Employee Stock Options: Tax Treatment and Tax Issues

James M. Bickley
Specialist in Public Finance


The practice of granting a company's employees options to purchase the company's stock has become widespread among American businesses. Employee stock options have been praised as innovative compensation plans that help align the interests of the employees with those of the shareholders. They have also been condemned as schemes to enrich insiders and avoid company taxes. 

The tax code recognizes two general types of employee options, "qualified" and nonqualified. Qualified (or "statutory") options include "incentive stock options," which are limited to $100,000 a year for any one employee, and "employee stock purchase plans," which are limited to $25,000 a year for any employee. Employee stock purchase plans must be offered to all fulltime employees with at least two years of service; incentive stock options may be confined to officers and highly paid employees. Qualified options are not taxed to the employee when granted or exercised (under the regular tax); tax is imposed only when the stock is sold. If the stock is held one year from purchase and two years from the granting of the option, the gain is taxed as long-term capital gain. The employer is not allowed a deduction for these options. However, if the stock is not held the required time, the employee is taxed at ordinary income tax rates and the employer is allowed a deduction. The value of incentive stock options is included in minimum taxable income for the alternative minimum tax in the year of exercise; consequently, some taxpayers are liable for taxes on "phantom" gains from the exercise of incentive stock options. On October 3, 2008, the Emergency Economic Stabilization Act of 2008 (P.L. 110-343) was enacted. This law included provisions that provided abatement of any taxes still owed on "phantom" gains. 

Nonqualified options may be granted in unlimited amounts; these are the options making the news as creating large fortunes for officers and employees. They are taxed when exercised and all restrictions on selling the stock have expired, based on the difference between the price paid for the stock and its market value at exercise. The company is allowed a deduction for the same amount in the year the employee includes it in income. They are subject to employment taxes also. Although taxes are postponed on nonqualified options until they are exercised, the deduction allowed the company is also postponed, so there is generally little if any tax advantage to these options. 

This report explains the "book-tax gap" as it relates to stock options and S. 1491 (Ending Excessive Corporate Deductions for Stock Options Act). U.S. businesses are subject to a dual reporting system. One set of rules applies when they report financial or "book" profits to the public. Another set of rules applies when they report taxable income to the Internal Revenue Service. The "book-tax" gap is the excess of reported financial accounting income over taxable income. The following seven key laws and regulations concerning stock options are described: Section 162(m)—"Excessive Remuneration," Sarbanes-Oxley Act: Stock Option Disclosure Reforms, SEC's 2003 Requirement of Approval of Compensation Plans, FASB Rule for Expensing Stock Options, American Jobs Creation Act of 2004 (Section 409A), IRS Schedule M- 3, and SEC's 2006 Executive Compensation Disclosure Rules. Finally, this report examines the issue that some companies backdated options (retroactively selected, without disclosure, dates for granting options) to times when prices of their stock were low. 

This report will be updated as issues develop and any new legislation is introduced.


Date of Report: January 8, 2009
Number of Pages: 22
Order Number: RL31458
Price: $29.95

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