S corporations, and for grants of equity options to non-employees (such as directors or independent contractors), NSOs may still be awarded. 1. Advantages to equity option awards include the following: • The employee is generally incentivized to increase the value of the company, and equity options permit the employee to participate in the company’s growth. • The employee eventually becomes an owner of the company. • The employee has flexibility in electing when to exercise the option once it has vested. 2. Disadvantages to equity option awards include the following: • The employee must have sufficient cash to pay the exercise price. • The fair market value (FMV) of the company on the grant date is often difficult to determine and may be subject to an approved valuation method under IRC Section 409A. • The employee receives no ownership rights at the time of grant; rather, the benefit is deferred to the date on which the employee exercises the option. • The current owners’ holdings are diluted by the service provider’s award upon vesting and exercise. 3. Taxation of Equity Options a. Non-Qualified Equity Options Under IRC Section 83, an employee recognizes ordinary income in connection with an NSO either 1) at the time of grant if the option has a readily ascertainable FMV at the time of its grant, or 2) (more typically) at the time of exercise if the option did not have a readily ascertainable FMV at the time of its grant. NSOs are not subject to tax at vesting. NSOs are not categorically exempt from IRC Section 409A and must be structured carefully to avoid its implications. b. Incentive Stock Options ISOs are subject to more restrictions than NSOs, but ISOs are categorically exempt from IRC Section 409A, and employees receive more favorable tax treatment under ISOs. To qualify as an ISO under IRC Section 422, the option must have certain characteristics and restrictions set forth in a formal plan approved by the owners of the issuing entity. ISOs are not subject to ordinary income taxes for employees at grant, vesting, or exercise if (1) the shares are held for both (i) one year from the date of exercise, and (ii) two years from the grant date; and (2) the holder exercises the ISO while still an employee or within three months after terminating employment. The employee defers any income tax on exercise until the shares purchased on exercise are ultimately sold. If the shares acquired by the employee on exercise are held for the requisite time periods, then when the shares are sold, the employee only recognizes long-term capital gain treatment on the difference between the sale price and the exercise price. If the shares are not held for the requisite time periods, then the option loses its status as an ISO and is instead treated as an NSO for tax purposes. C. Phantom Equity Phantom equity represents an employer’s unsecured and unfunded promise to make a cash payment to a service provider at a specified time in the future, equal to the value of a specified number of company shares or units. Unlike equity options and restricted equity, phantom equity does not convey any actual ownership in the business. Therefore, a phantom equity award permits the employee to share in the company’s success without having any actual equity in the business. 1. Advantages to phantom equity awards include the following: • The employee’s compensation is tied to the financial success of the company without diluting ownership. • The employee need not pay any amount to receive the cash benefit. • The award is a cash payment, avoiding problems with lack of marketability generally associated with units in a closely held LLC and any issues associated with transferability restrictions. • Little to no governance changes would need to be made to governing documents. 2. Possible disadvantages to phantom equity awards include the following: • The company must have sufficient cash flow to make a cash payment to the employee upon vesting and settlement of the award. • Because phantom equity grants no actual ownership interest in the company, employees may not be as incentivized to contribute to the company’s growth as had they been granted restricted equity or equity options. 3. Taxation of Phantom Equity Awards There is no transfer of value when a phantom equity award is granted to an employee and thus no taxation until the phantom stock vests and is settled. There is, however, a bifurcation of tax treatment at vesting and settlement. So long as the award is exempt from or complies with IRC Section 409A, there are no federal income tax consequences at vesting, but the FMV of the phantom equity award is subject to FICA taxes at vesting. At settlement, the employee recognizes taxable compensation in an amount equivalent to the value paid. D. Profits Interest A profits interest is an equity grant used exclusively by partnerships (or entities taxed as partnerships) that entitles the holder to a share of future profits, but not to the capital of the company. 1. Advantages of a profits interests plan include the following: • The employee is generally incentivized to increase the value of the business because the employee shares in the business’ growth. • The employee becomes a partner at the time of grant. • The employee need not pay any amount to receive the profits interest. 2. Disadvantages of a profits interests plan include the following: • The current owners will be diluted as to future profits of the company. Continued from page 17 ► 18 Nebraska CPA
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