 under sections 421 and 422 of the Code.
Section 423 was added to the Code by section 221(a) of the Revenue
Act of 1964, Public Law 88-272 (78 Stat. 63 (1964)). Changes to the
applicable law concerning section 423 were made by sections
1402(b)(1)(C) and 1402(b)(2) of the Tax Reform Act of 1976, Public Law
94-455 (90 Stat. 1731 and 1732-1733 (1976)); section 1001(b)(5) of the
Deficit Reduction Act of 1984, Public Law 98-369 (98 Stat. 1011
(1984)); section 1114 of the Tax Reform Act of 1986, Public Law 99-514
(100 Stat. 2451 (1986)); and sections 11801(c)(9)(D)(i)-(ii) and
11801(c)(9)(E) of the Omnibus Budget Reconciliation Act of 1990, Public
Law 101-508 (104 Stat. 1388-525 (1990)).
Regulations under section 423 were published in the Federal
Register on June 23, 1966 (TD 6887). These regulations were amended on
September 27, 1979 (TD 7645), October 31, 1980 (TD 7728), and December
1, 1988 (TD 8235). In Notice 2004-55, 2004-34 IRB 319 (August 23,
2004), (see Sec. 601.601(d)(2)(ii)(b)), the IRS and the Treasury
Department requested comments concerning whether the existing
regulations under section 423 should be amended, and if so, what issues
should be addressed. Two comment letters were submitted in response to
Notice 2005-55 and the suggestions in those letters are addressed in
this preamble.
In general, the income tax treatment of the grant of an option to
purchase stock in connection with the performance of services and of
the transfer of stock pursuant to the exercise of the option is
determined under section 83 and the regulations thereunder. However,
section 421 provides special rules for determining the income tax
treatment of the transfer of shares of stock pursuant to the exercise
of an option if the requirements of sections 422(a) or 423(a), as
applicable, are met. Section 422 applies to incentive stock options and
section 423 applies to options granted under an employee stock purchase
plan (collectively, statutory options).
Under section 421, if a share of stock is transferred to an
individual pursuant to the exercise of a statutory option, there is no
income at the time of exercise of the option with respect to the
transfer and no deduction under section 162 is allowed to the employer
corporation with respect to the transfer.
Section 423(a) provides that section 421 applies to the transfer of
stock to an individual pursuant to the exercise of an option granted
under an employee stock purchase plan if: (i) no disposition of the
stock is made within two years from the date of grant of the option or
within one year from the date of transfer of the share, and (ii) at all
times during the period beginning on the date of grant and ending on
the day three months before the exercise of the option, the individual
is an employee of either the corporation granting the option or a
parent or subsidiary of such corporation, or a corporation (or a parent
or subsidiary of such corporation) issuing or assuming a stock option
in a transaction to which section 424(a) applies. Section 423(b) sets
forth several requirements that must be met for a plan to qualify as an
employee stock purchase plan. Section 423(c) provides a special rule
that is applicable where the option exercise price is between 85 and
100 percent of the fair market value of the stock at the time the
option was granted.
Section 424 provides special rules applicable to statutory options,
including rules concerning the modification of statutory options and
the substitution or assumption of an option by reason of a corporate
merger, consolidation, acquisition of property or stock, separation,
reorganization, or liquidation. Section 424 also contains definitions
of certain terms, including disposition, parent corporation, and
subsidiary corporation. Finally, section 424 provides special rules
related to attribution of stock ownership and the effect of stockholder
approval on the date of grant of a statutory option.
Explanation of Provisions
These proposed regulations would provide a comprehensive set of
rules governing stock options issued under an employee stock purchase
plan and would incorporate substantially all of the rules contained in
the existing regulations under section 423. These proposed regulations
are comprised of two sections: Section 1.423-1, applicability of
section 421(a); and Sec. 1.423-2, employee stock purchase plan
defined. These proposed regulations would amend the existing
regulations under section 423 in several ways. First, these proposed
regulations would update the existing regulations to incorporate
statutory changes and to make them consistent, where appropriate, with
the regulations under section 422 related to incentive stock options.
The regulations under section 422 were last updated in 2004. See TD
9144, 2004-26 IRB 413. Second, these proposed regulations would update
the existing regulations to provide additional guidance in certain
areas as discussed below. Finally, these proposed regulations would
also update the existing regulations to remove obsolete rules.
1. General Requirements
Under Sec. 1.423-2(a)(1) of these proposed regulations, an
employee stock purchase plan must meet the requirements of paragraphs
(i) through (ix) of Sec. 1.423-2(a)(2). The terms of the plan, or an
offering under the plan, must satisfy the requirements of paragraphs
(iii) through (ix) of Sec. 1.423-2(a)(2). Consistent with Sec. 1.422-
2(b)(1), Sec. 1.423-2(a)(1) of these proposed regulations would
provide that the plan and the terms of an offering must be in writing
or electronic form, provided that such writing or electronic form is
adequate to establish the terms of the plan or offering.
Section 1.423-2(a)(2) of these proposed regulations lists the
requirements that must be met for qualification as an employee stock
purchase plan and provides cross references to the specific section of
[[Page 43877]]
these regulations that addresses each requirement.
Under Sec. 1.423-2(a)(3) of these proposed regulations, if the
terms of an option are inconsistent with the terms of the employee
stock purchase plan or an offering under the plan, then the option will
not be treated as granted under an employee stock purchase plan.
(Section 1.423-2(a)(2) of the existing regulations has been re-numbered
as Sec. 1.423-2(a)(3) of these proposed regulations.) If an option
with terms that are inconsistent with the terms of the plan or an
offering under the plan is granted to an employee who is entitled to
the grant of an option under the terms of the plan or offering, and the
employee is not granted an option under the offering that qualifies as
an option granted under an employee stock purchase plan, then the
offering will not meet the requirements of Sec. 1.423-2(e) of these
proposed regulations, which generally requires that options be granted
to all employees of any corporation whose employees are granted options
under an employee stock purchase plan. As a result, none of the options
granted under the offering will be eligible for the special tax
treatment of section 421. Example 1 in Sec. 1.423-2(a)(4) illustrates
this principle. Section 1.423-2(a)(4) of these proposed regulations
contains additional examples to illustrate the principles of Sec.
1.423-2(a)(3).
If an option with terms that are inconsistent with the terms of the
plan or an offering under the plan is granted to an individual who is
not entitled to the grant of an option under the terms of the plan or
offering, then the option will not be treated as an option granted
under an employee stock purchase plan, and the grant of the option will
not disqualify the options granted under the offering. Examples 2 and 3
in Sec. 1.423-2(a)(4) of these proposed regulations illustrate this
principle. Example 2 also appears in Sec. 1.423-2(a)(2) of the
existing regulations.
If, at the time of grant, an option qualifies as an option granted
under an employee stock purchase plan, but the terms of the option are
not satisfied, then the option will not be treated as granted under an
employee stock purchase plan. However, this failure to comply with the
terms of the option will not disqualify the options granted under the
plan or offering. Example 4 in Sec. 1.423-2(a)(4) of these proposed
regulations illustrates this principle.
2. Stockholder Approval of the Employee Stock Purchase Plan
To qualify as an employee stock purchase plan, section 423(b)(2)
requires that the plan be approved by the stockholders of the granting
corporation within 12 months before or after the date the plan is
adopted. These proposed regulations would provide the same basic
requirements for stockholder approval as those included in the existing
regulations. Consistent with Sec. 1.422-2(b)(2), these proposed
regulations would provide additional guidance concerning the
circumstances under which stockholder approval is required.
These proposed regulations, like the existing regulations, would
require stockholder approval if there is a change in the aggregate
number of shares or in the employees eligible to be granted options
under the plan. The standard for determining when stockholder approval
is required under these proposed regulations generally is the same as
under the existing regulations. These proposed regulations would
clarify the requirements for stockholder approval and would provide a
more comprehensive list of situations that require new stockholder
approval of the plan. In particular, these proposed regulations would
clarify that new stockholder approval is required if there is a change
in the shares with respect to which options are issued or a change in
the granting corporation.
For example, assume that S, a wholly owned subsidiary of P, adopts
an employee stock option plan under which options for S stock will be
granted to S employees, and the plan is approved by the stockholder of
S (in this case, P) within the applicable 24-month period. If S later
amends the plan to provide for the grant of options to acquire P stock
(rather than S stock), S must obtain approval from the stockholders of
S (in this case, P) within 12 months before or after the date of the
amendment of the plan because the amendment of the plan to allow the
grant of options for P stock is considered the adoption of a new plan.
See paragraph (iii) of Example 1 in Sec. 1.423-2(c)(5) of these
proposed regulations. This conclusion differs from that in paragraph
(iii) of Example 1 under Sec. 1.422-2(b)(6), which concludes that the
stockholders of P rather than the stockholders of S must approve the
plan as a result of its amendment to provide for the grant of options
to acquire P stock. The IRS and the Treasury Department invite comment
on this result and are proposing a conforming change to Example 1,
paragraph (iii) under Sec. 1.422-2(b)(6).
These proposed regulations also would provide additional guidance
regarding the application of the stockholder approval requirements
where an employee stock purchase plan is assumed in connection with a
corporate transaction. Example 3 in Sec. 1.423-2(c)(5) of these
proposed regulations illustrates this principle.
3. Maximum Aggregate Number of Shares
Section 1.423-2(c)(3) of the existing regulations provides that an
employee stock purchase plan must designate the maximum aggregate
number of shares that may be issued under the plan. Consistent with
Sec. 1.422-2(b)(3)(ii), these proposed regulations would provide that
the plan may specify that the maximum aggregate number of shares
available for grants under the plan may increase annually by a
specified percentage of the authorized, issued, or outstanding shares
at the date of the adoption of the plan. Further, a plan providing that
the maximum aggregate number of shares issued subject to options under
the plan may change based on any other specific circumstances will
satisfy the requirements of Sec. 1.423-2(c)(3) only if the
stockholders approve an immediately determinable maximum number of
shares that may be issued under the plan in any event. Examples 4 and 5
in Sec. 1.423-2(c)(5) of these proposed regulations illustrate these
principles.
4. Employees Covered by the Plan
Section 423(b)(4) permits an employer to exclude from participation
one or more of the following categories of employees: Employees who
have been employed less than two years; Employees who customarily work
20 hours or less per week; Employees who customarily work not more than
five months in any calendar year; and Highly compensated employees
(HCEs) within the meaning of section 414(q). Section 1.423-1(e)(1) of
these proposed regulations has been updated to reflect the 1986
amendment of section 423(b)(4)(D) to substitute ``highly compensated
employees (within the meaning of section 414(q))'' for ``officers,
persons whose principal duties consist of supervising the work of other
employees, or highly compensated employees.'' See Public Law 99-514,
section 1114(b)(13).
One commentator suggested that the regulations clarify that an
employer may exclude from participation a subset of one of the groups
set forth in section 423(b)(4). For example, an employer should be
permitted to exclude a subset of HCEs, such as officers, from
participation in the plan. The commentator further suggested that the
regulations clarify that an employer may
[[Page 43878]]
impose shorter service requirements than those permitted. For example,
an employer should be permitted to exclude employees who have been
employed less than one year from participation in the plan.
The IRS and the Treasury Department agree that a more inclusive
application of the rules of section 423(b)(4) is consistent with the
intent of section 423. Accordingly, Sec. 1.423-2(e)(2) of these
proposed regulations would provide that an employee stock purchase plan
does not fail to satisfy the coverage provision of section 423(b)(4)
merely because the plan excludes employees who have completed a shorter
period of service or whose customary employment is for fewer hours per
week or fewer months in a calendar year than is specified in subparts
(A), (B) and (C) of section 423(b)(4), provided the exclusion is
applied in an identical manner to all employees of every corporation
whose employees are granted options under the plan. In addition, these
proposed regulations would provide that the terms of an employee stock
purchase plan may exclude HCEs: (a) with compensation above a certain
level, or (b) who are officers or subject to the disclosure
requirements of section 16(a) of the Securities Exchange Act of 1934,
provided the exclusion is applied in an identical manner to all HCEs of
every corporation whose employees are granted options under the plan.
Examples 3, 4, 5, 6, and 7 in Sec. 1.423-2(e)(6) of these proposed
regulations illustrate these principles. (The examples under Sec.
1.423-2(e)(3) of the existing regulations have been re-numbered as
Sec. 1.423-2(e)(6) of these proposed regulations.)
Another commentator suggested that the regulations permit employers
to exclude from plan participation employees who are nonresident aliens
and who receive no earned income that constitutes income from sources
within the United States. The IRS and the Treasury Department agree
that it may be appropriate to exclude foreign employees from plan
participation in certain limited circumstances. However, unlike section
410(b), section 423 does not provide an exclusion for such nonresident
aliens. Accordingly, the IRS and the Treasury Department are
constrained by statutory authority from providing a general exclusion
from plan participation for employees who are nonresident aliens and
who receive no United States source income. Therefore, Sec. 1.423-
2(e)(3) of these proposed regulations would provide that employees who
are citizens or residents of a foreign jurisdiction (without regard to
whether they are also citizens of the United States or resident aliens
(within the meaning of Sec. 7701(b)(1)(A))) may be excluded from the
coverage of an employee stock purchase plan only if the grant of an
option under the plan to a citizen or resident of the foreign
jurisdiction is prohibited under the laws of such jurisdiction or if
compliance with the laws of the foreign jurisdiction would cause the
plan to violate the requirements of section 423. Example 8 in Sec.
1.423-2(e)(6) of these proposed regulations illustrates this principle.
Another commentator suggested that the regulations permit employers
to exclude collectively bargained employees from plan participation.
However, unlike section 410(b), section 423 does not provide an
exclusion for collectively bargained employees. Accordingly, the IRS
and the Treasury Department are again constrained by statutory
authority from providing a general exclusion from plan participation
for collectively bargained employees.
One commentator suggested that the regulations be amended to
provide that an offering will not lose its tax-favored status due to
the inadvertent exclusion of employees from plan participation. Rather,
the commentator suggested that the granting corporation be permitted to
correct certain errors in plan administration through a corrections
program that would permit the excluded employees to participate in past
offerings under a plan. Such a corrections program is beyond the scope
of these regulations. However, the IRS and the Treasury Department
invite comments on whether such a program is appropriate (including the
statutory authority for such a program) and suggestions for the types
of violations that might be covered and the methods of correction.
Section 1.423-2(e)(4) of these proposed regulations includes
language that appears under Sec. 1.423-2(e)(1) of the existing
regulations. Section 1.423-2(e)(2) of the existing regulations has been
re-numbered as Sec. 1.423-2(e)(5) of these proposed regulations.
5. Equal Rights and Privileges
Section 423(b)(5) requires that, subject to certain exceptions, an
employee stock purchase plan, by its terms, provide that all employees
granted options under the plan have the same rights and privileges.
Section 1.423-2(f)(3) of these proposed regulations includes
language that appears in Sec. 1.423-2(f)(1) of the existing
regulations. (The examples in Sec. 1.423-2(f)(2) of the existing
regulations have been relocated to Examples 1 and 2 of Sec. 1.423-
2(f)(7) of these proposed regulations. The example in Sec. 1.423-
2(f)(4) of the existing regulations has been relocated to Example 3 of
Sec. 1.423-2(f)(7). Section 1.423-2(f)(4) of the existing regulations
is re-numbered under these proposed regulations as Sec. 1.423-
2(f)(6)).
One commentator suggested that a plan or offering should not fail
to satisfy the equal rights and privileges provision of section
423(b)(5) if the provisions of the plan or offering applied to foreign
employees are reasonably designed to avoid adverse consequences for
such employee under foreign law as a result of plan participation. The
IRS and the Treasury Department agree that in certain limited
circumstances it may be appropriate for the terms of an employee stock
purchase plan to be less favorable with respect to foreign employees
than those terms are with respect to employees resident in the United
States. Accordingly, Sec. 1.423-2(f)(4) of these proposed regulations
would provide that a plan or offering will not fail to satisfy the
requirements of section 423(b)(5) if, in order to comply with the laws
of a foreign jurisdiction, the terms of an option granted under a plan
or offering to citizens or residents of such foreign jurisdiction
(without regard to whether they are also citizens of the United States
or resident aliens (within the meaning of Sec. 7701(b)(1)(A))) are
less favorable than the terms of options granted under the same plan or
offering to employees resident in the United States. Example 4 in Sec.
1.423-2(f)(7) of these proposed regulations illustrates this principle.
A plan or offering will not satisfy the requirements of section
423(b)(5), however, if, in order to comply with the laws of a foreign
jurisdiction, the terms of the plan or offering are more favorable with
respect to citizens or residents of such foreign jurisdiction than the
terms of the plan or offering are with respect to employees resident in
the United States.
Another commentator suggested that the regulations addressing the
carryover of amounts from one offering to another be clarified. In
response to this comment, these proposed regulations would clarify
Sec. 1.423-2(f)(3) of the existing regulations (which has been re-
numbered as Sec. 1.423-2(f)(5)). Generally, a plan permitting one or
more employees to carry forward amounts that were withheld but not
applied toward the purchase of stock under an earlier plan or offering
and apply such amounts toward the purchase of additional stock under a
subsequent plan or offering will be a violation of the
[[Page 43879]]
equal rights and privileges requirement under section 423(b)(5).
However, the carry forward of amounts withheld but not applied toward
the purchase of stock under an earlier plan or offering will not
violate the equal rights and privileges requirement of section
423(b)(5) if all other employees participating in the current plan or
offering are permitted to make direct payments toward the purchase of
shares under a subsequent plan or offering in an amount equal to the
excess of: (a) the greatest amount that any employee is allowed to
carry forward from an earlier plan or offering over (b) the amount, if
any, the employee will carry forward from an earlier plan or offering.
Example 5 in Sec. 1.423-2(f)(7) of these proposed regulations
illustrates this principle.
Further, a plan will not fail to satisfy the equal rights and
privileges requirement of section 423(b)(5) merely because employees
are permitted to carry forward amounts representing a fractional share
which were withheld but not applied toward the purchase of stock under
an earlier plan or offering and apply such amounts toward the purchase
of additional stock under a subsequent plan or offering.
6. Option Price
Under section 423(b)(6), the option price must not be less than the
lesser of: (a) an amount equal to 85 percent of the fair market value
of the stock at the time the option is granted, and (b) an amount not
less than 85 percent of the fair market value of the stock at the time
the option is exercised. Consistent with Sec. 1.422-2(e)(1), Sec.
1.423-2(g)(1) of these proposed regulations would provide that the
option price may be determined in any reasonable manner, including the
valuation methods permitted under Sec. 20.2031-2 (Estate Tax
Regulations), so long as the option price meets the minimum pricing
requirements of section 423(b)(6).
7. Date of Grant
Section 1.421-1(c) provides, that for purposes of Sec. Sec. 1.421-
2 through 1.424-1, the language ``the date of the granting of the
option'' and ``the time such option is granted'' and similar phrases
refer to the date or time when the granting corporation completes the
corporate action constituting an offer of stock for sale to an
individual under the terms and conditions of a statutory option. The
date of grant for an option granted under an employee stock purchase
plan is important for several reasons. First, the favorable tax
consequences under section 421 apply to the shares acquired pursuant to
the exercise of an option granted under an employee stock purchase plan
if the shares are not disposed of within two years from the date of
grant of the option or within one year from the date of exercise of the
option. Second, the $25,000 limitation under section 423(b)(8) is
determined based on the fair market value of the stock measured on the
date of grant of the option. The date of grant is also important for
purposes of determining the employees eligible to participate in the
plan and, in certain cases, determining the purchase price of stock
under the plan.
Section 1.421-1(c) further provides that a corporate action
constituting an offer of stock for sale is not considered complete
until the date on which the maximum number of shares that can be
purchased under the option and the minimum option price are fixed or
determinable. Because options under an employee stock purchase plan may
be priced at the lesser of an amount equal to 85 percent of the fair
market value of the stock at the time the option is granted, and an
amount not less than 85 percent of the fair market value of the stock
at the time the option is exercised, it is not always possible to
determine the minimum option price on the first day of an offering.
However, many granting corporations intend for the first day of an
offering to be the date of grant.
Accordingly, Sec. 1.423-2(h)(2) of these proposed regulations
would provide that, for purposes of options granted under an employee
stock purchase plan, the principles of Sec. 1.421-1(c) shall be
applied without regard to the requirement that the minimum option price
be fixed or determinable in order for the corporate action constituting
an offer of stock to be considered complete. As a result, the first day
of an offering could be the date of grant for an option issued under an
employee stock purchase plan even though the minimum option price is
not fixed or determinable on the first day of the offering. These
proposed regulations include an amendment to Sec. 1.421-1(c).
One commentator questioned whether it is necessary for a plan to
contain a limit on the number of shares that can be purchased by each
participant during an offering in order for the date of grant of the
option to be the first day of an offering. Section 1.423-2(h)(3) of
these proposed regulations would provide that the date of grant will be
the first day of an offering if the terms of an employee stock purchase
plan or offering designate a maximum number of shares that may be
purchased by each participant during the offering. Similarly, the date
of grant will be the first day of an offering if the terms of the plan
or offering require the application of a formula to establish, on the
first day of the offering, the maximum number of shares that may be
purchased by each participant during the offering.
However, Sec. 1.423-2(h)(3) of these proposed regulations does not
require that an employee stock purchase plan or offering designate a
maximum number of shares that may be purchased by each participant
during the offering or incorporate a formula to establish a maximum
number of shares that may be purchased by each participant during the
offering. If the maximum number of shares that can be purchased under
an option is not fixed or determinable until the date the option is
exercised, then the date of exercise will be the date of grant of the
option. The $25,000 limit under section 423(b)(8) and the limit on the
aggregate number of shares that may be issued under an employee stock
purchase plan are not sufficient to establish the maximum number of
shares that can be purchased under an option so that the date of grant
will be the first day of the offering. Examples 1, 2, 3 and 4 in Sec.
1.423-2(h)(4) of these proposed regulations illustrate these
principles.
Section 1.423-2(h) of the existing regulations is re-numbered as
Sec. 1.423-2(h)(1) of these proposed regulations.
8. Annual $25,000 Limitation
Section 423(b)(8) provides that an employee stock purchase plan
must, by its terms, provide that no employee may be permitted to
purchase stock under all the employee stock purchase plans of his or
her employer corporation and its related corporations at a rate which
exceeds $25,000 in fair market value of the stock (determined on the
date of grant) for each calendar year in which an option granted to the
employee is outstanding and exercisable. Section 1.423-2(i) of these
proposed regulations would provide guidance on the operation of the
$25,000 limitation that incorporates and clarifies the guidance
provided in the existing regulations.
One commentator suggested that the calculation of the amount of
stock that may be purchased under an employee stock purchase plan be
determined in a manner consistent with the $100,000 limitation for
incentive stock options described in Sec. 1.422-4. The proposed
regulations generally adopt this suggestion and would provide that the
$25,000 limit for employee stock purchase plans is, to the extent
possible, calculated in a manner consistent with the $100,000
limitation for incentive stock options. The timing of both measures is
based on when the option first becomes exercisable and both
[[Page 43880]]
measures are made based on the fair market value of the stock
determined at the date of grant. Section 1.423-2(i) of these proposed
regulations emphasizes that an employee may purchase up to $25,000 of
stock (based on the fair market value of such stock on the date of
grant) in each calendar year during which an option granted to the
employee under an employee stock purchase plan is not only outstanding,
but also exercisable. Example 5 in Sec. 1.423-2(i)(5) of these
proposed regulations illustrates this principle.
For clarification, Example 1 in the existing regulations has been
separated into Example 1 and Example 4 in Sec. 1.423-2(i)(5) of these
proposed regulations.
9. Special Rule Where Option Price Is Between 85 Percent and 100
Percent of the Value of the Stock
Section 423(c) provides a special rule for calculating the timing
and amount of compensation income that must be recognized when the
option price for a share is between 85 and 100 percent of the value of
the share on the date of grant. Generally, the income recognized is the
lesser of: (a) the excess of the fair market value of the share on the
date of grant over the option price, and (b) the excess of the fair
market value of the share at the time of disposition (or death) over
the option price. The flush language of section 423(c) provides that if
the exercise price is not known on the date of grant, the exercise
price shall be determined as if the option were exercised on the date
of grant.
One commentator suggested that it is unclear how this special rule
and the flush language of section 423(c) apply when the option price is
determined based on some percentage of the value of a share on the last
day of an offering. Example 3 of Sec. 1.423-2(k)(3) of the existing
regulations specifically addresses this issue and has been retained in
Sec. 1.423-2(k)(3) of these proposed regulations. Example 4 has been
added under Sec. 1.423-2(k)(3) to illustrate the tax consequences
under an employee stock purchase plan that uses a look-back feature to
determine the exercise price of the option.
Proposed Effective Date
These regulations under section 423 are proposed to apply as of
January 1, 2010, and will apply to any option issued under an employee
stock purchase plan that is granted on or after that date. Taxpayers
may rely on these proposed regulations for the treatment of any option
issued under an employee stock purchase plan that is granted after
publication of these proposed regulations in the Federal Register.
Special Analyses
It has been determined that this notice of proposed rulemaking is
not a significant regulatory action as defined in Executive Order
12866. Therefore, a regulatory assessment is not required. It also has
been determined that section 553(b) of the Administrative Procedure Act
(5 U.S.C. chapter 5) does not apply to these regulations, and because
the regulations do not impose a collection of information on small
entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not
apply. Pursuant to section 7805(f) of the Code, these regulations have
been submitted to the Chief Counsel for Advocacy of the Small Business
Administration for comment on their impact on small business.
Comments and Requests for Public Hearing
Before these proposed regulations are adopted as final regulations,
consideration will be given to any written (a signed original and eight
(8) copies) or electronic comments that are timely submitted to the
IRS. The IRS and the Treasury Department request comments on the
clarity of the proposed rules and how they can be made easier to
understand. All comments will be available for public inspection and
copying. A public hearing will be scheduled if requested in writing by
any person that timely submits written or electronic comments. If a
public hearing is scheduled, notice of the date, time, and place for
the hearing will be published in the Federal Register.
Drafting Information
The principal author of these proposed regulations is Thomas
Scholz, Office of the Division Counsel/Associate Chief Counsel (Tax
Exempt and Government Entities). However, other personnel from the IRS
and the Treasury Department participated in their development.
List of Subjects in 26 CFR Part 1
Income taxes, Reporting and recordkeeping requirements.
Proposed Amendments to the Regulations
Accordingly, 26 CFR part 1 is proposed to be amended as follows:
PART 1--INCOME TAXES
Paragraph 1. The authority citation for part 1 continues to read in
part as follows:
Authority: 26 U.S.C. 7805 * * *
Par. 2. Section 1.421-1, paragraphs (c)(1) and (j)(1) are revised
to read as follows:
Sec. 1.421-1 Meaning and use of certain terms.
* * * * *
(c) Time and date of granting option. (1) For purposes of this
section and Sec. Sec. 1.421-2 through 1.424-1, the language ``the date
of the granting of the option'' and ``the time such option is
granted,'' and similar phrases refer to the date or time when the
granting corporation completes the corporate action constituting an
offer of stock for sale to an individual under the terms and conditions
of a statutory option. Except as set forth in Sec. 1.423-2(h)(2), a
corporate action constituting an offer of stock for sale is not
considered complete until the date on which the maximum number of
shares that can be purchased under the option and the minimum option
price are fixed or determinable.
* * * * *
(j) Effective/applicability date--(1) In general. Except for
paragraph (c)(1), these regulations are effective on August 3, 2004.
Upon the date of publication of the Treasury decision adopting
paragraph (c)(1) of this section as a final regulation in the Federal
Register, paragraph (c)(1) will apply as of January 1, 2010.
* * * * *
Par. 3. Section 1.422-2, paragraph (b)(6), Example 1 (iii) is
revised to read as follows:
Sec. 1.422-2 Incentive stock options defined.
* * * * *
(b) * * *
(6) * * *
Example (1). * * * (iii) Assume the same facts as in paragraph
(i) of this Example 1. Assume further that the plan was approved by
the stockholders of S (in this case, P) on March 1, 2006. On January
1, 2008, S changes the plan to provide that incentive stock options
for P stock will be granted to S employees under the plan. Because
there is a change in the stock available for grant under the plan,
the change is considered the adoption of a new plan that must be
approved by the stockholder of S (in this case, P) within 12 months
before or after January 1, 2008.
* * * * *
Par. 4. Section 1.422-5, paragraph (f)(1) is revised to read as
follows:
Sec. 1.422-5 Permissible provisions.
* * * * *
(f) Effective/applicability date--(1) In general. Except for Sec.
1.422-2(b)(6), Example 1 (iii), these regulations are effective on
August 3, 2004. Upon the date of publication of the Treasury decision
adopting Section 1.422-2(b)(6),
[[Page 43881]]
Example 1 (iii) of this section as a final regulation in the Federal
Register, Section 1.422-2(b)(6), Example 1 (iii) will apply as of
January 1, 2010.
* * * * *
Par. 5. Section 1.423-1 is revised to read as follows:
Sec. 1.423-1 Applicability of section 421(a).
(a) General rule. Subject to the provisions of section 423(c) and
paragraph (k) of Sec. 1.423-2, the special rules of income tax
treatment provided in section 421(a) apply with respect to the transfer
of a share of stock to an individual pursuant to the individual's
exercise of an option granted under an employee stock purchase plan if
the following conditions are satisfied--
(1) The individual makes no disposition of such share before the
later of the expiration of the two-year period from the date of the
grant of the option pursuant to which such share was transferred or the
expiration of the one-year period from the date of transfer of such
share to the individual; and
(2) At all times during the period beginning on the date of the
grant of the option and ending on the day three months before the date
of exercise, the individual was an employee of the corporation granting
the option, a related corporation, or a corporation (or a related
corporation) substituting or assuming the stock option in a transaction
to which section 424(a) applies.
(b) Cross-references. For rules relating to the requisite
employment relationship, see paragraph (h) of Sec. 1.421-1. For rules
relating to the effect of a disqualifying disposition, see section
421(b) and paragraph (b) of Sec. 1.421-2. For the definition of the
term disposition, see section 424(c) and paragraph (c) of Sec. 1.424-
1. For the definition of the term related corporation, see section
paragraph (i) of Sec. 1.421-1.
(c) Effective/applicability date. Upon the date of publication of
the Treasury decision adopting the rules of this section as a final
regulation in the Federal Register, these rules will apply as of
January 1, 2010.
Par. 6. Section 1.423-2 is revised to read as follows:
Sec. 1.423-2 Employee stock purchase plan defined.
(a) In general--(1) The term employee stock purchase plan means a
plan that meets the requirements of paragraph (a)(2)(i) through (ix) of
this section. If the terms of the plan do not satisfy the requirements
of paragraph (a)(2)(iii) through (ix) of this section, such
requirements may be satisfied by the terms of an offering made under
the plan. However, where the requirements of paragraph (a)(2)(iii)
through (ix) are satisfied by the terms of an offering, such
requirements will be treated as satisfied only with respect to options
exercised under that offering. The plan and the terms of an offering
must be in writing or electronic form, provided that such writing or
electronic form is adequate to establish the terms of the plan or
offering, as applicable.
(2) To qualify as an employee stock purchase plan under this
section and Sec. 1.423-1, the plan must meet all of the following
requirements--
(i) The plan must provide that options can be granted only to
employees of the employer corporation or of a related corporation (as
defined in paragraph (i) of Sec. 1.421-1) to purchase stock in any
such corporation (see paragraph (b) of this section);
(ii) The plan must be approved by the stockholders of the granting
corporation within 12 months before or after the date the plan is
adopted (see paragraph (c) of this section);
(iii) Under the terms of the plan, an employee cannot be granted an
option if, immediately after the option is granted, the employee owns
stock possessing 5 percent or more of the total combined voting power
or value of all classes of stock of the employer corporation or of a
related corporation (see paragraph (d) of this section);
(iv) Under the terms of the plan, options must be granted to all
employees of any corporation whose employees are granted any options by
reason of their employment by the corporation (see paragraph (e) of
this section);
(v) Under the terms of the plan, all employees granted options must
have the same rights and privileges (see paragraph (f) of this
section);
(vi) Under the terms of the plan, the option price cannot be less
than the lesser of--
(A) An amount equal to 85 percent of the fair market value of the
stock at the time the option is granted, or
(B) An amount not less than 85 percent of the fair market value of
the stock at the time the option is exercised (see paragraph (g) of
this section);
(vii) Under the terms of the plan, options cannot be exercised
after the expiration of--
(A) Five years from the date the option is granted if, under the
terms of such plan, the option price cannot be less than 85 percent of
the fair market value of the stock at the time the option is exercised,
or
(B) Twenty-seven months from the date the option is granted, if the
option price is not determined in the manner described in paragraph (A)
(see paragraph (h) of this section);
(viii) Under the terms of the plan, no employee may be granted an
option that permits the employee's rights to purchase stock under all
employee stock purchase plans of the employer corporation and its
related corporations to accrue at a rate that exceeds $25,000 of fair
market value of the stock (determined at the time the option is
granted) for each calendar year in which the option is outstanding at
any time (see paragraph (i) of this section); and
(ix) Under the terms of the plan, options are not transferable by
the optionee other than by will or the laws of descent and
distribution, and are exercisable, during the lifetime of the optionee,
only by the optionee (see paragraph (j) of this section).
(3) The determination of whether a particular option is an option
granted under an employee stock purchase plan is made at the time the
option is granted. If the terms of an option are inconsistent with the
terms of the employee stock purchase plan or an offering under the
plan, the option will not be treated as granted under an employee stock
purchase plan. If an option with terms that are inconsistent with the
terms of the plan or an offering under the plan is granted to an
employee who is entitled to the grant of an option under the terms of
the plan or offering, and the employee is not granted an option under
the offering that qualifies as an option granted under an employee
stock purchase plan, the offering will not meet the requirements of
paragraph (e) of this section. Accordingly, none of the options granted
under the offering will be eligible for the special tax treatment of
section 421. However, if an option with terms that are inconsistent
with the terms of the plan or an offering under the plan is granted to
an individual who is not entitled to the grant of an option under the
terms of the plan or offering, the option will not be treated as an
option granted under an employee stock purchase plan, and the grant of
the option will not disqualify the options granted under the plan or
offering. If, at the time of grant, an option qualifies as an option
granted under an employee stock purchase plan, but the terms of the
option are not satisfied, the option will not be treated as granted
under an employee stock purchase plan and this failure to comply with
the terms of the option will not disqualify the options granted under
the plan or offering.
(4) Examples. The following examples illustrate the principles of
paragraph (a)(3):
[[Page 43882]]
Example 1. Corporation A operates an employee stock purchase
plan under which options for A stock are granted to employees of A.
The terms of an offering provide that the option price will be 90
percent of the fair market value of A stock on the date of exercise.
A grants an option under the offering to Employee Z, an employee of
A. The terms of the option provide that the option price will be 85
percent of the fair market value of A stock on the date of exercise.
Because the terms of Z's option are inconsistent with the terms of
the offering, the option granted to Z will not be treated as an
option granted under the employee stock purchase plan. Further,
unless Z is granted an option under the offering that qualifies as
an option granted under the employee stock purchase plan, the
offering will not meet the requirements of paragraph (e) of this
section and none of the options granted under the offering will be
eligible for the special tax treatment of section 421.
Example 2. Corporation B operates an employee stock purchase
plan that provides that options for B stock may only be granted to
employees of B. Under the terms of the plan, options may not be
granted to consultants and other non-employees. B grants an option
under the plan to Consultant Y, a consultant of B. Because Y is
ineligible to receive an option under the plan by reason of Y's
status as a non-employee, the grant of the option to Y is
inconsistent with the terms of the plan and the option granted to Y
will not be treated as an option granted under the employee stock
purchase plan. However, the grant of the option to Y will not
disqualify the options granted under the plan or offering because Y
was not entitled to the grant of an option under the plan.
Example 3. Corporation C operates an employee stock purchase
plan under which options for C stock are granted to employees of C.
C grants an option under the plan to Employee X, an employee of C
who is a highly compensated employee. The terms of the employee
stock purchase plan exclude highly compensated employees from
participation in the plan. Because X is ineligible to receive an
option under the plan by reason of X's exclusion from participation
in the plan, the option granted to X will not be treated as an
option granted under the employee stock purchase plan. However, the
grant of the option to X will not disqualify the options granted
under the plan or offering because X was not entitled to the grant
of an option under the plan.
Example 4. Corporation D operates an employee stock purchase
plan under which options for D stock are granted to employees of D.
D grants an option under the plan to Employee W, an employee of D.
The terms of the option provide that the option price will be 90
percent of the fair market value of D stock on the date of exercise.
On the date of exercise, W pays only 85 percent of the fair market
value of D stock. Because the terms of W's option are not satisfied,
the option granted to W will not be treated as an option granted
under the employee stock purchase plan. However, the failure to
comply with the terms of the option granted to W will not disqualify
the options granted under the plan or offering.
(b) Options restricted to employees. An employee stock purchase
plan must provide that options can be granted only to employees of the
employer corporation (or employees of its related corporations) to
purchase stock in the employer corporation (or one of its related
corporations). If such a provision is not included in the terms of the
plan, the plan will not be an employee stock purchase plan and options
granted under the plan will not qualify for the special tax treatment
of section 421. For rules relating to the employment requirement, see
paragraph (h) of Sec. 1.421-1.
(c) Stockholder approval--(1) An employee stock purchase plan must
be approved by the stockholders of the granting corporation within 12
months before or after the date such plan is adopted. The approval of
the stockholders must comply with all applicable provisions of the
corporate charter, bylaws and applicable State law prescribing the
method and degree of stockholder approval required for the issuance of
corporate stock or options. If the applicable State law does not
prescribe a method and degree of stockholder approval, then an employee
stock purchase plan must be approved--
(i) By a majority of the votes cast at a duly held stockholder's
meeting at which a quorum representing a majority of all outstanding
voting stock is, either in person or by proxy, present and voting on
the plan; or
(ii) By a method and in a degree that would be treated as adequate
under applicable State law in the case of an action requiring
stockholder approval (such as an action on which stockholders would be
entitled to vote if the action were taken at a duly held stockholders'
meeting).
(2) For purposes of the stockholder approval required by this
paragraph (c), ordinarily, a plan is adopted when it is approved by the
granting corporation's board of directors, and the date of the board's
action is the reference point for determining whether stockholder
approval occurs within the applicable 24-month period. However, if the
board's action is subject to a condition (such as stockholder approval)
or the happening of a particular event, the plan is adopted on the date
the condition is met or the event occurs, unless the board's resolution
fixes the date of approval as the date of the board's action.
(3) An employee stock purchase plan, as adopted and approved, must
designate the maximum aggregate number of shares that may be issued
under the plan, and the corporations or class of corporations whose
employees may be offered options under the plan. A plan that merely
provides that the number of shares that may be issued under the plan
may not exceed a stated percentage of the shares outstanding at the
time of each offering or grant under the plan does not satisfy the
requirements of this paragraph (c)(3). However, the maximum aggregate
number of shares that may be issued under the plan may be stated in
terms of a percentage of the authorized, issued, or outstanding shares
on the date of the adoption of the plan. The plan may specify that the
maximum aggregate number of shares available for grants under the plan
may increase annually by a specified percentage of the authorized,
issued, or outstanding shares on the date of the adoption of the plan.
A plan that provides that the maximum aggregate number of shares that
may be issued as options under the plan may change based on any other
specific circumstances satisfies the requirements of this paragraph
only if the stockholders approve an immediately determinable maximum
number of shares that may be issued under the plan in any event. If
there is more than one employee stock purchase plan under which options
may be granted and stockholders of the granting corporation merely
approve a maximum aggregate number of shares that are available for
issuance under the plans, the stockholder approval requirements
described in paragraph (c)(1) of this section are not satisfied. A
separate maximum aggregate number of shares available for issuance
pursuant to options must be specified and approved for each plan.
(4) Once an employee stock purchase plan is approved by the
stockholders of the granting corporation, the plan need not be
reapproved by the stockholders of the granting corporation within the
prescribed 24-month period unless the plan is amended or changed in a
manner that is considered the adoption of a new plan. Any increase in
the aggregate number of shares that may be issued under the plan (other
than an increase merely reflecting a change in the number of
outstanding shares, such as a stock dividend or stock split) will be
considered the adoption of a new plan requiring stockholder approval
within the prescribed 24-month period. Similarly, a change in the
designation of corporations whose employees may be offered options
under the plan will be considered the adoption of a new plan requiring
stockholder approval within the prescribed 24-month period unless the
plan provides that designations of participating corporations may be
made
[[Page 43883]]
from time to time from among a group consisting of the granting
corporation and its related corporations. The group from among which
such changes and designations are permitted without additional
stockholder approval may include corporations having become parents or
subsidiaries of the granting corporation after the adoption and
approval of the plan. In addition, a change in the granting corporation
or the stock available for purchase under the plan will be considered
the adoption of a new plan requiring stockholder approval within the
prescribed 24-month period. Any other changes in the terms of an
employee stock purchase plan are not considered the adoption of a new
plan and, thus, do not require stockholder approval.
(5) Examples. The following examples illustrate the principles of
this paragraph (c):
Example 1. (i) Corporation E is a subsidiary of Corporation F, a
publicly traded corporation. On January 1, 2010, E adopts an
employee stock purchase plan under which options for E stock are
granted to E employees.
(ii) To meet the requirements of paragraph (c)(1) of this
section, the plan must be approved by the stockholders of E (in this
case, F) within 12 months before or after January 1, 2010.
(iii) Assume the same facts as in paragraph (i) of this Example
1, except that the plan was approved by the stockholders of E (in
this case, F) on March 1, 2010. On January 1, 2012, E changes the
plan to provide that options for F stock will be granted to E
employees under the plan. Because there is a change in the stock
available for grant under the plan, under paragraph (c)(4) of this
section, the change is considered the adoption of a new plan that
must be approved by the stockholders of E (in this case, F) within
12 months before or after January 1, 2012.
Example 2. (i) Assume the same facts as in paragraph (i) of
Example 1, except that on March 15, 2011, F completely disposes of
its interest in E. Thereafter, E continues to grant options for E
stock to E employees under the plan.
(ii) The new E options are granted under a plan that meets the
stockholder approval requirements of paragraph (c)(1) of this
section without regard to whether E seeks approval of the plan from
the stockholders of E after F disposes of its interest in E.
(iii) Assume the same facts as in paragraph (i) of this Example
2, except that under the plan as adopted on January 1, 2010, only
options for F stock are granted to E employees. Assume further that,
after F disposes of its interest in E, E changes the plan to provide
for the grant of options for E stock to E employees. Because there
is a change in the stock available for purchase or grant under the
plan, under paragraph (c)(4) of this section, the stockholders of E
must approve the plan within 12 months before or after the change to
the plan to meet the stockholder approval requirements of paragraph
(c) of this section.
Example 3. (i) Corporation G maintains an employee stock
purchase plan. Corporation H does not maintain an employee stock
purchase plan. On May 15, 2010, G and H consolidate under State law
to form one corporation. The new corporation is named Corporation H.
The consolidation agreement describes the G plan, including the
maximum aggregate number of shares available for issuance under the
plan after the consolidation. Additionally, the consolidation
agreement states that the plan will be continued by H after the
consolidation. The consolidation agreement is unanimously approved
by the stockholders of G and H on May 1, 2010. H assumes the plan
formerly maintained by G and continues to grant options under the
plan to all eligible employees.
(ii) Because there is a change in the granting corporation (from
G to H), under paragraph (c)(4) of this section, H is considered to
have adopted a new plan. Because the plan is fully described in the
consolidation agreement, including the maximum aggregate number of
shares available for issuance under the plan, the approval of the
consolidation agreement by the stockholders constitutes approval of
the plan. Thus, the stockholder approval of the consolidation
agreement satisfies the stockholder approval requirements of
paragraph (c)(1) of this section, and the plan is considered to be
adopted by H and approved by its stockholders on May 1, 2010.
Example 4. Corporation I adopts an employee stock purchase plan
on November 1, 2010. On that date, there are two million shares of I
stock outstanding. The plan provides that the maximum aggregate
number of shares that may be issued under the plan may not exceed 15
percent of the number of shares of I stock outstanding on November
1, 2010. Because the maximum aggregate number of shares that may be
issued under the plan is designated in the plan, the requirements of
paragraph (c)(3) of this section are met.
Example 5. (i) Corporation J adopts an employee stock purchase
plan on March 15, 2010. The plan provides that the maximum aggregate
number of shares of J stock available for issuance under the plan is
50,000, increased on each anniversary date of the adoption of the
plan by 5 percent of the then outstanding shares. Because the
maximum aggregate number of shares is not designated under the plan,
the requirements of paragraph (c)(3) of this section are not met.
(ii) Assume the same facts as in paragraph (i) of this Example
5, except that the plan provides that the maximum aggregate number
of shares available under the plan is the lesser of (a) 50,000
shares, increased each anniversary date of the adoption of the plan
by 5 percent of the then-outstanding shares, or (b) 200,000 shares.
Because the maximum aggregate number of shares that may be issued
under the plan is designated as the lesser of two numbers, one of
which provides an immediately determinable maximum aggregate number
of shares that may be issued under the plan in any event, the
requirements of paragraph (c)(3) of this section are met.
(d) Options granted to certain shareholders--(1) An employee stock
purchase plan must by its terms provide that an employee cannot be
granted an option if the employee, immediately after the option is
granted, owns stock possessing 5 percent or more of the total combined
voting power or value of all classes of stock of the employer
corporation or a related corporation. In determining whether the stock
ownership of an employee equals or exceeds this 5 percent limit, the
rules of section 424(d) (relating to attribution of stock ownership)
shall apply, and stock that the employee may purchase under outstanding
options (whether or not the options qualify for the special tax
treatment afforded by section 421(a)) shall be treated as stock owned
by the employee. An option is outstanding for purposes of this
paragraph (d) although under its terms it may be exercised only in
installments or after the expiration of a fixed period of time. If an
option is granted to an employee whose stock ownership (as determined
under this paragraph (d)) exceeds the limitation set forth in this
paragraph (d), no portion of the option will be treated as having been
granted under an employee stock purchase plan.
(2) The determination of the percentage of the total combined
voting power or value of all classes of stock of the employer
corporation (or a related corporation) that is owned by the employee is
made by comparing the voting power or value of the shares owned (or
treated as owned) by the employee to the aggregate voting power or
value of all shares actually issued and outstanding immediately after
the grant of the option to the employee. The aggregate voting power or
value of all shares actually issued and outstanding immediately after
the grant of the option does not include the voting power or value of
treasury shares or shares authorized for issue under outstanding
options held by the employee or any other person.
(3) Examples. The following examples illustrate the principles of
this paragraph (d):
Example 1. Employee V, an employee of Corporation K, owns 6,000
shares of K common stock, the only class of K stock outstanding. K
has 100,000 shares of its common stock outstanding. Because V owns 6
percent of the combined voting power or value of all classes of K
stock, K cannot grant an option to V under K's employee stock
purchase plan. If V's father and brother each owned 3,000 shares of
K stock and V did not own any K stock, then the result would be the
same because, under section 424(d), an individual is treated as
owning stock held by the person's father and brother. Similarly, the
result would be the same if, instead of
[[Page 43884]]
actually owning 6,000 shares, V merely held an option on 6,000
shares of K stock, irrespective of whether the transfer of stock
under the option could qualify for the special tax treatment of
section 421, because this paragraph (d) provides that stock the
employee may purchase under outstanding options is treated as stock
owned by such employee.
Example 2. Assume the same facts as in Example 1, except that K
is a subsidiary corporation of Corporation L. Irrespective of
whether V owns any L stock, V cannot receive an option from L under
L's employee stock purchase plan because he owns 5 percent of the
total combined voting power of all classes of stock of a subsidiary
of L, in this example, K. An employee who owns (or is treated as
owning) stock in excess of the limitation of this paragraph (d), in
any corporation in a group of related corporations, consisting of a
parent and its subsidiary corporations, cannot receive an option
under an employee stock purchase plan from any corporation in the
group.
Example 3. Employee U is an employee of Corporation M. M has
only one class of stock, of which 100,000 shares are issued and
outstanding. Assuming U does not own (and is not treated as owning)
any stock in M or in any related corporation of M, M may grant an
option to U under its employee stock purchase plan for 4,999 shares,
because immediately after the grant of the option, U would not own 5
percent or more of the combined voting power or value of all classes
of M stock actually issued and outstanding at such time. The 4,999
shares that U would be treated as owning under this paragraph (d)
would not be added to the 100,000 shares actually issued and
outstanding immediately after the grant for purposes of determining
whether U's stock ownership exceeds the limitation of this paragraph
(d).
Example 4. Assume the same facts as in Example 3 but instead of
an option for 4,999 shares, M grants U an option, purportedly under
its employee stock purchase plan, for 5,000 shares. No portion of
this option will be treated as granted under an employee stock
purchase plan because U's stock ownership exceeds the limitation of
this paragraph (d).
(e) Employees covered by plan--(1) Subject to the provisions of
this paragraph (e) and the limitations of paragraphs (d), (f) and (i)
of this section, an employee stock purchase plan must, by its terms,
provide that options are to be granted to all employees of any
corporation whose employees are granted any of such options by reason
of their employment by the corporation, except that one or more of the
following categories of employees may be excluded from the coverage of
the plan--
(i) Employees who have been employed less than two years;
(ii) Employees whose customary employment is 20 hours or less per
week;
(iii) Employees whose customary employment is for not more than
five months in any calendar year; and
(iv) Highly compensated employees (within the meaning of section
414(q)).
(2) An employee stock purchase plan does not fail to satisfy the
coverage provision of paragraph (e)(1) of this section in the following
circumstances--
(i) The plan excludes employees who have completed a shorter period
of service or whose customary employment is for fewer hours per week or
fewer months in a calendar year than is specified in paragraph
(e)(1)(i), (ii) and (iii), provided the exclusion is applied in an
identical manner to all employees of every corporation whose employees
are granted options under the plan.
(ii) The plan excludes highly compensated employees (within the
meaning of section 414(q)) with compensation above a certain level or
who are officers or subject to the disclosure requirements of section
16(a) of the Securities Exchange Act of 1934, provided the exclusion is
applied in an identical manner to all highly compensated employees of
every corporation whose employees are granted options under the plan.
(3) Notwithstanding paragraph (e)(1) of this section, employees who
are citizens or residents of a foreign jurisdiction (without regard to
whether they are also citizens of the United States or resident aliens
(within the meaning of section 7701(b)(1)(A))) may be excluded from the
coverage of an employee stock purchase plan under the following
circumstances--
(i) The grant of an option under the plan to a citizen or resident
of the foreign jurisdiction is prohibited under the laws of such
jurisdiction; or
(ii) Compliance with the laws of the foreign jurisdiction would
cause the plan to violate the requirements of section 423.
(4) No option granted under a plan or offering that excludes from
participation any employees, other than those who may be excluded under
this paragraph (e), and those barred from participation by reason of
paragraphs (d), (f) and (i) of this section, can be regarded as having
been granted under an employee stock purchase plan. If an option is not
granted to any employee who is entitled to the grant of an option under
the terms of the plan or offering, none of the options granted under
such offering will be treated as having been granted under an employee
stock purchase plan. However, a plan that, by its terms, permits all
eligible employees to elect to participate in an offering will not
violate the requirements of this paragraph solely because eligible
employees who elect not to participate in the offering are not granted
options pursuant to such offering.
(5) For purposes of this paragraph (e), the existence of the
employment relationship between an individual and the corporation
participating under the plan will be determined under paragraph (h) of
Sec. 1.421-1.
(6) Examples. The following examples illustrate the principles of
this paragraph (e):
Example 1. Corporation N has a stock purchase plan that meets
all the requirements of paragraph (a)(2) of this section except that
options are not required to be granted to employees whose weekly
rate of pay is less than $1,000. As a matter of corporate practice,
however, N grants options under its plan to all employees,
irrespective of their weekly rate of pay. Even though N's plan is
operated in compliance with the requirements of this paragraph (e),
N's plan is not an employee stock purchase plan because the terms of
the plan exclude a category of employees that is not permitted under
this paragraph (e).
Example 2. Assume the same facts as in Example 1, except that
the first offering under N's plan provides that options will be
granted to all employees of N. The terms of the first offering will
be treated as part of the terms of N's plan, but only for purposes
of the first offering. Because the terms of the first offering
satisfy the requirements of this paragraph (e), stock transferred
pursuant to options exercised under the first offering will be
treated as stock transferred pursuant to the exercise of options
granted under an employee stock purchase plan for purposes of
section 421.
Example 3. Corporation O has a stock purchase plan that excludes
from participation all employees who have been employed less than
one year. Assuming all other requirements of paragraph (a)(2) of
this section are satisfied, O's plan qualifies as an employee stock
purchase plan under section 423.
Example 4. Corporation P has a stock purchase plan that excludes
from participation clerical employees who have been employed less
than two years. However, non-clerical employees with less than two
years of service are permitted to participate in the plan. P's plan
is not an employee stock purchase plan because the exclusion of
employees who have been employed less than two years applies only to
certain employees of P and is not applied in an identical manner to
all employees of P. If, instead, P's plan excludes from
participation all employees (both clerical and non-clerical) who
have been employed less than two years, then P's plan would qualify
as an employee stock purchase plan under section 423 assuming all
other requirements of paragraph (a)(2) of this section are
satisfied.
Example 5. Corporation Q has a stock purchase plan that excludes
from participation all officers who are highly compensated employees
(within the meaning
[[Page 43885]]
of section 414(q)). Assuming all other requirements of paragraph
(a)(2) of this section are satisfied, Q's plan qualifies as an
employee stock purchase plan under section 423.
Example 6. Corporation R maintains an employee stock purchase
plan that excludes from participation all highly compensated
employees (within the meaning of section 414(q)), except highly
compensated employees who are officers of R. R's plan is not an
employee stock purchase plan because the exclusion of all highly
compensated employees except highly compensated employees who are
officers of R is not a permissible exclusion under paragraph
(e)(2)(ii) of this section.
Example 7. Corporation S is the parent corporation of Subsidiary
YY and Subsidiary ZZ. S maintains an employee stock purchase plan
with both YY and ZZ participating under the plan. Under the terms of
the plan, all employees of YY and ZZ are permitted to participate in
the plan with the exception of ZZ's highly compensated employees
with annual compensation greater than $300,000. S's plan is not an
employee stock purchase plan because the exclusion of highly
compensated employees with annual compensation greater than $300,000
is not applied in an identical manner to all employees of YY and ZZ.
Example 8. The laws of Country A require that options granted to
residents of Country A be transferable during the lifetime of the
option recipient. Corporation T has a stock purchase plan that
excludes residents of Country A from participation in the plan.
Because compliance with the laws of Country A would cause options
granted to residents of Country A to violate paragraph (j) of this
section, T may exclude residents of Country A from participation in
the plan. Assuming all other requirements of paragraph (a)(2) of
this section are satisfied, T's plan qualifies as an employee stock
purchase plan under section 423.
(f) Equal rights and privileges--(1) Except as otherwise provided
in paragraphs (f)(2) through (f)(6) of this section, an employee stock
purchase plan must, by its terms, provide that all employees granted
options under the plan shall have the same rights and privileges. Thus,
the provisions applying to one option under an offering (such as the
provisions relating to the method of payment for the stock and the
determination of the purchase price per share) must apply to all other
options under the offering in the same manner. If all the options
granted under a plan or offering do not, by their terms, give the
respective optionees the same rights and privileges, none of the
options will be treated as having been granted under an employee stock
purchase plan for purposes of section 421.
(2) The requirements of this paragraph (f) do not prevent the
maximum amount of stock that an employee may purchase from being
determined on the basis of a uniform relationship to the total
compensation, or the basic or regular rate of compensation, of all
employees.
(3) A plan or offering will not fail to satisfy the requirements of
this paragraph (f) because the plan or offering provides that no
employee may purchase more than a maximum amount of stock fixed under
the plan.
(4) A plan or offering will not fail to satisfy the requirements of
this paragraph (f) if, in order to comply with the laws of a foreign
jurisdiction, the terms of an option granted under a plan or offering
to citizens or residents of such foreign jurisdiction (without regard
to whether they are also citizens of the United States or resident
aliens (within the meaning of section 7701(b)(1)(A))) are less
favorable than the terms of options granted under the same plan or
offering to employees resident in the United States.
(5)(i) Except as provided in this paragraph and paragraph
(f)(5)(ii) of this section, a plan permitting one or more employees to
carry forward amounts that were withheld but not applied toward the
purchase of stock under an earlier plan or offering and apply the
amounts towards the purchase of additional stock under a subsequent
plan or offering will be a violation of the equal rights and privileges
under paragraph (f)(1) of this section. However, the carry forward of
amounts withheld but not applied toward the purchase of stock under an
earlier plan or offering will not violate the equal rights and
privileges requirement of paragraph (f)(1) of this section if all other
employees participating in the current plan or offering are permitted
to make direct payments toward the purchase of shares under a
subsequent plan or offering in an amount equal to the excess of the
greatest amount which any employee is allowed to carry forward from an
earlier plan or offering over the amount, if any, the employee will
carry forward from an earlier plan or offering.
(ii) A plan will not fail to satisfy the requirements of this
section merely because employees are permitted to carry forward amounts
representing a fractional share, that were withheld but not applied
toward the purchase of stock under an earlier plan or offering and
apply the amounts toward the purchase of additional stock under a
subsequent plan or offering.
(6) Paragraph (f) does not prohibit the delaying of the grant of an
option to any employee who is barred from being granted an option
solely by reason of the employee's failing to meet a minimum service
requirement set forth in paragraph (e)(1) of this section until the
employee meets such requirement.
(7) Examples. The following examples illustrate the principles of
this paragraph (f):
Example 1. Corporation U has an employee stock purchase plan
that provides that the maximum amount of stock that each employee
may purchase under the offering is one share for each $100 of annual
gross pay. The plan meets the requirements of this paragraph (f).
Example 2. Corporation V has an employee stock purchase plan
that provides that the maximum amount of stock that each employee
may purchase under the offering is one share for each $100 of annual
gross pay up to and including $10,000, and two shares for each $100
of annual gross pay in excess of $10,000. The plan will not meet the
requirements of this paragraph (f) because the amount of stock that
may be purchased under the plan is not based on a uniform
relationship to the total compensation of all employees.
Example 3. Corporation W has an employee stock purchase plan
that provides that options to purchase stock in an amount equal to
ten percent of an employee's annual salary at a price equal to 85
percent of the fair market value on the first day of the offering
will be granted to all employees other than those who have been
employed less than 18 months. In addition, the plan provides that
employees who have not yet met the minimum service requirements on
the first day of the offering will be granted similar options on the
date the 18 month service requirement has been attained. The plan
meets the requirements of this paragraph (f).
Example 4. Corporation X has an employee stock purchase plan
that provides that options to purchase stock at a price equal to 90
percent of the fair market value at the time the option is exercised
will be granted to all employees. The laws of Country B provide that
options granted to employees who are residents of Country B must
have a purchase price not less than 95 percent of the fair market
value at the time the option is exercised. The plan will not fail to
satisfy the requirements of this paragraph (f) merely because the
residents of Country B are granted options under the plan to
purchase stock at a price equal to 95 percent of the fair market
value at the time the option is exercised.
Example 5. Corporation Y maintains an employee stock purchase
plan. Employee T is employed by Y. T is granted an option under the
current offering to purchase a maximum of 100 shares of Y stock at
an option price equal to 85 percent of the fair market value of the
stock at exercise. The plan permits the carry forward of withheld
but unused amounts from an earlier offering. Prior to the exercise
date, $2,000 of T's salary has been withheld and is available to be
applied toward the purchase of Y stock. On the exercise date, the
fair market value of Y stock is $20 per share. T is able to purchase
100 shares of Y stock at $17 per share for an aggregate purchase
price of $1,700. T can carry forward $300 to the subsequent
offering. Each employee in the subsequent offering other than T will
be permitted to
[[Page 43886]]
make direct payments toward the purchase of shares under the
subsequent offering in a maximum amount of $300 less any amount the
employee has carried forward from an earlier offering. The plan does
not violate the equal rights and privileges requirement of this
paragraph (f).
(g) Option price--(1) An employee stock purchase plan must, by its
terms, provide that the option price will not be less than the lesser
of--
(i) An amount equal to 85 percent of the fair market value of the
stock at the time the option is granted, or
(ii) An amount that under the terms of the option may not be less
than 85 percent of the fair market value of the stock at the time the
option is exercised.
(2) The option price may be determined in any reasonable manner,
including the valuation methods permitted under Sec. 20.2031-2, so
long as the option price meets the minimum pricing requirements of this
paragraph (g). For general rules relating to the option price, see
paragraph (e) of Sec. 1.421-1. For rules relating to the determination
of when an option is granted, see paragraph (c) of Sec. 1.421-1 and
Sec. 1.423-2(h)(2). Any option that does not meet the minimum pricing
requirements of this paragraph (g) will not be treated as an option
granted under an employee stock purchase plan irrespective of whether
the plan or offering satisfies those requirements. If an option that
does not meet the minimum pricing requirements is granted to an
employee who is entitled to the grant of an option under the terms of
the plan or offering, and the employee is not granted an option under
such offering that qualifies as an option granted under an employee
stock purchase plan, the offering will not meet the requirements of
paragraph (e) of this section. Accordingly, none of the options granted
under the offering will be eligible for the special tax treatment of
section 421.
(3) The option price may be stated either as a percentage or as a
dollar amount. If the option price is stated as a dollar amount, then
the requirement of this paragraph (g) can only be met by a plan or
offering in which the price is fixed at not less than 85 percent of the
fair market value of the stock at the time the option is granted. If
the fixed price is less than 85 percent of the fair market value of the
stock at grant, then the option cannot meet the requirement of this
paragraph (g) even if a decline in the fair market value of the stock
results in such fixed price being not less than 85 percent of the fair
market value of the stock at the time the option is exercised, because
that result was not certain to occur under the terms of the option.
(4) Examples. The following examples illustrate the principles of
this paragraph (g):
Example 1. Corporation Z has an employee stock purchase plan
that provides that the option price will be 85 percent of the fair
market value of the stock on the first day of the offering (which is
the date of grant in this case), or 85 percent of the fair market
value of the stock at exercise, whichever amount is the lesser. Upon
the exercise of an option issued under Z's plan, Z agrees to accept
an option price that is less than the minimum amount allowable under
the terms of such plan. Notwithstanding that the option was issued
under an employee stock purchase plan, the transfer of stock
pursuant to the exercise of such option does not satisfy the
requirement of this paragraph (g) and cannot qualify for the special
tax treatment of section 421.
Example 2. Corporation AA has an employee stock purchase plan
that provides that the option price is set at 85 percent of the fair
market value of AA stock at exercise, but not less than $80 per
share. On the first day of the offering (which is the date of grant
in this case), the fair market value of AA stock is $100 per share.
The option satisfies the requirement of this paragraph (g), and can
qualify for the special tax treatment of section 421.
Example 3. Assume the same facts as in Example 2, except that
the option price is set at 85 percent of the fair market value of AA
stock at exercise, but not more than $80 per share. This option
cannot satisfy the requirement of this paragraph (g) irrespective of
whether, at the time the option is exercised, 85 percent of the fair
market value of AA stock is $80 or less.
(h) Option period--(1) An employee stock purchase plan must, by its
terms, provide that options granted under the plan cannot be exercised
after the expiration of 27 months from the date of grant unless, under
the terms of the plan, the option price is not less than 85 percent of
the fair market value of the stock at the time of the exercise of the
option. If the option price is not less than 85 percent of the fair
market value of the stock at the time the option is exercised, then the
option period provided under the plan must not exceed five years from
the date of grant. If the requirements of this paragraph (h) are not
met by the terms of the plan or offering, then options issued under
such plan or offering will not be treated as options granted under an
employee stock purchase plan irrespective of whether the options, by
their terms, are exercisable beyond the period allowable under this
paragraph (h). An option that provides that the option price is not
less than 85 percent of the fair market value of the stock at exercise
may have an option period of 5 years irrespective of whether the fair
market value of the stock at exercise is more or less than the fair
market value of the stock at grant. However, if the option provides
that the option price is 85 percent of the fair market value of the
stock at exercise, but not more than some other fixed amount determined
in accordance with the provisions of paragraph (g) of this section,
then irrespective of the price paid on exercise, the option period must
not be more than 27 months.
(2) Section 1.421-1(c) provides that, for purposes of Sec. Sec.
1.421-1 through 1.424-1, the language the date of the granting of the
option and the time such option is granted, and similar phrases refer
to the date or time when the granting corporation completes the
corporate action constituting an offer of stock for sale to an
individual under the terms and conditions of a statutory option. With
respect to options granted under an employee stock purchase plan, the
principles of Sec. 1.421-1(c) shall be applied without regard to the
requirement that the minimum option price must be fixed or determinable
in order for the corporate action constituting an offer of stock to be
considered complete.
(3) The date of grant will be the first day of an offering if the
terms of an employee stock purchase plan or offering designate a
maximum number of shares that may be purchased by each employee during
the offering. Similarly, the date of grant will be the first day of an
offering if the terms of the plan or offering require the application
of a formula to establish, on the first day of the offering, the
maximum number of shares that may be purchased by each employee during
the offering. It is not required that an employee stock purchase plan
or offering designate a maximum number of shares that may be purchased
by each employee during the offering or incorporate a formula to
establish a maximum number of shares that may be purchased by each
employee during the offering. If the maximum number of shares that can
be purchased under an option is not fixed or determinable until the
date the option is exercised, then the date of exercise will be the
date of grant of the option.
(4) Examples. The following examples illustrate the principles of
this paragraph (h):
Example 1. (i) Corporation BB has an employee stock purchase
plan that provides that the option price will be the lesser of 85
percent of the fair market value of the stock on the first day of an
offering or 85 percent of the fair market value of the stock on the
last day of the offering. Options are exercised on the last day of
the offering. One million shares of BB stock are reserved for
issuance under the plan. The plan provides that no employee may be
permitted to purchase
[[Page 43887]]
stock under the plan at a rate that exceeds $25,000 in fair market
value of the BB stock (determined on the date of grant) for each
calendar year during which an option granted to the employee is
outstanding and exercisable. The terms of each option granted under
an offering provide that a maximum of 500 shares may be purchased by
the option recipient during the offering. Because the maximum number
of shares that can be purchased under the option is fixed and
determinable on the first day of the offering, the date of grant for
the option is the first day of the offering.
(ii) Assume the same facts as in paragraph (i) of Example 1
except that BB's plan excludes all employees who have been employed
less than 18 months. The plan provides that employees who have not
yet met the minimum service requirements on the first day of an
offering will be granted an option on the date the 18-month service
requirement has been attained. With respect to those employees who
have been employed less than 18 months on the first day of an
offering, the date of grant for the option is the date the 18-month
service requirement has been attained.
Example 2. Assume the same facts as in paragraph (i) of Example
1 except that the terms of each option granted do not provide that a
maximum of 500 shares may be purchased by the option recipient
during the offering. Notwithstanding the fixed number of shares
reserved for issuance under the plan and the $25,000 limitation set
forth in the plan, the maximum number of shares that can be
purchased under the option is not fixed or determinable until the
last day of the offering when the option is exercised. Therefore the
date of grant for the option is the last day of the offering when
the option is exercised.
Example 3. Corporation CC has an employee stock purchase plan
that provides that the option price will be 85 percent of the fair
market value of the stock on the last day of the offering. Options
are exercised on the last day of the offering. Each offering under
the plan begins on January 1 and ends on December 31 of the same
calendar year. The terms of each option granted under an offering
provide that the maximum number of shares that may be purchased by
any employee during the offering equals $25,000 divided by the fair
market value of the stock on the first day of the offering. The
maximum number of shares that can be purchased under the option is
fixed and determinable on the first day of the offering and
therefore the date of grant for the option is the first day of the
offering.
Example 4. Assume the same facts as in Example 3 except that the
terms of each option granted under an offering provide that the
maximum number of shares that may be purchased by any employee
during the offering equals 10 percent of the employee's annual
salary (determined as of January 1 of the year in which the offering
commences) divided by the fair market value of the stock on the
first day of the offering. The maximum number of shares that can be
purchased under the option is fixed and determinable on the first
day of the offering and therefore the date of grant for the option
is the first day of the offering.
(i) Annual $25,000 limitation--(1) An employee stock purchase plan
must, by its terms, provide that no employee may be permitted to
purchase stock under all the employee stock purchase plans of the
employer corporation and its related corporations at a rate that
exceeds $25,000 in fair market value of the stock (determined at the
time the option is granted) for each calendar year in which any option
granted to the employee is outstanding at any time. In applying the
foregoing limitation--
(i) The right to purchase stock under an option is deemed to accrue
when the option (or any portion thereof) first becomes exercisable
during the calendar year;
(ii) The right to purchase stock under an option accrues at the
rate provided in the option, but in no case may such rate exceed
$25,000 of fair market value of such stock (determined at the time such
option is granted) for any one calendar year; and
(iii) A right to purchase stock that has accrued under one option
granted pursuant to the plan may not be carried over to any other
option.
(2) If an option is granted under an employee stock purchase plan
that satisfies the requirement of this paragraph (i), but the option
gives the optionee the right to buy stock in excess of the maximum rate
allowable under this paragraph (i), then no portion of the option will
be treated as having been granted under an employee stock purchase
plan. Furthermore, if the option was granted to an employee entitled to
the grant of an option under the terms of the plan or offering, and the
employee is not granted an option under the offering that qualifies as
an option granted under an employee stock purchase plan, then the
offering will not meet the requirements of paragraph (e) of this
section. Accordingly, none of the options granted under the offering
will be eligible for the special tax treatment of section 421.
(3) The limitation of this paragraph (i) applies only to options
granted under employee stock purchase plans and does not limit the
amount of stock that an employee may purchase under incentive stock
options (as defined in section 422(b)) or any other stock options
except those to which section 423 applies. Stock purchased under
options to which section 423 does not apply will not limit the amount
that an employee may purchase under an employee stock purchase plan,
except for purposes of the 5-percent stock ownership provision of
paragraph (d) of this section.
(4) Under the limitation of this paragraph (i), an employee may
purchase up to $25,000 of stock (based on the fair market value of the
stock at the time the option was granted) in each calendar year during
which an option granted to the employee under an employee stock
purchase plan is outstanding and exercisable. Alternatively, an
employee may purchase more than $25,000 of stock (based on the fair
market value of such stock at the time the option was granted) in a
calendar year, so long as the total amount of stock that the employee
purchases does not exceed $25,000 in fair market value of the stock
(determined at the time the option was granted) for each calendar year
in which the option was outstanding and exercisable. If, in any
calendar year, the employee holds two or more outstanding and
exercisable options granted under employee stock purchase plans of the
employer corporation, or a related corporation, then the employee's
purchases of stock attributable to that year under all options granted
under employee stock purchase plans must not exceed $25,000 in fair
market value of the stock (determined at the time the options were
granted). Under an employee stock purchase plan, an employee may not
purchase stock in anticipation that the option will be outstanding and
exercisable in some future year. Thus, the employee may purchase only
the amount of stock that does not exceed the limitation of this
paragraph (i) for the year of the purchase and for preceding years
during which the option was outstanding and exercisable. Thus, the
amount of stock that may be purchased under an option depends on the
number of years in which the option is actually outstanding and
exercisable. The amount of stock that may be purchased under an
employee stock purchase plan may not be increased by reason of the
failure to grant an option in an earlier year under such plan, or by
reason of the failure to exercise an earlier option. For example, if an
option is granted to an individual and expires without having been
exercised at all, then the failure to exercise the option does not
increase the amount of stock which such individual may be permitted to
purchase under an option granted in a year following the year of such
expiration. If an option granted under an employee stock purchase plan
is outstanding and exercisable in more than one calendar year, then
stock purchased pursuant to the exercise of such an option will be
applied first, to the extent allowable under this paragraph (i),
against the $25,000 limitation for the earliest year in which the
option was outstanding
[[Page 43888]]
and exercisable, then, against the $25,000 limitation for each
succeeding year, in order.
(5) Examples. The following examples illustrate the principles of
this paragraph (i):
Example 1. Assume that Corporation DD maintains an employee
stock purchase plan and that Employee S is employed by DD. On June
1, 2010, DD grants S an option under the plan to purchase a total of
750 shares of DD stock at $85 per share. On that date, the fair
market value of DD stock is $100 per share. The option provides that
it may be exercised at any time but cannot be exercised after May
31, 2012. Under this paragraph (i), the option must not permit S to
purchase more than 250 shares of DD stock during the calendar year
2010, because 250 shares are equal to $25,000 in fair market value
of DD stock determined at the time of grant. During the calendar
year 2011, S may purchase under the option an amount of DD stock
equal to the difference between $50,000 in fair market value of DD
stock (determined at the time the option was granted) and the fair
market value of DD stock (determined at the time of grant of the
option) purchased during the year 2010. During the calendar year
2012, S may purchase an amount of DD stock equal to the difference
between $75,000 in fair market value of the stock (determined at the
time of grant of the option) and the total amount of the fair market
value of the stock (determined at the time of grant of the option)
purchased under the option during the calendar years 2010 and 2011.
S may purchase $25,000 of stock for the year 2010, and $25,000 of
stock for the year 2012, although the option was outstanding and
exercisable for only a part of each of such years. However, S may
not be granted another option under an employee stock purchase plan
of DD or a related corporation to purchase stock of DD or a related
corporation during the calendar years 2010, 2011, and 2012, so long
as the option granted June 1, 2010, is outstanding.
Example 2. Assume the same facts as in Example 1, except that
the option granted to S in 2010 is terminated in 2011 without any
part of the option having been exercised, and that subsequent to the
termination and during 2011, S is granted another option under DD's
employee stock purchase plan. Under that option, S may be permitted
to purchase $25,000 of stock for 2011. The failure of S to exercise
the option granted to S in 2010, does not increase the amount of
stock that S may be permitted to purchase under the option granted
to S in 2011.
Example 3. Assume the same facts as in Example 1, except that,
on May 31, 2012, S exercised the option granted to S in 2010, and
purchased 600 shares of DD stock. Five hundred shares, the maximum
amount of stock that could have been purchased in 2011, under the
option, are treated as having been purchased for the years 2010 and
2011. Only 100 shares of the stock are treated as having been
purchased for 2012. After S's exercise of the option on May 31,
2012, S is granted another option under DD's employee stock purchase
plan. S may be permitted under the new option to purchase for 2012
stock having a fair market value of no more than $15,000 at the time
the new option is granted.
Example 4. Corporation EE maintains an employee stock purchase
plan and Employee R is employed by EE. On August 1, 2010, EE grants
R an option under the plan to purchase 150 shares of EE stock at $85
per share during each of the calendar years 2010, 2011, and 2012. On
that date, the fair market value of EE stock is $100 per share. The
option provides that it may be exercised at any time during years
2010, 2011, and 2012. Because this option permits R to purchase only
$15,000 of EE's stock for each year the option is outstanding and
exercisable, R could be granted another option by EE, or by a
related corporation, in year 2010, permitting R to purchase an
additional $10,000 of stock during each of the calendar years 2010,
2011, and 2012.
Example 5. Corporation FF maintains an employee stock purchase
plan and Employee Q is employed by FF. On September 1, 2010, FF
grants Q an option under the plan that will be automatically
exercised on August 31, 2011, and August 31, 2012. On August 31,
2011, Q may purchase under the option an amount of FF stock equal to
$25,000 in fair market value of FF stock (determined at the time the
option was granted). On August 31, 2012, Q may purchase under the
option an amount of FF stock equal to the difference between $50,000
in fair market value of Q stock (determined at the time the option
was granted) and the fair market value of Q stock (determined at the
time of grant of the option) purchased during year 2011.
(j) Restriction on transferability. An employee stock purchase plan
must, by its terms, provide that options granted under the plan are not
transferable by the optionee other than by will or the laws of descent
and distribution, and must be exercisable, during the optionee's
lifetime, only by the optionee. For general rules relating to the
restriction on transferability required by this paragraph (j), see
paragraph (b)(2) of Sec. 1.421-1. For a limited exception to the
requirement of this paragraph (j), see section 424(h)(3).
(k) Special rule where option price is between 85 percent and 100
percent of value of stock--(1)(i) If all the conditions necessary for
the application of section 421(a) exist, this paragraph (k) provides
additional rules that are applicable in cases where, at the time the
option is granted, the option price per share is less than 100 percent
(but not less than 85 percent) of the fair market value of the share.
In that case, upon the disposition of the share by the employee after
the expiration of the two-year and the one-year holding periods, or
upon the employee's death while owning the share (whether occurring
before or after the expiration of such periods), there shall be
included in the employee's gross income as compensation (and not as
gain upon the sale or exchange of a capital asset) the lesser of--
(A) The amount, if any, by which the price paid under the option
was exceeded by the fair market value of the share at the time the
option was granted, or
(B) The amount, if any, by which the price paid under the option
was exceeded by the fair market value of the share at the time of such
disposition or death.
(ii) For purposes of applying the rules of this paragraph (k), if
the option price is not fixed or determinable at the time the option is
granted, the option price will be computed as if the option had been
exercised at such time. The amount of compensation resulting from the
application of this paragraph (k) shall be included in the employee's
gross income for the taxable year in which the disposition occurs, or
for the taxable year closing with the employee's death, whichever event
results in the application of this paragraph (k).
(iii) The application of the special rules provided in this
paragraph (k) shall not affect the rules provided in section 421(a)
with respect to the employee exercising the option, the employer
corporation, or a related corporation. Thus, notwithstanding the
inclusion of an amount as compensation in the gross income of an
employee, as provided in this paragraph (k), no income results to the
employee at the time the stock is transferred to the employee, and no
deduction under section 162 is allowable at any time to the employer
corporation or a related corporation with respect to such amount.
(iv) If, during the employee's lifetime, the employee exercises an
option granted under an employee stock purchase plan, but the employee
dies before the stock is transferred to the employee pursuant to the
exercise of the option, then the transfer of the stock to the
employee's executor, administrator, heir, or legatee is deemed, for the
purpose of sections 421 and 423, to be a transfer of the stock to the
employee exercising the option and a further transfer by reason of
death from the employee to the employee's executor, administrator,
heir, or legatee.
(2) If the special rules provided in this paragraph (k) are
applicable to the disposition of a share of stock by an employee, then
the basis of the share in the employee's hands at the time of the
disposition, determined under section 1011, shall be increased by an
amount equal to the amount includible as compensation in the employee's
gross income under this paragraph (k). However, the basis of a share of
stock
[[Page 43889]]
acquired after the death of an employee by the exercise of an option
granted to the employee under an employee stock purchase plan shall be
determined in accordance with the rules of section 421(c) and paragraph
(c) of Sec. 1.421-2. If the special rules provided in this paragraph
(k) are applicable to a share of stock upon the death of an employee,
then the basis of the share in the hands of the estate or the person
receiving the stock by bequest or inheritance shall be determined under
section 1014, and shall not be increased by reason of the inclusion
upon the decedent's death of any amount in the decedent's gross income
under this paragraph (k). See Example (9) of this paragraph with
respect to the determination of basis of the share in the hands of a
surviving joint owner.
(3) Examples. The following examples illustrate the principles of
this paragraph (k):
Example 1. On June 1, 2010, the Corporation GG grants to
Employee P, an employee of GG, an option under GG's employee stock
purchase plan to purchase a share of GG stock for $85. The fair
market value of GG stock on such date is $100 per share. On June 1,
2011, P exercises the option and on that date GG transfers the share
of stock to P. On January 1, 2013, P sells the share for $150, its
fair market value on that date. P's income tax return is filed on
the basis of the calendar year. The income tax consequences to P and
GG are as follows--
(i) Compensation in the amount of $15 is includible in P's gross
income for the year 2013, the year of the disposition of the share.
The $15 represents the difference between the option price ($85) and
the fair market value of the share on the date the option was
granted ($100), because the value is less than the fair market value
of the share on the date of disposition ($150). For the purpose of
computing P's gain or loss on the sale of the share, P's cost basis
of $85 is increased by $15, the amount includible in P's gross
income as compensation. Thus, P's basis for the share is $100.
Because the share was sold for $150, P realizes a gain of $50, which
is treated as long-term capital gain; and
(ii) GG is not entitled to any deduction under section 162 at
any time with respect to the share transferred to P.
Example 2. Assume the same facts as in Example 1, except that P
sells the share of GG stock on January 1, 2014, for $75, its fair
market value on that date. Because $75 is less than the option price
($85), no amount in respect of the sale is includible as
compensation in P's gross income for the year 2014. P's basis for
determining gain or loss on the sale is $85. Because P sold the
share for $75, P realized a loss of $10 on the sale that is treated
as a long-term capital loss.
Example 3. Assume the same facts as in Example 1, except that
the option provides that the option price shall be 90 percent of the
fair market value of the stock on the day the option is exercised.
On June 1, 2011, when the option is exercised, the fair market value
of the stock is $120 per share so that P pays $108 for the share of
the stock. Compensation in the amount of $10 is includible in P's
gross income for the year 2013, the year of the disposition of the
share. This is determined in the following manner: the excess of the
fair market value of the stock at the time of the disposition ($150)
over the price paid for the share ($108) is $42; and the excess of
the fair market value of the stock at the time the option was
granted ($100) over the option price, computed as if the option had
been exercised at such time ($90), is $10. Accordingly, $10, the
lesser, is includible in gross income. In this situation, P's cost
basis of $108 is increased by $10, the amount includible in P's
gross income as compensation. Thus, P's basis for the share is $118.
Because the share was sold for $150, P realizes a gain of $32 that
is treated as long-term capital gain.
Example 4. Assume the same facts as in Example 1, except that
the option provides that the option price shall be the lesser of 95
percent of the fair market value of the stock on the first day of
the offering period and 95 percent of the fair market value of the
stock on the day the option is exercised. On June 1, 2011, when the
option is exercised, the fair market value of the stock is $120 per
share. P pays $95 for the share of the stock. Compensation in the
amount of $5 is includible in P's gross income for the year 2013,
the year of the disposition of the share. This is determined in the
following manner: the excess of the fair market value of the stock
at the time of the disposition ($150) over the price paid for the
share ($95) is $55; and the excess of the fair market value of the
stock at the time the option was granted ($100) over the option
price, computed as if the option had been exercised at such time
($95), is $5. Accordingly, $5, the lesser, is includible in gross
income. In this situation, P's cost basis of $95 is increased by $5,
the amount includible in P's gross income as compensation. Thus, P's
basis for the share is $100. Because the share was sold for $150, P
realizes a gain of $50 that is treated as long-term capital gain.
Example 5. Assume the same facts as in Example 1, except that
instead of selling the share on January 1, 2013, P makes a gift of
the share on that day. In that case $15 is includible as
compensation in P's gross income for 2013. P's cost basis of $85 is
increased by $15, the amount includible in P's gross income as
compensation. Thus, P's basis for the share is $100, which becomes
the donee's basis, as of the time of the gift, for determining gain
or loss.
Example 6. Assume the same facts as in Example 2, except that
instead of selling the share on January 1, 2014, P makes a gift of
the share on that date. Because the fair market value of the share
on that day ($75) is less than the option price ($85), no amount in
respect of the disposition by way of gift is includible as
compensation in P's gross income for 2014. P's basis for the share
is $85, which becomes the donee's basis, as of the time of the gift,
for the purpose of determining gain. The donee's basis for the
purpose of determining loss, determined under section 1015(a), is
$75 (fair market value of the share at the date of gift).
Example 7. Assume the same facts as in Example 1, except that
after acquiring the share of stock on June 1, 2011, P dies on August
1, 2012, at which time the share has a fair market value of $150.
Compensation in the amount of $15 is includible in P's gross income
for the taxable year closing with P's death, $15 being the
difference between the option price ($85) and the fair market value
of the share when the option was granted ($100), because such value
is less than the fair market value at date of death ($150). The
basis of the share in the hands of P's estate is determined under
section 1014 without regard to the $15 includible in the decedent's
gross income.
Example 8. Assume the same facts as in Example 7, except that P
dies on August 1, 2011, at which time the share has a fair market
value of $150. Although P's death occurred within six months after
the transfer of the share to P, the income tax consequences are the
same as in Example 7.
Example 9. Assume the same facts as in Example 1, except that
the share of stock was issued in the names of P and P's spouse
jointly with right of survivorship, and that P and P's spouse sold
the share on June 15, 2012, for $150, its fair market value on that
date. Compensation in the amount of $15 is includible in P's gross
income for the year 2012, the year of the disposition of the share.
The basis of the share in the hands of P and P's spouse for the
purpose of determining gain or loss on the sale is $100, that is,
the cost of $85 increased by the amount of $15 includible as
compensation in P's gross income. The gain of $50 on the sale is
treated as long-term capital gain, and is divided equally between P
and P's spouse.
Example 10. Assume the same facts as in Example 1, except that
the share of stock was issued in the names of P and P's spouse
jointly with right of survivorship, and that P predeceased P's
spouse on August 1, 2012, at which time the share had a fair market
value of $150. Compensation in the amount of $15 is includible in
P's gross income for the taxable year closing with his death. See
Example 7. The basis of the share in the hands of P's spouse as
survivor is determined under section 1014 without regard to the $15
includible in the decedent's gross income.
Example 11. Assume the same facts as in Example 10, except that
P's spouse predeceased P on July 1, 2012. Section 423(c) does not
apply in respect of the death of P's spouse. Upon the subsequent
death of P on August 1, 2012, the income tax consequences in respect
of P's taxable year closing with the date of P's death, and in
respect of the basis of the share in the hands of P's estate, are
the same as in Example 7. If P had sold the share on July 15, 2012
(after the death of P's spouse), for $150, its fair market value at
that time, the income tax consequences would be the same as in
Example 1.
(l) Effective/applicability date. Upon the date of publication of
the Treasury decision adopting the rules of this section as a final
regulation in the
[[Page 43890]]
Federal Register, these rules will apply as of January 1, 2010.
Linda E. Stiff,
Deputy Commissioner for Services and Enforcement.
[FR Doc. E8-17255 Filed 7-28-08; 8:45 am]
BILLING CODE 4830-01-P