The Employee Ownership Update
January 15, 2008
New Guidance on ESPP and ISO ReportingEmployers do not need to report the exercise of incentive stock options and sale of employee stock purchase plan shares to the IRS for 2007 transactions. On December 19, 2007, the IRS issued Notice 2008-8, pushing back the deadline for reporting to the IRS because it has yet to produce regulations expanding the requirements under Internal Revenue Code Section 6039. The Tax Relief and Health Care Act of 2006 amended the information reporting requirements of Section 6039 concerning exercises of incentive stock options (ISOs) and sales of shares acquired under tax-qualified employee stock purchase plans (ESPPs) to require reporting to the IRS.
The extension does not waive the existing Section 6039 requirement that corporations furnish a written statement to each employee reflecting such transactions. These statements are due on or before January 31 of the year following the year of the transaction.
The amended Section 6039 requires corporations, starting in 2008 for transactions that occurred during 2007, to file information returns with the IRS in addition to providing the information to the employee. The timing and manner in which the information must be reported to the IRS will be set forth in regulations that have not yet been issued. Guidance is expected in the near future.
French Prime Minister Wants to Democratize Stock OptionsFrench Prime Minister Francois Fillon has announced that the government will introduce legislation to prohibit companies from providing stock options to their top executives unless they make the options widely available. Details of the legislation are not yet available. In his campaign, President Nicolas Sarkozy urged that option rights be democratized.
Developments in Stock Drop Cases in 2007Lawsuits continue to be filed in stock drop cases for ESOPs and, more often, 401(k) plans invested in company stock in 2007, but the pace of new filings has dropped to a trickle. About 80 cases are still in one stage of litigation or another, and few final settlements in or out of court have been reached.
The most significant development of the year was that three appeals courts each ruled that participants who had been paid out of plans and later alleged that fiduciary abuses had caused them to suffer losses could sue to recover their own alleged individual losses, rather than just being able to sue for equitable relief (meaning benefits would have to be restored in the plan, something of little practical value to them). Until 2007, courts generally ruled that paid out employees lacked standing to sue for individual damages, but the appeals courts all concluded this left employees with no practical remedy. Just how the tricky issue of how much the damage cost the employees (assuming the court agrees there were fiduciary abuses) remains unresolved. For instance, if the stock hit a high of $85, then fiduciaries ignored information that would lead it to fall to $35, is the damage $50 per share? Is the highest value the right reference point? Might the shares have dropped some amount even absent the impact of the information? Courts will have to sort that out in the future.
The lawsuits and changes in rules for diversification in 401(k) plans have led the amount of employer stock in 401(k) plans to drop from 19% in 2002 to 11% in 2006.