November 15, 2017

After Last-Minute Reversals, Current Tax Reform Now Supports Broad-Based Equity Compensation

As of a few days ago, it appeared that the new tax reform bills in both the House and the Senate would tax equity compensation grants when they vested. The House version applied to all equity grants; the Senate version excluded qualifying dispositions on incentive stock options and employee stock purchase plan (ESPP) shares. The provisions would dramatically reduce the incentives for companies to use broad-based equity compensation. But now both the Senate (in the new Chairman's Mark being marked up as this is being posted) and the House have dropped these provisions. The original inclusion of the provisions came as a complete surprise to people working in the field; the deletion of the provisions came with no more explanation than their inclusion.

The bills now both include a modified version of the Empowering Employee Ownership Act (EEOA), explained in more detail below. For private companies that provide broad-based equity awards that are not liquid, the EEOA would allow employees up to five years after termination of employment to sell their shares before paying taxes.

Under the new rules, employees with stock options and restricted stock units could make an election to defer tax not less than 30 days before an award is fully vested or becomes transferable, even if they have left the company. They would not have to pay taxes until the earliest of the events listed below:

  • The date when the shares are publicly traded.
  • The date that is five years after the first date the rights of the employee in such stock are transferable or are not subject to a substantial risk of forfeiture, whichever occurs earlier.
  • The date the employee revokes the special tax status of the award.
  • The date on which the employee becomes an "excluded employee."

"Excluded employees" include 1% owners, CEOs and CFOs, and any of the top four compensated employees at any time during the last 10 years. None of these can qualify for the deferral, and any employees who become excluded lose their preferential treatment. The equity grants must be available to 80% of the workforce. Rules for meeting the 80% test would be similar to those for ESPPs. The election to defer tax would follow the same procedures now available for making a Section 83(b) election.

The new provisions would have limited applicability—most plans in private companies are not sufficiently broad-based to qualify, and many that are use synthetic equity arrangements or restricted stock grants not covered by this law, or provide vesting on liquidity.