I often get asked by clients whether they should use stock options, the typical “currency” of choice for their employees, or some form of restricted stock. The answer I give is that, if you and the employee can afford it generally, the use of giving restricted stock to the employee can be much more beneficial to them. Let’s first though, understand how each of these forms of grants works and the reasons to use them in different situations.
Restricted stock is just that, an actual stock certificate that will enable the holder to become a full stockholder once some specific restriction lapses. The typical restriction is time base, usually is something like a 4 year vesting period. However, it can be event-based too, like a change of control in the future that would allow the restriction to be released. As restrictions begin to lapse, the holder pays tax on the value at that time.
An Option, on the other hand, is just that. It is an opportunity or an option, that can allow the employee to EXERCISE that option, and pay an exercise price that is determined when granted. After exercise, they would become a stockholder. The problem with most option grants is that 1) they usually don’t allow exercise until sometime in the future, with the impact being delaying them from becoming a shareholder (and usually at a higher price), and 2), they will not qualify for long term capital gains rates until one year from the EXERCISE date and two years from the grant date.
The IRS allows, though, for restricted stockholders, the ability to elect to “pay” the tax when granted. One would make this election by filing what they call an 83b election, which is a one-page form that must be filed and MUST be received by the IRS within 30 days from the stock grant. The benefit here is obvious. The employee can elect to pay the tax on any excess value of the stock over a payment amount (if there is one) today and in essence, “lock-in“ the value early on. In addition, this allows the employee to begin the capital gain holding period from the date the stock was awarded and the 83b was filed instead of in the future, like an option.
The one downside of filing an early 83b election is that if the employee leaves before the restriction period is over, the employee would forfeit the unvested or unearned stock. In addition, the other risk is that if the value decreases over time after the election to pay the tax has been made the employee would be stuck paying the taxes on underwater stock.
My advice generally is that the use of an 83b election with a restricted stock grant is a great benefit to the employee potentially down the road and that the upside, generally, far outweighs the downside. Using restricted stock when the value of the stock is low in my mind is a “no brainer”. It will generally not cost the employee a lot of tax at exercise or cash to exercise the stock and the long-term capital gain treatment benefit could be huge down the road.
Your KN+S tax advisor is happy to chat with you about this more if you like. We are here at 781-453-8700.
Jeffrey Solomon, CPA, CVA, Managing Shareholder at Katz, Nannis + Solomon, P.C. If you have any questions or would like to speak with one of our tax professionals, please contact our office at 781-453-8700.